“Waters of the U. S.” - What’s Not to Understand?

Posted on November 26, 2013 by Rick Glick

EPA and the Army Corps of Engineers continue their ongoing effort to bring clarity to the tangled mess wrought by the Supreme Court in Rapanos v. U. S. In that 2006 case, a fractured Court issued five separate opinions on the jurisdictional reach of the Clean Water Act.  Congress didn’t help in the first place by extending such jurisdiction to “navigable” waters, defined in the Act as “waters of the United States” without further elucidation.  EPA and the Corps have developed new rules now under review by the Office of Management and Budget prior to release for public comment.

The agencies and the courts have long struggled with a workable definition of “waters of the United States,” particularly in the context of filling wetlands.  The Supreme Court previously held that wetlands adjacent to navigable waters are jurisdictional because of their ecological connection to those waters, but isolated wetlands in the Pacific Flyway are not.  In Rapanos, a four member plurality in an opinion by Justice Scalia limited jurisdiction to areas that are wet with flowing or standing water on a more or less regular basis, which would exclude many areas that appear dry but meet the agency definition of wetlands.  The determinative fifth vote, however, was from Justice Kennedy, who applied a different test, requiring only a “significant nexus” between the navigable waterways and the wetland. 

Since Rapanos, many courts have been unable to discern guiding precedent and adopted hybrids of the Scalia and Kennedy tests. In the meantime, the agencies on two occasions have adopted guidance to help permit writers and the regulated community recognize jurisdictional wetlands.  The agencies’ latest effort would go beyond guidance to rules having the force of law. 

The rules define jurisdictional waters of the United States to include categories of wet areas, such as tributaries of navigable waterways.  The rules would exclude drainage ditches excavated on uplands or other artificially wet areas, such as waste treatment systems or irrigated lands.  The expectation is that by establishing by rule categories of jurisdictional waters that per se have a significant nexus to navigable waters, the cost of permitting and litigation would decrease, while certainty for land developers would increase. 

The rules are based on a report by EPA staff that compiles and synthesizes peer-reviewed scientific research on the relationship between tributaries, wetlands and open waters.  The report is under review by EPA’s Science Advisory Board, and EPA has said the rules would not be released for public comment until that review is complete. 

Still, the fact that the rules were developed before the report and Science Advisory Board review is complete has drawn criticism from Congressional Republicans.  They charge that the report is just window dressing for EPA doing what it wants.  In a letter dated November 13 to EPA, the Senate and House Western caucuses urge EPA to withdraw the rule “based on the devastating economic impacts that a federal takeover of state waters would have.”

The prospect of having rules in place to define jurisdictional waters is, on its face, a positive development because of the uncertainty that now pervades this area.  However, in addition to Congressional resistance, the goal of avoiding litigation will likely prove elusive.  If challenged, the agencies will be entitled to a measure of deference once the rules are adopted, but we can safely predict there will be many challenges.  

Once the rules clear OMB and the Science Advisory Board, they will be published for public comment.  Watch this space for updates.

Adaptation: Getting the Roles Right

Posted on November 25, 2013 by Jonathan Z. Cannon

In 2010, the National Academy of Sciences Committee on Climate Choices came out with a series of reports on the challenges facing the nation on climate change.  One of the reports dealt with adaptation – coping with the impacts of climate change that we cannot, or chose not, to avoid through mitigation. This report considered three possible models for federal-state-local relationships in adaptation. One model entailed a centralized adaptation program, “nested in a body of federal government laws, regulations, and institutions.” A second was a bottoms-up approach, largely self-driven by state and local actors. The third was an “intermediate approach,” in which adaptation decisions are largely decentralized but in which the federal government acts “a catalyst and coordinator” in adaptation policymaking. In true Goldilocks fashion, the NAS panel recommended the intermediate approach as “just right.”

It now looks as if the Obama administration is crediting that intermediate course in its climate adaptation policy – and appropriately so.  By contrast to mitigation, adaption presents as a local or regional problem, dealing with climate change effects that vary across regions and localities – wildfires in the west, flooding on the Gulf and Atlantic Coasts, tornadoes in the Midwest.  The law and policy of adaptation therefore should have a strong regional and local orientation.

Beginning in 2009, President Obama has taken a series of steps to get the federal government’s own house in order in understanding and adapting to climate change. [Reference Steve McKinney’s blog posting 11.6.2013] More recently, however, the focus has expanded to include coordination with states, tribes and localities – the decisionmakers on adaptation’s front line. The adaptation portion of the President’s Climate Action Plan announced in June of this year ordered the creation of a task force of state, local, and tribal officials to advise on key actions the federal government can take to help strengthen communities on the ground. (E.g.,“will provide recommendations on removing barriers to resilient investments, modernizing grant and loan programs to better support local efforts, and developing information and tools to better serve communities.”) 

On November 1, the President announced the members of the Task Force on Climate Preparedness and Resilience -- governors, mayors and tribal leaders -- and further elaborated its mandate: to make recommendations for steps the federal government can take to facilitate adaptive measures at the point of potential impact and to “otherwise support state, local and tribal preparedness for and resilience to climate change.”  Although the task force is set to terminate within 6 months of making its recommendations, it represents a step in the direction of NAS’s collaborative model.  Hopefully, it won’t be the last.

EPA’s Greenhouse Gas Regulation Dodges a Bullet

Posted on November 22, 2013 by Leslie Carothers

Commentary on the Supreme Court’s grant of certiorari in the greenhouse gas case has addressed the question taken for review:  whether EPA permissibly decided that regulating motor vehicle greenhouse gas emissions triggered permitting regulations for stationary sources like power plants. (See Garrett and Buente blogs).  This is an interesting question of statutory interpretation, but it may be more important that the Court declined to review EPA’s fundamental finding that greenhouse gases “may reasonably be anticipated to endanger public health or welfare.”  The D.C. Circuit panel in the case agreed with EPA that the scientific evidence amply supported action under the precautionary standard of endangerment which  allowed the agency to act in the face of scientific uncertainty and without a complete  quantification of risks, costs, and benefits of regulation.  Relying on its 1976 decision upholding EPA’s regulation of lead additives in gasoline under the same part of the Clean Air Act, the D.C. Circuit panel had no difficulty concluding that EPA had made the case for control of greenhouse gases from motor vehicles as a precautionary rule.  This holding and its reasoning will be important support to EPA as the agency moves forward with the more complex and costly initiative to set emission standards for power plants.  Electric generating plants contributed over 38% of U.S. CO2 emissions in 2012, with coal-fired plants accounting for nearly three quarters of those emissions. 

Some observers may have dismissed the possibility of Supreme Court review of the endangerment finding considering the strength and complexity of the scientific evidence.  However, a Court that has eviscerated federal campaign finance and voting rights law, disregarding congressional intent and its own precedents, can’t be counted on to defer to a science-based EPA decision just because the overwhelming majority of scientists endorses the agency’s conclusions.  Some of the justices may well agree with Judge Janice Rogers Brown’s vigorous dissent from the D.C. Circuit’s vote to deny rehearing en banc of the panel decision.  Invoking memories of living near Los Angeles in the seventies when smog hid the mountain views, Judge Brown argued that the Clean Air Act is aimed at “inhaled” pollution of the type that kills people and not pollution that harms public health or welfare less directly through impairment of natural resources like water resources or crops by climate change—harm, as she put it, coming “at the end of a long speculative chain.” Though mistaken in her interpretation of the Clean Air Act, Judge Brown’s opinion illustrates the challenge of educating both the courts and the public on the more complex chains of causation involved in defining harm from ecological damage and less traditional pollutants.  Her opinion is a good reminder that advocates of regulation to safeguard  ecological resources, including our climate,  have work to do to build greater understanding of profoundly serious risks.

Another Disturbance In The Force: New Study Concludes That Co2 Injection In Texas May Have Caused Minor Earthquakes

Posted on November 15, 2013 by Dean Calland

New rumblings are being heard regarding carbon sequestration.  Proponents of the injection of substances into deep formations as a desirable method of waste disposal were shaken to learn that a study published just this week has concluded that the underground injection of carbon dioxide in Texas may have induced earthquakes.  This follows on the heels of a much publicized study performed for the Ohio Department of Natural Resources (ODNR) last year that concluded that the injection of oil field brine into an underground injection well (known as the Northstar 1 Well) near Youngstown, Ohio, was at fault for inducing seismic activity.  

The potential for causing earthquakes from CO2 injection has sent tremors through the clean coal (or perhaps “green coal”) camps.  Injection bans or significant regulatory hurdles that reduce the availability of injection could create severe aftershocks for the fossil fuel industry.  Affordable capture and underground storage of CO2 is a significant potential opportunity in the clean coal industry’s plan to extend the useful lives of coal burning industrial facilities.

Fortunately, both the Texas and Ohio studies suggest that the circumstances in which injection induces seismic activity are uncommon, although a number of citizen groups may not agree with this assessment.  Ohio’s experience with the underground injection of oil and gas waste fluids may predict how this will play out at the national level.  Beginning in March 2011, an area near the Northstar 1 Well experienced twelve minor earthquakes.  The State of Ohio began an evaluation, ordered the well and four nearby injection wells to cease operations, and discontinued issuing permits for new UIC wells.  ODNR concluded that injection in the Northstar 1 Well had indeed induced the earthquakes, but they resulted from injections into the “basement” Precambrian formation that had a pre-existing fault that was likely in a near-failure state at the time of the injections.   
          
The Texas study on CO2 published this week by the Proceedings of the National Academy of Sciences examined small earthquakes that occurred in 2009 through 2011 in a large oil and gas field in northwest Texas.  Operators in the area had been injecting CO2 to enhance oil recovery since 1971, and significantly increased injections in one of the fields, the Cogdell field, in 2004.  A temporary network of seismometers detected 93 earthquakes in the Cogdell field from March 2009 to December 2010.  However, no seismic activity was detected in nearby injection areas, causing the authors of the study to conclude that seismic activity is likely to occur only in areas with geological faults that are unstable at the time of injection.  Thus, there is not much of a gap between the findings of the Texas and Ohio studies. 

This issue is likely to create an even wider fissure between clean coal supporters and environmental groups, although future studies will likely determine if this debate grows to seismic proportions.

The Water Rich Adjust to a New Water Reality

Posted on November 13, 2013 by Andrew Brown

Water management issues have become much more serious in recent years.  Even Minnesota – the Land of 10,000 Lakes – is coping with limited water resources.  Recent state reports have warned a growing number of parts of Minnesota will soon face groundwater shortages, especially during drought periods due to increasing water use and the potential effects of climate change.  

In Minnesota, the responsibility to ensure the State maintains an adequate supply of water resources falls primarily upon the Department of Natural Resources (“DNR”).  Since 1937, the DNR Commissioner has regulated water use through a water appropriations permit program.  In implementing the appropriations program, the DNR Commissioner is granted broad authority to assess cumulative impacts and sustainability.  Although there is no specific definition in state law, the DNR has defined “sustainable water use” as “the use of water to provide for the needs of society, now and in the future, without unacceptable social, economic, or environmental consequences.” 

To manage groundwater conflicts, the Minnesota Legislature in 2010 authorized the DNR to designate “groundwater management areas” and develop water use plans for these designated areas.  The DNR is now in the process of implementing this new law.  Last year, the DNR undertook a process to develop a groundwater strategic plan to designate and implement groundwater management areas.  In kicking off the planning process, the DNR acknowledged that both the Department and water users have traditionally operated under the assumption that water was plentiful and limits were seldom necessary.  The DNR now recognizes, however, that it has the authority to change the permitting system to shift away from such generous assumptions and to make determinations intended to promote sustainability even if those determinations result in the denial of some allocation requests.

The DNR is now seeking input from stakeholders in the development of the state-wide strategic plan.  The DNR has also identified three potential groundwater management areas but the specific boundaries have not been delineated.   In fact, defining the groundwater management boundaries will be one of the toughest issues in implementing the new law, as DNR is weighing whether boundaries should be based on underlying aquifers, distribution of current and future use, watershed boundaries, or even community boundaries.  

As water management issues become more serious, Minnesota’s groundwater management area program presents one potential model for other policymakers and regulators who must tackle these tough issues.

New ASTM E1527-13 Standard for Phase I ESA

Posted on November 11, 2013 by Thomas Lavender

On November 6, 2013, the American Society for Testing and Materials (ASTM) issued the revised version of the ASTM E1527 Standard for Phase I Environmental Site Assessments.  The new standard supersedes the prior 2005 standard, which had been deemed to satisfy EPA’s “all appropriate inquiry” rules.    EPA has expects to confirm whether the new standard is compliant by the end of 2013.

The 2013 amendment to ASTM E1527 provides clarification on the definitions of Recognized Environmental Condition and Historical Recognized Environmental Condition.  The amendment also includes a new term, Controlled Recognized Environmental Condition, and addresses the potential assessment for Vapor Migration Risk.  The amendment further clarifies requirements for the requisite regulatory file review and includes updates to User responsibilities under the standard.  The EPA has summarized the updates and changes from the E1527-05 standard in a document in the EPA docket.  (See Amendment to Standards and Practices for All Appropriate inquiry.)

Cooling Water Intake Rules – Will This Turkey Arrive for the Holidays?

Posted on November 7, 2013 by Molly Cagle

Quoting our colleague Philip Ahrens, “We shall see” indeed.

Invoking force majeure due to the 16-day government shutdown, EPA has again (for the third time) delayed the issuance of the Clean Water Act 316(b) rules past the November 4, 2013 deadline most recently agreed to in its settlement with Riverkeeper.  It remains to be seen if EPA will deliver the 316(b) rules on November 20, 2013 – just in time for a little light reading over your turkey dinner – or seek a further extension with Riverkeeper.  EPA and environmentalists are now in talks for a new deadline, so you can probably head home to enjoy your  turkey and sides at Thanksgiving without toting home a Federal Register package to disrupt your holiday.

Advocates for a more stringent set of rules appear to have used the latest delay to secure political support from a group of House Democrats that recently encouraged EPA Administrator Gina McCarthy to require power plants and other industrial facilities to install closed-cycle cooling water technologies not just to save local ecosystems, but also to respond to climate change.  According to the elected officials, “Closed-cycle cooling structures would ensure greater energy grid security and reduce ecological harm in a warming world.”  That’s a pretty incredible statement all around given that, although the cooling water intake rules have been embroiled in a multi-decade-long saga of regulations and litigation about entrainment and impingement of fish, they have never been about a meaningful assessment of the ecological impact of various entrainment and impingement rates in various types of water bodies.  In fact, the proposed rule completely failed to take into account significant variations in different types of waterbodies.

Given the proposed 316(b) rules, EPA is unlikely to jump on the closed-cycle cooling bandwagon and abandon a more flexible approach.  The Democratic Congressmen say in their letter that flexibility unfairly burdens state environmental protection agencies.  Environmentalist say that the flexible approach will bring more litigation because the proposed approach is not lawful.  Industry groups continue to prefer flexibility as it allows them options such as upgraded screens, barrier nets, reduced intake velocity, fish return systems – technologies that would lead to reduced impingement and entrainment but cost far less than retrofitting plants with cooling towers and other high-energy technologies.  So industry too remains primed for challenge.  At stake is the potential for hundreds of millions of dollars of upgrades for an ill-defined environmental benefit.  

While it’s anyone’s guess when the rules will come out, it does seem reasonable to predict that whenever they emerge, the lawsuits will follow.

Hail to the Chief

Posted on November 6, 2013 by Steve McKinney

On November 1, President Obama issued an executive order organizing several task forces and coordinating councils to focus on climate change adaptation.  Among the necessary and appropriate beltway benefactions was Section 3, which orders federal departments and agencies to “complete an inventory and assessment of proposed and completed changes to their land- and water-related policies, programs and regulations necessary to make the Nation’s watersheds, natural resources, and ecosystems, and the communities and economies that depend on them, more resilient in the face of a changing climate.”  That’s quite an assignment.

The order applies specifically to Defense, Interior, Agriculture, EPA, NOAA, FEMA, and the Army Corps of Engineers. The CEQ and OMB Co-Chairs can spread the assignment to other federal agencies as need be.  If you are left out of this list, you must not be very important.  The required inventory must also include a “timeline and plan for making changes to policies, programs and regulations.”  This is all supposed to happen in the next 9 months, a rather pregnant period of time in a variety of ways. 

The scope of the task catches your attention, but perhaps the limitations should also be of interest.  The inventory assignment is not supposed to include “wish lists” that have not yet been proposed or completed.  It is supposed to focus on resiliency-enhancing land and water programs, rather than air programs that are usually the target of any climate change discussion. However, “agencies shall, where possible, focus on program and policy adjustments that promote the dual goals of greater climate resilience and carbon sequestration, or other reductions to the sources of climate change.”

It’s a big job.  It imposes new priorities for all federal departments and agencies.  Sounds almost like an Act of Congress.  Come to think of it, I wonder what Congress thinks about this?  I mean… I’m just sayin’...