Posted on February 26, 2015
The internet and social media have changed our lives in subtle and not-so-subtle ways. Many of these changes are good. Agencies offer an amazing array of information about their work and achievements on environmental issues. Environmental NGOs and law firms provide websites and electronic newsletters with breaking news and hot topics in the environmental arena, catching our attention and educating us on important developments. So today, everything seems to be just a click away. (When was Ginger Rogers born anyway? And when did she and Fred star in Top Hat? When will the EPA and the Corps finalize the “waters of the U.S. rule”?) At any rate, information on environmental law and environmental issues is available faster than most of us would have dreamed when we began practice, and this on-demand on-line information is helpful.
Nevertheless, generally there are costs associated with benefits, and downsides as well as upsides to developments. The sheer volume of information available online can be overwhelming. Online research often leads to more questions and more research, creating confusion similar to a discovery response providing too many boxes of documents. Managing and using voluminous and rapid-fire information can be difficult. Moreover, the online and always “on” orientation can create heightened expectations – both by the public and clients. The general sense has become that anything can be found online in an instant. (How many movies did Fred and Ginger make together anyway?)
The goal of transparent government means agencies (including federal, state, and local agencies) make substantial information available on the internet. The Freedom of Information Act of 1966 (FOIA) is by no means the only -- or even the primary -- tool for gaining information about the government. The Federal Register provides a wealth of information. Created in 1935, 44 U.S.C. § 1501, et seq. (2012), the Register now provides online access to virtually all agency decisions. Additionally, numerous websites offer information on agency programs, processes, and enforcement actions, all without the need of filing a FOIA request. For example, the U.S. Environmental Protection Agency (EPA) website provides scientific information relevant to environmental statutes, and extensive information on regulatory initiatives. See, e.g., Environmental Protection Agency, Climate Change Science. The EPA also gives specific guidance on how to submit a FOIA request. See Environmental Protection Agency, Freedom of Information Act (FOIA).
Agencies invest substantial resources in the internet generally and social media in particular. Necessarily the commitment to online access involves a cost, both in terms of expenditures and agency resources. Recently EPA began using blast emails to get its message to the public on particular initiatives and to poll the public about environmental protection measures. See, e.g., Thunderclap; Thunderclap, I Choose Clean Water, (Sept. 29, 2014) (showing EPA as organizer of the Thunderclap poll).
A dramatic recent example of the use of social media is found in the proposed rule on the “waters of the United States” (often referred to as “WOTUS”). In April 2014, the EPA and the U.S. Army Corps of Engineers (Corps) published a proposed jurisdictional rule on waters of the United States for notice and comment. The rationale of the proposed rule rests in significant part on the principles articulated by Justice Kennedy in his concurring opinion in SWANCC and asserts jurisdiction (by category under the rule) based on a determination that the nexus, alone or in combination with similarly situated waters in the region, is significant based on data, science, the CWA, and case law. ACOEL and many other organizations and individuals commented on this important rule. For a full exploration of the commenting process on the proposed WOTUS rule, see the article Social Media: Changing the Landscape of Rulemaking, by Nina Hart, Elisabeth Ulmer, and Lynn White, which will appear in the summer edition of Natural Resources & Environment. The article reports on the increased use of social media in the rule making process, the dramatic number of comments submitted on the high-profile and contentious issue of classifying waters of the U.S., and the difficulties for the agencies in trying to respond to so many comments.
While the difficulty of limited agency resources is nothing new, recent news coverage highlights the issue in the modern context of tight budgets. An example is found in the disappointing pace of EPA delay on the important work of listing toxic substances (showing EPA’s work of assessment of toxic chemicals has fallen below the pace set by the Bush administration).
This is not to say that the burden of evaluating comments in one office of EPA is the cause of the shortfall on toxic chemical assessment in another. Moreover, the difficulties of setting agency priorities and allocating scarce enforcement resources are new to no one. Nevertheless, he challenges for EPA and other agencies in using the tools of the online age, including social media, are real. As a practical matter, agencies need to give serious thought to reinventing government in the sense of using the technological tools to manage the growing flood of information. Significant study will be required for agencies to fulfill the mission of educating and informing the public, managing data, and taking input seriously, all while meeting their statutory missions.
Posted on February 25, 2015
As a result of a change in ownership of the Pawtucket, Rhode Island Red Sox, the AAA farm team for the Boston Red Sox, there are plans to move the team to Providence to a proposed new stadium hard by the Providence River. Apparently, the proposed stadium will be designed so that home runs hit over the right field wall will land in the River - comparable to home runs hit over the right field wall at the San Francisco Giants’ ball park into McCovey Cove in San Francisco Bay.
However, there is growing opposition to the proposed stadium location, among other things. It is not inconceivable that opponents will take whatever steps they deem necessary to stop the use of this valuable urban redevelopment land for the stadium. And the discharge of “discarded equipment” or “solid waste” – i.e, a baseball hit over the right field wall – into the River without a permit from the Rhode Island Department of Environmental Management (RIDEM) could lead to an enforcement action against the team that no one would anticipate or want.
Such a notion is not as far-fetched as one might surmise. I was involved in a matter a few years ago concerning skeet shooting activities where the “clay” targets were sent out over the water to be shot. RIDEM took the position that such activities – even with non-toxic shot and biodegradable targets – required a permit under the Rhode Island Pollutant Discharge Elimination System regulations. And such permit was ultimately denied for various reasons.
So the team owners might want to talk to RIDEM about a permit for home run baseballs landing in the River. Given the proposed design of the stadium, this would not be a random occurrence but could occur on a regular basis due to the stadium design. Would the stadium be viewed as a point source? Otherwise, the team (or its fans) may have to patrol the River in a boat before and during each game to retrieve the home run baseballs or even put up a net on top of the wall.
Posted on February 24, 2015
In a decision lauded by local residents, Alaska Native tribal and business interests, the commercial and sport fishing communities, and conservationists, President Obama recently withdrew the Arctic waters of the North Aleutian Basin (also known as Bristol Bay) from future oil and gas leasing. As President Obama noted, Bristol Bay is a national treasure, one of Alaska’s most powerful economic engines, and home to one of the world’s largest salmon runs. At the same time, the Obama Administration is working on the next outer continental shelf leasing program, and will soon be making critical decisions about whether and how to include within it leasing in the U.S. portion of the Arctic’s Chukchi and Beaufort Seas.
Industry interest in the area is led by Shell, which holds leases in the Chukchi and Beaufort Seas, and as detailed in an article I recently co-authored and in a dramatic cover story in the New York Times Magazine, has experienced a stormy effort to drill there. Not content, however, to focus on the on-the-water challenges of drilling in the Arctic, Shell also pursued a novel legal strategy by preemptively suing its critics in an effort to smooth the waters for its drilling.
After receiving approval from U.S. agencies for various aspects of its drilling plans, Shell filed lawsuits against conservation groups alleging that the groups were engaged in an “ongoing campaign to prevent Shell from drilling in the Arctic” and that it was “virtually certain” that the groups would challenge the federal approvals. Shell sought a declaration from the courts that the approvals were legal.
The Ninth Circuit Court of Appeals recently issued an opinion rejecting Shell’s strategy on the jurisdictional ground that the Declaratory Judgment Act, on which Shell had based its strategy, “does not create new substantive rights, but merely expands the remedies available in federal courts.” The court noted that the law underlying Shell’s request for declaratory judgment was the Administrative Procedures Act (APA), which allows a party aggrieved by agency action to seek judicial review of that action, and that since it is only the agency that can be sued under the APA, “it would be odd to conclude that a [jurisdictionally-required] case or controversy exists merely because Shell seeks to know who would prevail if the environmental groups asserted an APA claim against the [agency].” Indeed, as the court found, were it to hold otherwise, its “holding would create several unusual consequences,” two of which it found “particularly noteworthy”:
First, it would allow a district court to declare the [agency]’s actions unlawful under the APA in a judgment that is not binding on the [agency] itself. ... Second, absent agency intervention, such a lawsuit would allow the lawfulness of agency action to be adjudicated without hearing the agency’s own justification for its actions.
I would suggest that two other “unusual consequences” of a ruling for Shell would have been the upsetting of the historical body of administrative law guiding judicial review of federal agency action and an illegal limit on the First Amendment right of citizens to petition the government.
Posted on February 23, 2015
The exception from solid waste regulations for agricultural waste applied as fertilizer is a safe harbor that has boundaries based on use. In Community Ass’n for Restoration of the Environment, Inc. v. Cow Palace, LLC (E.D. Wa, 2015), facts evidencing over applied fertilizer and leaking storage lagoons, recently led a district court to a finding of possible imminent peril to public health, welfare or the environment under RCRA.
The court’s partial framing of the legal questions was telling:
(1) [W]hether the manure at the Dairy, when over-applied to land, stored in lagoons that leak, and managed on unlined, permeable soil surfaces, constitutes the “handling, storage, treatment, transportation, or disposal of . . . solid waste....”
Defendant’s useful product counterargument did not overcome its waste handling practices, which were deemed deficient by the court. The case is an excellent primer for the storage and handling of agricultural waste and the parameters for waste handling by large concentrated animal feeding operations (CAFOS). The proper methods and conditions for land applying the waste as fertilizer are also discussed.
Many large farm operations properly manage waste and its use as land applied fertilizer. In Cow Palace, the court reviewed federal law and the overlay of required nutrient management best practice plans applicable to Washington farms by state regulation. Natural Resource Conservation Service lagoon storage rules and RCRA open dump rules were also addressed.
Posted on February 12, 2015
When one thinks of New York’s late Governor Mario Cuomo, some remember an eloquent and gifted orator, a complex man of integrity and vision, or the erudite son of Italian immigrants who ran a grocery store in South Jamaica, Queens, NY. Others may remember him for his ideological “Tale of Two Cities” keynote address at the 1984 Democratic Convention, which highlighted his “progressive pragmatism” governing philosophy. Yet others will recall his staunch opposition to the death penalty or his investments in public infrastructure, including convention centers, stadiums, industrial parks and his controversial prison building program. Or perhaps he will be remembered for his aggressive and strategic skills on a basketball court. It was no secret that basketball was the Governor’s great passion and it was widely known that he was ferocious on the basketball court.
But not too many think of Mario Cuomo for his environmental legacy. Upon the Governor’s death on January 1, 2015, however, many memorials, tributes and articles poured in from Buffalo to the Adirondacks to the Hudson Valley to Long Island, from environmentalists and environmental organizations such as the New York League of Conservation Voters, the Adirondack Council and Scenic Hudson, all spotlighting a rather impressive environmental legacy.
Here are some notable examples of Mario Cuomo’s environmental accomplishments during his 12 years as Governor (1983-1994):
- He pressed for the passage of the Hudson River Valley Greenway Act of 1991, which established the Greenway Conservancy for the Hudson River Valley and the beginnings of the Hudson River Greenway Trail System and scenic byways which now exist as a necklace of parks, hiking trails and open space on both sides of the Hudson River running the length of the Hudson Valley. The Greenway trails have expanded from Westchester to Albany.
- He signed the Long Island Pine Barrens Protection Act in 1994, which protected over 100,000 acres of Long Island’s premier ecosystems in the pine barrens of Suffolk County. Many believed that without the Act a large portion of these ecologically diverse pine barrens would have been sold off by the state for industrial or residential development.
- He worked to gain passage of the 1986 Environmental Quality Bond Act, which funded a $1 billion hazardous waste clean-up program to address more than 1,000 sites throughout the State. It also enabled programs such as the Estuary Program to restore the Hudson River and provided $200 million for land acquisition and historic preservation.
- In response to urging by Governor Mario Cuomo’s administration, the U.S. EPA reopened its “no action” determination against GE and commenced a lengthy CERCLA enforcement battle against GE that led to GE’s on-going remediation of the PCB-contaminated Hudson River.
- The Governor is also credited with the establishment of the Environmental Protection Fund (EPF), following a failed effort in 1990 for another bond act. The EPF has provided billions of dollars for farmland conservation, wastewater treatment plant upgrades, parks creation, waterfront revitalization, invasive species controls, development of recycling programs and the restoration of historic sites. Since its 1993 enactment, the EPF has invested more than $2.7 billion to conserve some of the State’s most important scenic and ecological lands and been used to buy development rights on hundreds of thousands of acres of commercial timberland in the Adirondacks.
- Mario Cuomo also signed legislation establishing the Clean Water State Revolving Fund for water and wastewater infrastructure, which provides low interest loans for this critical infrastructure.
The current New York State Department of Environmental Conservation Commissioner, Joe Martens, (who was an environmental adviser to Governor Mario Cuomo in the early 1990s), recently observed that Mario Cuomo “was never comfortable” as a hiker or a canoeist. “He was more comfortable in a suit or in sweat pants than he was in hiking clothes.” Nevertheless, Commissioner Martens noted, Mario Cuomo “regarded protection of the environment as almost a religious belief”, and “he talked about it in spiritual terms all the time.” Mario Cuomo will be missed, but his environmental legacy will live on.
Posted on February 11, 2015
The 2015 Super Bowl between the New England Patriots and Seattle Seahawks is over, but the NFL’s investigation continues into whether the Patriots cheated by deflating footballs during earlier National Football League contests. There are lessons in this experience for those of us who handle environmental trials or advise clients in such matters.
“Deflategate,” as this incident came to be known, tapped into sportswriters’, NFL veterans’, and the public’s distrust for (and maybe even dislike of) the Patriots in general and Bill Belichick, in particular. Many critical comments referred back to the 2007 scandal in which Belichick and the Patriots were caught videotaping an opponent’s game signals.
Similar preconceived attitudes and prejudgments affect juries, and sometimes even judges, that are called on to decide environmental disputes. Polling regularly shows that protecting the environment is a goal approved by a large percentage of the public. Polling also shows that large percentages of potential jurors do not trust big business. Jim Stiff, a jury consultant from Dallas, Texas, has studied comments during many mock jury deliberations and reports that potential jurors expect large corporations to know the regulations to which they are subject. Jurors seldom give credence to a corporation’s arguments that the requirements were unclear, that the company thought it was complying when hindsight shows it was not, or that the company was doing the best it could in a difficult situation. Further, jurors often come to trial with a hindsight bias that leads them to ignore the evolution of environmental information and judge earlier conduct based on today’s knowledge.
With civil trials, if an individual or small business is alleging injury from a large corporation’s environmental activities, jurors may focus on the specific allegations of damage they can see or with which they can identify, in contrast to the more abstract arguments advanced by the defendant.
With environmental criminal trials, such difficulties are compounded by additional factors that can lower the thresholds of liability-creating activity and feed into jurors’ tendencies to reduce complex arguments into core principles they can grasp:
-- Some environmental statutes impose criminal liability on the basis of negligent acts without requiring specific intent to commit a criminal act;
-- Court rulings under other environmental statutes hold a defendant need only have intended to conduct the act at issue and not the resulting consequence of that act;
-- Many environmental criminal cases include at least one count of failing to report an environmental event. Prosecutors try to reduce failures to report to a black-and-white analysis: The defendant did not report an event the statute required.
To counteract these attitudes, corporate defendants facing environmental allegations early on must develop themes that will appeal to juries (and judges, too) such as opponents’ overreaching and lack of harm. They may need to cultivate arguments surrounding the complexity of the issues in dispute, but they must also make their case and themes simple. They may argue that their actions were approved by environmental regulators, and, surprisingly enough, they should be prepared to demonstrate that the regulators have the public’s interest at heart and are not coddling the regulated community. They need to have witnesses who can clearly explain complex technical matters in a way those without technical degrees can understand. They will seek to exclude potentially prejudicial evidence of earlier events. They will want to develop a thoughtful and strategic approach to juror selection.
In the case of the Patriots, Bill Belichick gave a press conference a week before the Super Bowl in which he reported the Patriots had conducted experiments showing changes in weather and temperature could account for deflating the footballs. He did not provide any details. About the same time, physics professors and mechanical engineers reported online that the intrinsic physical properties of gases such as air are governed by a principle known as the Ideal Gas Law. They said that under such principles, when footballs inflated at room temperature are taken to cold, wet, outdoor weather, drops in PSI are inevitable. Most talking heads, however, seemed to brush off these assertions of physics properties and experiments.
All of the evidence in this matter is not in. Nevertheless, in the court of public opinion, a large number of well-informed and probably well-intentioned people have made up their minds. Maybe the Patriots did cheat. Maybe not. But the people who have already made up their minds, either way, might just be demonstrating the challenges corporate defendants face in environmental trials.
Posted on February 9, 2015
On January 5, 2015, the Georgia Supreme Court heard oral argument in the appeal of Ga. River Network v. Turner, a case involving the Georgia Environmental Protection Division’s interpretation of the “stream buffer rule.” Because the Georgia Court of Appeals’ decision reversed EPD’s longstanding interpretation of the rule, the Supreme Court decision will have wide-ranging impacts.
Grady County desired to construct a 960-acre fishing lake. Georgia EPD issued a variance allowing the County to encroach on the mandatory 25-foot stream buffer under Georgia’s Erosion and Sedimentation Control Act. The purpose of the buffer is to protect the natural vegetation that filters contaminants and forms a barrier to sediment flowing toward the waterway. However, the application of the statute to onsite wetlands created controversy. The County requested a variance only for the onsite streams, not the wetlands, and EPD agreed a variance was unnecessary for work that would impact any buffer surrounding the wetlands.
Following a challenge by two environmental groups, the Administrative Law Judge disagreed with EPD’s interpretation of the statute and reversed the variance. In a series of appeals, the Superior Court reversed that decision, the Georgia Court of Appeals reversed the Superior Court, and the Georgia Supreme Court granted certiorari.
O.C.G.A. § 12-7-6 (b) (15) reads, “There is established a 25[-]foot buffer along the banks of all state waters, as measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action” unless one of six exceptions applies, including “[w]here the director determines to allow a variance that is at least as protective of natural resources and the environment.” This wording raises a question of whether a buffer could exist in instances where no wrested vegetation is present.
The court of appeals determined the provision merely provided an instruction as to how to measure the buffer and did not contain an implicit exception to the buffer requirement in locations where the shoreline might be rocky or sandy. The court reasoned that to find otherwise would write large stretches of shoreline out of the rule, and worse, create jagged applicability wherever vegetation is interrupted, which could not be the intention of the legislature. The court found justification in its decision in the statute’s previous wording that required measurement from the stream’s bank, with no indication that the new measurement protocol was intended to narrow the statute’s basic scope.
Two dissenting judges found the court’s resolution of the statute’s inconsistency speculative and overreaching. They argued the legislature might have reasonably concluded that in rocky and sandy areas, no vegetation is present needing protection and so no buffer should exist. Further, in wetland areas where vegetation continues into the heart of the waterbody, a designated buffer may likewise be unnecessary. Georgia EPD’s appeal agrees with the dissent, arguing the Court of Appeals imputed its own policy goals on a clearly worded statute without justification.
Posted on February 6, 2015
A century ago expeditions to Antarctica, “the last unexplored place on earth,” made Amundsen, Scott, Mawson, and Shackleton household names. Today Antarctica’s pristine environment attracts tourists to what is the coldest, windiest, and highest continent on earth. Despite its harsh climate and the massive ice sheet that covers nearly all its land mass, Antarctica is teeming with life, as I discovered on a recent National Geographic expedition there celebrating the centenary of Shackleton’s famous voyage.
Global scientific cooperation during the International Geophysical Year (IGY) of 1957-58 sparked interest in negotiating what became the Antarctic Treaty. Signed in 1959 by the 12 countries that participated in the IGY, the treaty entered into force on June 23, 1961. The treaty, which applies to the area south of 60 degrees south latitude, suspends territorial sovereignty claims made by seven countries. It protects freedom of scientific investigation while subjecting scientific personnel to the jurisdiction of their respective governments. Important protections for Antarctic plants and wildlife were added by the Agreed Measures for the Conservation of Antarctic Fauna and Flora, adopted as an annex to the treaty in 1964, and the Convention for the Conservation of Antarctic Seals, which entered into force in 1978.
When the Antarctic Treaty was negotiated, 60 scientific stations had been established on the continent and surrounding islands. Waste disposal practices at these bases initially were quite haphazard, including at the large U.S. base on McMurdo Sound. The U.S. actually operated a small nuclear power plant at the station between 1962 and 1972, which had to be decommissioned prematurely due to continuing safety issues. A campaign by Greenpeace to expose open dumping of wastes at McMurdo helped spur improved waste disposal practices, particularly after congressmen with oversight authority over the National Science Foundation (NSF) visited the station. In the 1990s, the Environmental Defense Fund won a lawsuit against NSF to block construction of a waste incinerator at McMurdo without an environmental impact statement. The D.C. Circuit held that because Antarctica was not the territory of any sovereign the principle against extraterritorial application of NEPA did not apply.
The most important environmental protections for the continent are embodied in the Protocol on Environmental Protection to the Antarctic Treaty, which was adopted in 1991. The Protocol designates the continent as a “natural reserve devoted to peace and science” and it imposes strict measures to protect the Antarctic environment, including a ban on all mining. Also in 1991, tour operators formed the International Association of Antarctic Tour Operators (IAATO), a private, self-regulating organization that now has more than 100 members. IAATO has developed a strict code of conduct designed to keep Antarctica pristine, to protect Antarctic wildlife, and to require tourists to respect protected areas. This code was observed so strictly on our expedition that we were prohibited from relieving ourselves while on land, a prohibition not applicable to the penguins whose wastes create a pungent smell apparent whenever land is approached. Boots had to be disinfected prior to every landing and clothing was vacuumed to prevent introduction of invasive plants.
The worst environmental disaster in Antarctic history occurred in January 1989 when the Bahia Paraiso, an Argentine naval supply ship hit a submerged rock off DeLace Island, spilling 600,000 liters of oil and creating an oil slick that covered 30 square kilometers. In 2009 the International Maritime Organization banned the use of heavy fuel oils by ships in Antarctic waters. This measure has been widely applauded for reducing pollution in Antarctica. It also caused some cruise lines to stop visiting the continent with huge cruise ships, significantly reducing the number of tourists in Antarctic waters. Enforcement of strict measures to protect the Antarctic environment depends crucially on cooperation by many governments and private companies.
The Antarctic environment continues to face challenges, particularly from climate change which has visibly reduced the size of glaciers. But the ban on commercial exploitation of Antarctic resources has preserved a more pristine environment than in northern polar regions where countries and companies are racing to develop oil resources. Shackleton would be proud.
Posted on February 3, 2015
Lawyers who regularly practice in the realm of the Clean Water Act (the “Act”) well know that the fight causing the most widespread panic in the regulated community for many months has been the joint proposal by EPA and the Corps of Engineers to amend the definition of “Waters of the United States.” Even though the agencies jointly withdrew the proposal on January 29, 2015, water lawyers and their clients shouldn’t let their guards down, because another inevitable regulatory slugfest is coming, and it will be over water use.
In its original form in 1972, the Act contained a concise “savings clause” that was intended to keep EPA from meddling with the authority of the States to determine how water resources will be allocated for beneficial uses. Section 510(2) simply states: “Except as expressly provided in this chapter, nothing in this chapter shall be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.”
Wyoming Senator Malcolm Wallop became very concerned that the Section 510(2) “shield” wasn’t strong enough to protect the States, so he successfully led to passage in the 1977 amendments to the Act a much more robust policy statement, which was codified as Section 101(g), as follows:
It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources.
On its face, the Wallop Amendment appears to be “bulletproof,” but at best it’s really just “bullet resistant.” On November 7, 1978, EPA Assistant Administrator for Water and Waste Management Thomas Jorling and General Counsel Joan Burnstein issued to all Regional Administrators an “interpretive memorandum,” which concluded that the Wallop Amendment does not absolutely prohibit legitimate use of the Act for water quality purposes, even if water rights and water usages allowed under State laws are negatively affected. While noting that Section 510(2) remained unchanged in the 1977 amendments, Jorling and Burnstein grounded their legal analysis principally in passages from Senator Wallop’s floor statement in support of his proposed amendment. Specifically, Senator Wallop acknowledged that implementation of water quality standards requirements, among other major features of the Act, might “incidentally” affect individual water rights, and that the purpose of his amendment was “to insure that State allocation systems are not subverted, and that effects on individual rights, if any, are prompted by legitimate and necessary water quality considerations.”
So, thus was born what could loosely be called the “legitimate and necessary” test for determining what is, or is not, an “incidental” effect on State-conferred water rights resulting from implementation of water quality programs arising under the Act. But, without further definition, the scope of this determination brings to mind another (and historic) subjective test – the language in the 1964 Supreme Court decision in the Jacobellis obscenity case, in which Mr. Justice Potter Stewart, in his Concurring Opinion, wrote: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it….”
In 1994, the Supreme Court essentially applied the Wallop Amendment test in its P.U.D. No. 1 vs. the Washington Department of Ecology decision. There, as a condition for the issuance of a Water Quality Certification under Section 401 of the Act, the State required a proposed hydroelectric dam to pass through certain minimum flows to protect downstream fisheries. In holding for the State, the Court cited Senator Wallop’s floor statement and summarily rejected the argument that Sections 101(g) and 510(2) limit the reach of the Act to water quality issues only.
Considering the legislative history of the Wallop Amendment, the 1978 Jorling-Burnstein interpretive memorandum, and the Supreme Court’s decision in the 1994 P.U.D. No. 1 case, there is understandable angst that EPA (or anybody else, for that matter) will use one or more of the three bedrock water quality factors in Section 101(a) of the Act (i.e. chemical, physical, and biological) as offensive weapons to limit or block State water allocation proposals. Simply put, the scientific premise would be that instream ecosystems can be degraded by depleting flows below the point at which sustainability of these resources is compromised, thus causing or exacerbating a violation of the biological component of the established water quality standards at the proposed point of withdrawal. (Of course, antidegradation requirements would also be in play.)
On January 7, 2015, EPA sent to the Office of Management and Budget for regulatory review the proposed Final Rule in the recent Water Quality Standards Program rulemaking, and EPA projects that the Final Rule will be published in May 2015. To say the very least, these major changes will make even more vexing the already difficult quantity-quality, federal-state tensions over how water use allocation decisions are made at the State level.
To close this review, it must be noted that, as mentioned in the 1978 Jorling-Burnstein interpretive memorandum, some States have water allocation programs in which the impacts on water quality of a proposed withdrawal must be carefully considered. For example, in Mississippi, the statute authorizing the issuance of surface water withdrawal permits explicitly states: “No use of water shall be authorized that will impair the effect of stream standards set under the pollution control laws of this state based upon a minimum stream flow.” An appropriate case in point arose in early 2014, when a permit was sought to withdraw significant volumes of water for row crop irrigation purposes from a major stream in the Mississippi Delta. A citizens group opposed the permit proposal, contending that further withdrawals from that particular stream should not be allowed until a biological sustainability study was performed and then used as the ultimate determinant in considering applications for additional withdrawals. The citizens group and the applicant for the permit struck a compromise, but the fundamental questions about the impacts of such withdrawals on water quality remain.
Given the extended droughts in certain regions of the United States in recent years, the ever tightening laws and regulations governing both water quantity and water quality, and the reality of growing demands for water seemingly everywhere, “water wars” (both intrastate and interstate) will likely erupt more frequently as time goes by. And, in those States that have little or no statutes, regulations, and administrative procedures to work with, the fundamental questions for individuals and organizations (public and private) who want to oppose proposed water withdrawals, regardless of the intended beneficial use, will be what forum to use and what principles of law to assert. One thing is certain – seasoned water lawyers will likely see more business coming their way.