Posted on February 2, 2017
The state of Oregon has turned up the heat in Hells Canyon. The burning question, so to speak, is whether a state can require passage and reintroduction of anadromous fish as a condition of certification under Section 401 of the Clean Water Act for relicensing of an existing hydroelectric project. The issue gets hotter because the particular project involved -- the Hells Canyon Complex (“HCC”), owned by Idaho Power Company (“IPC”) -- is located on the Snake River, which forms the border between Oregon and Idaho. The State of Oregon has issued a draft 401 certification with detailed conditions for passage and reintroduction of anadromous fish into a tributary on the “Oregon side” of the river. Idaho is opposed to reintroduction of any fish species above Hells Canyon Dam, leaving IPC in the middle.
Making a very long and complicated story short, for more than 13 years IPC has been working with state and federal agencies and stakeholders toward relicensing of the HCC. The project consists of three developments, each with a dam, reservoir, and powerhouse. In 1955, FERC issued a 50-year license with recognition that construction of the project would block fish passage and eventually lead to extirpation of anadromous fish above the dams. As a result, the initial FERC license included mitigation conditions to offset fish impacts, and additional mitigation was provided under a subsequent settlement agreement.
After more than a decade of studies, meetings, and negotiations, it looked like IPC and the states were on track for general agreement as to the terms and conditions of compatible, but separate 401 certifications to be issued by Oregon and Idaho – except as to the issue of fish passage and reintroduction. Despite Idaho’s objections, the Oregon Department of Environmental Quality (ODEQ) issued its draft 401 certification for public comment on December 13, 2016. The draft relies on a number of existing state water quality standards as the legal basis for requiring fish passage and reintroduction, though none of the standards is directly on point.
Public comments on the proposed 401 certification are due February 13. Objections relating to the fish passage and reintroduction conditions are likely to focus on whether such conditions are generally within the scope of 401 certification for FERC-licensed hydroelectric projects, and, if so, whether Oregon’s specific water quality standards provide a sufficient regulatory basis for the proposed ODEQ action. The comments may also raise questions about the baseline for mitigation and whether impacts to fish due to construction of the project – as opposed to on-going operations -- have already been fully mitigated. And then there’s the question of Idaho’s opposition.
ODEQ will consider the comments before issuing a final 401 certification decision. If the states are unable to resolve their differences over the passage and reintroduction issue, it’s likely to get a lot hotter in Hells Canyon.
And finally, a disclosure that the HCC relicensing issues hit close to home for ACOEL: I am part of a team representing IPC, and other College members are very much involved on both sides of the issue. There’s a lot we won’t be able to talk about at the next annual meeting!
Posted on January 19, 2017
My roots are in central Pennsylvania near the dividing line between the Susquehanna and Potomac watersheds. The creeks follow the valleys, flowing away from each other and carrying water that will ultimately rejoin in the Chesapeake Bay. It is a rich agricultural area with a farming legacy that goes back to the mid-1700s. It is also ground zero for the continuing struggle to improve degraded water quality in the Chesapeake Bay, one of biological jewels of the eastern United States.
One of my best friends is a dairy farmer. He has faithfully carried on a family tradition reaching back over multiple generations. He is an excellent farmer. He finally sold the dairy herd this fall, buffeted by plunging milk prices and lack of help in shouldering the relentless grind of running a dairy operation. The barn where I have spent hundreds of hours over the course of my life now stands empty and quiet. The cows are gone and the milk tank is dry. Unfortunately, this is a story that is repeating itself with remarkable regularity as the number of dairy farms continues to shrink both in Pennsylvania and elsewhere in the country.
For those with a single-minded focus on water quality in the Chesapeake Bay, the demise of another dairy farm in Pennsylvania may be a cause for quiet celebration. Even though Pennsylvania does not border the Chesapeake Bay, the Susquehanna River drains approximately 46 percent of the state, including some of its most productive farmland. The Susquehanna River contributes almost half the fresh water to the Chesapeake Bay. The Bay and the River are inextricably linked.
In 2010, the United States Environmental Protection Agency issued a total maximum daily load (TMDL) for the Chesapeake Bay focusing on loading rates for nitrogen, phosphorous and sediment. EPA identified agriculture as a key contributor of these pollutants. Each state within the Chesapeake Bay watershed, including Pennsylvania, is attempting to figure out how to achieve the targets that EPA has set for reductions in nitrogen, phosphorous and sediment. The process is fraught with difficulties, pushing the envelope of technical feasibility, legal permissibility and political acceptability. The process is also underscoring the limitations of the tool box under the Clean Water Act to solve truly complex and multi-dimensional water quality problems.
If the goals that EPA has set for water quality in the Chesapeake Bay under the TMDL are to be met, a financially-sustainable agricultural sector is vital to that outcome. Runoff of nutrients and sediment from farms may be the immediate focal point but crafting solutions that will facilitate farms being able to operate in the future is critically important to the long-term health of the Chesapeake Bay. If farming operations are forced under, prime farmland will change use and be taken out of production. Development of former farms and the runoff from such development carries its own challenges for water quality in the Chesapeake Bay. Moreover, rolling back changes in land use after they have occurred is almost impossible to achieve.
Preserving farming operations holds significance extending well beyond water quality. In the coming decades, food production is likely to become one of the key issues that not only our country but the world will face. Loss of farms also alters the fabric and social bonds of rural areas in many detrimental ways.
On January 6, 2017, the Chesapeake Bay Foundation released its 2016 State of the Bay Report, a bi-annual evaluation of the health of the Chesapeake Bay. While the Chesapeake Bay received failing grades on certain key metrics, the overall health of the Bay received a grade of C-, the highest grade that the Chesapeake Bay Foundation has given since it began making such assessments more than 30 years ago. Progress is being made – slowly and painfully but surely. At the same time, Pennsylvania, Maryland and Virginia have collectively lost more than 600,000 acres of farmland (about half the size of the Delaware) since 2002. One can only hope that the twin goals of saving the Chesapeake Bay and saving agriculture in the Chesapeake Bay watershed can harmoniously coexist.
Posted on December 9, 2016
Not that there is anything wrong with wetlands mitigation banking. I, for one, would certainly like to own one with the perceived return on investment and lack of control on the market – but, there is another option that achieves the same “no net loss” goal for impacting wetlands.
While we all recognize that the Corps’ mitigation rule establishes a hierarchy that favors the purchase of credits from approved mitigation banks, permitted responsible mitigation is still allowable under certain circumstances. In fact, most recently in South Carolina the landscape mitigation approach has been successfully used to further economic development projects. In at least one instance, the landscape approach was used entirely in lieu of the purchase of mitigation banking credits. In another, a hybrid approach was used which combined a permittee-responsible-project with the purchase of credits.
How did it work – you ask? Rather well, I might say. But how did it work?
In each instance, the applicant involved a conservation entity to serve as the sponsor for the project. Desirable property was identified which had previously been targeted for preservation by a state or federal resource agency. The sponsor then entered into an agreement with the applicant to secure the mitigation property and, if necessary, perform any enhancement work to achieve the required mitigation credit for the project. The applicant agreed to reimburse the sponsor for acquiring, holding, and enhancing the mitigation property. In one instance, the sponsor will ultimately convey the property to a state resource agency. The mitigation property will be transferred to the state resource agency, subject to a restrictive covenant to encumber the property as approved by the Corps and the resource agency. The mitigation property only partially satisfied the mitigation obligation. A small credit purchase for the balance was also necessary. In the other instance, the mitigation obligation will again be partially satisfied by the purchase of the mitigation property by the sponsor on behalf of the applicant and then transferred to the federal resource agency. However, the ratio of the credit purchase and the property purchase were approximately equal. This approach seemed to work more effectively because it also provided for the involvement of an approved mitigation bank which did not object to the project.
Why do it – you ask? Time and money – when time is money.
On many large economic development projects there is often resistance from third parties or resource agencies. Working with these third parties and resource agencies to identify desirable mitigation properties can facilitate consensus for securing a 404 permit in a timely manner. The approach only works for the applicant when the permit timeline tracks with the project and the cost of the landscape mitigation approach is essentially equivalent to the cost of purchasing credits from an approved mitigation bank.
Try it, you might like it, Mikey.
Posted on September 30, 2016
The Environmental Protection Agency’s use of its Clean Water Act 404(c) authority has received a fair amount of attention of late. Congressional hearings, court cases, media attention and, of course, Erik Fjelstad’s recent ACOEL blog.
EPA used this authority in the Mingo Logan coal mining-related situation after a 404 permit had been issued and the permit-regulated dredge and fill activities had been underway for some time. There is no doubt, as Erik points out, that uncertainty on the durability of a permit for a continuing dredge or fill activity, whether it be for coal mining or something else, is not ideal.
That said, there should be a way to revisit a permit if the impact of a continuing dredge or fill activity is severe and was not fully appreciated at the time of permitting. This is one situation that Congress sought to address in 404(c), and, in my opinion, without it, the integrity of the Clean Water Act to achieve its purpose of protecting waters of the United States would be at risk. Indeed, without such authority, those 404(c) permits for ongoing activities would look a lot like property rights. At the same time, this is not a common situation: EPA has finalized only two post-permit 404(c) actions.
Most common, though still rare, is EPA’s use of 404(c) authority to place restrictions on a 404 permit while the U.S. Army Corps of Engineers is processing a 404 permit application. In this time window, permit applicants know that there is uncertainty regarding whether and how their projects might go forward. EPA initiated the 404(c) process 29 times during the Corps’ permitting process, resolved eighteen without need for final 404(c) action, and came to final 404(c) action eleven times.
The final time window in which EPA can exercise its 404(c) authority occurs before a landowner or project proponent applies for a 404 permit. In one case EPA was confronted with a landowner who had three parcels of land in the Florida Everglades which he was planning on filling. As a start, he applied to the Corps for a 404 permit for two of those parcels. Using its 404(c) authority, EPA precluded the applied-for fill activity on all three parcels. Additionally, in the Mingo Logan example first introduced above, EPA not only addressed the existing permits in its decision, but noted that no future and similar 404 permits should subsequently be issued for those waters.
There is also one pending 404(c) action covering this pre-permit time window. It concerns the headwaters of Bristol Bay, Alaska, where a mining company has explored the copper, gold and molybdenum “Pebble” ore deposit. This large ore deposit underlies the largest wild salmon fishery in the world, which has supported the subsistence activities and culture of local people for thousands of years, a commercial fishery for over 130 years (in which the 2 billionth fish was caught this summer!), and a “bucket list” sport fishery. In this instance, EPA has proposed salmon-protective restrictions for 404 permits related to the mining of this ore deposit.
Should EPA finalize the Bristol Bay-related 404(c) proposal, the mining company could expect to get a 404 permit only if it included EPA’s restrictions. In this context, the mining company would have certainty before it applies for a 404 permit as to the applicability of those restrictions to its fill activity. Some have complained that EPA is overreaching in proposing to exercise this authority in advance of a permit application. For my part, this seems like the most ideal time for all interested parties – local people and the mining company most of all – to find out about such restrictions.
For what it is further worth, EPA has revisited some of those final 404(c) actions to allow for some dredge and fill activities. And notably, eleven of the thirteen final 404(c) actions occurred during Republican administrations (Reagan – 9, Bush I – 1, Bush II – 1). So if politics was involved in the actions, it didn’t fit the stereotype.
Disclosure: Bessenyey & Van Tuyn, L.L.C. represents a client that supports EPA 404(c) action to protect Bristol Bay’s wild salmon from the proposed Pebble mine.
Posted on August 5, 2016
In Mingo Logan Coal Company v. EPA, the D.C. Circuit recently upheld EPA’s use of its “veto” authority over an Army Corps of Engineers permit to fill jurisdictional waters for the Spruce Mine in West Virginia. Section 404(c) of the Clean Water Act provides EPA authority to “deny or restrict the use of any defined area for specification (including the withdrawal of specification).” This authority was described by the court in Mingo Logan as “a mighty power and its exercise will perhaps inevitably leave a permittee feeling as if the rug has been pulled out from under it.”
The salient facts in Mingo Logan involved a Section 404 permit for a “mountaintop removal” coal mine. After a 7-year EIS, the Corps issued the permit in 2006. EPA expressed reservations with the permit, but communicated to the Corps that it “had no intention of taking [its] Spruce Mine concerns any further from a Section 404 standpoint.” But times change – and so do administrations – and in 2009 EPA asked the Corps to suspend, revoke, or modify the permit. After the Corps refused to do so, EPA began the 404(c) process, which led to a final decision in January 2011 to withdraw the specification for two (of three) disposal sites covered under the permit.
On appeal, Mingo Logan argued that EPA did not consider the company’s sunk reliance costs (a point EPA conceded). Even though 404(c) does not explicitly denote costs as a factor in EPA’s decision-making, the court stated that an agency “should generally weigh the costs of its action against its benefits.” Unfortunately for Mingo Logan, the court found that the company had not appropriately raised the issue of reliance costs before EPA or the district court.
The Mingo Logan decision is a bitter pill for developers, interjecting an additional element of uncertainty into a Section 404 regulatory process that is already challenging and subject to shifting political winds. As noted at this site, the agencies and courts have struggled with the jurisdictional reach of Section 404 and when a party can challenge the government’s actions. Key take-aways from Mingo Logan include:
First, 404(c) battles are not for the faint of heart. EPA has successfully used the authority twelve times since the passage of the CWA. Every attempt to stop EPA through litigation has ultimately failed.
Second, Mingo Logan clarifies that a Section 404 permit can be withdrawn years after its issuance. The decision will serve to undermine confidence in the integrity of the permitting process in the United States.
Last, Mingo Logan highlights the inherent problems of shared EPA/Corps responsibility. Defenders of 404(c) will note that this “mighty authority” is rarely used. Although true, it misses the point that the effects of 404(c) are, in fact, regularly felt by the regulated community. The ability to say “no” gives EPA significant leverage – behind the scenes -- in the permitting process.
Query whether we would have a better, and more effective, Section 404 permitting process if all of the authority and responsibility for permitting were vested in a single agency – either the Corps or EPA.
Posted on July 18, 2016
In June 2015, the Environmental Protection Agency and the Army Corps of Engineers released a rule to define “waters of the United States,” affectionately referred to as WOTUS. This definition goes to the scope of federal jurisdiction over wetlands and other waters that are not obviously free flowing and navigable. An in-depth analysis of the rule can be found here.
The rule hasn’t exactly played to rave reviews. It attracted over one million comments. Many complained the rule represents gross government overreach. Others criticize the rule for not being protective enough. The rule is also the subject of multiple challenges around the country, some filed before the rule was officially released. The lead case is now pending before the United States Court of Appeals for the Sixth Circuit. The Court of Appeals accepted original jurisdiction over a challenge to the rule based, in part, on the failure of the rule’s “distance limitations” to comport with good science, and on the inconsistency of the final rule with the proposed rule. The Court of Appeals thought enough of petitioners’ arguments that it stayed implementation of the new rule.
On this first anniversary of the rule, we thought a brief summary of the controversies surrounding the rule and current status might be helpful. The attached article, newly published in The Water Report, attempts to do just that. Many thanks to Diego Atencio, a third year law student at the University of Oregon and a summer associate at DWT, for his assistance in writing the article.
Posted on February 8, 2016
The ecosystem services framework focuses on the economic values humans derive from functioning ecosystems in the form of services—such as water filtration, pollination, flood control, and groundwater recharge—rather than commodities—such as crops, timber, and mineral resources. Because many of these services exhibit qualities similar to public goods, ecologists and economists began forging the concept of ecosystem services valuation in the 1990s as a way of improving land use and resource development decision making by ensuring that all relevant economic values were being taken into account when making decisions about the conservation or development of “natural capital” resources. Research on ecosystem services exploded onto the scene in ecology, economics, and other disciplines bearing on environmental and natural resources management.
The policy world quickly picked up on the ecosystem services idea as well. In 1998 the President’s Council of Advisors on Science and Technology (PCAST) issued a report emphasizing the importance of the nation’s natural capital. The United Nations embraced the concept at the global scale with its Millennium Ecosystem Assessment, in which it explicitly tied ecosystem services to human prosperity.
By contrast, uptake in law has been slow to come. Almost two decades after the PCAST report, it is fair to say that the ecosystem services concept has made few inroads into achieving “law to apply” status in the form of legislative and regulatory text. In one prominent example, when the U.S. Army Corps of Engineers and the Environmental Protection Agency issued a joint regulation in 2008 overhauling their policies on compensatory mitigation under Section 404 of the Clean Water Act, the agencies adopted a watershed-scale focus and declared that compensatory mitigation decisions would take losses to ecosystem services into account. See 33 C.F.R. 332.3(d)(1). This and the few other federal initiatives to use ecosystem services in decision making, while on the rise, have been ad hoc and uncoordinated. But a more coherent federal ecosystem services policy appears on the horizon.
On October 7, 2015, the Office of Management and Budget (OMB), Council on Environmental Quality (CEQ), and Office of Science and Technology (OST) issued their Memorandum for Executive Departments and Agencies on Incorporating Ecosystem Services into Federal Decision Making (the Memorandum). The Memorandum “directs agencies to develop and institutionalize policies to promote consideration of ecosystem services, where appropriate and practicable, in planning, investments, and regulatory contexts.” The goal of doing so is “to better integrate in Federal decision making due consideration of the full range of benefits and tradeoffs among ecosystem services associated with potential Federal Actions.” The scope of the policy goal is broadly stated to include all federal programmatic and planning activities including “natural-resource management and land-use planning, climate-adaptation planning and risk-reduction efforts, and, where appropriate, environmental reviews under the National Environmental Policy Act (NEPA) and other analyses of Federally-assisted programs, policies, projects, and regulatory proposals.” To facilitate agencies in achieving its policy goals, CEQ will prepare a guidance document outlining best practices for: (1) describing the action; (2) identifying and classifying key ecosystem services in the location of interest; (3) assessing the impact of the action on ecosystem services relative to baseline; (4) assessing the effect of the changes in ecosystem services associated with the action; and (5) integrating ecosystem services analyses into decision making. In the interim, agencies have until March 30, 2016 to submit documentation describing their current incorporation of ecosystem services in decision making and establishing a work plan for moving toward the goals of the policy directive. Id. at 4. Meanwhile, CEQ has assembled a task force of experts from relevant agencies to craft a best practices implementation guidance, which will be subject to interagency review, public comment, and, by November 2016, to external peer review consistent with OMB’s information quality procedures and standards. Once the guidance is released, agencies will adjust their work plans as needed. The Memorandum also acknowledges that “ultimately, successful implementation of the concepts in this directive may require Federal agencies to modify certain practices, policies, or existing regulations to address evolving understanding of the value of ecosystem services.”
ACOEL Fellows should watch the Memorandum’s implementation over the next year closely. In particular, incorporation of best practices for ecosystem services impact assessments under NEPA would project the ecosystem services framework into state, local, and private actions receiving federal agency funding or approval. To be sure, there is plenty of work to be done before one can evaluate the Memorandum’s impact on the mainstreaming of the ecosystem services framework into environmental law. Significantly, the timeline of the Memorandum directives will deliver the best practices implementation guidance in the final months of the Obama Administration, leaving it to the incoming administration to determine where to take it. Nevertheless, simply by declaring the incorporation of ecosystem services into federal agency decision making as an Executive policy and laying out the tasks and timelines for doing so, the issuance of the Memorandum has done more to advance the ecosystem services framework as a legal concept than has any previous initiative.
Posted on December 17, 2015
As Annette Kovar recently predicted in her blog, the Supreme Court granted cert in United States Army Corps of Engineers v. Hawkes Construction., Inc. (15-290) to resolve a split in the circuit courts on the question whether a jurisdictional determination (JD) under the Clean Water Act constitutes “final agency action for which there is no other adequate remedy in a court" and is therefore subject to judicial review under the Administrative Procedure Act.
In Hawkes , the Eighth Circuit held that the JD was a final agency action subject to the APA. The case arose after a company sought to mine peat from wetland property owned by two affiliated companies in northwestern Minnesota. The Corps’ JD found that the wetlands onsite were "waters of the United States" and were therefore subject to the permit requirements of section 404 of the CWA. This decision runs counter to the Fifth Circuit decision in Belle Co., LLC v. U.S. Army Corps of Eng’rs.
Both courts evaluated the reviewability of JD’s in light of Sackett v. EPA, which held that property owners may bring a civil action under the APA to challenge EPA's issuance of a CWA §309 compliance order directing them to restore their property immediately pursuant to an EPA work plan and assessing penalties of $37, 500 per day for failure to comply. The Fifth Circuit in Belle declined to apply Sackett on the ground that a JD does not have the same legal consequences as a 309 compliance order. The Eighth Circuit disagreed and held that a JD presents landowners with a Hobson’s choice requiring them “either to incur substantial compliance costs (the permitting process), forego what they assert is lawful use of their property, or risk substantial enforcement penalties.”
In my view the Fifth Circuit has the better reading of Sackett and the governing law on what constitutes final agency action. The Supreme Court uses a two prong test to determine finality: first the action must “mark the consummation of the agency’s decision making process;” and second “the action “must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear There is no question that a JD satisfies the first prong. But a JD does not meet the second prong for at least three reasons. First, a JD does not determine the rights and obligations of the landowner for the simple reason that the statute has already done that. Section 301 of the CWA prohibits any discharge by any person to a water of the US without a permit. The landowner’s legal obligations are exactly the same with or without the JD.
Second, unlike the compliance order in Sackett, a JD does not compel the landowner to take any action at all. Nor does it expose the landowner to penalties, let alone the double penalties at issue in Sackett. The JD notifies the landowner that a permit may be required for discharging dredge or fill material into the wetland unless one of the statutory exclusions such as prior converted cropland apply. However as the Fifth Circuit said, “even if Belle had never requested the JD and instead had begun to fill, it would not have been immune to enforcement action by the Corps or EPA.”
Third, the Eighth Circuit was simply wrong to equate the practical consequences of a JD putting the landowner on notice that a permit was required with Bennett’s requirement that the action must have legal consequences. In Bennett the action at issue was a biological opinion issued under section 7 of the Endangered Species Act. The Court found that under the ESA “the Biological Opinion at issue here has direct and appreciable legal consequences;” namely, that it curtailed the authority of the Bureau of Reclamation to provide water for irrigators from federal reservoirs in order to protect endangered fish. Nothing remotely similar to that follows from the issuance of a JD.
Finally the Court ought to be leery of broadening the reach of the APA to include actions having practical effects but not actual legal consequences. That could sweep in a large number of federal actions that have never been thought of as justiciable controversies—for example notices of violations which arguably trigger even more immediate and serious consequences than JD’s. Regulated entities are not the only ones who might benefit from a relaxation of the APA’s finality requirement. Environmental plaintiffs would gain increased access to the courts as well.
Posted on December 10, 2015
The U.S. Supreme Court will likely agree to review the decision of the Eighth Circuit Court of Appeals in Hawkes Co. v. U.S. Army Corps of Engineers. So said John Cruden, Assistant Attorney General for Environment and Natural Resources and College Fellow, to the 2015 National Clean Water Law Seminar. He described the Hawkes case as the second generation of the U.S. Supreme Court’s Sackett v. EPA decision in 2012.
As noted here, the Hawkes case is another wetlands case, this time about a Minnesota peat farming company that applied for a permit from the U.S. Army Corps of Engineers under the Clean Water Act to expand its peat mining operation. The Corps advised Hawkes that it had made a preliminary jurisdictional determination (JD) that the property on which the expansion was planned included regulated wetlands requiring a more extensive environmental assessment. Despite Corps staff attempts to dissuade continuing with the permitting process, Hawkes challenged the preliminary JD. The Corps subsequently prepared an Approved JD and ultimately issued a Revised JD after its own internal review raised issues of concern. The Eighth Circuit Court of Appeals held that the Corps JD was a judicially reviewable final agency action under the Administrative Procedure Act (APA). Previously, the Fifth and Ninth Circuit Courts of Appeal had ruled that a Corps JD was not a judicially reviewable final agency action. The Hawkes case sets up a split in the Circuit Courts making Supreme Court review more likely.
One might recall that the Supreme Court’s unanimous Sackett v. EPA decision held an EPA compliance order, alleging the Sacketts had violated the Clean Water Act by placing fill material on their property without a permit and requiring restoration of the property, was a final agency action and subject to judicial review under the APA. The Supreme Court concluded the Sacketts had no other adequate remedy at law and further stated that the APA creates a “presumption favoring judicial review of administrative action.” Justice Scalia, writing for the Court, said this “presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.” He continued that nothing in the CWA can be read to enable or condone “the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within EPA’s jurisdiction.” Clearly, principles of fundamental fairness and due process underlie the Sackett decision.
If one goes back to the Hawkes case, note that the Corps describes its preliminary and Approved JDs as tools-- i.e. guidance, to help implement the Clean Water Act, and not orders. JDs probably do streamline the permitting process because an applicant will know what the Corps’ position is before investing heavily in a permit process and may decide to abandon the project. But, there is a hint of “strong-arming” tactics in the Hawkes case that does not bode well for a deferential decision by the Supreme Court to the Corps. However, even if Corps’ JDs become subject to judicial review in the future, won’t a reviewing court still ascribe a certain amount of deference to the Corps’ expertise under APA standard of review precedents? Wouldn’t the Corps have to defend its JD at some point if challenged? Will the Corps really lose much by defending its JD sooner rather than later?
Posted on November 3, 2015
The Clean Water Act’s judicial review provision is bizarrely phrased and at times impenetrable. It can force litigants into lengthy threshold battles over jurisdiction that delay and sideline the actual challenges to EPA’s action. Nowhere is this better showcased than in the recent litigation over EPA’s new definition of “waters of the United States” (“WOTUS”). Companies, industry groups and public interest organizations have filed dozens of suits in district and circuit courts across the country to cover all the possible jurisdictional possibilities. The circuit court cases were filed under the Clean Water Act’s judicial review provision that automatically centralizes the cases in a randomly selected circuit court (here, the Sixth Circuit). The district court cases were filed under the Administrative Procedure Act, which contains no mechanism for consolidating the numerous cases.
In a heroic attempt to combine the district court cases and litigate in only one court, EPA looked to the multidistrict litigation process designed for coordinated discovery among cases sharing common facts. The circus that ensued was a mini-caricature of the WOTUS litigation and highlighted the intrinsic problems with the Clean Water Act’s judicial review process. The hearing before the multidistrict litigation panel began at 8:00 a.m. in a large courtroom filled beyond capacity with hundreds of lawyers representing the litigants in the fifteen matters scheduled for oral argument that day. Clerks of the court spread across the room calling each matter, and lawyers fought through the crowd to form a bunch in front of their clerk, struggling to hear over the noise. The clerks doled out oral argument time in minute increments, giving some lawyers as few as two minutes of argument time. Once the schedule was set and after a brief recess, the panel called each of the thirteen cases preceding the WOTUS matter on the docket – the Amtrak derailment, airline anti-trust, various medical device and product liability matters, etc. – moving from one matter to the next with seamless agility.
DOJ (Martha Mann) presented oral argument for EPA, and met with stiff resistance from the panel. The panel challenged EPA’s attempt to fit an APA case, to be decided on the record and the law with minimal discovery, into the MDL process designed mostly for coordinated discovery. Ultimately the panel commended Ms. Mann for a noble effort in an exceptionally uphill battle. Elbert Lin, the Solicitor General of West Virginia, presented argument for the plaintiffs and, sensing the favorable persuasion of the panel, highlighted only the diverse procedural postures of the various matters. The various jurisdictional and preliminary injunction rulings in the district courts and an appeal already before the 11th Circuit would all greatly complicate any attempted consolidation.
On October 13th, the panel issued its ruling, deciding not to consolidate the district court cases. The panel agreed that not only was the MDL process not applicable to the predominantly legal WOTUS challenges, but consolidation would only further complicate the already chaotic litigation.
Jurisdictional questions are now pending before the 6th and 11th Circuit Courts of Appeals. The 6th Circuit offers EPA its last hope of litigating the WOTUS challenges in one court. If the 11th Circuit were to disagree, the jurisdictional issues could continue to eclipse the merits of the litigation for months, if not years, pending final resolution by the Supreme Court.
Posted on July 24, 2015
On July 6, in American Farm Bureau Federation v. EPA, a Clean Water Act case involving important issues of first impression, the U.S. Court of Appeals for the Third Circuit upheld the Chesapeake Bay Watershed Total Maximum Daily Load (TMDL) – the largest and most complex TMDL ever issued. This watershed covers 64,000 square miles in parts of Maryland, Virginia, Pennsylvania, Delaware, West Virginia, New York, and the District of Columbia. Its population is 17 million and growing.
Under Clean Water Act Section 303(d), when a water body is not meeting water quality standards, a TMDL must be developed, typically by the state, subject to EPA approval. It specifies the maximum amount of a pollutant that can be discharged to the water body and still meet water quality standards. Under Section 303(e), the TMDL becomes part of a state’s “continuing planning process,” which specifies the measures the state will take to bring the impaired water body into compliance. This plan is designed by the state, with EPA oversight, but EPA has no authority to implement the plan. In addition, the Act does not define a TMDL or spell out exactly what EPA may do to assure achievement of the water quality standards if the plan is not adhered to.
The Chesapeake Bay TMDL was issued by EPA in December, 2010. It was the culmination of over 25 years of unsuccessful efforts by the Bay states and EPA to stem the increasing discharges of nitrogen, phosphorus and sediment which were damaging the water quality of the Bay, causing losses of blue crabs, oysters, and other aquatic organisms – including notably those at the base of the food chain, and impairing a number of uses: commercial, recreational and aesthetic. Because of the interstate nature of the pollution and the complex scientific issues involved, in 2006 the Bay states asked EPA to take the lead in drafting a watershed-wide TMDL, in consultation with them and the public, which EPA did.
In prior blogsI have described the substance and background of the Bay TMDL, the district court decision upholding it and the issues raised on appeal and the large number of amicus briefs from across the country on both sides. In American Farm Bureau Federation, appellants claimed that EPA exceeded its statutory authority by (1) establishing not just the maximum daily and annual loadings of nitrogen, phosphorus and sediment, but also waste load allocations to a number of permitted point sources and load allocations to “sectors” of nonpoint sources (such as agricultural and urban stormwater), (2) specifying target dates for compliance (60% of the necessary measures in place by 2017, and the rest by 2025) and (3) requiring “reasonable assurance” by each state that it is making progress with its plan, to be reviewed at two-year intervals for which “milestones” were to be established.
While the TMDL was in development, interim action has involved an iterative process in which each state developed a “watershed implementation plan” to eventually bring its part of the Bay watershed into compliance, with input from county and local government entities and the private sector. EPA has conducted regular reviews and advised states of any shortcomings. This advice is then discussed, with the states having the final say on implementation measures.
With this background, the Third Circuit first considered the jurisdictional issues of standing and ripeness, which had not been raised by the parties. The court held, as many other courts have, that a TMDL is not a regulation but an “informational tool” which gets implemented when permits are issued or other regulatory measures are taken. If it is not currently impacting anyone, who can have standing to challenge it? The court found that while the TMDL is not itself enforceable, where a petitioner can demonstrate a high likelihood that it will be affected by the implementation that will follow, it has standing. This test was met by the farm community represented by the Farm Bureau. The court then held that the TMDL was ripe for review because it was a purely legal dispute on a well-developed record, and hardship would result to the parties if the merits were not addressed. As the court put it: “If there is something wrong with the TMDL, it is better to know now than later.”
Because the statute neither defines a TMDL nor sets out what EPA must or might do if satisfactory implementation is not undertaken by a state, the court concluded that Chevron deference was warranted so long as EPA’s actions were reasonable and consistent with the purposes of the Act – in this case to substantially improve the quality of the nation’s waters. The court stated, citing extensive case law, that often Congress legislates in broad terms, leaving to the agency the task of filling in the “gaps” based on its expertise and evolving experience. The court then noted that EPA has had regulations in place defining a TMDL as the sum of the loadings from point and nonpoint sources to a water body for over 20 years, they had never been challenged, and had been discussed by numerous courts. The court held this definition reasonable. It further held that since a TMDL is an informational tool, EPA acted reasonably in including loading allocations to point sources and categories of nonpoint sources, especially in light of the interstate nature of the TMDL and the complexity of moving thousands of sources towards compliance with water quality standards.
The court also held that EPA did not err in prescribing target dates (which are hortatory but not enforceable) because Congress clearly intended that water quality standards be achieved with reasonable promptness. Similarly it held that EPA acted within its authority in requiring “reasonable assurance” from the states that they are taking appropriate measures leading to achievement of water quality standards. The court further held that none of EPA’s actions illegally impinged on the rights of the states to make the detailed choices as to which sources to regulate, and how stringently, to achieve the TMDL loadings. Nor did EPA intrude improperly into matters of local land use regulation, which is traditionally the province of the states.
As a result, all of the cleanup and restoration measures being taken throughout the watershed based on the TMDL can continue to go forward, now that the foundation on which they are based is secure. In addition, this decision, by resolving a number of key issues, will provide valuable guidance to practitioners across the country.
Posted on July 7, 2015
Since he's much in the news these days, I thought I'd share this story about an encounter of Donald Trump with the Clean Water Act.
Back in 1919, Eugene Meyer (a chairman of the Federal Reserve, the first president of the World Bank, publisher of the Washington Post, and father of Katherine Graham) built a palatial mansion on a 230-acre property in Westchester County, New York (about 40 miles north of New York City) known as Seven Springs. Eventually the property fell into disuse, and in 1996 Trump bought it so that he could build a luxury golf course there, with the mansion as the clubhouse. The land straddled the extremely affluent towns of Bedford, North Castle and New Castle, so those towns' zoning approval was needed. It was adjacent to Byram Lake, which serves as the drinking water reservoir for the much less affluent Village of Mount Kisco. More than one-third of its population is Hispanic.
Crabgrass and dandelions, of course, would be utterly unacceptable at a Trump golf course, so the plan involved the considerable application of pesticides. Mount Kisco became very concerned that the stormwater runoff from the golf course flowing into Byram Lake would contaminate their drinking water. They hired me as their environmental counsel to see if Trump's plan could be stopped. Since none of the golf course was in Mount Kisco, the village had no direct authority. The town of New Castle gave Trump a hard time over traffic impacts, and he decided to give up plans to use that corner of the site for his project. Bedford and North Castle don't rely on Byram Lake for their water and weren't so concerned about the pesticides.
A close reading of the appendices to the environmental impact statement (when laid against state regulations) revealed that pesticide levels in the runoff could exceed drinking water standards under certain scenarios. Trump proposed to address this problem through a novel technology called "linear adsorption systems" that would involve a carbon filtration unit at each of the 18 holes. The land would be graded so that the runoff went into these filtration units, which were supposed to remove the pesticides and discharge clean water into Byram Lake.
No such system had ever been built before, and we didn't know if it would work. We wanted it tested first. A local citizens group made up buttons saying "We're Not Trump's Guinea Pigs," with a drawing of a guinea pig and a red slash through it. The golf course didn't seem to require any state approvals, but I was able to convince the state environmental department that capturing the runoff, treating it, and discharging it through pipes had the effect of converting a sheet flow into point sources, requiring NPDES permits for each discharge point. This afforded us the opportunity to get a public hearing before the state regulators (in which we packed a high school auditorium with Mount Kisco residents worried about their drinking water), and then an adjudicatory hearing at which we pressed the need for a pilot test of the treatment system.
The hearing led to a decision that a pilot test was needed. We then entered into protracted administrative adjudication over the parameters of the pilot test.
All this went on for eight years. Finally, in 2004, Trump gave up the idea of the golf course and decided instead to build a small number of large single-family homes. That residential project involved far less use of pesticides than a golf course, and Mount Kisco was satisfied with it. The NY Daily News covered the story with the headline, "Trump 'Fires' Plan for New Golf Course Over Community Pesticide Concerns."
The local approval process for the homes took many more years, and was punctuated by litigation with the Nature Conservancy over an access easement. Trump now has his approvals but construction of the homes has not yet begun. The property has been mostly idle during all this time, except that in 2009 he rented a portion of the land to some tenants from the Middle East, until it turned out that the tenants planned to erect tents to be used by Muammar el-Quaddafi while he was In New York for a United Nations meeting. When Bedford learned of this, they issued a stop work order because one can't erect a tent in Bedford without a permit, and Quaddafi never visited.
In the end, the environmental impact review process and the Clean Water Act did their jobs, the people of Mount Kisco still enjoy clean drinking water, and the occasional dandelion still pokes its head through the grass. And, notwithstanding all of this, Donald Trump tells us that he is still really, really rich.
Posted on March 17, 2015
In a decision that may end a 13-year battle over wetlands jurisdiction, the Fourth Circuit on March 10 upheld the U.S. Army Corps of Engineers findings that a 4.8 acre wetland had a “significant nexus” to navigable waters under the Clean Water Act. Of importance to future challenges, the court deferred to the Corps’ rather ordinary wetlands evidence, despite contrary evidence from a developer of a proposed planned unit development in Chesapeake, Virginia.
The Precon case spanned the 2006 Supreme Court decision in Rapanos v. United States, when Justice Kennedy introduced the jurisdictional standard of “significant nexus.” For a refresher, a “significant nexus” between wetlands and navigable waters exists “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”. For previous posts concerning CWA jurisdiction, see here and here. The Fourth Circuit previously had found a “nexus” between Precon’s 4.8 acre wetland and navigable waters seven miles away and allowed aggregation of the Precon’s 4.8 wetland acres with a region of 448 “similarly situated” wetlands, but remanded for application of the “significant” aspect of Justice Kennedy’s test.
CWA jurisdictional groupies watched the Precon case as among the first to involve evidence demonstrating jurisdiction under the “significant nexus” test and the only decision to be remanded for a showing of “significance.” Evidence was presented, experts disagreed, and the court deferred to the Corps. On the key point of “significance,” the decision found neither arbitrary nor capricious the Corps’ findings of water flow. In addition, the court deferred to the Corps’ showing of wetland functions in relation to the navigable water, particularly water quality (dissolved oxygen) impairments to the Northwest River, which are reduced by the carbon sequestration of retained organic matter by the aggregated wetlands. The court also found credible the Corps’ qualitative evidence of habitat use by common species (deer, squirrels, amphibians).
The take-away: If a “nexus” is “significant” based on a showing of general relationship of wetland functions to downstream receiving water impairments and common wildlife (wetland and non-wetland) usage, it is hard to imagine a wetland failing to be held jurisdictional when aggregation is allowed. Counsel for Precon indicates it will seek en banc rehearing and may seek certiorari, so there may be yet another chapter to this saga.
Posted on November 17, 2014
November 1967: The Moody Blues release their second album, Days of Future Passed, said to be an influential work of the countercultural, psychedelic era. May 2014: Wolverine goes back in time to rally the X-Men against the Sentinels in Days of Future Past. In between: Ed Muskie and Leon Billings roamed the Earth, particularly the U.S. Senate, and modern-day environmental law was born and thrives.
2014 also is the centennial of the birth of Muskie in the old mill town of Rumford, Maine. On November 15, almost exactly 47 years after release of Future Passed, Harvard Law Professor Richard Lazarus and Leon Billings, Senator Muskie’s former chief of staff, spoke on a panel looking back and to the future of laws like the Clean Air and Water Acts that were unanimously passed by the Senate through the guidance of Muskie and Billings.
Billings spoke of how what Muskie was able to shepherd through Congress and into law involved concepts still pervasive and taken for granted today—such as private attorneys general, nondegradation, open decision-making, the public’s right to breathe healthy air and removal of the right to pollute. He described Muskie’s insistence of and ability to achieve bipartisanship, with allies for the CAA and CWA efforts including such Senators as Baker, Eagleton, Cooper, Bayh, Boggs and Dole, as well as the exhaustive efforts to fully vet and document the need for legislation. For example, for the CWA the Senate Committee held 33 days of hearings with 1721 witnesses, 470 statements and 6,400 pages of testimony, followed by 45 sub-or-full-Committee markup sessions and 39 Conference meetings.
Billings then focused on two concepts that he said demonstrate Muskie’s ability over 40 years ago to look to the future. The first, “waters of the Unites States” grew out of the Senator’s knowledge of the 1899 Refuse Act; he successfully convinced his colleagues that the Act supported a broad view of “waters of the US” to include, for example, wetlands. Since then, the Supreme Court has gone “at least as far as we had expected, and more broadly than we could have hoped”, said Billings.
The second concept is that of climate change and the Clean Air Act. Billings was very clear: Section 111(d) was no accident, is not being misinterpreted, and Muskie intended there to be a legislative basis for then-unknown or undefined pollution problems like CO2, what Billings now calls the “epitome of the precautionary principle”. The phrase “selected air pollution agents” almost never made it out of the House-Senate Conference in December 1970, but a compromise was struck so late at night it never made it into the Conference reports. And while no one then envisioned CO2 and climate change, Billings said that if Muskie were alive when the Supreme Court ruled in Massachusetts v EPA that CO2 is a pollutant, he would have said, “Why do you think I put that provision in there in the first place?”
Richard Lazarus then spoke of Senator Muskie’s enduring legacy in the courts as the font of legislative intent underlying many environmental laws, including frequent references to Muskie in court opinions and during oral arguments at the Supreme Court. He also demonstrated that while President Nixon did sign the bills authored by Muskie and had the label of being an environmental President, in fact he was largely using the issue for a short time as a defensive measure to cut off Muskie’s prospects as a potential 1972 Presidential candidate. Richard then showed slides of handwritten notes made by Nixon’s Chief of Staff, H.R. Haldeman of three discussions with the President: in February 1971, even when they thought environmental protection “has to be done”, at the same time they thought it “is not worth a damn”; in June “should take on environment—it’s not a sacred cow”; and by July 1971 they wanted to put the “brakes on pollution bills…when we can without getting caught”, and to “reexamine all pollution bills in terms of current economic impact”.
Richard also discussed the current EPA rulemaking under 111, especially referencing the term “best system of emission reduction”; EPA’s June 2014 legal memorandum in support of its rulemaking proposal used Senator Muskie’s own words concerning “system” as encompassing the potential for emission reductions to occur outside the fence, and to include more than just controls. He said that for EPA, Muskie is its “Mr. Clean”.
During Q&A, both panelists discussed the partisanship of the past 10-20 years contrasted with during Muskie’s era. Billings mentioned how during Muskie’s opening presentation of the Clean Air Act on the Senate floor, the presiding officer was Senator Barry Goldwater, who sent down a note (now lost to history) saying, “Ed, that is the finest speech I think I have ever heard on the floor of the U.S. Senate.” Turning to NEPA, the concept of an” environmental impact statement” developed through a personal compromise Muskie struck with Senator Jackson.
Afterwards I asked Billings, “If Ed Muskie and you were in the Senate now, what would you be doing?” He said, “If we were the majority party, holding a lot of oversight hearings to bring in all the scientists and evidence; if the minority party, writing speeches.”
And that is how the Past (or Days Passed) in Environmental Law still have major force in today’s many controversies. Oh, by the way: The Moody Blues recently released a new box set, “Timeless Flight”, and are still touring. Long live rock and environmental laws!
Posted on October 28, 2014
Many Clean Water Act practitioners will have their eyes on the Third Circuit on November 18 when oral argument has been set on an appeal from a decision upholding EPA’s issuance of a multi-state Total Maximum Daily Load (TMDL) for the Chesapeake Bay and its tributaries. The Chesapeake Bay TMDL, issued in December, 2010, is the biggest EPA has ever set, covering parts of 6 states and the District of Columbia. As I reported in a blog article a year ago on September 13, 2013, in a 99 page decision the Middle District of Pennsylvania upheld the TMDL against numerous challenges by the American Farm Bureau Federation, other agricultural trade associations and the American Home Builders Association. Those organizations appealed, and a flurry of intervenor and amicus briefs have been filed on both sides.
The issues raised by the appellants are whether EPA exceeded its statutory authority when (1) it set pollutant allocations for nitrogen, phosphorus and sediment on a watershed-wide basis, and then, by agreement with the states, subdivided them by state and by major river basin; and (2) it insisted that states provide “reasonable assurance” that they would implement measures reasonably calculated to achieve compliance with the TMDL within agreed-upon timetables.
As described in the district court decision, the Chesapeake Bay TMDL has a long history, including more than 25 years of cooperative but unsuccessful efforts by the Bay states, working together and with EPA, to design and implement programs to reduce the large amounts of nutrients and sediment flowing annually into the Bay. This pollution has contributed to the decimation of oysters, blue crabs and other fish, destruction of hundreds of acres of bay grasses, and significant economic, recreational and cultural losses throughout the watershed. Because of the inherently interstate nature of the pollution, and the inability of one state to stem pollution in another state, the states in 2007 asked EPA to set a multistate TMDL, which EPA did. At the heart of the legal dispute are issues of “cooperative federalism” – the proper roles for the states and EPA and the limits of EPA authority under Clean Water Act Section 303, which gives only minimal guidance on TMDL implementation. The district court decision addressed several issues of first impression and, in upholding EPA’s actions, provided a thoughtful analysis and helpful guidance.
The precedential significance of this case has not escaped states, cities and other interested parties elsewhere in the country. Briefs have been filed by intervening environmental groups, wastewater treatment agencies and municipal authorities in support of EPA. In addition at least 10 amicus briefs have been filed on behalf of over 100 other entities. A group of 21 attorneys general, mostly from western and Mississippi Valley states, filed a brief in support of the appellants. They were joined by a group of counties, and much later by a group of 39 Congressmen. Amicus briefs were filed in support of EPA by the states of Virginia, Maryland, Delaware and the District of Columbia (all in the Chesapeake Watershed). Also supporting EPA are a brief by the cities of New York, Baltimore, Philadelphia, Los Angeles, Chicago and San Francisco, and a separate brief for the City of Annapolis, plus two amicus briefs by groups of environmental organizations and a brief by 19 environmental law professors from around the country.
One of the interesting features of this case is that none of the EPA actions challenged by the appellants were forced by the agency on unwilling states. The “reasonable assurance” features are contained in “watershed implementation plans” drafted by each state. The deadlines are not inflexible, cannot be enforced by EPA, and were agreed to by the states. In fact on June 16, 2014, all 6 Bay states, the District of Columbia and EPA signed a new Chesapeake Bay Watershed Agreement reaffirming their commitment to the TMDL and the implementation measures. So stay tuned! The courtroom will likely be SRO, and I’ll be back to you after a decision.
Posted on October 3, 2014
The Blog Calendar Gods directed me to post something on September 16, 2014, which just happens to be the 40th anniversary of the date that I first started to practice law. Not wanting that coincidence to go to waste, I decided to look back 40 years, to a time when the practice of environmental law was far less complex – or, at least, the things that EPA then published in the Federal Register were a lot shorter.
On September 16, 1974, EPA’s rules and notices took up less than four pages in the Federal Register and consisted of a notice of receipt of applications for pesticide registration under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); a correction to one line of a previously-published notice of proposed rulemaking under the Clean Water Act; and the approval of a compliance schedule under the State of Kansas’ state implementation plan. The entire Federal Register on that date was only 104 pages long.
Fast forward 40 years. EPA’s fairly typical Federal Register postings on September 16, 2014, include – as was the case 40 years ago – rulemaking proposals and notices under the Clean Air Act, Clean Water Act, and FIFRA; however, the September 16, 2014 proposals and notices from EPA take up more than 125 pages of the Federal Register, and a typical edition of the Federal Register these days is well over 300 pages long. I could complain that EPA did not celebrate my anniversary with the publication of a splashy huge new rule in the Federal Register – but I think many of my clients would consider that to be a good thing.
Perhaps the most significant change over the past 40 years, though, is to the overall length and complexity of the rules that are now appear in volume 40 of the Code of Federal Regulations. (There is that number “40” again.) In 1974, 40 C.F.R. – the volume of the code containing most of EPA’s regulations – was about 2000 pages long. In the decades following that time, 40 C.F.R. has steadily increased in size (and complexity). In 1984, it was approximately 5,800 pages long; by 1993, it topped 11,000 pages; and in 2012, there were over 25,000 pages of regulations in 40 C.F.R.
For those of you wondering what else was going on 40 years ago (outside of the practice of environmental law), let me share the following tidbits from September 16, 1974. The big news that day was President Ford’s announcement of his “Program for the Return of Vietnam Era Draft Evaders and Military Deserters.” In addition, on that day, BART began operations in the Bay area, Bob Dylan recorded Blood on the Tracks, the Royal Canadian Mounted Police swore-in their first female recruits, and Joe Namath was on the cover of Sports Illustrated (he was shown rehabbing his battered knees, hoping to play one more season in his $250,000-per-year contract with the New York Jets). Also, if I had stopped cutting my hair 40 years ago today, my golden locks would be more than six yards longer than they are today.
I will be thinking about all of this as I lift my glass this evening and toast all of you and begin year 41.
Posted on August 11, 2014
If you've been following the recent controversy surrounding the proposed rule regarding "waters of the United States" (referred to in some environmental and agricultural circles as "WOTUS"), you know the wave the EPA has created among opponents of the rule. In April 2014, the EPA and the U.S. Army Corp of Engineers ("Corps") published a proposed rule defining the scope of waters protected by the Clean Water Act ("CWA"). Originally, the public comment period for the proposed rule ended July 21, 2014. That period was extended to October 20.
According to its opponents, a majority coming from agricultural interests in the nation's Heartland, the proposed rule is a stealthy way to expand the EPA's authority; a clear land grab epitomizing government overreach. According to the EPA, the purpose is to clarify the definition of navigable waters in light of U.S. Supreme Court decisions in U.S. v. Riverside Bayview Homes, Rapanos v. United States, and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers.
Although EPA explicitly stated that the proposed rule would not affect any exemptions to CWA Section 404 permitting requirements, which include normal farming and ranching activities, opponents think otherwise. Because of the expanded definition of navigable waters to include some waters that are merely connected to navigable waters, opponents worry landowners now will have new land covered by the CWA, forcing them to obtain permits under other provisions of the CWA for regular farming operations. Missouri farmer Andy Klay told Fox News he worries how long a permit might take. A day? A month? He and his wife created a parody video of the EPA to the tune of the popular song "Let it go" from Disney's Frozen -- "The EPA and the Corp. They will try, to justify! That's enough, that's enouuugh!"
Capturing the same sentiment, the American Farm Bureau Federation has launched a viral marketing campaign called "#DitchtheRule." The campaign supplies talking points and pre-written messages for supporters of #DitchtheRule to share on Twitter. For example, the campaign has a pre-written tweet "Ditches and puddles are not navigable. #DitchtheRule." In an attempt to set the record straight, the EPA has responded with a campaign called "DitchtheMyth." The campaign responds directly to the #DitchtheRule allegations. EPA contends, for example, that the myth that the rule will regulate puddles is "not remotely true." But the criticisms, or misconceptions, depending on your perspective, surrounding the rule are very real in the Heartland.
It remains to be seen how things will shake out when balancing the cost of increased regulation with the benefit of additional clarity in the rule. However, there clearly is a gap in communication and deep mistrust between the EPA and agricultural interests. Though some of the fear may be based in myth, folks in the Heartland want the EPA to tread lightly and take seriously the unintended consequences of the rule for farmers and ranchers. Either way, the rule's polarizing effect has already caught the attention of lawmakers. According to The Hill, more than 260 members of Congress, spanning both parties, have opposed the rule.
For more background, see: Weighing in on the Waters of the U.S. rule: an update
Posted on June 20, 2014
In a surprising turn of events, on March 12, 2014 EPA Regions 1, 3 and 9 each simultaneously but separately responded, and each in a somewhat different way, to three virtually identical NGO petitions asking those Regions to use their Clean Water Act (“CWA”) Residual Designation Authority (“RDA”) to require that stormwater discharges from impervious surfaces at existing commercial, industrial and institutional (“CII”) sites be permitted under CWA Section 402. The three petitions were filed in July 2013 by several different and somewhat overlapping consortia of environmental organizations.
The three Regions’ responses were all signed by their respective Regional administrators, each was worded differently, and each included a somewhat similar -- yet somewhat different --explanatory enclosure that detailed the basis of each respective Region’s response.
EPA Region 3’s response is a flat out denial of the petition, citing existing tools and programs already in place to address stormwater pollution (e.g., MS4 permits, TMDL implementation and strong state programs). The enclosure with the Regional Administrator’s letter denying the petition also states that “Region III declines to begin a process for categorical designation of discharges from CII sites to impaired waters since … the data supplied by the Petitioners to support the exercise of RDA is insufficient.” The enclosure does note that if the existing programs ultimately do not meet their objectives, alternate tools, including RDA, will need to be considered.
Similarly, EPA Region 9’s response “declines to make a Region-wide designation of the sources” in the petition specific to Region 9. That response also concludes in the enclosure that “we currently have insufficient information to support a Region-wide designation” of the CII sites specified in the petition, “that effective programs are already in place that address the majority of the sites identified in the petition,” and that the Region will keep designation in their toolbag as they “continue to evaluate currently unregulated sources of stormwater runoff.”
However, Region 1’s response states that it “is neither granting the petition … nor is it denying the petition.” Instead, the Region is going to evaluate individual watersheds in its six states to look at the nature and extent of impairment caused by stormwater, and then “to determine whether and the extent to which exercise of RDA is appropriate.”
Given the identical language in certain portions of all three of the Regional response enclosures (e.g., Statutory and Regulatory Background; Petition Review Criteria), it is clear that EPA Headquarters was in the thick of the discussions regarding the responses to these three RDA petitions. However, the apparent autonomy afforded each Region in determining how to deal with the issue is remarkable, and the discussions ultimately may have centered (as they often do at EPA HQ) on resource allocations nationally and within each Region.
The responses of Regions 3 and 9 imply that their current respective paths, with time, will get results without diverting resources. EPA Region 1 appears to more fully embrace RDA as a near-term viable tool to more aggressively control stormwater runoff from CII sites. Apparently, the New England regulators’ successful experience with the Long Creek Watershed RDA and their efforts relative to the RDA process for the Charles River has only whetted their appetite for further candidate areas at which to employ this model to address impaired stormwater.
Whether the NGOs will seek judicial relief from the denial of their Petitions, whether the states in the USA’s upper right hand corner will be supportive of EPA New England’s continued utilization of this tool, as well as how this issue ultimately will be played by EPA HQ, is fuzzy math.
Posted on April 21, 2014
New EPA Rule to Have Broad Implications for Construction Industry; Describes Required Best Management Practices for Stormwater
EPA recently finalized revisions to the effluent limitations rules for the Construction and Development (“C&D”) point source category under the Clean Water Act. The revisions will take effect on May 5th, and reflect the terms of a settlement agreement between EPA and the Wisconsin Builders Association, the National Association of Home Builders, and the Utility Water Act Group. See Wisconsin Builders Association v. EPA, No. 09-4413 (7th Cir. 2012).
The groups challenged EPA’s 2009 Effluent Limitations Guidelines for the Construction and Development Industry, known as the 2009 C&D Rule, arguing that the rule was unworkable and reflected incorrect calculations, and that compliance could cost stakeholders up to $10 billion annually.
The new revisions to the C&D rule eliminate the numeric limitations for turbidity in stormwater discharges from construction sites, in favor of non-numeric effluent controls and best management practices for reducing the effects of erosion and scour on water quality. EPA had previously included numeric limitations for turbidity in its 2009 C&D rule but had stayed implementation of those limitations as a result of several legal challenges to the rule.
The C&D rule has wide-ranging applicability, as it typically covers construction activities such as clearing, grading, and excavating at sites where one or more acres of land will be disturbed. Improperly managed soil at construction sites can easily be washed off during storms and has the potential to negatively impact nearby water bodies.
Under the stormwater permitting rule, construction site owners and operators are generally required to:
- implement erosion and sediment controls;
- stabilize soils;
- manage dewatering activities;
- implement pollution prevention measures;
- provide and maintain buffers around surface waters;
- prohibit certain discharges, such as motor fuel and concrete washout; and
- utilize surface outlets for discharges from basins and impoundments.
The new revisions to EPA's stormwater permitting standards may have implications for states that have issued construction-related stormwater permits since 2009. For projects in New York State, for example, the Department of Environmental Conservation Construction General Permit (“CGP”) expires in 2015; any necessary updates to the CGP resulting from the EPA C&D rule are likely to be incorporated into the revised CGP permit due in 2015.
Posted on February 7, 2014
The Western states face two reciprocating and overarching problems in water resources policy. First, water is an increasingly scarce resource facing sharply competitive needs. Climate change is projected to put even more strain on water supplies. Second, most streams listed as water-quality impaired in the West are designated as such for issues related to the biological integrity of the waterway. The combination of aggressive human use of waters, manipulation of stream channels, and failure to control agricultural runoff has resulted in widespread degradation of aquatic habitat.
The primary impediment to addressing these related issues arises from dated legal constructs designed to achieve different objectives in eras with markedly different economies. In other words, trying to apply these constructs to today’s problems is like attempting to fit square pegs into round holes.
The doctrine of prior appropriation governs water rights everywhere in the West. It was developed in the 19th century to promote mining and agriculture—both water intensive enterprises—in arid climates. The doctrine provides that the first to physically take control of the water and put it to beneficial use has priority over later comers. Thus, the oldest water rights with the highest priorities are mostly agricultural, and many streams have become over-appropriated during the past century. So where does a growing community go for new water supplies? And what about maintaining sufficient high-quality flows instream for healthy fisheries?
The problem is made more acute by the formidable costs and regulatory uncertainty of developing major water storage projects. Many cities seek to acquire or share in old agricultural water rights through direct payments to water right holders or they finance irrigation system improvements for more efficient use of water. Such water marketing approaches free up water for municipal use, while reducing pressure to remove still more water from oversubscribed streams. But if a legislature could have anticipated then what we know now, might it a century ago have considered systems that allocate water based more on maximum public value and efficient use, rather than simply priority in time?
The Clean Water Act was enacted over 40 years ago to address toxic discharges of industrial and sewage wastewater to rivers and lakes. Dramatic events like the spontaneous ignition of the Cuyahoga River drove public demand for government intervention, leading to the new law. The Act has done a remarkable job of cleaning up end-of-pipe discharges (point sources), but has largely failed at controlling more diffuse sources of pollution (nonpoint sources) from stream channelization, devegetation of riparian habitat and agricultural runoff. Thus, many streams today are impaired by turbidity, nutrient loading, and higher temperatures.
Since the Act does not provide enforcement tools for nonpoint sources, regulatory agencies use the authority available to them to ratchet up controls on point sources. One solution to this problem is water-quality trading, in which a point source permittee can take watershed-restorative action upstream to correct a nonpoint pollution problem in order to meet escalating permit requirements. This approach can yield better ecological outcomes at lower cost. But if Congress were drafting the Clean Water Act today, any rational approach would address the problem of diffuse sources of pollution.
It seems unrealistic to expect substantive changes to either the law of prior appropriation or the Clean Water Act any time soon. Aside from the politics, changes to prior appropriation raise significant constitutional questions to the extent property rights are affected. In the meantime, we’ll have to continue looking for creative workarounds. This circumstance makes interesting work for lawyers, but is hardly the optimal approach to effective water resource use and protection.
Posted on January 24, 2014
EPA has touted water quality trading for more than a decade as a viable tool for combating water pollution, particularly pollution due to excess nutrients and sediment. But the Clean Water Act contains no express authority for water quality trading or offsets, and some environmental groups view trading as a “license to pollute” that violates the Clean Water Act’s promise to eliminate the discharge of pollutants into waters of the United States.
Last month a federal district court issued a final ruling in the first reported challenge to the legality of water quality trading. The court dismissed the action without reaching the legality of water quality trading. Instead, the court held that the plaintiff environmental groups (Food and Water Watch and Friends of the Earth) lacked standing and that EPA’s “authorization” of trading in the Chesapeake Bay TMDL was not a final agency action. Food and Water Watch v. EPA, No. 1:12-cv-01639 (D.D.C. decided December 13, 2013).
Although the court’s decision did not address the substantive legality of water quality trading, the case still presents four interesting aspects that may prove instructive on what to expect in future challenges.
First, environmental groups split over the question of joining the challenge to water quality trading. It is widely rumored that Food and Water Watch actively solicited support from environmental groups involved in Chesapeake Bay issue but met with stiff resistance. It appears that the other environmental groups’ support for the Chesapeake Bay TMDL overrode any interest they might otherwise have had in supporting a challenge to the legality of water quality trading.
Second, the defense of water quality trading made for strange bedfellows. Three parties intervened as defendants. One was a group representing municipal point source dischargers who support the Chesapeake Bay TMDL (National Association of Clean Water Agencies). Two were non point source groups who are actively challenging the legality of the Chesapeake Bay TMDL in another case (American Farm Bureau and National Association of Home Builders). The non-point source representatives argued that the trading component of the Bay TMDL would be important and valuable to their members if their challenge to the validity of the Bay TMDL in the other case was unsuccessful.
Third, the court’s decision on standing, ripeness, and the question of final agency action suggests it may be difficult to litigate the basic legality of water quality trading until a program is fully established and permits allowing credit for trades are issued. EPA argued successfully that no actual or imminent injury to the plaintiffs was caused by the Chesapeake Bay TMDL’s express reference to trading as a means for meeting the waste load allocations. According to this argument, the TMDL did not compel any trades; it simply acknowledged that states in the Chesapeake Bay watershed might use trading as a tool in developing permits that implement the TMDL. Carrying this argument to its logical conclusion, one could envision the possibility that there would be no basis for private party standing to challenge the legality of a trading program until after a stream has been listed as impaired, a TMDL has been performed, a trading program has been established, and permits have been issued allowing credits for trades within the program. Litigating the legality of water quality trading at such a late stage would presumably face a significant task in unwinding the momentum of such a fully developed administrative structure.
Fourth, given the success of EPA’s standing and ripeness arguments, it seems unlikely that there will be any definitive judicial ruling on the legality of water quality trading any time soon. The partisan division in Congress makes clarifying legislative action even less likely. As a consequence, EPA’s success in defending against the Food and Water Watch lawsuit may have the ironic result of postponing the day when states and permit holders will have a clear and definitive answer regarding the basic legality of water quality trading.
Posted on December 19, 2013
In Sackett v. EPA, the Supreme Court held that pre-enforcement review is available to challenge an order concluding that parties had violated the Clean Water Act by filling a wetland without a permit. Practitioners have wondered whether, in response to Sackett, EPA would take steps to avoid review, such as by issuing warning letters instead of orders. In a recent case, EPA employed another tactic. EPA withdrew an enforcement order, hoping thereby to avoid judicial review under Sackett by claiming that the case was now moot. Not so fast, a court in West Virginia concluded, EPA’s position is still reviewable. Alt v. EPA, 2013 WL 5744778 (N.D. W.Va. No. 2:12–CV–42, Oct. 23, 2013), available here.
In the Alt case, EPA issued an enforcement order against Lois Alt, the owner of a poultry farm, on the grounds that Alt failed to obtain a Clean Water permit for storm water discharges that allegedly contained manure. Alt filed suit in U.S. District Court in West Virginia challenging the EPA order based on the Supreme Court’s Sackett decision. The American Farm Bureau intervened because of concern over EPA’s position on agricultural storm water.
Subsequently, EPA withdrew the order against Alt, nominally because Alt had taken steps to remedy environmental harm -- or did EPA foresee an unhappy ending in court? In any event, EPA filed a motion to dismiss the lawsuit as moot. Alt opposed EPA’s motion to dismiss, arguing that EPA would likely resume its unlawful conduct after the case is dismissed. The district court denied the motion on the grounds that EPA had not changed its underlying position concerning whether the discharges were agricultural storm water exempt from permit requirements. The district court noted that EPA reserved the possibility of reissuing the order if there was a significant change in the poultry farm’s operations, and the intervenors showed that EPA’s alleged assertion of authority can be expected to continue. In short, EPA’s position was reviewable even though the order that provoked the lawsuit had been withdrawn by EPA. As Jimmy Reed said in his classic blues song, “You can run, but you can’t hide.”
If that wasn’t enough to ruin EPA’s day, the court went on to reach the merits of EPA’s position concerning the need for a NPDES permit and granted summary judgment for Alt. The court held that no permit was required because the discharges were exempt as “agricultural storm water discharges.” The court rejected EPA’s argument that the discharges did not have an agricultural purpose, concluding that the poultry operation was agricultural, that the incidental manure was related to the raising of poultry, and that the runoff from the farm was storm water caused by precipitation.
The Alt decision is significant both for its review of an EPA position underlying an order that had been withdrawn and for its decision concerning the agricultural storm water exemption.
Posted on November 26, 2013
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.
Posted on October 21, 2013
Section 316(b) of the Clean Water Act requires that the location, design, construction and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. Although the statutory language is straight-forward, EPA continues to face – and create – enormous difficulties in promulgating the rules to implement Section 316(b).
The latest in a series of rulemaking efforts began on April 20, 2011 when EPA published a proposed rule to protect fish from being killed at water intake structures that withdraw at least 2,000,000 gallons per day from waters of the United States and use at least 25% of that water exclusively for cooling purposes. Pursuant to a judicial Settlement Agreement with the environmental group Riverkeeper and other organizations, EPA was required to issue the revised rule by July 27, 2012.
When EPA was unable to issue its new rule by the court-approved date, it entered into a Second Amendment to the Settlement Agreement with Riverkeeper and other organizations. That Agreement required that “Not later than June 27, 2013, the EPA Administrator shall sign for publication in the Federal Register a notice of its final action pertaining to issuance of requirements for implementing Section 316(b) of the CWA at existing facilities.”
On June 18, 2013, nine days before the June 27 deadline for publication of notice of final action, EPA initiated Endangered Species Act (ESA) Section 7 consultation with the National Marine Fisheries Service and the Fish and Wildlife Service. EPA has been criticized for many years for its failure to initiate Section 7 ESA consultation during rulemaking. With the agreement of Riverkeeper and the other plaintiffs, a revised Settlement Agreement now allows a delay in the issuance of the final rule until November 4, more than four months after the June 27, 2013 deadline.
Although the revised Settlement Agreement allows time for Section 7 consultation, it does not appear to allow time for review of the rule by the White House Office of Information & Regulatory Affairs.
Given the delays that have been experienced to date on this rule, coupled with the delays engendered by the government shutdown, it seems doubtful that EPA will be able to meet the new November 4, 2013 deadline for issuance of its cooling water intake rule. We shall see.
Posted on October 14, 2013
One basic premise of the Clean Water Act is that EPA sets minimum standards but allows the States some latitude, in some areas, to design their own programs to meet their own needs. One area where the States have traditionally been allowed flexibility is the antidegradation analysis required for any new or expanded discharge, to assure that high quality waters are not degraded. However, in a notice published September 4, EPA is proposing to amend the federal antidegradation rule to require a review of alternative treatment levels for every permit and to require selection of the “least degrading alternative” in each case. The proposed rule would have a dramatic effect in Georgia, and perhaps in some other states.
The current antidegradation rule--both the federal rule and the Georgia rule--provides that the quality of high quality waters shall be maintained unless “allowing water quality is necessary to accommodate important economic or social development in the area….” In Georgia the longstanding process, approved by EPA, is that the state Environmental Protection Division determines whether the proposed discharge is “necessary” by considering any no-discharge alternatives, such as land application. If the no-discharge alternative is not feasible and the agency concludes, after public input, that the proposed discharge has significant positive economic or social value, then EPD considers the antidegradation analysis complete. The agency then proceeds to apply the water quality regulations to determine effluent limitations and other permit conditions.
Under EPA’s proposal, the antidegradation analysis would mandate a consideration of a full range of alternatives that could prevent or minimize the degradation that would result with the proposed activity, so long as they are “practicable.” As proposed, this would apply not only to industrial dischargers but also to POTWs, even though the Clean Water Act clearly provides for less stringent technology for public facilities. The result would be to require substantial expenditures on additional controls even if they are not needed and even if they will produce negligible water quality benefits.
This very issue has been the subject of debate and litigation in Georgia for the past ten years. It has enormous implications, because Georgia has declared that all its waters are “high quality” and subject to the Tier 2 requirements. The environmental community in Georgia has long argued that the determination that a proposed discharge is “necessary” must be supported by a demonstration that the facility, even a POTW, has employed the highest level of treatment that is technologically and economically feasible. In their view, if a facility can implement better controls, it must, without regard to a cost-benefit analysis and whether or not the lower standard would have any impact on water quality. The Georgia experience counsels against EPA’s proposal to impose a “one-size-fits-all” antidegradation analysis on all 50 states.