When Should A Regulatory Program Be Eliminated?

Posted on August 9, 2018 by David Flannery

It is certainly not unusual for regulatory agencies implementing water quality standard programs to conduct periodic reviews of the appropriateness of those programs.  Such has been the case with the Ohio River Valley Water Sanitation Commission (“ORSANCO”) for many years. In connection with the current triennial review of its Pollution Control Standards, ORSANCO recently offered the following statement in a public notice and request for comment

This review of the Pollution Control Standards differs from past reviews in that it asks your input on whether ORSANCO should continue to maintain, administer, and periodically update the current Pollution Control Standards, or should eliminate the Pollution Control Standards and withdraw from the process of maintaining and updating such standards.

The proposal to eliminate this regulatory program was undertaken by ORSANCO following a multi-year comprehensive assessment of ORSANCO’s function and role in partnership with its member states, USEPA, and the many other water quality protection activities that are currently administered to protect the Ohio River. This review caused ORSANCO to reach the conclusion “that all member states are implementing approved programs under the federal Clean Water Act” and that “there appears to be little or no purpose for the Commission to continue the triennial review process of updating the PCS rules.” ORSANCO also concluded that elimination of its regulatory program was being proposed with full confidence that the public would have “the full and complete protection of the federal Clean Water Act and the oversight of USEPA and the states without the redundancy of the current PCS program”. http://www.orsanco.org/wp-content/uploads/2016/09/Preferred-Expanded-Alternative-2-and-Minority-Report.pdf   

ORSANCO is seeking comment on this proposal through August 20, 2018. Details of the proposal and the public comment process can be found on the ORSANCO web site.  I am sure that ORSANCO would be very interested in hearing from any of you that have a comment on the proposal or any thoughts on the title question about when a regulatory program should be eliminated.

 ORSANCO is an interstate compact whose member states include Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia and West Virginia.  The Compact forming ORSANCO was signed in 1948 following the consent of the United States Congress and enactment of the Compact into law by the legislatures of the eight member states.

Strong Headwinds Face Water Quality Trading in the Chesapeake

Posted on August 2, 2018 by Ridgway Hall

The Chesapeake Bay watershed covers 64,000 square miles in parts of Maryland, Virginia, Pennsylvania, Delaware, New York, West Virginia and the District of Columbia. When the six states and the District asked EPA to establish a multi-state Total Maximum Daily Load under the Clean Water Act in 2010 and assign each state its fair share, they took on the job of reducing discharges of nitrogen from all sources by 25%, phosphorus by 24% and sediment by 10%. The goal is to have all necessary measures in place to achieve this by 2025 to meet applicable water quality standards. With funding at the state and federal levels in short supply, a search was on for the most cost-effective ways to reduce these pollutants.  The states with the biggest burdens, Pennsylvania, Virginia and Maryland, each turned to the emerging practice of water quality trading.

Trading enables a discharger for whom the cost per unit of pollution reduction is lower than for other dischargers to reduce its pollution below what the law requires and sell that extra reduction as a “credit” to another discharger for whom the cost per unit of pollutant reduction is greater.  The result is that the seller makes money from the credit sale, and the buyer attains compliance at a lower cost than it would otherwise incur. Sounds simple, doesn’t it?  In October the Government Accounting Office published the results of a nationwide survey in which it found that only 11 states have water quality trading programs, and the only significant use being made was in Pennsylvania, Virginia and Connecticut, even though EPA has been promoting it since 1996. (I discussed this in “Water Quality: Wading into Trading” posted Nov. 28, 2017).

To encourage the Bay states to adopt trading programs that will comply with the Clean Water Act and its implementing regulations, EPA published a series of “Technical Memoranda” (TMs) addressing key elements of a trading program including “baseline” (the maximum amount of pollution allowed under any applicable law before a credit can be generated), protecting local water quality where a credit is used, credit calculation, and accounting for uncertainty. This is needed where a nonpoint source, like a farm, is generating credits by installation of best management practices (BMPs) and the pollution reduction benefits must be estimated using modeling. The TMs also address credit duration, certification by the agency, registration and tracking on a publicly posted registry, and verification that the BMPs on which the credits are based are being maintained.  Finally, they address sampling and public participation. (See my blog post of Sept. 26, 2016 “New Tools for Water Quality Trading”).  Credits can also be used to “offset” new or expanded discharges. The TMs are not regulations, but set forth EPA’s “expectations”.

Common Elements

Pennsylvania, Virginia and Maryland have adopted trading regulations which are intended to be consistent with the TMs.  The principal elements include . . . [CLICK HERE TO READ THE REST OF THIS ARTICLE]

DAVID AND GOLIATH AT THE CONOWINGO DAM

Posted on June 26, 2018 by Ridgway Hall

Exelon owns and operates the Conowingo Dam across the Susquehanna River in Maryland just below the Pennsylvania border, including a 573 megawatt hydroelectric power plant. It is seeking a renewal of its operating license from FERC under the Federal Power Act for 50 years. Section 401 of the Clean Water Act requires that any applicant for a federal license that may result in a discharge submit a certification by the state where the discharge will occur that the discharge “will comply with the applicable provisions” of the CWA, including water quality standards. The certification may include conditions and requirements, including monitoring and reporting, deemed necessary to ensure compliance. The certification becomes part of the federal license, and the licensing agency may not change it.

The facts in this case are unusual, and the outcome will likely be precedential. For decades, sediment has flowed down the 450 miles of the Susquehanna River from New York and Pennsylvania and accumulated in the reservoir behind the dam, trapping nitrogen, phosphorus, metals, PCBs and other pollutants along with the sediment,  Now the trapping capacity has been reached. Several times in recent decades severe storms have scoured out tons of this sediment and carried it over the dam and into the Chesapeake Bay 10 miles downstream, causing not just violation of water quality standards, but severe damage to oysters, bay grasses and benthic organisms.  In addition, the dam has blocked historic fish passage. Measures such as fish ladders and transportation have produced only modest relief. Since 2010 the entire Chesapeake Bay and its tributary system has been subject to a multi-state total maximum daily load (TMDL) for nitrogen, phosphorus and sediment, but at the time that was set, it was not anticipated that the Conowingo trapping capacity would be exhausted this soon.

On April 27, 2018, the Maryland Department of the Environment issued a CWA certification in which it determined that numerous conditions must be complied with by Exelon in order to reasonably ensure compliance with water quality standards. It requires, among other things, measures to ensure compliance with standards for dissolved oxygen (DO), chlorophyll-A (an indicator of algae), turbidity, temperature, pH and bacteriological criteria in the reservoir and downstream waters including the Bay, plus compliance with plans to protect various fish species, waterfowl and habitat. It also requires shoreline protection, removal of trash from the reservoir and a variety of monitoring programs.

Notably, to satisfy the DO standards, which are adversely affected by nutrients and are critical to aquatic life, MDE requires that starting in 2025 Exelon must annually reduce the amount of nitrogen in its discharges by 6 million pounds, and phosphorus by 260,000 pounds. Exelon can also satisfy this requirement by installing best management practices elsewhere upstream or paying $17 per pound of nitrogen and $270 per pound of phosphorus for any amounts not removed.

Exelon promptly filed a request for reconsideration and administrative appeal with MDE. It also filed a complaint in Maryland state court seeking a declaration that the certification could not be considered “final action” until proceedings before MDE were concluded, including Exelon’s right to an evidentiary hearing; an injunction against any consideration of the certification by FERC, and, alternatively, for judicial review. Exelon also filed suit in the U.S District Court in Washington, D.C., claiming that MDE’s certification exceeded its CWA authority and constituted an unconstitutional taking of its property, and seeking declaratory and injunctive relief.  See Exelon’s filings at here.

Among Exelon’s complaints is the fact that the certification would require it to spend vast sums to remove pollutants that did not come from its operations, but from upstream polluters. The fee equivalent of the nitrogen and phosphorus removals would amount to $172 million per year – far more than Exelon earns from the operation of Conowingo. An environmental impact statement had concluded that efforts to remove the sediment from behind the dam “would be cost-prohibitive and ineffective.” Releases from the dam, Exelon contends, are not “discharges” but “pass-through.” Exelon also argues that fish passage damage was caused decades ago and it would be unfair to make Exelon bear the full cost of restoring it.

Some environmental groups have joined the administrative appeal process.  Stewards of the Lower Susquehanna and Waterkeepers Chesapeake (a group of 18 Waterkeeper organizations in the Chesapeake Bay watershed) appealed to MDE asking that protection against scouring by big storms be strengthened and that likely effects from climate change be considered, but otherwise supporting the certification. The Nature Conservancy and the Chesapeake Bay Foundation, both with longstanding interests in water quality and restoration of the fisheries and fish passage, have also been actively involved.

The stakes are high. MDE, “David” in my title, has taken some bold measures to address some enormous problems, and Exelon is fighting back hard. However it comes out, the resolution will have precedential value for other CWA 401 cases across the country, and particularly for hydroelectric projects.

Regulation of Groundwater under the Clean Water Act

Posted on June 4, 2018 by William Brownell

In the early 1980s, the State of Michigan filed a Clean Water Act citizen suit against the United States alleging that chemicals from a federal facility located near Lake Michigan could “enter the groundwaters under the … area” occupied by the facility and then “be discharged [through that groundwater] into Grand Traverse Bay.” The Department of Justice told the Court that “these claims are not allowed under the Clean Water Act since the Act does not regulate pollutant discharges onto soil or into underlying groundwater,” and the suit was eventually dismissed.  According to the United States, “[t]he statutory language, the legislative history, the case law, and EPA’s interpretation of the Act all support this conclusion.” 

Thirty years later, in 2016, the Hawaii Wildlife Fund and other environmental groups filed a Clean Water Act citizen suit against the County of Maui, alleging that the County was violating the Clean Water Act by disposing of treated waste water through underground injection wells into groundwater that was hydrologically connected to the Pacific Ocean.  According to a Department of Justice amicus brief, this claim was allowed under the Clean Water Act because a discharge “that moves through groundwater with a direct hydrological connection [to surface water] comes under the purview of the CWA’s [NPDES] permitting requirements.”   

Which is right:  the 1985 government or the 2016 government?  Not surprisingly, both sides assert that they offer the government’s “longstanding” position.  For example, those concluding that releases to hydrologically connected groundwater are not subject to the Clean Water Act’s NPDES permit program point to (among other statements) an Office of General Counsel memorandum from 1973 that “the term ‘discharge of a pollutant’ is defined so as to include only discharges into navigable waters…. “[d]ischarges into ground waters are not included”; to EPA’s assertion in 2004 that NPDES “regulations apply to … [e]xisting facilities that discharge directly to surface waters”; and to EPA’s statement in 2017 that “discharges to groundwater are not regulated by the NPDES permit program.”  

Proponents of regulating releases to groundwater under the NPDES program rely principally on statements made in the preamble to a 2001 proposed rule for Concentrated Animal Feeding Operations, and on the amicus brief filed in 2016 by the Department of Justice in the County of Maui case.

This “hydrological connection” theory of Clean Water Act groundwater regulation is now pending before the Second, Fourth, and Sixth Circuits, and the period for certiorari is running in the Ninth. Clearly, the Clean Water Act cannot mean two opposite things at the same time.  Which Department of Justice is right?  

EPA recently issued a Federal Register notice asking the public to weigh in on the confusion created by its prior statements.  Perhaps instead of debating who said what when, what is needed is a dispassionate return to the statutory language.  As the Supreme Court said unanimously in 2004 in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, the Clean Water Act “defines the phrase ‘discharge of a pollutant’ to mean ‘any addition of any pollutant to navigable waters from any point source,’” and in turn defines a “point source” as a “‘discernible, confined and discrete conveyance’ … ‘from which pollutants are or may be discharged.’” The Court explained this “definition makes plain” that “a point source need not be the original source of the pollutant,” but “it need[s] [to] … convey the pollutant to ‘navigable waters.’”  If the NPDES program applies only where a point source conveys the pollutant to navigable water and EPA agrees that groundwater is not a point source, shouldn’t that be the end of the debate? 

Does Upstate Forever Mean Potential Citizen Suit Liability Forever?

Posted on May 24, 2018 by Patricia Barmeyer

Maybe.

If, as held by the Fourth Circuit in the recent decision in Upstate Forever v. Kinder Morgan,

  • A release from a point source to groundwater that reaches jurisdictional surface waters in measurable quantities is an unpermitted discharge in violation of the Clean Water Act, and
  • The unpermitted discharge is deemed to be “continuing” so long as the seepage through groundwater continues to add pollutants to jurisdictional waters, even though the discharge to groundwater has ceased

then, indeed, the potential for citizen suit liability has been vastly increased and, most troubling, the requirement for an “ongoing violation” has been significantly eroded.

The recent decision of Upstate Forever v. Kinder Morgan, L.P. (4th Cir. April 12, 2018), addressed a citizen suit arising out of a spill of gasoline from an underground pipeline. The pipeline operator repaired the pipeline shortly after the spill, implemented remediation and recovery measures required by state regulators, and recovered much of the gasoline from the spill site. NGOs brought a citizen suit under the CWA, alleging that actions taken by the pipeline operator were insufficient to abate the pollution, and that gasoline and other pollutants were continuing to seep from the spill site, through groundwater, into surface waters regulated under the CWA. The district court dismissed the suit, finding that (1) the CWA does not regulate the movement of pollutants through groundwater, and (2) the alleged violation was not ongoing because the pipeline had been repaired and was no longer discharging pollutants “directly” into navigable waters.

The Fourth Circuit reversed on both points and allowed the citizen suit to move forward. The decision has two key holdings:

  • First, while acknowledging that the CWA does not generally regulate releases to groundwater, the Fourth Circuit panel held that discharges to groundwater with a “direct hydrological connection” to surface waters may be regulated by the CWA, so long as the  discharge results in pollutants reaching jurisdictional waters in “measureable quantities.”
  • Second, the Court found that the repair of the pipeline breach was not sufficient to render the alleged CWA violations “wholly past,” because the continuing seepage of gasoline was continuing to add pollutants to jurisdictional waters.

Assuming the majority opinion stands, the implications are very troubling.

The first holding makes even an accidental release to groundwater an unpermitted discharge under the CWA, if the pollutant makes its way to jurisdictional waters. This “groundwater as a conduit” theory, also adopted in County of Maui v. Hawaii Wildlife Fund, 2018 WL 1569313 (9th Cir. Feb. 2018), is the subject of much debate in the courts, in Congress and at EPA, which has solicited comment on the issue. 

The second holding is at least as problematic. Even assuming that the accidental discharge to groundwater was an unpermitted discharge to jurisdictional waters in violation of the CWA,    one must wonder how the party responsible could ever cut off liability. According to the decision in Upstate Forever, stopping the point source release and even remediation to state standards does not make the violation “wholly past.” Depending on the amount released, the amount remaining after remediation, the distance to jurisdictional waters, the soil characteristics, the speed of groundwater movement, and other factors, it is possible that the risk of citizen suit liability could continue for years—long after the incident has been corrected, repaired and remediated.

There is a strong, well-reasoned dissent that concludes that there is no ongoing discharge of pollutants from a point source because “the only point source at issue—the pipeline—is not currently leaking or releasing any pollutants.” Slip Opinion at 40. The defendant pipeline operator has filed a petition for rehearing and rehearing en banc, arguing that the panel decision is erroneous on both issues and emphasizing the inconsistency with Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987).

If it stands, however, the Upstate Forever decision could indeed create the risk of citizen suit liability almost “forever.”

HOW I BECAME AN ENVIRONMENTAL LAWYER

Posted on April 25, 2018 by H. Thomas Wells Jr.

When someone asks what type of law I practice, and the answer is “environmental law”, the next question often is, “How did you become an environmental lawyer?”  My answer to that question is simple: I reported for duty on Tuesday.  The full story is a bit more complicated.

Having gone through undergraduate school at the University of Alabama on an Air Force ROTC scholarship, I had a commitment to serve as an Air Force officer.  Upon graduation from undergraduate school in 1972, I was commissioned as second lieutenant in the United States Air Force. (This was during the Vietnam War. Although my draft number was over 300, I still went through advanced ROTC because of the scholarship).  The Air Force then granted me an educational delay to attend law school.  With the Vietnam War still ongoing, obtaining the educational delay was not guaranteed, but once it was granted, I was off to law school.

If there were any courses at the University of Alabama School of Law in environmental law at that time, I didn’t take them.  The field of environmental law was not on my radar screen at all.  In fact, it was not on many radar screens back then.

The day after my law school graduation ceremony, I received a call from a Colonel who was the Executive Officer for the Air Force General Counsel’s office in the Pentagon.  He asked if I might be interested in coming up to the Pentagon for an interview.  The explained that the Air Force General Counsel’s office had a “Military Honors Program” under which they took two or three recent law school graduates who had an obligation to serve in the Air Force to work in the General Counsel’s office rather than becoming a JAG officer.  Of course, the interview had to be at my own expense.

So I flew to D.C., interviewed, and was selected as one of the three recent law graduates with an obligation to serve in the Air Force on active duty to work in the Air Force General Counsel’s office.  This office was on the civilian side of the Department of the Air Force.  That meant we reported to the civilian General Counsel, rather than to The Judge Advocate General (“TJAG”); The GC, in turn, reported to the Secretary of the Air Force rather than to the Chief of Staff.  As noted, none of us were JAG officers, but were nevertheless promoted to Captain by order of the Secretary of the Air Force.

Upon moving to the D.C. area, I still didn’t know what area of law to which I would be assigned within the General Counsel’s office.  There were three slots: one was Government Procurement law, one was International Law, and the third was Real Estate and Environmental Law.  Without my knowledge, the lawyers in the office had decided the assignments would be based on when we reported for duty.  Since I reported on the day after Columbus Day, a Tuesday in October 1975, I was assigned to be in the Real Estate and Environmental Law section of the office.

Environmental law in 1975 was really just beginning.  We had NEPA, the old Clean Water Act, as amended in 1972 and the old Clean Air Act of 1970, and that was just about it.  RCRA had yet to be enacted; TSCA wasn’t around, and Superfund was nonexistent.  So I became an environmental lawyer with on the job training and by learning the amendments to the relevant Acts as they were enacted.  All in all, things worked out pretty well, and I indeed became an environmental lawyer because I reported for duty on Tuesday.

The Proposed Pebble Mine: Too Toxic for Trump?

Posted on April 17, 2018 by Peter Van Tuyn

EPA Administrator Scott Pruitt began his tenure by decrying the so-called “sue and settle” policy approach, where EPA settles lawsuits brought against it in a manner that dictates EPA actions on court-approved deadlines, often well into the future.Observers were therefore somewhat surprised when, two and a half months later, EPA settled a lawsuit brought against it years earlier by the Pebble Limited Partnership (PLP), the want-to-be developers of the proposed Pebble mine in Alaska.  PLP declared victory and touted the settlement as providing it a “clear path” to the permitting process for the proposed mine.

It turns out that Administrator Pruitt himself made the decision to settle this lawsuit.  As reported in media, “[w]ithin hours of meeting with a mining company CEO, the new head of the US Environmental Protection Agency directed his staff to withdraw a plan to protect the watershed of Bristol Bay, Alaska, one of the most valuable wild salmon fisheries on Earth.”

The Pebble ore deposit sits at the headwaters of Bristol Bay, and the region produces roughly half of the world’s commercial sockeye salmon catch, with over 56 million sockeye returning to the Bay’s fresh waters in 2017 alone.  The commercial fishery supports 14,000 full and part time jobs and generates roughly 1.5 billion in annual revenue.  Bristol Bay salmon also support the subsistence lifestyle of area residents, and are one reason why Bristol Bay is a sought-after sport fishing destination.  The Pebble ore deposit is massive, contains low-grade quantities of copper, gold and molybdemum, and also has the potential to produce acid as the ore is disturbed.  It also lies at the headwaters of two of Bristol Bay’s most productive river systems.  In 2014, the EPA found that the mining of the Pebble ore could result in “irreversible” impacts to fish habitat.  EPA thus used its authority under Section 404(c) of the Clean Water Act to propose certain restrictions on the mining of that deposit to protect the salmon fishery.

Notwithstanding the response of the mine developer, a closer look at the settlement reveals that EPA did not abandon its proposed restrictions, but rather only committed to an agency process “to propose to withdraw” them.  Pursuant to the settlement, EPA initiated a public process and held public hearings in Bristol Bay, seeking input on whether to actually withdraw the proposed protections.  In that process, EPA received over one million comments, with over 99% of the comments supporting the proposed restrictions and asking EPA to leave them in place.

In what was called a “surprise reversal” by some observers, in January of this year Administrator Pruitt decided to leave the proposed restrictions in place.  In announcing his decision, Administrator Pruitt stated that “it is my judgment at this time that any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection.”

The result of this decision is that the EPA’s proposed restrictions under Section 404(c) will remain in place as the U.S. Army Corps of Engineers processes PLP’s Section 404 permit application for the mine, submitted by PLP to the Corps in December 2017.  Looking forward, the Corps cannot issue a final permit decision approving the mine unless and until EPA’s concerns are fully addressed. EPA retains the opportunity to finalize its proposed restrictions before the Corps makes its decision.  This leads one to wonder, as did many people from Bristol Bay, whether the proposed Pebble mine is simply “too toxic” for Trump?  

Disclosure:  Bessenyey & Van Tuyn, L.L.C. represents a client that opposes the proposed Pebble mine because of risks to Bristol Bay salmon.

Troubled Waters – Blue Lakes Turning Green From Toxic Algal Blooms

Posted on February 6, 2018 by Virginia C. Robbins

Frank DeOrio knows a lot about protecting drinking water.  For more than 25 years, Frank was Director of Utilities for the City of Auburn located in the pristine Finger Lakes region of Upstate New York.  He was responsible for the water supply drawn from Owasco Lake and the protection of the lake’s watershed.  During Frank’s tenure, the City won awards for the best water in the state and the U.S. 

Frank and I recently discussed his concerns about the potential impacts to drinking water from summer algal blooms in our region’s lakes.   Algal blooms can occur when spring rains flush nutrients, for example, phosphorous, into waterbodies.  Summer temperatures raise water temperatures, creating optimum growth conditions.    

Owasco Lake, September 18, 2017

Owasco Lake, September 18, 2017

Summer algal blooms now occur in more lakes, their duration has increased, and they are producing toxins that pose health risks to the public when ingested or during recreational contact.  These toxins are not easily treated by water suppliers because the technology to treat one toxin may not be effective for another.  And unlike bacteria, boiling water does not remove these toxins. 

In 2017, harmful algal blooms (HAB) occurred in all 11 of the Finger Lakes, reportedly for the first time.  Blue-green algae are cyanobacteria and they can produce several species of cyanotoxins.  What is disturbing about the recent HAB outbreaks is that some classes of these cyanotoxins (e.g., microcystins), are particularly toxic.  If present at high concentrations, they can be difficult or impossible to treat using the technology of most public water systems.  One of these is Microcystin-LR, a liver toxin that is considered one of the more toxic.  These toxins can also cause skin, digestive system and other health issues.

Mycrocystin-LR has been identified in raw water drawn from Owasco Lake and Skaneateles Lake, both jewels of the Finger Lakes.  And Owasco Lake provides drinking water to more than 50,000 customers.  In 2016, the City of Auburn was using filtration to treat its raw water.  When the level of Mycrocystin-LR increased, the City considered moving the location of its water intake away from the area of the lake containing the toxin.  But would the new intake remain safe if the toxin shifted location?  The City decided against moving the intake and instead added carbon filtration. 

Skaneateles Lake is the primary water supply for the City of Syracuse and surrounding communities.  The water authority operates under a “filtration avoidance” authorization.  After a severe storm on July 1, 2017, phosphorous levels in the lake rose, resulting in algal blooms, and Microsystin-LR was then detected in the raw water pumped from the lake.  The levels were low enough that treatment was not required and the toxin was not identified in the water that reached customers.  Nonetheless, the presence of this toxin in the raw water is a disturbing development. 

These examples are lakes in my area.  But similar algae toxins and blooms are occurring in New England states, including New Hampshire and Maine. 

The broader challenges?  The science around algae toxins is emerging.  Further, there are no federal or state drinking water standards for microcystins (though there are health advisory guidelines published by USEPA and some states).  Water treatment plants are generally designed to avoid taste and odor concerns and to manage the most commonly tested algae toxins.  The next generation of plants will need to have more flexible designs to accommodate advanced treatment technologies.  And water authorities will need to consider spatial needs, hydraulics, connections, utilities and process control for these technologies. 

Frank’s concerned.  So am I.  It may get worse before it gets better.  While we wait for science, regulatory efforts and focused treatment technology to develop, at least municipalities can take steps to control the potential for toxic algal blooms by a combination of runoff control, nutrient reduction and stream-bank restoration.  Why wait to build that bridge from troubled waters to cleaner lakes?

One Brief Shining Moment of WOTUS Clarity

Posted on January 24, 2018 by Rick Glick

In a rare moment of clarity in the benighted history of the Waters of the United States or WOTUS rule, a unanimous Supreme Court declared that jurisdiction to review the WOTUS rule lies in the District Courts and not the Courts of Appeal.  The immediate effect of the January 22 ruling in National Assn. of Manufacturers v. Dept. of Defense  is to lift the nationwide stay of the rule imposed by the Sixth Circuit—which held that the appellate courts have original jurisdiction over the rule—thus reigniting a lot of dormant trial court challenges. 

The Clean Water Act applies to “navigable” waters, which is defined simply as “waters of the United States, including the territorial seas.”  EPA and the Army Corps of Engineers administer the CWA, and have tried without much success to refine this vague definition.  The latest attempt is the WOTUS rule, adopted by the Obama EPA in 2015.  The issue in National Assn. of Manufacturers is not whether that attempt hits the mark, but in which court should challenges be heard.

As noted in Bob Brubaker’s take on this case, the Court looked to the plain language of the statute, and to context when further explanation is needed.   The CWA extends original jurisdiction to the Circuits for EPA “approving or promulgating any effluent limitation or other limitation.”  The government argued that the WOTUS rule falls within “any . . . other limitation.”  The Supreme Court rejected that argument, holding that such other limitations must be related to effluent limitations, and the WOTUS rule just establishes a definition that would apply generally to the scope of CWA.  The Court also rejected applicability of another CWA basis for Circuit Court jurisdiction advanced by the government, “issuing or denying any [NPDES] permit,” concluding simply that the WOTUS rule is not the same as permit issuance.

So what difference does it make if a trial judge or an appellate judge makes the initial decision on WOTUS?  WOTUS has drawn a multitude of challenges in both the District Courts and Courts of Appeals, including some in which plaintiffs filed in both courts to be on the safe side.  The case will end up at the Supreme Court anyway, right? 

True, but consider that the Sixth Circuit consolidated all the challenges in other Circuits and issued a decision that applied across the country.  The district court litigation has not been consolidated, and some cases have come to different conclusions, with many remaining to be litigated.  So, we can expect years of litigation in many different courts, followed by years of appeals heard by the Circuits, and finally to the Supreme Court . . . again.

But wait, Scott Pruitt’s EPA has initiated a rulemaking process to rescind and replace the WOTUS rule, so wouldn’t that moot the pending challenges to the rule?  It would not.  EPA has announced it is delaying the effective date of the 2015 rule for two more years to allow the Agency to develop its replacement.  But, in the meantime, the 2015 WOTUS rule remains in place.

The practical result is that the current round of cases in the District Courts will continue, followed -- if not accompanied -- by a new round of litigation challenging the proposed change of effective date, and the proposed rescission and replacement rules.  Safe to say there will be no certainty on the definition of WOTUS and the scope of Clean Water Act jurisdiction for many years to come.

Are RCRA Endangerment Claims Becoming The Preferred Way for Third-Parties To Regulate Point Source Discharges?

Posted on December 18, 2017 by Edward F. McTiernan

In 1972, Congress adopted the Clean Water Act (CWA) prohibiting discharges of pollutants from point sources without a permit.  Four years later, when Congress enacted the Resource Conservation and Recovery Act (RCRA), it included two notable provisions.  First, Congress excluded from the definition of “solid waste”—and thereby from regulation under RCRA—“industrial discharges which are point sources subject to permits under” CWA Section 402 (i.e., NPDES permits).  Second, Congress barred RCRA from applying to “any activity or substance which is subject to” various environmental statutes (including the CWA), “except to the extent that such application (or regulation) is not inconsistent with the requirements of such” other environmental statutes.  The net effect of these two RCRA “anti-duplication” provisions prevents RCRA from encroaching upon activities regulated by the CWA.  While much of this year’s Clean Water Act action seemed to focus on the WOTUS rule, 2017 may ultimately be remembered as the year in which plaintiffs were able to break through RCRA’s anti-duplication provisions and use endangerment claims to regulate point source discharges.

In Tennessee Riverkeeper, Inc. v. 3M Co., plaintiffs convinced a district court that they were entitled to pursue RCRA endangerment claims to regulate discharges of perfluorinated chemicals.  The court  refused to dismiss the case because, in its view, the defendants had failed to provide ‘‘any authority stating that a citizen cannot bring an RCRA claim to try to impose stricter limits on the disposal of hazardous waste than those imposed by an EPA-approved State permit or to supplement the terms of such a permit.”  Slip Op. at 20.  On November 2, the Ninth Circuit reached a similar result.  Ecological Rights Foundation v. Pacific Gas & Electric Company, (“ERF”).  Following an extensive (and largely unnecessary) analysis of RCRA’s non-duplication provisions, the Ninth Circuit stated: “RCRA’s anti-duplication provision does not bar RCRA’s application unless the specific application would conflict with identifiable legal requirements promulgated under the CWA or another listed statute.” Slip op. at 25.  In other words, plaintiffs may use RCRA to impose discharge limits on any substance not specifically named in a Clean Water Act permit, and perhaps to lower the discharge limits of substances that are.

By encouraging exactly the sort of dual regulation of a single discharge under both the CWA and RCRA that the RCRA non-duplication provisions appear intended to prevent, these decisions appear to be inconsistent with a proper reading of RCRA’s non-duplication provisions.  They may allow a judge to set discharge limits, displacing the limits (or the lack thereof) established by agency scientists following a public process.  This is problematic for several reasons.  A CWA permitted discharge may contain tens or hundreds of pollutants, but the permit typically regulates only those of most concern.  According to the Ninth Circuit,  however, the rest can now be regulated by RCRA.  Indeed, these recent decisions may open the door to using RCRA to cover pollutants  already regulated under the permit, as long RCRA imposes “stricter limits” (in the words of the Tennessee Riverkeeper court) than the CWA permit.  If the sole criterion is that RCRA endangerment claims must impose “stricter limits” than the CWA permit, plaintiffs may now have a legal basis for rewriting permits to contain whatever regulatory standards, technology requirements or procedural measures they can convince a court to impose.

Water Quality: Wading Into Trading

Posted on November 28, 2017 by Ridgway Hall

For over 20 years EPA has been promoting water quality trading – with particular emphasis on nutrients and sediment – as a way to improve water quality at reduced costs. Trading is based on the simple proposition that if Party A can reduce a pollutant at a lower per-unit cost than Party B, who needs to reduce its discharges of that pollutant, it is more economically efficient for Party A to reduce its discharges below what is required by law, and sell the additional reduction, or “credit”, to Party B. If the price is less than what Party B would otherwise pay and more than it costs Party A to make the reduction, B will save money and A will make money. 

The focus is on nitrogen, phosphorus and sediment because these pollutants have for many years been leading causes of water quality impairment and, in the case of nutrients, adverse effects on human health when the resulting algae blooms release toxins and harmful bacteria.  In 2016 EPA reported that nutrient-caused algae blooms were on the rise, causing fish kills, contamination of fish and shellfish, and beach closures, resulting in significant damage to local economies and impairments to human health. The biggest source of these pollutants is farming operations. Trading seems especially well-suited to help reduce polluted runoff from farms because their per unit cost of removing nutrients is far lower than for wastewater treatment plants. Finally, because farm runoff is a nonpoint discharge, it is not regulated under the Clean Water Act. Regulation is left to states. While many states require farms to have nutrient management plans, because the states have limited resources to inspect and enforce, finding incentives to stimulate a market-driven solution has obvious appeal.

So why are there so few trading programs in place? The GAO attempted to find the answers in its report Water Pollution: Some States Have Trading Programs to Help Address Nutrient Pollution, but Use Has Been Limited (October 2017). The report addresses (1) the extent to which nutrient trading programs are being used, (2) how EPA and the states oversee these programs, and (3) what factors affect participation in trading.  As of 2014, eleven states had some form of trading programs: California, Connecticut, Florida, Georgia, Idaho, Minnesota, North Carolina, Ohio, Pennsylvania, South Carolina and Virginia. Most of the trading was being done in Connecticut, Pennsylvania and Virginia, so GAO focused primarily on these programs.

All three of these states established their trading programs through legislation and implementing regulations. All three allow point-source to point-source trading, but as of 2014 only Pennsylvania allowed non-point sources to generate credits. Virginia appears to be moving in that direction through pending regulatory amendments.  Connecticut uses a general permit that allows 79 point sources in the Long Island Sound watershed to trade nitrogen credits through a Nitrogen Credit Exchange Program. Each year plants that are not meeting their discharge limits can buy credits from plants who are below their required limits.

Virginia allows trading of nitrogen and phosphorus credits between point sources.  Most but not all sales are through a Nutrient Credit Exchange Association, which is privately run in consultation with the state, and provides tracking of credit generation and sales.  Pennsylvania allows a point source to buy credits generated by nonpoint and point source dischargers. It has a credit exchange, PENNVEST, but most trades are outside it.  The state keeps a registry of credits generated, sold and used. During 2014, there were 39 trades in Connecticut, 151 in Pennsylvania, and 31 in Virginia.

Trading programs are managed by the states, with oversight by EPA to be sure that both the elements of the trading program and individual permits that incorporate trades comply with the Clean Water Act. Those who buy credits said that the benefits of doing so include reduced cost of compliance, risk management (credits can be used to address plant failures which cause noncompliance), and flexibility in timing technology upgrades. 

GAO cites two primary disincentives to trading. First, if water quality criteria are written in narrative form, permits are also often written in narrative form, so it is difficult to determine whether or when use of a credit might be helpful. While EPA has been pressing states to adopt numerical criteria for nutrients, GAO reported that as of 2017 only 6 states had them.  I believe that this problem can be mitigated by including numerical water-quality based effluent limits (WQBELS) in NPDES permits even when the criteria element of a water quality standard is narrative.  I don’t know how widely this is done, but typically a total maximum daily load (TMDL), which is required for water bodies not meeting water quality standards, is expressed in numerical terms, and that provides the basis for WQBELs. GAO observed that the Ohio River Basin Interstate Water Quality Trading Project allows trading among sources in Ohio, Kentucky and Indiana, but almost no trading has occurred because there are no numerical limits in the water quality standards or a TMDL.

The second reason given by stakeholders to GAO for limited trading is the difficulty in determining the water quality benefits of a best management practice (BMP), which is what is installed on farmland to reduce runoff. Models do exist for converting the benefits of BMPs, such as vegetated buffers, no-till farming and cover crops, to numerical pollution reduction on an annual basis, but these are only estimates, and lack the precision that a point source discharger looks for in deciding whether to buy a credit from a farmer. EPA has recommended the use of an “uncertainty factor”, such as 2:1, by which a buyer of 100 nitrogen credits would have to buy 200 credits. This could be modified upwards or downwards based on site-specific conditions. It is still an estimate, and any trading program will need to apply a dose of adaptive management if it wants nonpoint source trading to get up and running.  The potential cost savings are sufficiently great that such an uncertainty ratio would not by itself, in most cases, discourage trading.

Several other factors, not discussed by GAO, also tend to discourage nonpoint source trading. There is the uncertainty of the buyer, who will rely on the credit to meet its NPDES permit terms: what if the BMP on which the credit is based fails? This is a particular concern for public utilities, whose managers and ratepayers may not want the utility relying for compliance on a set of BMPs over which the utility has no control. On the farmer side, what if the farmer invests substantial sums in BMPs to generate credits, but there turns out to be little or no market for them? Several states and some financing institutions are exploring ways to create a market to jump start the process, and we will likely see more on that. Finally, there is an inherent reluctance to be among the first in what is still largely an experimental program – especially if it is being run by a government agency.

It is no coincidence that two of the three most active programs, Pennsylvania and Virginia, are in the Chesapeake Bay watershed, where a numerical multi-state TMDL has been in place since 2010. (That TMDL was discussed in my blog article EPA Issues Biggest TMDL Ever for the Chesapeake Bay Watershed, posted March 4, 2011.) At this writing Maryland, also in the Chesapeake watershed, is developing a trading program which will include nonpoint source trading and will be run jointly by the Maryland Departments of Environment and Agriculture.  The only way the goals of the Chesapeake TMDL will be achieved is through major reductions of the nitrogen, phosphorus and sediment released by farms. In a future post, I will explore those three programs in more detail.

AN UNDERGROUND RIVER RUNS THROUGH IT

Posted on November 8, 2017 by Andrew Goddard

Environmental groups have for years sought greater regulation of coal ash waste from coal-fired power plants.  It turns out an old-fashioned Clean Water Act (CWA) citizen suit is sometimes a more effective tool.

In August, Judge Waverly Crenshaw, of the U.S. District Court for the Middle District of Tennessee, ordered the Tennessee Valley Authority to “wholly excavate the ash waste disposal areas” at the Gallatin Steam Plant and “relocate the excavated coal ash to a lined impoundment with no significant risk of discharge to waters of the United States.”  TVA estimates that this will take 24 years at a cost of $2 billion.  The least surprising aspect of this case: TVA has filed a notice of appeal.

How?  In 2015, the Tennessee Clean Water Network and the Tennessee Scenic Rivers Association filed a CWA citizen suit claiming that groundwater flowed through two ash pond areas and then to the nearby Cumberland River was an unpermitted point source.  Judge Crenshaw’s 125-page opinion in support of the Order includes this diagram showing one zone of earth penetrated only vertically (by storm water) and one penetrated both vertically and laterally (by storm water and groundwater):

 

This pretty much sums up the central issue in the case:  Is the groundwater flow through the lower part of coal ash landfill, picking up contaminants and transmitting them laterally to the Cumberland River, regulated by the CWA?

In his lengthy opinion, Judge Crenshaw found that the CWA does regulate groundwater where there is a direct and immediate hydrologic connection if plaintiffs are able to “prove a link between contaminated groundwaters and navigable waters.”  TVA argued that the CWA cannot reach discharges enabled by infiltration of rainwater that was not channeled by human act because they are not point sources, but Judge Crenshaw found that the ultimate question regarding point source is whether the pollutants were discharged from a discernable, combined, and discreet conveyance by any means.  He found that the entire ash dewatering complex was a discernible, combined and discreet manmade concentration of waste and that it was a “conveyance” because it is “unlined and leaking pollutants,” and thus is by definition “conveying pollutants.”

It takes a lot for a judge to impose $2 billion of costs on a public utility.  His displeasure with how the problem had been addressed over the past several decades was palpable.  He wrote that the older of the two coal ash sites

“…offers a grim preview of what it means to leave an abandoned unlined coal ash waste pond in place next to a river.  [It] has not been a waste treatment facility for over forty-five years. It has been ‘closed’ for almost twenty years.  Still, water infiltrates it.  Still, it leaks pollutants.  Still, counsel for TVA and counsel for environmental groups are locked in conflict about what can and should be done about it. … As long as the ash remains where it is in either site, there is every reason to think that the dangers, uncertainties and conflicts giving rise to this case will survive another 20 years, 45 years or more.  While the process of closure by removal would not be swift, it would, at least, end.” 

With that, he ordered that TVA remove the coal ash to an appropriate lined site that will not discharge into waters of the United States.

There was one bit of good news for TVA: because of the cost of the chosen remedy, Judge Crenshaw decided not to assess penalties. 

Not every argument was about such large costs.  TVA’s objection to the plaintiffs’ request for attorney’s fees and costs included an objection to caviar included in a claim for $200 for food and snack items purchased from Kroger before and during the trial.  The plaintiff’s response included a receipt showing the “caviar” purchase was $16.24 of “Texas Caviar,” and attached Kroger’s recipe therefor.  It is devoid of fish eggs but does include chopped cilantro.  The recipe is available through PACER here.

Looking for Shelter under the Permit Shield

Posted on October 4, 2017 by George House

As a follow up to Kenneth Gray’s post on PFASs, the PFAS situation in the lower Cape Fear River of North Carolina is a new battleground for the Clean Water Act NPDES permitting process.  GenX is a product that DuPont, and now Chemours, began manufacturing in or about 2010 as a substitute for PFOA of Parkersburg fame.  When GenX is used in other processes at the same plant facility, it is released in the process wastewater as a byproduct.  While testing Chemours discharge for GenX, two other perfluorinated compounds, identified by EPA as PFESA Byproducts 1 and 2, were discovered.

The Department of Environmental Quality (DEQ) of North Carolina sued Chemours (spin-off of DuPont) on September 7, 2017 and sought injunctive relief from the North Carolina Superior Court for an order requiring Chemours to, “immediately cease discharging the substances identified as PFESA Byproduct 1 and PFESA Byproduct 2  . . . from its manufacturing process into the surface waters . . . and, to continue to prevent the discharge of process wastewater containing GenX into the waters of the State.”   DEQ alleged among other things that Chemours and its predecessor DuPont, “failed to timely disclose to DWR (the permitting authority) the discharge of GenX and related compounds into the Cape Fear River” and, “In particular, none of the DuPont and Chemours NPDES permit applications referenced ’GenX’ or any chemical name, formula, or CAS number that would identify any GenX or related compounds in the Facility’s discharge.”  Further, DEQ alleged, “Part of the permit applicant’s burden . . . is to disclose all relevant information, such as the presence of known constituents in a discharge that pose a potential risk to the human health.” 

By letter from counsel dated September 8, 2017, Chemours responded, “The NPDES permit specifically describes the portion of the Fayetteville Works’ complex that generates the PFESA’s and, in accordance with well- and long-established NPDES permitting practice as construed and ratified by the courts, this is sufficient for the discharges to be covered by the permit . . . . chemical substances did not have to be enumerated by name in Chemours’ NPDES permit in order to be covered under the permit, so long as the process from which they were generated was described in the permit.”  Chemours further stated that this situation, “characterizes the circumstances that also prevail at countless permitted facilities throughout North Carolina and the rest of the United States, where numerous untested and unregulated trace-level compounds are present in permitted discharges”.

North Carolina courts will now have to grapple with the issues presented in Piney Run Pres. Ass'n v.Cnty. Comm'rs that was recently cited with approval in S. Appalachian Mt. Stewards v. A&G Coal Corp., both Fourth Circuit cases, and rule upon the issue of how much information a permit applicant must disclose to successfully avail itself of the “permit shield.”

PFAS – NOT JUST ANOTHER “EMERGING” CONTAMINANT

Posted on September 19, 2017 by Kenneth Gray

No longer emerging, Per- and Polyfluoroalkyl Substances (PFASs) have exploded on the environmental and toxic tort landscape in 2016 and in 2017.  Cognoscenti will recall U.S. EPA phase-out initiatives dating back to 2000, EPA Drinking Water Health Advisories set in 2009 and the TSCA action plan of the same year, the 2012 EPA drinking water monitoring rule, and even a blog in this very space “way back” in 2011.

Why have PFASs recently been compared to asbestos and PCBs for potential costs and impacts?  And why will they continue to be significant even if there is no further federal regulation in the near term?  Here’s why:

·        The compounds have many uses in many products and were therefore manufactured or used (and released) at a large number of facilities. Commercial products included, among others, cookware, food packaging, personal care products, and stain resistant chemicals for apparel and carpets.  Industrial and commercial uses included photo imaging, metal plating, semiconductor coatings, firefighting aqueous film-forming foam, car wash solutions, and rubber and plastics.  Sources include landfills.

·        PFASs are highly mobile and highly persistent in the environment, and so will be present for many decades.

·        The EPA Drinking Water Health Advisory level was reset (lower) in 2016 at 70 parts per trillion (ppt).

·        EPA estimates that 6.5 million people are affected by PFASs in public water systems, which does not include any impacts to smaller water systems or private wells.

·        More and more public water systems are voluntarily testing for PFASs – and more states are compelling testing.

·        Airborne releases of PFASs have contaminated groundwater and surface water.

·        They’re ubiquitous in the environment and present in human blood.  PFASs are also found in fish, and thus fish advisories are being set by states. 

·        California has proposed listing PFASs under Proposition 65 based on reproductive toxicity.

·        Many U.S. Department of Defense properties (and former properties) were the sites of PFAS releases in firefighting foam, and DOD is ramping up additional testing on its facilities.  

·        Toxic tort lawsuits have been filed over PFAS contamination in Parkersburg, WV; Decatur, AL; Merrimack, NH; and Hoosick Falls, NY. More lawsuits are likely.

·        Several Attorneys General are reportedly considering lawsuits on behalf of the citizens of their states.

It may only be the end of summer, but can you sense a snowball?

Is Tier 3 Coming to a High Quality Waterbody in Your State?

Posted on August 16, 2017 by Eric Fjelstad

The Alaska Department of Environmental Conservation (ADEC) has taken on the task of defining a process to designate so-called Outstanding National Resource Waters.  These are often called “Tier 3” waters.  A quick recap of the Clean Water Act’s antidegradation regulations.  Under relevant EPA regulations, waters which do not meet water quality standards are classified as Tier 1 waters.  Waters which meet or exceed water quality standards are classified as Tier 2 waterbodies.  The best waters - Tier 3 waters - are defined by EPA in 40 CFR 131.12(a)(3) as follows:

Where high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.

The regime has proven controversial in Alaska because it would apparently impose a “no degradation” prohibition on new and expanded discharges.  The term “degradation” is not defined in EPA’s regulations which leave open the question whether Tier 3 allows for any detectable pollutants. 

The State of Alaska is blessed with an abundance of high quality waters.  It also is a resource development state, and many projects occur in areas with high quality waters.  Conservation groups argue that Alaska’s water resources should be protected before they are compromised through development.  Development interests believe Tier 3 is just another regulatory initiative to stop projects.  ADEC has struggled to implement a Tier 3 regime, finding few friends in industry and conservation corners as it works to develop a program.  Amongst the questions ADEC has grappled with. 

· What criteria should be employed to screen potential Tier 3 candidates?  Alaska has many high quality waters and the debate has centered on whether the waterbody should be truly exceptional or unique by Alaska standards versus exceptional or unique compared to the Lower 48. 

· How much information should be in the proposal?  Conservation groups generally favor a streamlined proposal process.  For example, a few paragraphs on why a waterbody merits Tier 3 status, along with information on the basic social and economic implications of the designation.  Industry stakeholders argue that a Tier 3 designation effectively imposes a “no discharge” regime on an entire watershed and should be rigorously evaluated in a study akin to an environmental impact statement with the costs to be borne by the proponent. 

· Who should make the designation?  Conservation groups argue a Tier 3 decision should be made by ADEC or by an administrative commission and be reviewable in the courts.  Industrial stakeholders believe a Tier 3 designation is fundamentally a political decision, comparable to establishing a state park or wildlife refuge, and should be made by elected officials in the legislative process. 

· How would the “no degradation” standards work in practice?  ADEC has indicated that temporary discharges with minor impacts would be permissible under Tier 3.  However, ongoing discharges would be prohibited, even if the discharge complied with water quality standards at the “end of the pipe.”  There are unresolved questions how Tier 3 would apply, if at all, to nonpoint sources of pollution.

· Can a Tier 3 designation be changed?  There has been no clear statement from EPA on whether a Tier 3 designation could be changed.  The regulatory grapevine has yielded mixed signals with some suggesting a Tier 3 designation would be permanent.

EPA’s one sentence regulation leaves much to the imagination, and stakeholders would benefit from greater clarity from EPA in its regulations.  Given the open questions and the potentially significant restrictions a Tier 3 designation places on waterbodies, it is not a surprise that Alaska is struggling to define a rational Tier 3 process.  

WOTUS Washington Two-Step

Posted on August 8, 2017 by Rick Glick

The Trump Administration has begun rulemaking to undo the controversial rule defining “waters of the United States” or WOTUS.  In the July 27 Federal Register, EPA and the Army Corps of Engineers jointly announced that it is proposing a two-step process.  The first would be to rescind the 2015 WOTUS rule, and the second would replace it with something aligned with the Administration’s thinking.  As reported here, on February 28, 2017, President Trump issued an executive order directing the agencies to change direction. 

The Clean Water Act confers federal jurisdiction over “navigable” waters, which are defined as “waters of the United States.”  The agencies, courts and property owners have since struggled to elucidate that vague definition, particularly in the context of wetlands.  A divided Supreme Court, in Rapanos v. U. S., offered competing definitions.  Justice Scalia, writing for a plurality of the Court, would require running water, whereas Justice Kennedy in a concurring opinion, looked to whether a “significant nexus” exists between the waters or wetlands at issue and a navigable waterway.

The Obama Administration’s WOTUS rule attempted to bring clarity to the scope of federal jurisdiction, with an emphasis on the Kennedy approach.  Under President Trump’s executive order, the new rule is to follow Justice Scalia’s view of WOTUS.

During the interim between step one (rescission) and step two (replace), we will have to muddle along as before.  The Federal Register notice states:

The agencies would apply the definition of “waters of the United States” as it is currently being implemented, that is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice.

Simply stated, that means continuing uncertainty.  It will probably take some years before a new replacement rule can be developed under the deliberate process required by the Administrative Procedures Act.  If the reaction to the Obama WOTUS rule is any guide, the replacement rule will face many legal challenges, which could also take years to resolve, probably at the Supreme Court.  Thus, it is unlikely that there will be binding policy change during the first term of the Trump Administration.

In the meantime, it is useful to remember that the states are free to adopt their own definitions of jurisdictional wetlands, which many have done or in the process of doing.  States with strong environmental protection traditions—such as Oregon, California and Washington State—can be expected to assert jurisdiction, perhaps where the federal government does not.

The Annual Texas Environmental Superconference—Austin in August?

Posted on June 26, 2017 by Jeff Civins

The Texas Environmental Superconference is one of a kind. Held each year in Austin in sweltering early August, this conference consistently sells out, attracting over 500 participants from the public and private sectors.Indeed, now in its 29th year, it was the winner of the first American Bar Association Section of Environment, Energy & Resources (ABA SEER) award for Best State or Local Bar Environment, Energy and Resources Program of the Year.

The key to the conference’s popularity is its unabashed willingness to integrate humor into content--with annual themes, skits, quizzes, prizes, and, for the past several years, even a conference song.Past themes have included Yogi Berra quotes (“It’s like déjà vu all over again”); Clichés (“The best thing since sliced bread”); Shakespeare (“Much Ado About Pollution”); “Star Wars (“May the farce be with you”); and Willie Nelson songs (“On the Road Again”).Dwarfing all other past conferences, though, was the Disney movie-themed conference, which featured the song “SuperconferenceAustinTexasExpialidocious” and is the subject of 2 You Tube videos. (introductory remarks and conference song).

Speakers generally weave the conference themes into their presentations and, on occasion, even appear in costume.For example, an EPA chief of enforcement appeared as Harry Truman in the politically-themed conference, “Join the Party,” and as Darth Vader, in the Star Wars-themed program. And an EPA General Counsel appeared as a tiara-wearing Wonder Woman in the super hero-themed program.A former EPA Regional Administrator and TCEQ Chairman appeared variously as the Beatles, the Odd Couple, Game Show contestants, and Yoda and Luke Skywalker.

This year’s conference – to be held on Thursday-Friday, August 4-5, 2017 – has as its theme board games and is entitled “Let the Games Begin.”The Wednesday evening session on enforcement is entitled “Trouble.”Registration is at Environmental Superconference-2017.

Participants look forward to attending each year for the chance not only to experience a fun and informative program, but also to network and to informally discuss issues of concern with other environmental professionals representing diverse perspectives, e.g., private and public sectors; regulators, regulated community, and environmental organizations; legal and technical professionals; and local, state, and federal governments.

The conference is organized by the Environmental and Natural Resources Law Section of the State Bar of Texas, in conjunction with other environmental professional organizations, including ABA SEER, the Air & Waste Management Association—Southwest Section, the Water Environment Association of Texas, the Texas Association of Environmental Professionals, and the Environmental Health and Safety Audit Center.Proceeds from the conference are used to fund environmental internships, student writing awards, and section outreach programs.

Thanks to a generous contribution from Supporter, EARTHx (formerly Earth Day Texas), the Superconference this year is offering –and last year offered--scholarships for employees of non-profit organizations with environmental matters as a significant focus.

The Annual Texas Environmental Superconference is the answer to the question, why come to Austin in early August?

THE CUYAHOGA RIVER MAKES NEWS AGAIN: A POSTSCRIPT

Posted on May 31, 2017 by Michael Hardy

On May 11, 2017, I published a blog piece about the efforts of the Army Corps of Engineers to circumvent the State of Ohio’s “anti-degradation” water quality rules for the disposal of contaminated sediments from portions of the Cleveland Harbor and Shipping Channel.  Instead of dry land disposal in Confined Disposal Facilities (“CDF”), the Corp cited its own “Federal Standard” that justified, in its view, “open lake disposal” in Lake Erie at considerable cost savings.  The United States District Court ruled on May 5, 2017 that action was “arbitrary and capricious” under the Administrative Procedure Act.  The District Court showed no deference to the Corp’s “scientific” efforts to create its own rules in contravention to Ohio’s water quality standards.

The controversy arose in the context of the disposal of the contaminated sediments in the shipping channel of the Cuyahoga River, which makes up the last six miles of the River ( the northern end spilling into Lake Erie).  The River travels approximately 85 miles in total and drains nearly 815 square miles in four counties.  Just several miles south of the shipping channel is the 33,000 square acre Cuyahoga Valley National Park, with a number of significant tributaries feeding the River.  These upstream waters provide significant sand and gravel loadings to the northern reach of the River.

Recognizing that it could not afford to build a new $150,000,000 CFD, the Port of Cleveland looked for ways to reduce the sediment loading upstream of the navigation channel.  Adapting innovative “green” technology, the first of its kind at a port like Cleveland’s, the Port installed a “bed load interceptor” machine in the water about five miles upstream of the Shipping Channel that captures the sediment and extracts the clean sand for disposal into onsite piles.  With less sediment coming downriver, the Port hopes to extend the life of the existing CDF for another 30 years. The collected sand has a financial value for use in composting, construction, landscaping and road fill.  Here is a link to a recent The Plain Dealer(Cleveland.com) article that describes the technology, as well as its costs and resultant savings in dredging/disposal costs, and that depicts the process and the location of the interceptor.

The Port of Cleveland’s success with the interceptor has prompted other ports to examine the application of the technology to their locations, including a port on Lake Superior and sites in the Mississippi River delta.

The Cuyahoga River Makes News Again

Posted on May 11, 2017 by Michael Hardy

To many environmental law veterans, the name of the Cuyahoga River triggers memories.   The 1969 fire on that River galvanized major reforms to the water pollution laws of the United States.

As I sit in my 36th floor office and look out the windows in several directions, I can see most of the upper Cuyahoga River course through the “Industrial Flats” as it winds from the Cleveland Harbor north on Lake Erie to the large Arcelor Mittal steel plant nearly six miles downriver.  Known as the “crooked river” by Indian lore, it has many oxbows and switchbacks with colorful names like “Collision Bend” and “Irishtown Flats”.  Home to rowing teams, large tugs, iron ore freighters, and sand and gravel barges, it is a busy river requiring constant upkeep through dredging.

The Cuyahoga River has made remarkable progress since the 1969 fire, with many targeting the fifty-year anniversary of the fire for the removal of its “impaired” classification.  But the River still suffers from years of industrial and municipal sewage disposal.  Although a variety of fish have returned, it should not be surprising to know that slightly elevated PCBs remain in the sediments, a fact that complicates the dredging and disposal of the spoils.  Therein lies the newest chapter in the River’s history.

Congress has funded the dredging of the Cuyahoga River for nearly 40 years and, in 2015, allocated resources to the Army Corps of Engineers (Corps) for that year.  Accordingly, the Corps filed an application with the Ohio Environmental Protection Agency (OEPA) for a water quality certification under Section 401 of the Clean Water Act before commencement of the dredging project.  The OEPA, concerned over elevated levels of PCBs in some of the dredging spoils, authorized the dredging to proceed, provided the Corps disposed of all the dredged material in on-site “confined disposal facilities” (CDFs).  Based on sampling and analysis it conducted, the Corps agreed to utilize a CDF for the sediments dredged from the Cleveland Harbor, but objected to the required use of a CDF for the spoils coming from the “Upper Channel” of the River.  Calculating what it called a “Federal Standard” to identify less costly alternatives, the Corps proposed instead to use “open lake disposal” for those materials, which immediately drew the opposition of the OEPA and Ohio Department of Natural Resources.  The Corps argued that the use of a CDF for those spoils would add nearly $1,300,000 to the cost of the project.  The Court wanted the “Federal Standard” to override Ohio’s anti-degradation water quality rules and other initiatives designed to improve the health of Lake Erie.  Instead of an administrative appeal of the OEPA conditional certification, the Corps gave the State an ultimatum – either find a “non-federal source” for the added costs or forfeit the Congressionally authorized dredging.  Because of the potential dire economic consequences to the steel mill and other businesses, the State sued the Corps and obtained a preliminary injunction.  The District Court sided with the State and ordered the dredging to commence, with the responsibility for the incremental costs to be determined in subsequent proceedings.

On May 5, 2017, the District Court issued a 52-page Opinion finding that the Corps’ actions were “arbitrary and capricious” under the Administrative Procedure Act. State of Ohio v. The United States Army Corps of Engineers, U.S.D.C. N.D.Ohio Case No. 1:15 – CV 629.  Among other things, the Court found that the Corps’ elevation of its so-called “Federal Standard” to supersede duly promulgated water quality standards of Ohio exceeded the Corps’ authority. The Corps could not make up its own rules to evade its obligations to comply with properly adopted environmental standards or to fulfill Congressional mandates to dredge the entirety of the Cuyahoga navigation channel and use a CDF to manage the spoils.  Accordingly, the District Court ruled that the Corps must absorb the added costs of the on-land CDF disposal.

Channeling Scalia in a New WOTUS Rule

Posted on March 24, 2017 by Donald Shandy

By now, most of the readers of this blog have heard about or read President Trump’s Executive Order directing the EPA to re-evaluate the “Waters of the United States” Rule.  This announcement brought cheers from farmers, developers, and many industry groups who had opposed EPA’s Clean Water Rule (aka “WOTUS rule”) and groans, moans, and other choice words from environmental NGOs, wetlands specialists, and supporters of the WOTUS rule.  There are many articles written about what this executive order means and other articles speculate at what a new rule from a Scott Pruitt led EPA may look like under a Scalia-based definition of “navigable waters” when all of this shakes outs.

Being an Oklahoman and having interaction with Scott Pruitt over the years when he was Attorney General, I decided to take a look back at Justice Scalia’s plurality opinion in Rapanos v. United States, to see I if could piece together a couple of key components I would expect to see in a new WOTUS rule.  I note at the outset that the executive order does not require the EPA to use Justice Scalia’s definition of “navigable waters”; only that EPA “shall consider interpreting the term ‘navigable waters’ . . . in a manger consistent with” Justice Scalia’s definition in Rapanos.  However, having observed Administrator Pruitt making arguments on behalf of the State of Oklahoma as Attorney General, I would be surprised if he does not channel Justice Scalia into the new rule.

There are two points in Justice Scalia’s opinion in Rapanos that stand out.  First, he rejected the Army Corps of Engineers’ interpretation of “waters of the United States” under a Chevron step two analysis, stating that the “Corps’ expansive interpretation of that phrase is not ‘based on a permissible construction of the statute.’”  The CWA uses the phrase “navigable waters” and traditionally, that phrase applies to “relatively permanent bodies of water.”  Further, Justice Scalia pointed to language in the CWA that categorized channels and conduits that typically carry intermittent flows separately from “navigable waters.”

Second, Justice Scalia concluded that Congress’ use of “waters of the United States” did not “authorize [an] intrusion into such an area of traditional state authority as land-use regulation.”  Justice Scalia criticized Justice Kennedy’s “significant nexus” test because it failed to account for the “primary state responsibility for ordinary land-use decisions.”  In Justice Scalia’s opinion, by taking a narrow view that the only purpose of the CWA was to “clean up the waters of the United States,” and that anything affecting the chemical, physical or biological integrity of those waters should therefore be jurisdictional, Justice Kennedy employed “the familiar tactic of substituting the purpose of the statue for its text [and] freeing the Court to write a different statute that achieves the same purpose.”  Thus, Justice Scalia thought any interpretation of “waters of the United States” must account for the traditional role of the states in determining land use.

In looking at these two components of Justice Scalia’s plurality opinion and reflecting on Administrator Pruitt’s viewpoint when he was Attorney General of Oklahoma, it appears that Justice Scalia and Administrator Pruitt may be aligned when it comes to how the CWA should overlay with states’ role of land-use decisions.  I think we can expect Administrator Pruitt to champion and strengthen the notion of cooperative federalism and increasing the role of the states in crafting the new water rule.  If Pruitt’s EPA takes heed of Justice Scalia’s plurality opinion in Rapanos, I think we will see more involvement by the states in crafting the language of the rule and a narrower definition that could lead to more certainty in jurisdictional determinations.

POTUS, SCOTUS & WOTUS: What Do They Have in Common With Michael Stipe and Jack Black?

Posted on March 15, 2017 by Jeff Thaler

Then-candidate Donald Trump’s unauthorized use of REM’s 1987 song, “It’s the End of the World as We Know It (And I Feel Fine)”, during a 2015 campaign rally sparked a sharp objection by the band’s Michael Stipe. Flash forward to 2017 and now-President Trump has been flexing his executive powers in a number of legal fields; for many environmental, energy or immigration lawyers it’s the end of the regulatory world as we knew it for decades, and they are not feeling so fine.

Executive Orders (EOs) raise classic constitutional law issues of the separation of powers, in that they often are used for “executive legislating” even though there is no explicit constitutional authority for them. EOs also blur traditional regulating lines, because they are not issued with public notice or comment, and usually state that they do not “create any right or benefit enforceable at law or in equity by any party against the United States.”

An EO can have the force of law, however, if the EO is based on either the Constitution or a statute, per the Supreme Court’s 1954 Youngstown decision. That is why one must carefully read each EO to determine the grounds of its authority, and then whether it is possibly contrary to a) existing laws or b) constitutional provisions such as due process or equal protection.

Facing an uncooperative Congress, POTUS Obama came to rely on EOs in his last two years in office (see this prophetic 2015 School House Rock episode). POTUS Trump took to EOs right out of the gate. The two Trump EOs that have garnered the most publicity and outcry deal with immigration restrictions The first EO was challenged in numerous courts, and the 9th Circuit issued on February 9 the first appellate decision on a Trump EO. Interestingly, and instructive for future litigants and legal counsel, the first issue addressed by the 9th Circuit, and the one they discussed the most, was . . . standing. The court then moved on to reviewability, and only briefly due process and equal protection. The complaint’s count on violating the Administrative Procedure Act for not following proper rulemaking proceedings was not even discussed in the ruling.

Trump issued two EOs of more relevance to environmental and energy lawyers. First was the January 30, 2017 EO entitled “Reducing Regulation and Controlling Regulatory Costs”, aka the add-one-subtract-two, no-increase-in-incremental-costs [undefined]- of-regulations EO. That was followed by the February 2, 2017 Interim Guidance of the OMB implementing (and implicitly amending) the EO by limiting it to “significant regulatory actions”—i.e. those of $100 million or more of annual effect on the economy. A week later the EO and IG were both challenged in federal court in D.C. as violating the APA, separation of powers, the Constitution’s “Take Care Clause”, and as being ultra vires. Plaintiffs referenced in part OSHA, TSCA, the ESA and CAA, and other energy/environmental laws as being inconsistent with the EO’s requirement that a new rule can only be promulgated if its cost is offset by the elimination of two existing rules. The EO ironically signals the possible demise of cost-benefit analysis —first mandated by then POTUS Ronald Reagan by an EO in 1981—by disallowing consideration of the economic benefits of a regulation when weighing its costs.

Many more EOs are promised in the coming weeks concerning a variety of environmental and energy laws and regulations. Early in the wave was the February 28, 2017 EO with the majestic name of “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ [aka WOTUS] Rule”. This EO directs the EPA to review the WOTUS Rule while keeping in mind the national interest of “promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” Since WOTUS was a final rule published in the Federal Register, it can only be repealed and replaced by a new rule that goes through full notice-and-comment rulemaking, not simply by a non-legislative guidance or policy statement.

One who lives by the EO sword can slowly die from it too. POTUS Obama did not submit for approval to Congress the Paris Climate Change Agreement of 2016, calling it an “executive agreement”, thus POTUS Trump does not need Congressional approval to undo it. The Agreement terms do not allow withdrawal by a party before November 2019. However, the U.S. could withdraw from the overarching United Nations Framework on Climate Change with one year notice, if the Senate approves, and that in effect would undo our Paris “commitments”. And as a practical matter, the current Administration could also just choose not to implement the Paris obligations, because there is no binding duty to hit the emission reduction targets.

In sum, we live in interesting times.   Although Jack Black has said of this Administration that “It’s the end of the world”, for College members and their clients it’s the start of some fascinating new adventures in regulation and litigation. Stay tuned. 

WOTUS, We Hardly Knew Ye

Posted on March 2, 2017 by Rick Glick

With a flourish of his pen, on February 28, President Trump signed an Executive Order  aimed at dismantling the ill-fated Waters of the United States (WOTUS) rule.  The rule was the latest attempt by EPA and the Army Corps of Engineers to bring some clarity to the limits of federal authority under the Clean Water Act.  Clarity in this area has been elusive, and though many were unhappy with the rule, no one benefits from the current state of confusion.

The uncertainty begins with the Clean Water Act, which Congress said applies to “navigable” waters and then helpfully defined navigable to mean “waters of the United States.”  The agencies and the courts have struggled ever since to figure out when wetlands are jurisdictional.  The courts have not helped.  In Rapanos v. U.S., a 5-4 majority of the Supreme Court found the Government had overreached, but could not agree as to why.  Justice Scalia, writing for a plurality of the Court, would limit jurisdiction to “relatively permanent, standing or continuously flowing bodies of water,” excluding intermittent or ephemeral channels and most drainage ditches.  In a concurring opinion, Justice Kennedy invoked a “significant nexus” test whereby jurisdiction should apply if a hydrologic connection between a wetland and a navigable water could be demonstrated.  Later courts have tried to follow both tests, with mixed results.

Justice Scalia’s test is a lot easier to apply:  If you can see the water or the land goes squish under your feet, there is jurisdiction.  Justice Kennedy’s test requires a case-by-case review and exercise of professional judgment.  The WOTUS rule focused more on the Kennedy test to indicate how the Government would make its jurisdictional determinations.

Without getting into detail that now is mostly moot, the rule generated about one million public comments and lots of litigation—17 District Court complaints and 23 petitions to various Circuit Courts of Appeal.  It seemed certain that the Supreme Court would get another opportunity to declare the law of WOTUS.

No doubt the Court will get that chance, but in a drastically different context.  The president’s Executive Order has no legal effect, other than to get the process started.  The Obama Administration’s WOTUS rule was subject to years of notice and comment before adoption, and the Trump Administration’s revisions will have to go through the same process.  No doubt they will be as controversial and will also be fiercely litigated.  That will take a very long time to play out, and won’t likely be completed during a Trump first term. 

In the meantime, property owners still would like to develop their property, and the Government still has to apply the law.  The Trump Executive Order gives direction that a new WOTUS rule should follow the Scalia test, but that doesn’t reflect the way jurisdictional determinations are made today.  Suffice to say that the Kennedy significant nexus test will still be in play for the near to intermediate term, and a prudent developer will include a wetlands determination as a key part of the due diligence for the project.

Rifle Shots – Unleashing the Power of the Tweak

Posted on February 24, 2017 by JB Ruhl

Here’s a thought exercise: I’ll give you a budget of 25 words (including conjunctions, articles, and all the other little ones). You use up a word by either deleting, adding, or replacing one in an existing federal environmental or natural resources statute. How much could you transform the field of practice with just those 25 word edits? The answer is, quite a lot.

When we think of statutory reform, we usually think big, right on up to “repeal and replace.” But after more than 25 years of very little legislative action on federal environmental and natural resources statutes—the National Wildlife Refuge Improvement Act, Sustainable Fishing Act, and the recent Toxic Substances Control Act reforms are a few exceptions since the 1990 Clean Air Act amendments—much rides on the accumulations of judicial and agency interpretations of the meaning of a word here and a phrase there. As we enter a period of potential legislative volatility in this field, therefore, the rifle shot may be just as much in play as the nuclear bomb.

Like any statutory reform, rifle shots can make regulatory statutes either more or less regulatory. For example, one could add “including carbon dioxide” or “excluding carbon dioxide” in just the right place in the Clean Air Act and with those three words put an end to a lot of debate and litigation. Given the current political climate, however, it’s reasonable to assume any rifle shot would be aimed at reducing regulatory impacts. But even with just 25 words in the clip, one could transform the impact of several regulatory programs before running out.

For example, delete the words “harm” and “harass” from the statutory definition of “take” in the Endangered Species Act (ESA) (16 U.S.C. 1532(19)) [LINK 1] and you have a very different regulatory program. Much if not most of the land use regulation impact under the ESA stems from the inclusion of those two words; without them, the ESA’s prohibition of unpermitted take would restrict actions like hunting, killing, shooting, and wounding, but could not reach indirect “harming” from habitat modification.   Of course, the interagency consultation program under Section 7 (16 U.S.C. 1536(a)(2)) [LINK 2] would still be in place, prohibiting federal agencies from taking actions that “jeopardize” the continued existence of species. But just add “substantially” before “jeopardize” and the practical effect of that prohibition is greatly reduced.

I’ve managed to transform the ESA, vastly reducing its regulatory impact, with just three word tweaks. Twenty-two to go. Here are some more examples.  I’ll let readers evaluate the impacts.

·         Speaking of evaluating impacts, the environmental impact review process of the National Environmental Policy Act (NEPA) can really slow things down (42 U.S.C. 4332(B)). [LINK 3] To “streamline” the process, add the word “direct” before “environmental impact” in subpart (C)(1), which would eliminate the current practice of requiring analysis of indirect and cumulative impacts, and delete subpart (C)(iii), which requires agencies to evaluate “alternatives to the proposed action,” to remove a factor that bogs down much NEPA litigation. (Six more words down, sixteen to go.)

·         Heard all the commotion about which “waters” are subject to the Clean Water Act? Clear that up by changing the statutory definition of “navigable waters” (33 U.S.C. 1362(7)) [LINK 4] to read “waters of the United States subject to navigation.” That would be pretty extreme—it would remove most wetlands from jurisdiction—so one could control how far jurisdiction extends over wetlands by adding and their adjacent wetlands.” This would draw the line much closer to navigable water bodies than current interpretations reflected in Supreme Court opinions and agency regulations—Rapanos and the Water of the United States Rule become history. (Seven more words down, nine to go.)

·         And if you also want to put to rest the question whether the Clean Water Act applies to groundwater, edit the front end of the definition to read “surface waters.” (Another word down, eight to go.)

·         The Circuits are split over whether the Migratory Bird Treaty Act’s list of prohibited activities (16 U.S.C. 703(a)), [LINK 5] which includes to “take” or “kill,” sweeps within the statute’s reach any “incidental” taking or killing—injury or mortality that is not the direct purpose of the activity, such as strikes by wind turbines. Easy to solve! Add the word “purposeful” before the list of prohibited activities. (Another word down, seven to go.)

·         And, while we’re at it, let’s go ahead and add “excluding carbon dioxide” to the Clean Air Act definition of “air pollutant” (42 U.S.C. 7602(g)). [LINK 6] Adios, Clean Power Plan. (Three more words down, leaving just four to go.)

I’ll leave it to readers to think about how to use the last four words. The point here is that the system of environmental and natural resources law has become quite fragile. With Congress out of the picture for so long, courts and agencies have built up an interpretation infrastructure under which a single word or phrase often carries a tremendous burden of substantive and procedural program implementation. As a consequence, a mere tweak here and there can have dramatic effects on the program.

Granted, anyone who closely follows the statutes tweaked above will quickly appreciate the impact of any of the tweaks, and I’ve chosen some powerful examples unlikely to slip by any such experts. But subtler tweaks buried deep in a larger bill could more easily fly below the radar.

It remains to be seen whether Congress takes this rifle shot approach or goes bigger.  Rifle shots don’t eliminate or “gut” entire programs, which may be the current congressional appetite, but the above examples show the potency of this approach. I for one will be keeping my eyes out for rifle shots in bills every bit as much as I will be following the big bomb reform efforts. Do not underestimate the power of the tweak!

It’s Getting Hot in Hells Canyon

Posted on February 2, 2017 by Martha Pagel

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! 

“Reports of My Death Are Greatly Exaggerated”

Posted on January 27, 2017 by Robert M Olian

So said Mark Twain (actually, he didn’t), and now the same can be said for EPA’s rule exempting water transfers from NPDES permitting requirements. When I last addressed this topic nearly three years ago in “Ashes to Ashes; Waters to Waters – The Death of EPA’s Water Transfer Rule”, a federal district court had just vacated the rule seeking to clarify EPA’s position that transfers of water between navigable bodies of water do not require NPDES permits. See Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States Environmental Protection Agency (SDNY, 3/28/2014)

Displaying a prescience that would make Carnac the Magnificent proud, I closed that earlier post with the assertion that “the only certainty is that litigation over the Water Transfer Rule will continue to flow.” I am therefore personally pleased to report that flow it has, the Second Circuit having now overturned the district court decision in a 2-1 opinion issued on January 18, 2017. The majority opinion upheld EPA's interpretation of the Clean Water Act to exempt water transfers, finding it was a “reasonable construction of the Clean Water Act supported by a reasoned explanation” and was entitled to deferential review under the Supreme Court’s Chevron doctrine.

 Not content to rest on my laurels, I’m going to make another prediction. The Second Circuit won’t agree to rehear en banc and, if certiorari is sought, the Supreme Court won’t take the case. All of which means that, except perhaps for one last post to gloat yet again about my ability to see into the future, this is the last you’ll hear about litigation over the water transfer rule.