Section 316(b) of the Clean Water Act – Cooling Water Intake Requirements – Update on EPA and State of Maine Actions

Posted on October 21, 2013 by Philip Ahrens

Section 316(b) of the Clean Water Act requires that the location, design, construction and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.  Although the statutory language is straight-forward, EPA continues to face – and create – enormous difficulties in promulgating the rules to implement Section 316(b).

The latest in a series of rulemaking efforts began on April 20, 2011 when EPA published a proposed rule to protect fish from being killed at water intake structures that withdraw at least 2,000,000 gallons per day from waters of the United States and use at least 25% of that water exclusively for cooling purposes.  Pursuant to a judicial Settlement Agreement with the environmental group Riverkeeper and other organizations, EPA was required to issue the revised rule by July 27, 2012. 

When EPA was unable to issue its new rule by the court-approved date, it entered into a Second Amendment to the Settlement Agreement with Riverkeeper and other organizations.  That Agreement required that “Not later than June 27, 2013, the EPA Administrator shall sign for publication in the Federal Register a notice of its final action pertaining to issuance of requirements for implementing Section 316(b) of the CWA at existing facilities.” 

On June 18, 2013, nine days before the June 27 deadline for publication of notice of final action, EPA initiated Endangered Species Act (ESA) Section 7 consultation with the National Marine Fisheries Service and the Fish and Wildlife Service.  EPA has been criticized for many years for its failure to initiate Section 7 ESA consultation during rulemaking.  With the agreement of Riverkeeper and the other plaintiffs, a revised Settlement Agreement now allows a delay in the issuance of the final rule until November 4, more than four months after the June 27, 2013 deadline. 

Although the revised Settlement Agreement allows time for Section 7 consultation, it does not appear to allow time for review of the rule by the White House Office of Information & Regulatory Affairs. 

Given the delays that have been experienced to date on this rule, coupled with the delays engendered by the government shutdown, it seems doubtful that EPA will be able to meet the new November 4, 2013 deadline for issuance of its cooling water intake rule.  We shall see.

EPA Proposes to Take Away State Discretion on Antidegradation Analysis

Posted on October 14, 2013 by Patricia Barmeyer

One basic premise of the Clean Water Act is that EPA sets minimum standards but allows the States some latitude, in some areas, to design their own programs to meet their own needs.  One area where the States have traditionally been allowed flexibility is the antidegradation analysis required for any new or expanded discharge, to assure that high quality waters are not degraded.  However, in a notice published September 4, EPA is proposing to amend the federal antidegradation rule to require a review of alternative treatment levels for every permit and to require selection of the “least degrading alternative” in each case.  The proposed rule would have a dramatic effect in Georgia, and perhaps in some other states. 

The current antidegradation rule--both the federal rule and the Georgia rule--provides that the quality of high quality waters shall be maintained unless “allowing water quality is necessary to accommodate important economic or social development in the area….”  In Georgia the longstanding process, approved by EPA, is that the state Environmental Protection Division determines whether the proposed discharge is “necessary” by considering any no-discharge alternatives, such as land application.  If the no-discharge alternative is not feasible and the agency concludes, after public input, that the proposed discharge has significant positive economic or social value, then EPD considers the antidegradation analysis complete.  The agency then proceeds to apply the water quality regulations to determine effluent limitations and other permit conditions. 

Under EPA’s proposal, the antidegradation analysis would mandate a consideration of a full range of alternatives that could prevent or minimize the degradation that would result with the proposed activity, so long as they are “practicable.”  As proposed, this would apply not only to industrial dischargers but also to POTWs, even though the Clean Water Act clearly provides for less stringent technology for public facilities.  The result would be to require substantial expenditures on additional controls even if they are not needed and even if they will produce negligible water quality benefits. 

This very issue has been the subject of debate and litigation in Georgia for the past ten years.  It has enormous implications, because Georgia has declared that all its waters are “high quality” and subject to the Tier 2 requirements.  The environmental community in Georgia has long argued that the determination that a proposed discharge is “necessary” must be supported by a demonstration that the facility, even a POTW, has employed the highest level of treatment that is technologically and economically feasible.  In their view, if a facility can implement better controls, it must, without regard to a cost-benefit analysis and whether or not the lower standard would have any impact on water quality.  The Georgia experience counsels against EPA’s proposal to impose a “one-size-fits-all” antidegradation analysis on all 50 states.

Illicit PCB Dumping Prompts Emergency Regulation

Posted on October 1, 2013 by Thomas Lavender

On September 25, 2013 the South Carolina Department of Health and Environmental Control (SCDHEC) filed an emergency regulation in response to multiple occurrences of illegal dumping of substances containing polychlorinated biphenyls (PCBs) into multiple sewer systems across the State. The Emergency Regulation took effect immediately upon filing and remains in effect for ninety (90) days.  SCDHEC acknowledged the existence of an ongoing investigation into the origin of the materials, including state and federal authorities.  SCDHEC noted that there was currently no known impact to public health or any confirmed discharge to surface water bodies.  It is also believed that publicly-owned treatment works (POTWs) in states bordering South Carolina have recently detected PCBs in their systems.

In August, SCDHEC had acknowledged that PCBs had been detected in several POTWs in the Greenville-Spartanburg area of the State.  Concurrent with the filing of the Emergency Regulation, the agency announced that PCBs had now been detected in a POTW in the Columbia, SC area.

Some South Carolina wastewater treatment systems are permitted for the land application of their sludge.  Based on the suspected criminal activity, DHEC has determined the need for specific regulations limiting the land application of sludge containing detectable levels of PCBs.  The Emergency Regulation addresses the land application of sludge from wastewater treatment systems and specifically limits land application to sludge containing no detectable levels of PCBs and requires increased testing of sludge, regardless of disposal method, to aid in identifying illegal dumping suspects.  SCDHEC has also informed all of the state’s class III landfill operators and waste water treatment plants of the matter, and provided them guidance regarding proper disposal and reporting any suspicious activity.

SCDHEC issued a Be On the Lookout (BOLO) alert through the State Law Enforcement Division to heighten awareness among law enforcement of illegal dumping and solicit the help of local law enforcement agencies.

Court Upholds Multi-State Chesapeake TMDL

Posted on September 25, 2013 by Ridgway Hall

On September 13, in a 99 page decision, the U.S. District Court for the Middle District of Pennsylvania upheld EPA’s multi-state Clean Water Act Total Maximum Daily Load (“TMDL”) for the Chesapeake Bay and its tributaries against a broad range of challenges brought by the American Farm Bureau Federation and six other farm industry trade associations. Six environmental organizations led by the Chesapeake Bay Foundation, plus four municipal water associations led by the National Association of Clean Water Agencies, intervened in support of EPA.

The Chesapeake Bay TMDL is not the first to cover multiple states, but it is by far the largest, covering 64,000 square miles in Maryland, Virginia, Delaware, Pennsylvania, West Virginia, New York and the District of Columbia.  It requires substantial reductions of nitrogen (25%), phosphorus (24%) and sediment (20%) by 2025 to  meet water quality standards.  Because of the interstate nature of the long-standing pollution problems, after more than two decades of collaborative but unsuccessful efforts, the states agreed in 2007 that EPA should develop the TMDL. It was issued in 2010 and included allocations for each of 92 tidal segments which, after consultation with the states, were further allocated among states, watersheds and sectors (such as agriculture, wastewater, stormwater, etc). During the process, each state developed its own Watershed Implementation Plan (“WIP”), specifying  wasteload allocations (“WLA’s”) for point sources, load allocations (“LAs”) for nonpoint sources, and identifying the regulations, programs and resources that would be used to achieve the required reductions. For more on this TMDL see "EPA Issues Biggest TMDL Ever for Chesapeake Bay Watershed" and ELI Environmental ForumThe Chesapeake Bay TMDL” (May/June 2011). 

The plaintiffs alleged that (1) the TMDL was an unauthorized “implementation” of  allocations by EPA, (2) requiring WIPs exceeded EPA’s authority, (3) EPA’s use of watershed and related models in setting the allocations was an abuse of discretion, and (4) there was insufficient public notice.  In addressing these challenges, the court first held (as several others have) that a TMDL is not self-implementing, but is an “informational tool”, developed collaboratively by EPA and the states under CWA Section 303(d), and implemented primarily by the states.

Turning to the merits, the court upheld EPA’s definition of a TMDL for a waterbody or segment as the sum of all WLAs and LAs plus natural background.  It also upheld  EPA’s authority to establish a multi-state TMDL,  when the affected states either fail to do so or ask EPA to do it (both occurred here), including limitations on sources in upstream states to achieve compliance with water quality standards in downstream states. It held that EPA’s “holistic” or “watershed-wide approach” was consistent with the broad national goals of the CWA to “restore … our Nation’s waters.” In reaching this result the court emphasized the collaborative efforts of the Bay states and EPA starting in 1983 to address the problems of interstate pollution, transported by rivers and tides, and their consensus that an EPA-led multistate effort was needed.

The court further held that the WIPs – new tools in the TMDL context – were authorized as part of the “continuing planning process” under CWA Section 303(e). This process is initiated by the states to achieve water quality goals, and is subject to review and approval by EPA. Because EPA had advised the states in letters what it expected in terms of general content and specificity in the WIPs, but left the details to the states, the court held EPA did not exceed its authority. The court also relied on CWA Section 117(g) - a Chesapeake Bay-specific provision - requiring EPA to “ensure that management plans are developed and implementation is begun by [all the affected states] to achieve and maintain…” the applicable water quality goals.

The plaintiffs also challenged EPA’s requirement that each WIP contain “reasonable assurances” of timely and effective implementation, and EPA’s use of “backstop” allocations where EPA determined that a WIP provision was deficient.  “Backstops” involved requiring NPDES permits from previously unregulated sources. The court held that EPA could properly require “reasonable assurance” under CWA 303(d)(1), which requires a TMDL must be “established at a level necessary to implement the applicable water quality standards.”  The court upheld “backstops”, which were only used in 3 instances, as a reasonable exercise of EPA’s authority under CWA 303(d)(2) to ensure that the contents of the TMDL are designed to achieve the applicable water quality goals.

The court upheld EPA’s use of models as scientifically supported and within EPA’s discretion.  It rejected the challenge to adequate notice and opportunity for public participation since (1) a 45 day public comment period had been provided, (2) there had been hundreds of public meetings during the more than 10 year development of the TMDL, and (3) plaintiffs showed no prejudice from the fact that some details of the modeling were not available until after the comment period.

The court held that TMDL establishment and implementation involves “cooperative federalism” between the states and EPA, and that the Chesapeake Bay TMDL properly reflects the shared responsibilities and necessary interactions, despite some bumps along the road. While EPA exerted strong leadership, the court held that it did not unlawfully usurp the states’ implementation functions. The court noted  the preserved authority of the states to implement nutrient trading and offsets, and to set or revise source-specific loading allocations.  In conclusion, there is a lot of thoughtful analysis, as well as precedent, in this decision, which makes it an excellent resource for CWA practitioners.

Retroactive Stormwater Permitting – Coming to a Parking Lot Near You?

Posted on September 18, 2013 by David Van Slyke

On July 10, 2013, several different consortia of environmental organizations simultaneously filed petitions with three EPA Regional Offices asking the respective Regional Administrators to make determinations under the Clean Water Act (“CWA”) that unpermitted stormwater discharges from impervious surfaces at existing commercial, industrial, and institutional sites be required to obtain stormwater permits and to conduct remedial actions.  The three petitions (Region 1, Region 3, Region 9), jointly filed by American Rivers, Conservation Law Foundation (“CLF”) and Natural Resources Defense Council (along with different regional NGOs on each petition), ask EPA to use its CWA Residual Designation Authority (“RDA”) to require property owners in EPA Regions 1, 3 and 9 to capture and treat their stormwater runoff, which the petitioners allege is impairing waterbodies in those parts of the U.S.

Currently, in the absence of residual designation, only new construction projects, industrial sites falling within certain limited categories, and municipal stormwater sewer systems are required to obtain stormwater permits and manage stormwater runoff.  The Petitioners allege that stormwater discharged from impervious surfaces on commercial, industrial, and institutional sites are significant sources of pollutants – specifically, metals (lead, copper and zinc), sediments, phosphorus, nitrogen, and oxygen-demanding compounds that cause water body impairments – and therefore should be regulated.   

In 2008, CLF successfully petitioned EPA to use RDA to require stormwater discharge permits for existing impervious surfaces in an urban/mall area near Portland, Maine.  Property owners with an acre of more of impervious surface in that watershed are now required to control their stormwater runoff either on an individual basis (by retrofitting their property to control pollutants in runoff) or by obtaining coverage under a general permit and paying an annual fee per acre of impervious cover.  A similar NGO petition was granted by EPA Region I with regard to limited areas within the Charles River watershed near Boston.

The current petitions represent an effort to force expansion of EPA stormwater runoff control regulation in New England, the Mid-Atlantic States and California/Nevada/Arizona.  The petitioners recommend remedial actions such as conservation of natural areas, reducing hard surface cover, and retrofitting urban areas with features that detain stormwater runoff and treat pollutants in stormwater. 

EPA has 90 days to act on the petition, although action within this time frame is doubtful given the scope of the requests and the pace at which EPA has acted upon other much more limited RDA petitions.  With the very recent U.S. District Court decision in American Farm Bureau v. EPA upholding the Agency’s Chesapeake Bay TMDL for nitrogen, phosphorus and sediment, however, EPA may feel somewhat more emboldened to embrace these broad-reaching petitions.  To date, however, the Agency has been mum regarding the petitions.

Arsenic and Apple Juice: Are We Now Safe?

Posted on July 30, 2013 by Michael Rodburg

Earlier this month the FDA proposed an “action level” of 10 ppb for inorganic arsenic in apple juice (down from 23 ppb), bringing it to the same level as EPA’s drinking water MCL. One may view this action as the culmination of a campaign of sorts initiated by a 2011 Consumer Reports article whose cause was taken up by Dr. Oz. Yet, the FDA has been monitoring arsenic levels for many years and has never viewed the data as any cause for concern.  Should we now believe that the FDA has made us completely safe by adopting a drinking water standard for juice?  In a practical sense, yes, but in EPA-Superfund speak, not really; and that is the point of this post.

The poisonous propensities of arsenic have been the stuff of history and literature for centuries; the Poison of Kings and the King of Poisons. Remember elderberry wine from Arsenic and Old Lace? But, arsenic is, after all, not only naturally occurring but rather ubiquitous.  The human race has managed to live with some level of arsenic for a few millennia now without evident consequence.  Indeed, because of naturally occurring arsenic in groundwater in the western United States, the MCL is actually set “considering cost, benefits and the ability of public water systems to detect and remove contaminants using suitable treatment technologies.” If, in contrast, one turns to the gold-standard of “safe,” the one in a million excess cancer risk level, the drinking water standard required is .02 ppb;  that’s right folks, 500 times lower than the current MCL and FDA’s proposed new juice level.


What does it mean?  I think it points out that the ultra-conservatism of the “10 to the minus six” environmental risk standard leads to absurd results and hugely unnecessary costs.  I still recall with a smile a quite notorious Superfund site (which shall remain nameless to protect a client) that had literally dozens and dozens of polysyllabic chemicals at high levels in soils, groundwater and waste disposal units throughout several hundred acres.  In the baseline risk assessment, the only risk to exceed the 10-6 level was that from naturally occurring arsenic in the soil!

The more we know about the genetic basis and causes of cancer, the more we realize how poorly both our animal models and in vitro experiments perform in predicting cancerous effects.  (See E. Topol, The Creative Destruction of Medicine (Basic Books 2011) for a good discussion of the limitations and frustrations of our current methods and models for finding cancer fighting drugs.)  While we are a long way from tossing EPA’s current approach to carcinogenic risk, we should perhaps take into account far more than we do now the inherent limits of our understanding and incorporate more the practical necessity for “cost, benefits and the ability” to “remove contaminants using suitable treatment technologies.” And yes, my grandchildren will continue to drink their apple juice.

The Reach of Sackett v. EPA: Impacts Beyond Clean Water Act Compliance Orders

Posted on June 19, 2013 by Theodore Garrett

When Sackett was decided by the Supreme Court, an uncharted issue was the extent to which the decision would be extended to make pre-enforcement review available to EPA orders under  other statutes.  EPA has now acknowledged that Sackett has a long reach. 

As previously reported, the Supreme Court in March 2012 issued its long awaited decision in Sackett v. EPA. In a unanimous decision, the Court held that the Sacketts may bring a civil action under the Administrative Procedure Act to challenge EPA’s compliance order. The court rejected the government’s argument that EPA is less likely to use orders if they are subject to judicial review, saying that “[t]he APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.”

When I reported on this decision earlier, I noted that it will be important to see how EPA responds and what if any changes are made to EPA’s practice and procedure for issuing orders under other statutes.

EPA has now formally acknowledged that the Sackett decision has implications for other statutes.  In a memorandum dated March 21, 2013, EPA’s Office of Enforcement and Compliance Assurance has concluded that it is important to advise recipients of EPA unilateral orders under other programs of their opportunity to seek pre-enforcement judicial review of such orders. 

In particular, EPA has directed enforcement staff to immediately begin adding the following language to typical unilateral orders under FIFRA, Clean Air Act, Safe Drinking Water Act and EPCRA: 

“Respondent may seek federal judicial review of the Order pursuant to [insert applicable statutory provision providing for judicial review of final agency action.]” 

The foregoing language applies, inter alia, to stop sale, use or removal orders under FIFRA §13, stop work or compliance orders under Clean Air Act §§113(a) and 167, and emergency and compliance orders under EPCRA §§ 325(a). 

With respect to compliance and corrective action orders under RCRA §§3008(a), 3008(h), 9003(h) and 9006(a), EPA’s Memorandum directs enforcement staff to include language advising respondents that they may seek administrative review in accordance with 40 CFR Part 22 or 24 as applicable. 

EPA’s March 21, 2013 Memorandum states that EPA believes that the reasoning in Sackett does not lead EPA to believe that similar language is appropriate for unilateral orders issued under statutory authorities other than those discussed in the Memorandum, and it is noteworthy that the EPA Memorandum makes no reference to unilateral orders under CERCLA. 

Justice Scalia’s opinion in Sackett had little difficulty in disposing of the government’s argument that the Clean Water Act should be read as precluding judicial review under the APA, 5 U. S. C. §701(a)(1). The APA creates a presumption favoring judicial review of administrative action, and the Court concluded that nothing in the Clean Water Act’s statutory scheme precludes APA review.  EPA undoubtedly believes the CERCLA is different because of the provisions in §§113(h) that deprived the courts of jurisdiction to review challenges to removal or remedial actions selected or orders issued under §106 unless one of five exceptions applies. 

In addition to their Administrative Procedure Act argument, Sacketts also maintained that EPA’s issuance of the compliance order deprived them of due process in violation of the Fifth Amendment.  Because the APA disposed of the matter, the Supreme Court did not reach the Fifth Amendment issue.  Interestingly, before it granted certiorari in Sackett, the Supreme Court denied certiorari to review a decision by the D.C. Circuit rejecting arguments made by General Electric that CERCLA §106 orders violate the due process clause.  Stay tuned.

“Whenever”: EPA’s Continuing Power to Withdraw Dredge-and-Fill Permits

Posted on May 1, 2013 by Lisa Heinzerling

On April 23, a panel of the D.C. Circuit unanimously held in Mingo Logan Coal Co. v. EPA that the Clean Water Act gives EPA the authority to withdraw permits previously granted under section 404 of the Act.  The case emerged from EPA’s determination that the discharge of mining waste from the Spruce No. 1 mine in West Virginia into certain streams and tributaries would have an unacceptable adverse effect on environmental resources.  Based on this determination, EPA withdrew the Army Corps of Engineers’ prior specification of these streams and tributaries as disposal sites for the waste from mountaintop removal.

Several features of the case are striking.  First, the decision has obvious – and obviously important – implications for the ongoing debate over mountaintop removal and its irredeemable environmental impacts.  No longer can the argument be made that a permit, once issued, gives the permittee the power, in perpetuity, to blast the tops off of mountains and dump them into streams.

Second, the decision rested, for the most part, on a single word: “whenever.”  The Clean Water Act states that the Administrator of the EPA may withdraw the specification of a disposal site for dredge-and-fill material “whenever” she determines that it will have an “unacceptable adverse impact” on certain environmental resources.  The court took Congress, literally, at its word, and held that “whenever” means whenever – that is, even if EPA finds unacceptable adverse impacts after a permit has issued, the agency has the authority to pull the permit.

Third, as if to make certain its own holding is unambiguous, too, the court five times stated that the Clean Water Act unambiguously authorizes EPA to withdraw permits after they are issued.  EPA’s current interpretation of the Act is thus not changeable by a future administration.

Should permittees fear that “whenever” will become wherever?  It is worth remembering that EPA’s decision on the Spruce No. 1 mine was the first time EPA had – ever! – withdrawn a previously issued permit, in the 40-year history of the Clean Water Act.  Whether EPA will be emboldened by this decision, or will continue to mostly allow existing permits to stand, remains to be seen.

Court Rules EPA Cannot Set TMDL For Stormwater

Posted on April 30, 2013 by Ridgway Hall

On January 3, 2013, the District Court for the Eastern District of Virginia ruled that EPA lacks the statutory authority to set a Clean Water Act (“CWA”) total maximum daily load (“TMDL”) for “stormwater flow rates” as a surrogate for sediment deposition. Virginia Dep’t of Transportation et al v EPA et al.  EPA has decided not to appeal.  The case has received national attention because of its implications for other TMDLs that use surrogates. This article will discuss the decision and its significance for the TMDL and water quality regulatory regime.

The relevant statutory framework is CWA Section 303, under which each state establishes water quality standards for waters within its boundaries.  These consist of a designated use (trout fishing, contact recreation, etc.) and numerical or narrative “water quality criteria” necessary to support that use.  For “impaired waters” where the criteria are not being met, the state must set a TMDL (think “pollution budget”) for each pollutant for which the criteria are exceeded, and implement a “planning process” leading to achievement.  Where the state fails to act, or sets a TMDL which EPA regards as insufficient, CWA Section 303(d)(2) directs EPA to set the TMDL.

Accotink Creek is a 25 mile tributary to the Potomac River in Virginia, in which the benthic organisms were impaired, primarily because of sediment deposited by stormwater running off impervious urban and suburban areas.  In April 2011, after Virginia failed to set a TMDL, EPA set one which limited the flow rate of stormwater into Accotink Creek to 681.8 cu ft/ acre-day.  The court said that the parties agreed that “sediment is a pollutant, and that stormwater is not” (Slip op. 3). While EPA’s brief contains a fallback argument that stormwater can be viewed as a “pollutant”, it did not dispute that stormwater flow was being used as a surrogate for sediment.  Thus the question addressed by the court was whether EPA has the statutory authority to set a TMDL for a “surrogate” which is not itself a “pollutant”. 

EPA has used surrogates in a number of circumstances where, in its view, the surrogate would provide appropriate reduction of pollutants, and would be either easier to measure or provide other benefits (such as, in this case, reduction of stream bank scouring caused by heavy stormwater discharges), or both. The court rejected EPA’s argument that since the CWA does not expressly address the use of surrogates, EPA’s use of them should be upheld as reasonable “gap-filling”, consistent with the broad remedial objectives of the CWA, and entitled to substantial Chevron step 2 deference. The court held instead that because the CWA instructed EPA to set TMDLs for “pollutants”, not “surrogates”, the statute was clear.  The court distinguished EPA’s use of surrogates in this case from other instances  in which surrogates have been used under other CWA provisions (notably Sections 301, 304 and 402) where EPA appears to have greater latitude.

EPA and states have used stormwater surrogates in TMDLs in Connecticut, Missouri and North Carolina. They have also used other types of surrogates, such as impervious surface area limits and secchi disc readings.  Some of those have been challenged, and this decision will no doubt provide ammunition for those who oppose their use.  Nationally, however, this amounts to a very small percentage of the TMDLs that are in place, even if one focuses only on sediment (for which, the court noted, EPA has issued approximately 3700 TMDLs).

In addition, this ruling will have no effect whatever on EPA’s permitting of  industrial and municipal stormwater  discharges, including municipal separate storm sewer systems (“MS4s”), or its ongoing development of stormwater regulations, because these activities are expressly authorized under CWA Section 402(p).  This is especially important, because EPA and many states now recognize stormwater as a major source of contamination and water quality impairment.  For a thoughtful article on this subject and emerging approaches, see Dave Owen, Urbanization, Water Quality, and the Regulated Landscape82 U. of Colo. L. Rev.  431 (April 2011).

Alaska Courts Clarify Application of Antidegradation Procedures

Posted on April 8, 2013 by Eric Fjelstad

Courts in Alaska issued two decisions upholding agency practice in carrying out antidegradation review under the Clean Water Act.  The federal court concluded that adoption of water quality standards does not, itself, require antidegradation review.  In the second case, a state court concluded that guidance may be developed to implement antidegradation regulations and need not be promulgated as a regulation provided it does not contain substantive criteria.

In Native Village of Point Hope v. U.S. Environmental Protection Agency, Alaska native and environmental organizations challenged EPA's approval of the State of Alaska's adoption of a site-specific water quality criterion ("SSC") for total dissolved solids ("TDS").  The SSC was challenged on a number of grounds, including on the basis that neither the State of Alaska nor EPA analyzed the SSC under the relevant antidegradation policy.  The issue before the U.S. District Court for Alaska was whether antidegradation review applied to the adoption of water quality standards ("WQS") or, conversely, only when WQS are translated into permits through effluent limitations.  In a case of first impression in the federal courts, the court ruled for EPA, holding that agencies are not required to undertake antidegradation review for the adoption of WQS; the obligation is only triggered when a WQS is incorporated into a permit through effluent limitations.

In Alaska Center for the Environment v. State of Alaska, environmental organizations challenged the State of Alaska's adoption of antidegradation implementation procedures through guidance, arguing that the procedures should have been promulgated as regulations.  As background, several NPDES permits in Alaska were withdrawn by EPA in the face of arguments from environmental organizations that the State of Alaska lacked antidegradation implementation procedures.  To address this alleged deficiency, the State of Alaska developed a guidance document  which EPA found was consistent with EPA's own antidegradation regulation.  The primary issue in the litigation was whether the State of Alaska was required to promulgate the guidance in the form of a regulation or whether it was permissible rely upon guidance to implement its regulations.  In a decision that turned largely on the State of Alaska's Administration Procedures Act, the court held that it was appropriate for the State to develop the guidance to implement its regulatory program, reasoning that the guidance did not add substantive requirements to existing regulations.

Harvard Law Students Shoot for Gun Control

Posted on April 1, 2013 by April Jester

A group of Harvard law students has come up with a novel strategy to achieve more stringent regulation of firearms in the United States, namely environmental citizen suits.

Frustrated by the slow pace of Congressional efforts to strengthen regulation of firearms, this group of students has filed citizen suit notice letters against dozens of hunt clubs and firing ranges in the South and Midwest.  The notice letters allege that the hunt clubs and their members:


•    Violate the Clean Water Act by discharging pollutants from point sources over navigable waters without a permit
•    Violate the Clean Air Act by emitting hazardous air pollutants without a permit
•    Dispose of hazardous wastes, including lead and other heavy metals, without a RCRA disposal permit or compliance with the RCRA uniform waste manifest requirements
•    Own and operate facilities where CERCLA hazardous substances are released into the environment; and
•    Cause or contribute to the unpermitted disposal of solid waste.


This group of students, the Harvard Environmental Law & Litigation Society, is only recently organized, but they are clearly ambitious.  One of the students, Angel Del Norte, who spoke on condition of anonymity, said, “We hope our efforts will blow some of those gun crazy deep South Bubbas out of the water.”

One of the targeted organizations, the Poteau Piscine Club in south Alabama, is working to organize a unified response to the citizen suit notices.  The club’s President, Robert E. Lee (“Bobby”) Rhebop, stated in a press release that all of the organizations targeted in Alabama had agreed to contribute to a joint legal defense fund.  Rhebop added, “If those pointy headed snot noses in Boston think they know something about guns, I can’t wait ‘til they see the business end of my .357.  I’ll teach ‘em what a discharge from a real point source can do.”

Reaction has also spread rapidly in Texas.  One of the targeted hunt clubs has persuaded their local legislator to introduce a bill in the state senate that would authorize Texas residents who attend Harvard to carry concealed weapons on the Harvard campus.  As one proponent of the bill said “If we pass this sucker, I bet every Texan in Harvard will start getting straight A’s.”

To date no one from EPA has commented on the notice letters.

EPA Loses Another Battle in the War Over Guidance: The Eighth Circuit Vacates EPA Policies on Mixing Zones and Bypasses

Posted on March 26, 2013 by Seth Jaffe

On Monday, EPA lost another battle in the war over guidance.  In Iowa League of Cities v. EPA, the 8th Circuit Court of Appeals vacated two letters that EPA had sent to Senator Charles Grassley concerning biological mixing zones and bypass of secondary treatment units at POTWs (also referred to as “blending”, because the POTWs blend wastewater that has not be subject to biological secondary treatment with wastewater that has, prior to discharge).  The Court concluded that both letters constituted promulgation by EPA of effluent limits under the Clean Water Act and that they constituted legislative, rather than interpretive rules (I refuse to refer to “interpretative” rules; sorry).  As a result, the Court vacated the letters due to EPA’s failure to follow notice and comment requirements applicable to promulgation of legislative rules.  Finally, the Court concluded that a duly promulgated rule concerning biological mixing zones might be valid under Chevron, but that a rule barring bypasses of secondary treatment would exceed EPA’s authority under the Clean Water Act.

In first determining whether the letters constituted “promulgation” of an effluent standard, the Court looked to whether the letters were binding on the regulated community.  Relying in part on Appalachian Power Co., the Court concluded that the letters were binding:

If an agency acts as if a document issued at headquarters is controlling in the field, if it treats the document in the same manner as it treats a legislative rule, if it bases enforcement actions on the policies or interpretations formulated in the document, if it leads private parties or State permitting authorities to believe that it will declare permits invalid unless they comply with the terms of the document, then the agency’s document is for all practical purposes “binding.”

As the Court noted with respect to the mixing zone issue, the “letter instructs state permitting authorities to reject certain permit applications, regardless of the state’s water quality standards.”  With respect to the bypass issue, EPA stated that “it will insist State and local authorities comply with” a never-issued policy that precludes the types of bypass at issue.  To try to suggest that words such as “insist” are not binding did not go over well with the Court.  “Just as it did in Appalachian Power, the EPA dissembles by describing the contested policy as subject to change.”

After concluding that the letters constituted promulgation of effluent standards, the Court went on to conclude that the letters constituted legislative, rather than interpretive, rules, and thus were subject to notice and comment rulemaking.  The following is the key paragraph for those of us attempting to beat back the kudzu that is EPA’s reliance on such informal guidance as a substitute for notice and comment rulemaking:

Identifying where a contested rule lies on the sometimes murky spectrum between legislative rules and interpretative rules can be a difficult task, but it is not just an exercise in hair-splitting formalism. As agencies expand on the often broad language of their enabling statutes by issuing layer upon layer of guidance documents and interpretive memoranda, formerly flexible strata may ossify into rule-like rigidity. An agency potentially can avoid judicial review through the tyranny of small decisions. Notice and comment procedures secure the values of government transparency and public participation, compelling us to agree with the suggestion that “[t]he APA’s notice and comment exemptions must be narrowly construed.”

“Layer upon layer of guidance.”  The “tyranny of small decisions.”  I couldn’t have said it better myself.

Kentucky-Specific Water Quality Standard for Selenium

Posted on February 14, 2013 by Carolyn Brown

The Clean Water Act requires states, as well as Indian tribes, to review their water quality standards every three years.  The water quality standards include narrative and numeric criteria that differ based on the type of use designation for the particular stream.  Use designations include warmwater aquatic habitat, cold water aquatic habitat, primary and secondary contact recreation and others.  The Kentucky Division of Water has been engaged in the triennial review of the state’s water quality standards since early 2012.  In the latest development, the agency asked the legislative committee that reviews agency regulations to defer consideration of the rules for another month while the agency takes comment on a change to the state’s standard for selenium.

The Kentucky regulations address a number of changes to the water quality standards and included proposed deletion of the acute water quality criterion for selenium.  The proposal to delete the acute standard was based on findings that the current state standard, which was derived from USEPA guidance, was not based on sound science.  USEPA Region 4 commented on the proposed deletion and identified three options: (1) leave the current acute criterion in place and wait for release of any revisions to USEPA’s selenium criteria, (2) adopt the acute criterion from USEPA’s current national guidance, or (3) adopt an alternate criterion based on other scientifically defensible guidance.

In response, the Division conducted a survey of recent studies of selenium toxicity to aquatic species and determined that it was appropriate to develop state-specific water quality criteria for selenium.  The agency is proposing an acute criterion for warmwater aquatic habitat of 258 ug/L, with an alternate calculation option depending on the sulfate concentration that is present.  The proposed chronic criterion for warmwater aquatic habitat is 8.6 ug/g (dry weight) of whole fish tissue or 19.2 ug/g (dry weight) of fish egg/ovary tissue.  The analysis of fish tissue is triggered when the water column concentration of selenium exceeds 5.0 ug/L.  If the water column result is less than or equal to 5.0 ug/L, the water body is meeting is aquatic life uses.  If the water column result is greater than 5.0 ug/L, then the next step is to determine whether the site is attaining the fish tissue or egg/ovary tissue criterion.

Stay tuned as interested parties weigh in on the state’s proposed action.

The Georgia Court of Appeals clarifies the antidegradation rule, at least in Georgia

Posted on February 5, 2013 by Patricia Barmeyer

The Clean Water Act’s antidegradation rule has been a fertile ground for dispute and litigation in Georgia, as elsewhere.  A recent decision by the Georgia Court of Appeals, Upper Chattahoochee Riverkeeper, Inc. v. Forsyth County, 734 S.E 2d 242 (Ga. App. 2012), has interpreted the Georgia version of the Rule and provided some clarity for POTWs and others seeking NPDES effluent limits. 

Georgia’s Antideg Rule is identical to the federal rule and provides that in the case of a proposed discharge to high quality waters, that quality shall be maintained unless allowing lower water quality is “necessary to accommodate important economic or social development,” and water quality to protect existing uses is assured.

The Rule is not a model of clarity, to say the least, and has been subject to varying interpretations.  EPA has chosen not to provide more specific direction and has, on multiple occasions, reiterated that it is up to the States to decide how to interpret and apply the Antideg Rule, through each State’s implementation procedures.  

Georgia EPD’s implementation procedures interpret the rule to require a determination whether the proposed new or expanded discharge is “necessary to accommodate important economic or social development….”  If it is determined the discharge is “necessary,” that is, that a no-discharge alternative is not economically feasible, then EPD proceeds to consider the application and to impose permit conditions based on the applicable technology-based standards and in-stream water quality standards. 

In contrast, the environmental groups, and an Administrative Law Judge, have taken the position that the Antideg Rule requires EPD to consider whether “allowing the lower water quality resulting from the permitted discharge is actually necessary.”  That reading led the ALJ to conclude that, without regard to cost or benefit, the permit limits for the POTW must be set at the lowest level that is technologically feasible, so long as the permittee can afford it.  As interpreted by the ALJ, the antidegradation analysis would be not just the beginning of the analysis of a proposed new discharge, but also the end point.  According to that view, the antideg analysis would ask, not just whether the discharge is justified, but also, what is the lowest limit that is feasible.  Application of the Antideg Rule in this fashion would short-circuit all considerations of in-stream water quality standards and technology-based limits.  It would eliminate any distinction between POTWs and industrial facilities -- they both would have to meet the lowest limit that is technologically feasible that they can afford.

The Georgia Court of Appeals has now agreed with EPD’s reading of the Antideg Rule.  The  court held the rule requires only a determination whether lower water quality generally is necessary to accommodate economic or social development, not a permit-specific analysis of whether the exact effluent limits in the permit are necessary.  The opponents to the permit have asked the Georgia Supreme Court to take up the issue; a decision on the petition for certiorari is expected by mid-2013.

What the Cluck?! Wastewater Discharge Permits for Air Pollutants?!

Posted on February 1, 2013 by Patricia Finn Braddock

Rose Acre Farms, Inc. et al. vs. NC Department of Environment and Natural Resources, et al., decided January 4, 2013

On January 4, 2013, a North Carolina court held that an egg production facility could be required to obtain a National Pollutant Discharge Elimination System (NPDES) permit solely on the basis that feathers and dust carrying ammonia nitrogen and fecal coliform, expelled from henhouses by ventilation fans, can be “pollutants” from a point source for which an NPDES permit is required if those pollutants reach waters of the State.  This is a case of first impression in which a court held that the impact of air emissions on water bodies could be regulated under the Clean Water Act (CWA).

North Carolina egg producer Rose Acre Farms (RAF) appealed a decision by the NC Department of Water Quality (DWQ) that an NPDES Permit renewal required stringent new BMPs on the grounds that: 1) the DWQ had no authority to require an NPDES permit for a “no discharge” facility; and 2) even if DWQ had authority to require an NPDES permit, the DWQ had no authority to impose new BMPs because: a) the feathers, dust and litter expelled into the air from ventilation fans are not “pollutants” as defined in 33 U.S.C. §1362(6); and b) even if ammonia nitrogen, total inorganic nitrogen, total phosphorus and fecal coliform associated with the feathers, dust and litter are “pollutants” that enter waters of the State, that activity would be exempt under the agricultural storm water discharge exemption in 33 U.S.C. §1362(14).

The Court held that ammonia nitrogen and fecal coliform carried by feathers and dust expelled by ventilation fans in the henhouses are “biological materials”, a term included in the definition of a “pollutant” in the CWA.  In addition, the Court relied on EPA guidance letters to determine that feathers, dust and litter expelled from a henhouse by ventilation fans are discharges from a point source that could reach waters of the State.  Finally, the Court held that the agricultural storm water discharge exemption in 33 U.S.C. §1362(14) applies only to land application in accordance with site specific nutrient management practices and does not apply to pollutants from feathers, manure, litter or dust that are expelled from the RAF henhouses but are not entrained in irrigation water.

If courts in other jurisdictions follow suit, other sources of air emissions with the potential to reach a receiving water, such as power plants and industrial facilities, may be required to address the impacts of their emissions on those receiving waters in future NPDES permits, independent of required air permits.

Section 316(b) of the Clean Water Act – Cooling Water Intake Requirements – Update on EPA and State of Maine Actions

Posted on January 18, 2013 by Philip Ahrens

Section 316(b) of the Clean Water Act requires that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.  Although the statutory language is straight-forward, EPA has run into enormous difficulties in promulgating rules to implement Section 316(b).

The latest in a series of rulemaking efforts began on April 20, 2011 when EPA published a proposed rule to protect fish from being killed at water intake structures that withdraw at least 2,000,000 gallons per day from waters of the United States and use at least 25% of the water they withdraw exclusively for cooling purposes.  Pursuant to a Settlement Agreement with the environmental group, Riverkeeper, and other organizations, EPA was required to issue the revised rule by July 27, 2012. 

When I last wrote about this rulemaking effort by EPA, EPA had received more than 1,100 comment letters and more than 80 documents containing new data for possible use in developing the final impingement mortality limitations.  On June 12, 2012, EPA offered a 30-day comment period on the new information with comments due on or before July 11, 2012. 

Through the Notice of Data Availability published by EPA on June 12, 2012, EPA also presented data it had received related to the results of EPA’s stated preferences survey.  Comments on the data related to EPA’s preference survey were also required to be submitted on or before July 12, 2012. 

In my previous blog on this subject, I wrote it was hard for me to understand how EPA would be able to comply with a court-ordered issuance date of new rulemaking by July 27. 

Not surprisingly, EPA was unable to issue its new rule by July 27.  Instead, EPA entered into a Second Amendment to the Settlement Agreement with Riverkeeper and other organizations.  The Settlement Agreement contains the following language:  “Not later than June 27, 2013, the EPA Administrator shall sign for publication in the Federal Register a notice of its final action pertaining to issuance of requirements for implementing Section 316(b) of the CWA at existing facilities.”  Since entry of the extension, EPA has been remarkably silent about any steps it plans to take prior to the June 27, 2013 deadline for notice of final action.

Concurrent activity at the state level is also of interest.  Prior to this latest extension, EPA Region 1 sent about ten extensive Section 308 information requests to facilities in Maine to set the stage for possible issuance of case-by-case, best professional judgment permit requirements pursuant to 316(b) for the selected facilities.  It is unclear how the facilities were selected given other Maine facilities also met the proposed thresholds.  Those facilities have responded to the information requests but further action even on those facilities is on hold.  EPA Region 1 and the Maine DEP have now determined that DEP, which administers a partially delegated NPDES program, now has the statutory capacity to administer the 316(b) program.  DEP is in the process of formally seeking explicit delegation for the 316(b) program as anticipated under the original EPA-DEP NPDES Memorandum of Agreement.  The DEP has indicated it intends to wait until after EPA issues a final rule implementing Section 316(b) before DEP decides how it proposes to implement 316(b) as a delegated state.

Accotink Creek: Innovative TMDLs Down the (Storm) Drain?

Posted on January 11, 2013 by David Van Slyke

On January 3, 2013, an EPA-set TMDL for Accotink Creek (a Fairfax County, Virginia tributary of the Potomac River) was invalidated on the grounds EPA exceeded its statutory authority when it attempted to regulate, via the TMDL, a Clean Water Act pollutant – sediment – by instead regulating a surrogate non-pollutant – stormwater flow.  The opinion granted plaintiff’s motion for judgment on the pleadings; in a separate order Judge O’Grady vacated the Accotink Creek TMDL and remanded the matter to EPA for further consideration.

Utilizing the two-step Chevron statutory interpretation analysis, the court found the first of the two criteria had been met:  Congress had addressed in unambiguous language the precise question at issue “… and its answer is that EPA’s authority does not extend to establishing TMDLs for nonpollutants as surrogates for pollutants.”  While directly acknowledging he did not need to reach the second Chevron criterion (whether the agency’s reading of an ambiguous statute is “permissible”), Judge O’Grady nonetheless noted in some detail that “there is substantial reason to believe EPA’s motives go beyond ‘permissible gap-filling.’”

Based upon EPA’s own pleadings, the opinion notes it appears the Agency could have set a TMDL based upon the underlying problem – sediment in the creek – rather than pursuing a surrogate approach.
In recent years, EPA has been pursuing so-called “innovative” TMDLs in an attempt to address stormwater’s contribution to impaired watersheds.  In particular, those TMDLs purport to set load limits based upon various surrogate approaches, including such things as the percentage of impervious cover (“IC”) allowed in the impacted watershed, or (as with Accotink Creek) stormwater flow rates.  While the Accotink Creek TMDL was in EPA Region 3, New England’s Region 1 seems to be in the forefront of this approach and currently has at least three stormwater-source TMDLs in place (including two so-called IC-TMDLs), as well as others in development. 

Given the extensive resources EPA has invested in trying to manage stormwater impacts to impaired streams (see e.g., TMDLs to Stormwater Permits Handbook (Draft Nov 2008)), the Virginia Dept. of Transportation case is clearly a significant setback for the surrogate approach propounded by the Agency.  Whether the United States appeals the decision or retreats and re-evaluates its initiatives in this area is yet to be determined.  Whichever way EPA decides to go, communities dealing with impaired watersheds certainly will need to pay close attention.

SUPREMES CONFIRM NO DISCHARGE PERMIT NEEDED FOR POLLUTED WATER TRANSFERS WITHIN SAME RIVER

Posted on January 10, 2013 by Richard Glick

On January 8, 2013, the U. S. Supreme Court unanimously held that flow from an improved portion of a waterway into an unimproved portion of the same waterway—even if polluted—does not qualify as “discharge of pollutants” under the Clean Water Act (CWA).  Although this case arises in the context of a municipal separate storm sewer system (MS4), it has major implications for dam owners everywhere.  The case reaffirms evolving doctrine that dams are not point sources requiring National Pollutant Discharge Elimination (NPDES) permits per Section 402 of the CWA.

In Los Angeles County Flood Control District v. Natural Resources Defense Council, environmental groups brought a CWA citizen suit against the District for violating the terms of the District’s NPDES permit to operate the MS4 facilities.  It was undisputed that water quality standards had repeatedly been exceeded for a range of pollutants, as measured at the District’s monitoring stations in the Los Angeles and San Gabriel Rivers.  The District collected storm water in concrete channels before discharging back to the river, and the monitoring stations were within the concrete channels.  It was also undisputed that many other upstream parties contributed to the contamination.  

Plaintiffs argued that since the monitoring stations were within the control of the District, the District had responsibility for meeting standards.  But that was not the issue for the Court.  Instead, the Court focused on whether a “discharge of pollutants” occurs when polluted water flows from one portion of a river, through an engineered improvement, and then back again to the same river.  The Court answered in the negative, citing its 2004 decision in South Fla. Water Management Dist., v Miccosukee Tribe.  In Miccosukee, the Court held that pumping polluted water from one part of a water body to another part of the same water body is not a discharge of pollutants.

This decision should come as welcome news to dam and hydroelectric plant owners.  Prior to Miccosukee and now LA County, the federal Courts of Appeal simply deferred to EPA judgment as to whether a dam could be said to “add” pollutants originating upstream when it passes them through penstocks or spillways to the river below.  The Supreme Court, however, has firmly established a rule of law that CWA Section 402 is implicated only where the upstream and downstream river segments are “meaningfully distinct water bodies,” a condition that will rarely exist for in-river dams.

UPDATE ON THE DEEPWATER HORIZON OIL SPILL AND RESTORATION OF THE GULF COAST ECOSYSTEM AND ECONOMY

Posted on December 28, 2012 by Jarred Taylor

By: Jarred O. Taylor II and Shannon K. Oldenburg

The Gulf Coast Ecosystem Restoration Council (the “Council”) held its first public meeting on December 11, 2012, in Mobile, Alabama, intended to introduce the Council to the public and to give the public feedback opportunity on the Council’s plans.  The Council, established by the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012 (the “RESTORE Act”), is charged with developing and overseeing implementation of a comprehensive plan to help restore the ecosystem and economy of the Gulf Coast region in the wake of the Deepwater Horizon oil spill. 

The RESTORE Act will fund the Council’s work via a Trust Fund made up of 80 percent of all Clean Water Act administrative and civil penalties related to the oil spill:

• 35 percent of the money will be divided equally between the five Gulf States;
• 30 percent will be spent through the Council to implement a comprehensive plan;
• 30 percent will be used through States’ plans to address impacts from the oil spill;
• 2.5 percent will be used to create the Gulf Coast Ecosystem Restoration Science, Observation, Monitoring and Technology Program within the Department of Commerce’s National Oceanic and Atmospheric Administration (“NOAA”); and
• the remaining 2.5 percent will be used for Centers of Excellence Research grants, which will each focus on science, technology, and monitoring related to Gulf restoration.

Overarching themes of the comments from both the Council and the public in attendance at the meeting were that ideas for Gulf restoration should originate from the Gulf Coast, not from the federal government, and that the Gulf of Mexico Ecosystem Restoration Strategy developed by the Gulf Coast Ecosystem Restoration Task Force (“GCERTF”) should be used as a framework for the Council’s work.  To much approval from the audience, Rachel Jacobson, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior (Ken Salazar’s designated representative on the Council), commented that the Council should incorporate the “four pillars” of the GCERTF strategy into the process and work of the Council in determining how the RESTORE Act funds should be distributed and used.  These four pillars are (1) restore and conserve habitat; (2) restore water quality; (3) replenish and protect living coastal and marine resources; and (4) enhance community resilience.  Notably, Jacobson and many of the other designated representatives to the Council served as members of the GCERTF and also act as Trustees for the Natural Resources Damage Assessment (“NRDA”) for the Deepwater Horizon oil spill.

The Council has only 180 days from passage of the RESTORE Act to publish: 1) procedures to assess whether programs and activities carried out under the Act are in compliance with the Act’s requirements; 2) auditing requirements for disbursing funds from the Trust Fund; and 3) procedures to identify and allocate funds for the expenses of administering the Trust Fund.  The Council will publish a “proposed plan” by the end of this year that will be the focus of public hearings in late January and early February 2013, likely to be in the style of the public “listening sessions” held by the GCERTF last year.  The Council also will release a “draft comprehensive plan” for restoration in Spring 2013, and publish a final plan on July 6, 2013, the anniversary of enactment of the RESTORE Act.

An incredible amount of work has already gone into Gulf restoration, but much work remains.  Only time will tell if these legislative acts and work will translate into true restoration in the Gulf area.

New Hampshire's Great Bay, Nitrogen, and the Limits of Technology

Posted on December 26, 2012 by Gregory H. Smith

As the Clean Water Act celebrates its 40th anniversary, it has ignited a controversy in New Hampshire with potentially hundreds of millions of dollars at stake.  In the law’s early days,  publicly owned treatment works (“POTWs”), mandated and financed in large part with federal funds, were viewed as the “good guys” in the national effort to restore quality in receiving water bodies into which raw sewage was being discharged.  That view of POTWs seems to have changed in New Hampshire, at least as relates to the State’s largest saltwater estuary; the Great Bay.  Faced with the potential need to finance significant POTW upgrades or reconstruction, New Hampshire POTWs are challenging EPA’s permitting decisions in the courts, through administrative channels and in the press.

As we know, POTWs are regulated through National Pollutant Discharge Elimination System (“NPDES”) permits that monitor and control a variety of effluent criteria.  Interestingly, however, New Hampshire was and remains one of the few states that has not obtained authority to issue new and renewed NPDES permits.  Because of this status as a non-delegated state, dischargers in New Hampshire with expiring permits must apply to the federal government for renewal.  As environmental regulation has progressed, however, and as federal funds have diminished or disappeared, POTWs and the towns and sewer districts that operate them have found themselves opposed to the EPA’s efforts to impose stricter standards  to address pollutants that were not of primary concern when the POTWs were constructed and initially permitted.

In New Hampshire, this is seen vividly in NPDES renewal efforts EPA is undertaking for several POTWs that discharge under expired and expiring permits, directly or indirectly, into the Great Bay estuary located on the State’s coast.  Once a rich habitat for oysters, eel grass and other sea life, Great Bay is now stressed by a variety of factors including both point and non-point discharges as well as other environmental factors.   At the heart of the controversy  in New Hampshire is EPA’s intention to reduce effluent limitations for nitrogen to as low as three parts per million (the limits of technology) in order to ameliorate nitrogen related problems in Great Bay.  From the municipalities and POTWs perspective, the costs to comply with these new lower limits are exorbitant.  One widely cited study estimates that, for the Great Bay estuary POTWs to comply with the new nitrogen limit, it will cost in excess of one half billion dollars in capital,operation and maintenance expenses.  Those costs will, of course, be passed along to a relatively small population of ratepayers. 

A coalition of communities with affected POTWs has joined forces in response, proposing “adaptive management programs” combining somewhat lower discharge limits with comprehensive non-point controls aimed together at achieving EPA’s stated goals.  It is unclear at this time whether those efforts will be successful.  The coalition communities certainly have in mind the experiences in Chesapeake Bay, or closer to home in neighboring and similarly non-delegated Massachusetts, where EPA is using its  Residual Designation Authority (“RDA”) to require permits in the Charles River watershed.  EPA has been public with its view that the Charles River RDA program may become a model for watersheds elsewhere in New England and nationwide.  It is thought that an adaptive management program as proposed by New Hampshire’s coalition communities would obviate the need to utilize RDA for Great Bay, but that issue remains to be addressed in the future.

Numeric Nutrient Criteria - High Stakes in the States

Posted on December 4, 2012 by John Milner

On March 13, 2012, eleven environmental organizations, led by Gulf Restoration Network ("GRN"), filed
a federal Clean Water Act (CWA) citizen suit which demanded that the U.S. Environmental Protection
Agency (EPA) set federal numeric standards for nitrogen and phosphorus for water bodies within the 31
states comprising the Mississippi River Basin ("Basin States"). Gulf Restoration Network v. Jackson,
E.D. La., No. 2: 12-cv-00677 ("GRN Suit"). The complaint alleges that EPA has failed to develop
numeric water quality criteria for nitrogen and phosphorus in the Basin States. EPA's answer states that it
is appropriately deferring to each state to promulgate numeric nutrient criteria ("NNCs") that satisfy
Clean Water Act water quality standards within the state and that, consequently, federal NNCs are not
appropriate. The trial judge ruled on September 19, 2012 that the case will be decided on "cross-motions
for summary judgment, with no initial disclosures or other discovery." In the same order, the judge set a
briefing schedule for the parties (including numerous entities to which the court granted permission to
intervene) that will extend through the beginning of June of next year.

The GRN Suit, as well as other similar suits that are active in other regions, have prompted many state
environmental agencies to work diligently, pursuant to EPA's deference and also its demand, to develop
NNCs as quickly as possible. If EPA wins the GRN Suit, the Basin States will have to be ready to go
forward with promulgation of their NNCs. If EPA loses, they may be subjected to more stringent federal
NNCs on a "one size fits all" basis. A settlement could mean an even different outcome for all ofthe
parties.

In Mississippi, the state's Department of Environmental Quality ("MDEQ") has formed a Nutrient
Technical Advisory Group (TAG) to develop scientifically defensible NNCs that are appropriate for
Mississippi's surface waters. The TAG is composed ofMDEQ staff, MDEQ's external consultants and
in-state university personnel who have water quality expeiiise and is meeting on a regular basis. MDEQ
staff members have stated that the agency's plan is to have draft NNCs developed for all state waters,
excluding the heavily agricultural Delta counties, by June 30, 2013. The draft NNCs for the Delta are to
be developed by November 30, 2014. MDEQ wil then publish these draft NNCs for public comment.

MDEQ has held several stakeholder meetings to discuss the development of Mississippi's NNCs and to
provide an opportunity for questions and comments. The MDEQ staff members have consistently
explained that they are considering "what is protective of the environment" rather than "what is
technically achievable." The new NNCs wil be "worked into permits" as they come up for renewal and
permittees wil be allowed a "reasonable time frame" to come into compliance with the new NNCs.

The key issue for the regulated community in Mississippi, as in other states, will be the cost of
compliance with these new NNCs, which could bear a very expensive price tag. In Florida, for example,
a national environmental engineering consultant prepared an economic analysis of proposed NNCs. The
estimate for direct compliance costs ranged from $ 1.5 bilion annually (best management practices for
impaired water categories) to $4.5 billion annually ("end of pipe" requirements for all water categories).
Regulated communities in Mississippi and in other states across the country are engaging with scientific
and economic data and consultants in order to have an impact concerning this volatile issue. A lot is on
the line.

Flooding the High Court’s Docket With Water

Posted on November 12, 2012 by Richard Lazarus

Written October 3, 2012

Water, lots of it, promises to dominate the Supreme Court’s October Term 2012 with three significant environmental cases already on the docket and potentially a couple more looming on the horizon.

In Arkansas Fish & Game Commn v. US, No. 11-597, argued on October 3rd, the Court will decide a Fifth Amendment Takings claim against the Army Corps of Engineers for temporarily flooding downstream riparian property.  The parties and their supporting amici proffer competing per se “takings” and “no takings” tests.  The Court seems likely to reject each in favor of the Justices’ preferred ad-hoc balancing approach.  The other two cases, set for argument on consecutive days in December, are Decker v. Northwest Environmental Defense Center, No. 11-338 (consolidated with Georgia-Pacific v. Northwest Environmental Defense Center, No. 11-347) and LA County Flood Control Dist v. NRDC, No. 11-460 (I am co-counsel for respondents in the LA County case).  Both cases concern the application of the Clean Water Act to storm water discharges: logging in Decker and municipal storm water in LA County.  The cases are the Court’s first opportunity to address storm water issues.  The environmental respondents plainly have reason for concern in both cases.  They won in the Ninth Circuit, the Supreme Court’s favorite circuit for reversal in environmental cases.  One sign of potential trouble for the respondents:  The Court asked the Solicitor General in both cases whether the cases warranted review.  The SG said no, that neither case presented an important legal issue.  Typically, the Court will take a case despite the SG’s negative view only if there are at least four Justices (the number required to grant review) contemplating reversal.  Of course, Justices can and do change their minds once they have the benefit of full briefing and oral argument.  For both Decker and LA County, environmental respondents are plainly hoping for just that.

Whether the October Term 2012 is a true blockbuster for environmental law may depend on the fate of petitions, should they be filed with the Court, seeking further review of the D.C. Circuit’s recent Clean Air Act rulings in Coalition for Responsible Regulation v. Jackson (EPA’s greenhouse gas regulations) or EME Homer City Generation v. EPA (EPA’s Cross-State Air Pollution Rule).  EPA won the first in June and lost the second in August.  Should the losing parties in either case successfully petition for Supreme Court review, the promise of a blockbuster Term will likely materialize.

COURTS FRIENDLIER TO EPA IN CLEAN WATER ACT CONTEXT THAN CLEAN AIR ACT?

Posted on September 19, 2012 by Rick Glick

In his blog post of August 27, Rob Brubaker reported on three cases in which the courts refused to grant deference to EPA decisions under the agency’s Clean Air Act authority.  EPA has fared a bit better in two recent Clean Water Act cases.

In Upper Blackstone Water Pollution Abatement District v. EPA case, the issue was whether EPA properly issued a stringent NPDES permit renewal to a sanitary district to control excessive nitrogen and phosphorus loading.  The First Circuit Court of Appeals rejected the district’s argument that EPA should have waited until the district could complete its modeling effort, even though the model did not seem close to ready, and that EPA did not apply the best science.  The court declined to conduct a de novo review of EPA’s scientific analysis, limiting its inquiry to whether EPA followed the appropriate administrative process, based its decision on record evidence and clearly articulated its reasoning. So long as the criteria imposed are within the “zone of reasonableness”, the court will not strike it down.

Interestingly, the Upper Blackstone court also rejected the district’s argument that the new permit is improper because even with stricter criteria, it would not be sufficient to correct the eutrophication problem in the watershed.  The court set that aside, noting that the CWA contemplates multiple sources of contamination and no one party is responsible for cleaning up the river. 

The Upper Blackstone case is consistent with the U. S. District Court’s decision in the Northwest Environmental Advocates v. EPA, which I discussed in my March 23 post.  In the latter case, the court upheld EPA’s approval of Oregon’s numeric temperature standards, deferring to the EPA’s scientific expertise.  It took issue with the narrative Natural Conditions Criteria because it was so broad that the court concluded it supplanted numeric standards.  The court left the door open for the Oregon Department of Environmental Quality to rewrite the narrative standard for EPA review, based on the agencies’ own review of the science and a good explanation in support of the standard. 

It appears the theme running through three Clean Air Act cases cited in the Brubaker post is that the reviewing court found no authority supporting EPA’s action, or that EPA’s interpretation defied the plain meaning of the statute.  In the Clean Water Act cases, EPA overreaching on the Upper Blackstone permit or approval of Oregon water quality standards was not at issue.  The focus instead was on whether EPA demonstrated it properly considered the best science available under the authority it had, and then explained how it got to its decision.  In that context, EPA and state regulatory agencies will win more than they lose.

Lucy, Ethel, and the Chocolate Factory – Reflections on EPA’s Draft Vision Statement for the Clean Water Act 303(d) Program

Posted on September 11, 2012 by Allan Gates

EPA recently issued a new draft vision statement for the Clean Water Act 303(d) program, the program under which impaired water bodies are identified and TMDLs performed.i   It is fitting that this draft vision statement coincides with the 60th anniversary of the classic episode of I Love Lucy in which Lucy and Ethel struggle mightily to wrap chocolate bonbons as they proceed down a conveyor belt.ii  At first all goes well.  Then the conveyor belt speeds up.  Lucy and Ethel are soon frantically pulling candies off the conveyor belt, stuffing them into their hats, their mouths, and even down the front of their uniforms in order to keep pace with the conveyor belt.

The CWA 303(d) program started off quietly.  States occasionally sent EPA lists of impaired water bodies (the so-called 303(d) lists), and EPA dutifully filed most of them away.  Even a few TMDLs – the studies intended to describe how impaired water bodies should be restored – got performed.  Then came the TMDL litigation.  Dozens of lawsuits in the 1990’s led EPA and the states to begin serious periodic assessments of state water bodies for compliance with water quality standards; and quotas were set by judicial decree or regulatory fiat for the issuance of TMDLs for all of the water bodies found to be impaired.  Soon TMDLs were flying down the conveyor belt at a speed never previously experienced.  EPA reports that we are very close to reaching the milestone of 50,000 TMDLs.

With two decades of experience issuing thousands of TMDLs per year it is reasonable to step back and consider the water quality results obtained.  The simple truth is that restoration of impaired water bodies has not come anywhere close to keeping up with the pace at which TMDLs have been rolling off the bureaucratic assembly line.  There are a variety of reasons for this paucity of results in restoring impaired water bodies.  Frequently the principal causes of impairment identified in a TMDL are non-point source contributions that are largely beyond the direct reach of regulatory programs.  Load reductions prescribed by TMDLs usually require significant expenditures, but funding is rarely available.  Public buy-in for the changes prescribed by TMDLs is often lacking, frequently because the TMDLs are viewed as products of obscure regulatory processes that are not responsive to stakeholder sentiment.  Although the problems addressed by TMDLs are commonly quite complex, the quality of the analysis in some TMDLs is indefensibly poor.  Sometimes the water quality standards that triggered the TMDL are unrealistically ambitious to begin with.  Even when the relevant standards are appropriate, the process of identifying impaired water bodies is commonly mired in bureaucratic minutiae and delay.  States are frequently late in sending in their biennial 303(d) lists to EPA; and EPA is equally delinquent in meeting the 30-day time limit set in its own regulations for completing federal review and approval of state 303(d) submissions.

Given the litany of issues that have limited the success in achieving most TMDL load reductions, it is interesting to read EPA’s new draft vision statement:

“The Clean Water Act Section 303(d) Program provides effective integration for implementation of activities to restore and protect the nation’s aquatic resources, where the nation’s waters have been assessed, restoration and protection objectives have been systematically prioritized, and Total Maximum Daily Load and alternative approaches are being adaptively implemented to achieve water quality goals with the collaboration of States, federal agencies, tribes, stakeholders, and the public.”

In fairness to EPA’s draft, almost all vision statements are insufferably stuffy and meaningless to everyone except those few who were in the room and argued vigorously for the addition or deletion of a particular word or phrase when the inscrutable language was crafted.  Moreover, EPA’s new draft vision statement is accompanied by “goals statements” that offer somewhat more concrete prospects for program improvements at the margin, such as protection of unimpaired waters, increased focus on prioritization, and more flexible approaches to TMDL implementation.  If we want to achieve major improvements in water quality, however, we need visionary leaders not a new vision statement.  We need to spend a lot of money, and we need to spend it in a smart way.  We need new programs that fix the regulatory limitations of the current laws, not repackaged versions of the status quo.  And we need a broad public commitment to achieve change.  In the early 1970s political leaders managed to do these things on a bipartisan basis for the sake of improving the nation’s water quality.  Unfortunately, the current state of partisan gridlock offers little hope for major change in the foreseeable future.

Maybe a new vision statement is the best we can hope for given the strong anti-regulatory sentiment in the current public discourse.  Against this background, one cannot help but reflect on the end of the iconic scene in the chocolate factory.  The supervisor comes into the room, pleased that Lucy and Ethel have not allowed a single bonbon to make it past their work station unwrapped.  She announces “Why you girls are doing splendidly,” and then yells to the conveyor belt operator, “Speed it up a little!”

i A Long-Term Vision for Assessment, Restoration, and Protection under the Clean Water Act Section 303(d) Program, FINAL DRAFT FOR STATE/EPA REVIEW (1 August 2012).  An earlier version of the same document, a Stakeholder Review Draft dated June 2012, is accessible here.
ii I Love Lucy, Season 2, Episode 4, broadcast on September 15, 1952, accessible here. Copies of the chocolate factory scene are accessible on YouTube.

What Ever Happened to Reasonable Further Progress?

Posted on August 8, 2012 by Robert Falk

Under the federal Clean Water Act (CWA), most municipalities in the United States are now required to have National Pollutant Discharge Elimination System (NPDES) permits for discharges of stormwater/urban runoff.  As intended by Congress, both the U.S. Environmental Protection Agency (EPA) and authorized state NPDES permit writers originally took a programmatic approach relative to the requirements they put into such Municipal Separate Storm Sewer Systems or “MS4” permits.  Over time, though, municipalities have, in various ways, been required to address water quality standards more directly, including where such standards are expressed quantitatively. 

In California, this has manifested itself in the issuance of MS4 permits containing provisions called “Receiving Waters Limitations,” which, among other things, preclude the permitted municipal stormwater discharges from “causing or contributing to a violation of an applicable water quality standard.”  Since this ambitious goal is a tall order that likely cannot be met without the construction of large, capital-intensive detention and treatment facilities for which no funding is available, other language contained in these MS4 permits has instructed the municipality that if “exceedances of water quality standards persist,” they must evaluate and submit plans to improve their stormwater management programs to address the situation and then implement such plans and improvements according to a schedule they propose – an “iterative process” that envisions reasonable further progress towards the achievement of water quality standards over time and which inherently recognizes that resource and feasibility constraints may inform the pace of that progress.

Last year, in NRDC v. County of Los Angeles, et al., 636 F. 3d 1235 (9th Cir. 2011), the U.S. Court of Appeals ruled that demonstrating compliance with the iterative process language in these MS4 permits did not create a safe harbor and shield a municipality from direct enforcement of the Receiving Water Limitations themselves, including by means of a citizens’ suits.  The U.S. Supreme Court recently granted cert. in this case, raising a glimmer of hope for municipalities that a reasonable further progress approach might somehow be restored.

Unfortunately, the High Court may well not speak directly to this issue notwithstanding its practical import for municipalities.  Its cert. grant instead requested briefing and argument on the more unusual and academic issue of whether water that flows from one portion of a river that is navigable water, through an MS4 or other engineered channel, and into a lower portion of the same river is “discharge” from an “outfall” requiring an NPDES permit.  As its cert. grant itself suggests, this is an issue the U.S. Supreme Court likely already addressed in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004).  Accordingly, if the Ninth Circuit’s decision is reversed on this basis and without a discussion of the broader issues that caused it to arise, it will be left to Congress, EPA, or state permit writers to decide if they are willing to restore a reasonable further progress approach to municipal stormwater permitting.