In a 50 page opinion issued February 28, Federal Magistrate Judge Acosta handed EPA and the Oregon Department of Environmental Quality (DEQ) a partial victory in Northwest Environmental Advocates v. EPA et al.  The decision upheld EPA’s approval under the federal Clean Water Act of the Oregon DEQ’s numeric temperature water quality standards, while rejecting certain narrative standards.  NWEA also challenged the biological opinions issued by the National Marine Fisheries Service and U. S. Fish and Wildlife Service under the Endangered Species Act.  The Services concluded that the Oregon temperature and intergravel dissolved oxygen standards would not jeopardize listed salmonid species, and those agencies did not fare as well in the case.

Oregon’s temperature standards were adopted in 1996 and promptly attacked.  In 2003 EPA Region 10 adopted its own Temperature Guidance, and Oregon’s temperature standards were reformulated.  NWEA again found the revised standards wanting and brought the case at issue.  The judge upheld DEQ’s numeric temperature standards, despite evidence that the standards were less than optimal for fish, deferring to the scientific expertise of the government. 

The judge found fault, however, with narrative standards that deal with “nonpoint sources” of heat.  A point source is a discrete, end-of-pipe discharge to a waterway, whereas nonpoint sources are diffuse, such as runoff from a field.  The Clean Water Act regulates point sources through a permit program, while nonpoint source control is mostly aspirational, although it does direct states to develop best management practices and measures for controlling nonpoint source pollution.  Under the Oregon narrative standards, a nonpoint source that adopts “best management practices” is deemed to be in compliance. 

The court found that this formulation undermines DEQ’s numeric standards as it provides a substitute for actual compliance.  The same reasoning was applied to the so-called Natural Conditions Criteria, which provide that compliance is excused if natural conditions exceed standards.  The court found that such an exemption supplants otherwise lawful standards.
 
The court’s objections to the narrative standards notwithstanding, neither the Clean Water Act nor state law authorize direct regulation of nonpoint sources.  The narrative standards were Oregon’s attempt to address pollution from nonpoint sources without adopting a new regulatory program.  It seems the court reacted to the blanket exemptions provided in the rules, and it further seems that Oregon can revise them and pass muster.  The deference shown the agencies on the science suggests that the court will allow some leeway on language used to deal with nonpoint sources and the effects of natural conditions.

No such deference was granted to the federal fisheries services.  On remand they will have to prepare a new biological opinion that accounts for Evolutionary Significant Units (i.e. sub-groups of salmonids), potential for recovery, baseline conditions and cumulative effects.  Further, the Fish and Wildlife Service was chastised for considering factors other than the best scientific data available in formulating its opinion.  That is, FWS seemingly bowed to pressure to support the EPA Temperature Guidance, even though it believed that temperatures for bull trout provided for in the Guidance were not what FWS considered to be optimal. 

The net result of the many years of litigation over Oregon’s temperature standards is that Oregon’s approach, and EPA’s approval under the Clean Water Act, were largely validated.  Problems with narrative standards should be correctable.  Whether on reanalysis the Services find that the standards are protective of listed species, as required under the Endangered Species Act, remains to be seen.

Current federal law requires states to develop and adopt a statewide antidegradation policy to protect existing in-stream uses for high quality waters.  Georgia has done so under Rule 391-3-6-.03.  Georgia’s antidegradation policy describes what requirements must be met before the State issues a permit under the National Pollutant Discharge Elimination System (“NPDES”) and allows a wastewater point source (i.e. wastewater treatment plan) to discharge pollutants into surface waters.  However, in apparent response to the U.S. Environmental Protection Agency’s (“EPA”) potential revision of its requirements for state antidegradation policies and an Administrative Law Judge’s recent ruling, the Georgia Environmental Protection Division (“EPD”) published proposed amendments to its antidegradation policy in September 2011.

In its proposed amendments, EPD attempts to set out exactly when the antidegradation review process is triggered and what an applicant requesting a new or expanded point source discharge must demonstrate to obtain the permit.  EPD’s proposed rule and related guidelines explain the three basic steps as follows: (1) applicant may demonstrate that proposed discharge will not result in “significant lowering of water quality” (if satisfied, no antidegradation analysis is required); (2) if water quality is significantly lowered, applicant must demonstrate that discharge will accommodate important social or economic development; and (3) applicant must demonstrate that no reasonable alternatives exist that would provide the needed wastewater capacity without authorizing a new or expanded wastewater discharge into surface waters.  The key to this new procedure is the definition of “does not significantly lower water quality.”   Specifically, if the proposed discharge of a pollutant is 10% or less than the remaining assimilative capacity for that pollutant in the receiving stream, then the new discharge per se “does not significantly lower water quality” and no antidegradation analysis is required.  These amendments appear to respond to EPA’s concerns over EPD’s implementation of an antidegradation policy, and clearly appear to respond to the ALJ’s decision in Upper Chattahoochee Riverkeeper, Inc. v. Forsyth County, Georgia. 

In September 2010, Upper Chattahoochee Riverkeeper, Inc. (“UCR”) filed a petition challenging the issuance by EPD of an NPDES permit (“Permit”) authorizing Forsyth County to discharge 6 million gallons per day (“MGD”) of wastewater into the Chattachoochee River from the County’s existing waste water treatment facility and the new Shakerag facility.  The Permit set limits of 200 colony-forming units per 100 milliliters (“cfu/100mL”) and 0.3 milligrams per liter (“mg/L”) for fecal coliform bacteria and phosphorous, respectively.  UCR claimed that the Permit, specifically the expanded limits, threatened the present and future health of the Chattahoochee River without EPD having undertaken a proper study, modeling or antidegradation analysis to show that the degradation of the river was necessary to accommodate Forsyth County’s economic and social development. 

In a decision found later to be overreaching, the ALJ held that any lowering of water quality in the receiving water triggers an antidegradation review and such review must analyze both the technical and economic feasibility of any alternatives, as well as a no-discharge permit alternative.  The ALJ made this conclusion in part by referencing EPD’s failure to define certain terms and therefore the ALJ adopted the EPA’s guidelines.  More surprising, the ALJ also adopted the permit discharge limits suggested by UCR which were much lower than those in the original permit or even those allowed for recreational waters by Georgia’s Department of Natural Resources.  The ALJ then remanded the permit to the Director of EPD for reissuance with revised monthly discharge limits of 23 cfu/100mL for fecal coliform bacteria and 0.08 mg/L for total phosphorous.   

Forsyth County appealed to the Superior Court of Forsyth County which reversed the ALJ’s decision finding that the ALJ had exceeded her authority.  The Court concluded the ALJ could not create an enhanced review by wholesale adoption of EPA guidelines nor set specific effluent limits.  EPD’s recent proposed amendments state clearly that effluent limits cannot be set pursuant to an antidegradation analysis, but only by EPD pursuant to Rule 391-2-6-.06.  The Court remanded the matter to the ALJ, ordering the antidegradation review standard be applied as codified in EPD’s implementing procedures without reference to EPA guidance documents. 

However, the battle is not over as UCR has appealed this decision to the Georgia Court of Appeals. As of this writing, both parties have submitted their briefs for review and oral argument is yet to be set.  In light of EPD’s recent proposed amendments, this decision is one to watch as the appellate court’s holding could have a significant impact on restrictions in future NPDES permits.

A rather surprising turn of events occurred recently in North Carolina, but the underlying reasons still remain unclear.  On January 11, 2012, the North Carolina Environmental Management Commission (“EMC”), by a 4-3 vote, vacated an Administrative Law Judge’s (“ALJ”) decision on summary judgment that the Rose Acre egg farm’s airborne ammonia emissions are not subject to regulation under, and do not require, a National Pollutant Discharge Elimination System (“NPDES”) permit.  The ALJ’s Decision and the parties’ pleadings are available here.The EMC remanded the matter back to the ALJ, August B. Elkins II, for a full evidentiary hearing.  Thus, the case raises anew the question of whether a discharge to air can constitute a point source discharge to navigable waters of the United States which requires a NPDES permit under the Clean Water Act,.  The answer may depend on whether such a discharge is found to remain “in the air” and not make its way by land “into the water.” 

On October 17, 2011, ALJ Elkin found that the Rose Acre facility does not discharge or have the potential to discharge process wastewater (or manure, litter) to navigable waters of the United States.  Judge Elkin’s relied on the March 2011 decision by the Firth Circuit Court of Appeals in National Pork Producers Council v. EPA, in which it held that the U.S. Environmental Protection Agency lacked the authority to require a NPDES permit for a facility that “proposes to discharge” or any facility that has not yet discharged into a navigable water of the United States.  Judge Elkin held that the DENR has no authority to require Rose Acre to obtain an NPDES Permit. 

Rose Acre is the site of 14 high-rise hen houses with a total of four million egg laying hens, located within the Tar-Pamlico River Basin in North Carolina.  Rose Acre operates what is called a “dry-litter facility” that does not directly discharge into any waters.  In 2009, before the Fifth Circuit’s decision in National Pork Producers Council that only CAFOs that actually discharge were required to secure a NPDES permit, Rose Acre applied for a NPDES permit.  The Division of Water Quality of the North Carolina Department of Environment and Natural Resources (“DENR”) issued a NPDES permit to Rose Acre, which included conditions requiring amendment of the facility’s Best Management Plan (“BMP”).  Rose Acre appealed, contending that it no longer needed an NPDES permit as well as challenging a number of the BMP conditions on the grounds that they exceeded the DENR’s regulatory authority.  The ALJ granted Rose Acre summary judgment.

Existing precedent supports the ALJ’s decision.  Both the Second and Tenth Circuit Court of Appeals have ruled that air emissions, even where there is atmospheric deposition into navigable waters, are not regulated by the Clean Water Act.  The Second Circuit so held in its 2000 decision in No Spray Coalition, Inc. v. City of New York, dealing with insecticide spray to eradicate mosquitoes.  In No Spray Coalition, the Second Circuit found that:
       While the trucks and helicopters used to spray insecticides may be point sources…they discharge the    insecticides into the atmosphere and not into navigable waters.  It would be stretching the language of the [Clean Water Act] well beyond the intent of Congress to hold that the de minimus incidental drift over navigable waters of a pesticide is a discharge from a point source into those waters. The fact that a pollutant might ultimately end up in navigable  waters as it courses through the environment does not make its use a violation of the Clean Water Act…To so hold would bring within the purview of the Clean Water Act every emission of smoke, exhaust fumes, or pesticides in New York City.

In 1997, the Tenth Circuit, in Chemical Weapons Working Group v. U.S. Department of the Army, refused to apply the Clean Water Act § 301(f) prohibition against disposal of chemical weapons into waters to smokestack emissions from a chemical weapons incinerator.  The Tenth Circuit emphasized the potential duplication of regulation by the Clean Air Act as well as finding that under § 301(f), Congress clearly intended to authorize the incineration of chemical weapons.  The Tenth Circuit also viewed the attempt to regulate stack emission under the Clean Water Act as contrary to plain old common sense.  (“Although Plaintiffs may be correct in arguing that an object may fly through the air and still be ‘discharged…into the navigable waters’ under the Clean Water Act, common sense dictates that [the] stack emission constitute discharges into the air – not water- are therefore beyond § 301(f) reach.”). 

Similarly, in American Canoe Assn. v. D.C. Water and Sewer Authority, the U.S. District Court for the District of Columbia rejected allegations that the D.C. Sewer Authority violated its NPDES permit by failing to install odor controlling carbon filters on sewer vents.  The court found that attempts to control sewer gas or hydrogen sulfide fumes emanating from sewers in a NPDES permit are “unrelated to the general purposes of the CWA” and unenforceable obligations. 

During oral argument on its challenge to the ALJ Elkin’s Rose Acre decision before a panel of the EMC, the DENR’s counsel appears to have successfully changed the focus of the legal inquiry from what’s in the air to what’s in the water?  In its Exceptions to the ALJ’s Entry of Summary Judgment, the DENR contended that it had not attempted to regulate airborne emissions of ammonia.  Instead, it now contends that Rose Acre does discharge to navigable waters, citing the fact that “with a rain event the feathers and dust from the ventilations fans at [Rose Acre] are flushed into a stormwater pond and then into waters of the State.  The DENR further relied upon the comparative results of surface water monitoring taken before and the Rose Acre hens were stocked, which showed higher levels of ammonia nitrogen, total inorganic nitrogen, phosphorus and fecal coliform in surface water.  Thus, the DENR took the position that although pollutants may initially be discharged “into the air,” if they wind up on the ground and then make their way to a regulated surface water, there is a “point source” discharge that is subject to regulation under the Clean Water Act. 

Rose Acre contends that the DENR’s argument is a post hoc rationalization, without any supporting, credible evidence, to defend its decision to issue the NPDES permit.  In this regard, Rose Acre notes that the ventilation fans in question “are pointed at a ninety degree angle away from a storm water retention pond that is located over one-fifth of a mile away.”  Judge Elkin found that the stormwater pond point source theory was unsupported by the record.  Relying on the holding in National Pork Producers Council that a CAFO is not required to apply for a NPDES permit until there is an “actual discharge into navigable waters to trigger the CWA’s requirements”, Rose Acre contends that the DENR has failed to present any proof of such a discharge. 

If the Rose Acre case proceeds to ruling after the ordered full evidentiary hearing, it will be worth watching to see whether the ultimate decision is based on what’s in the air or what’s in the water (and how it got there). 

Section 303(d) of the Clean Water Act requires each state to identify all water body segments within the state that do not meet water quality standards.  The statute requires the states to submit a list of their impaired water body segments to EPA every two years for review and approval.  The decision to list as stream segment as impaired is important because it usually triggers a chain of regulatory consequences, beginning with the preparation of a Total Maximum Daily Load (“TMDL”) study and typically ending with significantly more stringent permit limits for point sources and more robust regulation of non-point sources.

Although the decision to add a stream segment to a state’s 303(d) list is undeniably important, there is significant uncertainty whether the decision is subject to judicial review.  An ACOEL blog entry reported in December 2011 on a Pennsylvania decision which questioned whether Pennsylvania’s issuance of its 303(d) list was an appealable agency action under state law.  Chester Babst, Beware of “Impaired” Surface Water Designations, posted December 10, 2010.

The federal courts of appeals are split on whether EPA’s decisions in reviewing a state 303(d) list are subject to judicial review.  The 8th Circuit has held that a private stakeholder challenge to EPA’s approval of a Missouri 303(d) list was premature and not justiciable because the addition of a segment to a 303(d) list, by itself, did not have any impact on the rights, duties, or property of private parties.   On the other hand, the 9th Circuit has held that a private party had alleged sufficient claims of present injury to have standing to challenge EPA’s approval of California’s 303(d) list. Even after the 9th Circuit’s decision, EPA argued on remand that the scope of judicial review should be narrow because EPA’s role in reviewing California’s 303(d) list was supposedly only one of limited oversight (“[EPA] note[s] that the 30-day limitation on [its] review process demonstrates that [its] ‘role is one of mere oversight’.”  The district court accepted this argument and rejected the challenge to EPA’s review on remand.

It must have been amusing for knowledgeable stakeholders and state water quality regulators to read EPA’s claim that its role is one of “mere oversight” that is strictly circumscribed by a 30-day time limit.   The practical experience of most states has been quite different.  In fact, EPA routinely runs months and even years past the 30-day limit on its review of state 303(d) lists, and it is not at all unusual for EPA to significantly alter the state’s submission, frequently with a supplemental factual record and the imposition of new impairment decisions generated out of whole cloth.

Normally one might think that identifying impaired stream segments would be a simple task of comparing the numbers in the monitoring results for a given stream segment to the relevant numeric water quality standards, and therefore questions of judicial review would rarely be relevant.  In practice, however, the decision to list a segment as impaired frequently can be problematic or even controversial.  To begin with, monitoring results are sometimes subject to questions regarding the adequacy and accuracy of the sampling and analysis.   In many instances the relevant water quality standard is expressed in a narrative rather than numeric form, and therefore the simple comparison of two numbers is replaced by an exercise in subjective judgment.  Even when the basic identification of an impaired segment has been made, there are still choices of priority and timing that can make a great deal of difference in how the impairment decision affects stakeholders.

Given the potential uncertainties that can attend a listing decision, and the gravity of the regulatory consequences that are set in motion by such a decision, it is unfortunate that EPA and some state agencies have displayed such resistance to any form of independent accountability for their decisions.

The Supreme Court heard oral argument this morning (January 9, 2012) in Sackett v. EPA, No. 10-1062.  EPA had issued a compliance order charging the Sacketts with filling in a wetlands, in the course of building their home, in violation of the Clean Water Act and requiring them to restore their property.  The Sacketts dispute that their property is a wetlands and seek an opportunity for judicial review of EPA’s order.  EPA argues that the Sacketts could comply with the EPA order or submit an application for a wetlands permit or defend if EPA brings an enforcement action, but may not seek judicial review of EPA’s order. 

The tenor of the oral argument did not bode well for the United States.  Some of the Court’s questions seemed to focus on how to write the opinion and the consequences of a ruling for the Sacketts.  If the Sacketts prevail, 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 in wetlands and perhaps other matters.  The transcript of the Supreme Court argument is available [here].

The toughest questions and comments were aimed at counsel for the United States, Malcolm Stewart.  Justice Alito stated:  “Mr. Stewart, if you related the facts of this case as they come to us to an ordinary homeowner, don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?”  (Tr. 37)

Chief Justice Roberts asked “what would you do, Mr. Stewart, if you received this compliance order? (Tr. 35).  When Stewart responded that one could apply for an after-the-fact permit,”  Chief Justice Roberts replied “You wouldn’t do that, right? You know you will never get an after the fact permit if the EPA has sent you a compliance order saying you’ve got wetlands.”  (Tr. 36)  Earlier, Justice Kagan had asked counsel for the Sacketts rhetorically whether the critical point wasn’t that EPA would not entertain an after-the-fact permit while a compliance order is outstanding. (Tr. 12).  Justice Alito expressed the view it “seems very strange for that, for a party to apply for a permit on the ground that they don't need a permit at all.”  (Tr. 14). 

The government’s alternative solution, that one could comply with the compliance order, met with an incredulous response from Chief Justice Roberts:  ”That's what you would do? You would say, I don't think there are wetlands on my property but EPA does, so I'm going to take out all the fill, I'm going to plant herbaceous trees or whatever it is, and I will worry about whether to -- that way, I'll just do what the government tells me I should do.” (Tr. 36-37). 

Justice Breyer focused on the finality of the EPA order for purposes of judicial review, stating “for 75 years the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite. And yet -- so here you are saying that this statute that says nothing about it precludes review, and then the second thing you say is that this isn't final. So I read the order. It looks like about as final a thing as I have ever seen.”  (Tr. 41)

Justice Ginsburg asked Mr. Stewart whether, once EPA made the determination that there were wetlands, that be the end of the matter as far as EPA is concerned.  Mr. Stewart got himself in difficulty when he replied “ I think they have reached that conclusion for now. I don't think it would be accurate to say that we have done all the research we would want to do if we were going to be required to prove up our case in court.” (Tr. 51)  Justice Alito was not pleased with that reply:  “Well, that makes the EPA's conduct here even more outrageous.  We think now that this is -- these are wetlands that -- that qualify, so we're going to hit you with this compliance order, but, you know, when we look into it more thoroughly in the future, we might change our mind?” (Tr. 51)

In questions to counsel for the Sacketts, Justice Breyer noted the government’s concern that “when you get judicial review of this kind of order, the Court doesn't refer on fact-finding that isn't made on a record.  * * * And so they'll have a hard time -- or a harder time -- in each of these cases subjecting it to judicial fact-finding.”  Justice Breyer suggested that EPA might change its procedure if the Sacketts prevail, and providing some type of pre-order or post-order procedure that would be open to change. (Tr. 55) 

It is of course always difficult to predict the outcome of a Supreme Court case with certainty simply based on oral argument.  That being said, it is also difficult to be optimistic about the government’s chances of prevailing based on the comments made by the court during oral argument today.  Whatever the outcome, the Court’s ruling will likely be an important environmental and administrative law precedent. 

I am generally loath to speculate about what the Supreme Court will do based on oral argument, but the overwhelming reaction to the oral argument in Sackett v. EPA was that EPA is going to lose. What would a loss mean? In simplest terms, EPA would no longer be able to issue enforcement orders under the Clean Water Act without those orders being subject to judicial review. Such a decision would undeniably be significant. Everyone practicing in this area knows how coercive EPA enforcement orders can be. A person who thinks that he is not liable or that the order is inappropriate, and faced with having to violate the order and wait for EPA to bring an enforcement action to obtain judicial review, is truly between a rock and a hard place – or perhaps Scylla and Charybdis (I’m not sure which, but it’s not good, either way). The opportunity for preenforcement review would eliminate much of EPA’s coercive power.

The big question is whether a decision against EPA would be so broad as to make it clear that EPA’s order authority under other statutes, such as CERCLA, would be similarly affected. Here, speculation really is difficult, because the Supreme Court could invalidate EPA’s CWA authority several different ways, with differing impacts on other statutes. Readers who want to explore the issue in more depth than a blog post can review an article I did in the ABA Superfund and Natural Resource Damages Litigation Committee Newsletter.

As long as I am speculating, I’m going to go out on limb and predict that the Court’s decision will not be easily limited to the CWA. I think EPA’s order authority is in trouble across the board.

The next big question is when lower courts are going to actually start paying attention to what the Supreme Court says about environmental cases. I’m tired of this pattern. A series of cases are decided by lower courts, almost universally in EPA’s favor. Indeed, one of the striking things about Sackett is that the Supreme Court took the case without a circuit court split – EPA had won before every circuit court that had reached the question. The Supreme Court applies principles that are broadly accepted outside the environmental arena, but which for reasons unknown to everyone but the lower court judges have been thought inapplicable to environmental cases, and EPA loses. The next several years are spent with EPA, DOJ, and the lower courts merrily constructing some new edifice which allows EPA to continue to win – until the Supreme Court takes another case and says “No, we really meant it.”

There is a lesson here for lower courts, if they would but listen. Environmental cases are not sui generis. EPA does not necessarily win just because it is protecting the environment. General principles of corporate, administrative, and constitutional law apply. Under this framework, EPA will still win most of the time. That’s the nature of administrative law. Expert agencies receive a lot of deference from the courts in interpreting their organic statutes and applying their expertise. But they don’t win all the time, and they don’t win just because they are EPA.

Rant over. Let’s see what the Supremes actually do.

There is nothing new about transboundary water quality disputes under the Clean Water Act. Introductory classes on environmental law commonly trace the history of Supreme Court decisions arising from Milwaukee’s battles with Illinois over sewer discharges into Lake Michigan, the challenge Vermonters’ raised against New York paper mill discharges into Lake Champlain, and Oklahoma’s objections to a permit EPA issued to a sewage treatment plant in Arkansas. Given the length of time that the Clean Water Act program has been in place and the large number of instances in which upstream discharges drain into and therefore arguably affect water quality in downstream states, one would expect that most of the relevant legal questions would be well-settled. Recently, however, transboundary water quality disputes have arisen with increasing frequency.

Coal bed methane development in Wyoming has given rise to disputes with Montana over salinity impacts in the Powder and Tongue Rivers. Efforts by the state of Washington to protect dissolved oxygen levels in Spokane Lake have prompted a dispute over Washington’s attempt to impose wasteload allocations that would limit nutrient discharges by upstream sources in Idaho. Oklahoma’s efforts to restore the Illinois River to pristine scenic river conditions have resulted in recurrent and steadily intensifying disputes with agricultural interests on both sides of the border and point sources located predominantly in the headwaters on the Arkansas side. EPA’s imposition of nutrient water quality standards in Florida could have direct effects on discharges originating in Georgia; and the agency’s showcase multi-state TMDL for the Chesapeake Bay has recently precipitated challenges by state and national agricultural interests. In what undoubtedly is the most dramatic transboundary claim under the Clean Water Act, environmental groups have filed a petition with EPA asking the Agency to impose nutrient water quality standards and adopt TMDLs for the main stem of the Mississippi River, all of its tributaries, and certain related coastal waters in the Gulf of Mexico.
 

These recent disputes have recurring themes that arise out of weaknesses or unresolved questions regarding the Clean Water Act program. The statute empowers each state to exercise sovereign independence in adopting water quality standards that apply within the state’s own borders (so long as minimum federal standards are met), but the statute does little to address or even give consideration to the interests of other states that may be directly affected by those standards. Transboundary disputes frequently involve situations in which the regulatory burdens fall disproportionately on interests in one state while the resulting environmental benefits are realized largely or entirely in another state, but the Clean Water Act does nothing to address questions of transboundary fairness. Transboundary disputes frequently involve regulatory decisions that have enormous financial and long term planning consequences, but the decisions are often based upon limited factual data, imperfect scientific analysis, and less than comprehensive computer modeling. The Clean Water Act offers no process for seeking to assure that the quality of the decision making will be commensurate with the gravity of the consequences at stake. Indeed, the program largely makes the magnitude of financial consequences simply irrelevant. Disparities between the magnitude of the consequences and the limited quality of analysis and data supporting the regulatory decision are particularly problematic when the regulatory decision is being made by one jurisdiction that has no political accountability to the other.

It is perhaps no surprise that most of the recent transboundary water quality disputes are arising out of efforts to regulate the discharge of nutrients. Nutrient pollution is the largest unresolved water quality issue nationally; and the adverse effects of excess nutrients frequently occur at locations far downstream from the original source. The fact that most of the current transboundary water quality disputes involve nutrient pollution probably makes the disputes even more difficult than normal to resolve. Nutrient pollution has no simple, universally accepted means of measurement. It is costly and time consuming to establish a clear causal link between a given discharge of nutrients and an observed adverse effect; and many of the most important sources of nutrient pollution are non-point sources which are beyond direct control under the Clean Water Act. Unfortunately, this appears to be a recipe for increased frustration and controversy.
Transboundary water quality disputes may not be a new phenomenon, but it does not appear that we are any closer to finding a good way to resolve them.
 

On October 6, 2010, and at the direction of Governor Joe Manchin (D-WV), the West Virginia Department of Environmental Protection (WVDEP) filed a complaint against EPA and the Army Corps of Engineers in U.S. District Court for the Southern District of West Virginia. The complaint alleges that two actions by EPA, requiring surface mine permit applications to undergo enhanced scrutiny and setting a new water quality standard based on conductivity, are unlawful and have brought the permitting process to a standstill. WVDEP is seeking a court order declaring EPA’s actions to be unlawful and enjoining their implementation.

WVDEP argues that EPA’s actions 1) are substantive rule changes that did not go through formal rulemaking required by the APA; 2) require the Corps to apply illegal presumptions during environmental assessments of new surface mine permits; 3) usurp West Virginia’s authority to implement its own water quality standards and effectively issue NPDES and SMCRA permits; 4) impose new water quality standards that are not based on sound science; and 5) have caused undue delays in the issuance of surface mining permits and threaten the supply of coal available for the nation’s energy needs.

Governor Manchin is in a hotly contested race for the US Senate in which his opponent is accusing him of being a "rubber stamp" for President Obama. Undoubtedly this action will be offered as a response to that criticism.