EPA Section 404 Guidance For Surface Mining In Jeopardy

Posted on January 25, 2011 by Theodore Garrett

On January 10, 2011, the US district court in DC ruled that the mining industry is likely to succeed in challenging EPA's interim April 1, 2010, guidance on Clean Water Act (CWA) §404 permitting for surface mining projects in Appalachia, but denied industry's motion for a preliminary injunction. The decision, in a lawsuit brought by the National Mining Association, illustrates the pitfalls of agency regulation by guidance. The court’s opinion accepts the industry's arguments that EPA likely violated the notice-and-comment requirements of the Administrative Procedure Act and that EPA’s June 11, 2009 Enhanced Coordination Process memorandum, which subjects coal mining related §404 permits to enhanced scrutiny, “encroached upon the role carved out for the states under the Clean Water Act” However, the court held that the industry has not demonstrated the certainness of imminence of industry losses and, further, why any economic losses resulting from permitting delays “cannot ultimately be recovered if and when the mining projects in question are permitted to proceed.” The court denied the government’s motion to dismiss and held that the case is ripe for a determination on the merits, because no factual developments would clarify the issues.

EPA Issues First Ever Numeric Nutrient Water Quality Criteria and Standards for Florida Lakes and Rivers

Posted on January 4, 2011 by Lee A. DeHihns, III

On November 15, 2010, EPA announced that it had issued final numeric nutrient water quality criteria (NNC) for lakes, rivers, streams and springs in Florida, marking the first time that EPA has set numerical nutrient standards for a state. EPA’s rationale for these standards is that excess loads of nitrogen and phosphorus, the most common nutrients found in water bodies, are one of the most prevalent causes of water quality impairment in the United States and that it is a “widespread, persistent, and growing problem.” The nutrient standards establish nutrient criteria for lakes and streams by requiring that total nitrogen (TN) and total phosphorus (TP) be no higher than set levels for five different watershed regions and three different classes of lakes. For lakes, EPA also set criteria for chlorophyll a.


EPA identified 193 point municipal and industrial dischargers that are potentially affected by the rule. For municipal entities, current annual average permit limits are 3.0 mg/l for TN and .1 mg/l for TP. EPA expects that municipalities will need to employ advanced biological nutrient removal (BNR) to meet the lower levels in the rule. EPA’s annual cost estimates to implement the rule are between $135 and 206 million. EPA states that the average homeowner will pay an estimated $40 to 71 annually in increased utility bills.

Two main concerns emerged in the commentary on the proposal. First, critics asserted that the science behind the proposal is not sound. For example, The Florida Department of Environmental Protection (FDEP), in its comments on EPA’s proposal, noted that “EPA stream criteria for protection of downstream estuaries were not scientifically valid, that EPA’s approach to the stream criteria is not appropriate, that some aspects of what EPA has done are not adequately protective of the environment, are not linked to biological response, and, (in particular for lakes) the EPA’s approach was too simplistic.”


Second, they assert that the costs are both too high and not proportionate to the environmental benefits that EPA is hoping to achieve. The Florida Water Environment Association Utility Counsel (FWEA) released a report which said that treatment costs to meet the new standards are estimated to be “between $4.2 and $6.7 billion, and the annual debt service, including incremental operating and maintenance costs, is expected to range from $430 million to $620 million per year. Typical increases in customer charges are expected to range from $570 to $990 per year.” Similarly, the Florida Water Quality Coalition stated that the “costs of the proposed federal NNC regulations far exceed the EPA estimates. If EPA enforces ‘end-of-pipe’ criteria (requiring all discharger effluent levels to be at or below the NNC), the total annual costs could range from $3.1 to $8.4 billion.”


This is, no doubt, one of the most significant acts that EPA has taken in the water quality standards field for quite some time, and even though the standards are being set for just one state, EPA has taken a giant step down the path to imposing numeric criteria in nationwide. There will be a lot of litigation (six law suits have already been filed challenging the regulations), political push-back and a lot of discussion about how these standards are going to be implemented, delaying the actual implementation for a period of time. While EPA has pushed the effective date of the rule to 15 months following promulgation in order to allow time to comply, even this delay will likely prove to be insufficient to resolve the many contested issues.


For those readers seeking more detail on these EPA’s regulations and their consequences, please see the Alston & Bird Environmental and Land Development Advisory titled "EPA Issues First Ever Numeric Nutrient Water Quality Criteria and Standards for Florida Lakes and Rivers" here.


Posted on December 23, 2010 by Kevin Beaton

Last  month, the Idaho Department of Environmental Quality (IDEQ) adopted an anti-degradation implementation rule. The rule was adopted in response to a Clean Water Act citizen suit brought by an Idaho environmental group against EPA to force the agency to adopt such a rule for Idaho. Anti-degradation policies and an implementation plan are required as part of a state’s water quality standards under EPA’s Clean Water Act rules at 40 CFRR Part 131. Although Idaho had long ago adopted the required anti-degradation policy, the state had never formally adopted an implementation plan.

Anti-degradation policies are designed to protect existing uses in all waters known as “Tier I” waters, protection of certain “high quality” waters or “Tier II” waters from any lowering of water quality unless a proponent can demonstrate after full review by the state that such a lowering of water quality is economically justified and that all reasonable available pollution controls have been implemented. Putting together the information required for a full Tier II review can be costly, controversial and substantially delay or preclude the issuance of permits. For certain waters known as “Outstanding Resource Waters” or “Tier III” waters, no lowering of water quality is allowed.

Anti-degradation implementation procedures typically address such issues as what type of activities require anti-degradation reviews, which waters are subject to Tier I, Tier II and Tier III protections, whether anti-degradation applies to new or existing activities, how anti-degradation implementation addresses federal general permits such as storm water permits, whether certain activities are exempt from anti-degradation review because they are “insignificant” and the type of information that is required to be submitted as part of a Tier II review.

Idaho’s rule, which was subject to lengthy negotiations with stakeholders, generally followed the flexibility previously allowed by EPA Guidance and prior judicial decisions concerning anti-degradation implementation procedures. In identifying Tier II waters, Idaho adopted the “water body by water body” approach as opposed to the “parameter by parameter” approach and excluded most waters listed as impaired under Section 303(d) as candidates for Tier II waters. Idaho’s rule also confined anti-degradation reviews to new or increased discharges subject to NPDES Permits, Section 404 permits and hydroelectric facilities subject to certification under Section 401 of the Clean Water Act. Nonpoint sources were not required to undergo anti-degradation review. Also Idaho exempted certain new and increased discharges from anti-degradation review if they were deemed “insignificant.” For those interested in the Rule, it can be reviewed at IDEQ’s Web site. Also for those interested in the topic, EPA’s most definitive Guidance on what is required in a State’s anti-degradation implementation procedure can be found at EPA’s Advanced Notice of Proposed Rulemaking (ANPRM) at 63 Fed. Reg. 36741 (July 7, 1998).

Also some recent judicial decisions on the legality of States’ anti-degradation implementations procedures include Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th Cir. 2008); Ohio Valley Environmental Coalition, et al., v. USEPA, Memorandum Opinion and Order, August 29, 2003; Defenders of Wildlife v. U.S. Environ. Protec., 415 F.3d 1121 (10th Cir. 2005); and American Wildlands v. Browner, 260 F.3d 1192 (10th Cir. 2001).

Assuming that the Idaho Legislature approves the IDEQ rule (a requirement for all rules in Idaho), the rule will be submitted to EPA for approval early next year. Assuming EPA approves the rule, whether the environmental groups will challenge that approval remains to be seen. In the meantime, EPA has again taken a national interest in anti-degradation similar to its 1998 ANPRM, and took comment earlier this year on whether EPA rules on state anti-degradation implementation procedures need to be strengthened. At this time it is not known whether EPA will indeed make further efforts to change its anti-degradation rules. It would seem likely that the controversy and litigation associated with anti-degradation implementation procedures will continue.

Beware of "Impaired" Surface Water Designations

Posted on December 10, 2010 by Chester Babst

Is the act of adding a stream segment to the Clean Water Act section 303(d) list of impaired waters appealable? At least one Pennsylvania administrative law judge thinks not, as the mere publishing of the list creates no new duties on anyone. But the list is a discrete, final agency action that is predicate to direct administrative action. The science supporting the listing should be subject to challenge, just as are the specific load and waste allocations following the list.

Section 303(d) requires states to complete and submit a biennial Integrated Water Quality Monitoring and Assessment Report to the United States Environmental Protection Agency (“USEPA”) that lists all impaired surface waters in the state not able to support the specific uses of that water body (e.g., potable water supply uses), even after implementation of pollution control technologies and practices. Impairment status can have a significant impact on regulated entities that discharge into a designated water body.

As impaired, these state surface waters will require the development of a Total Maximum Daily Load (“TMDL”) to attain applicable water quality standards. A TMDL accounts for all point and non-point sources of the specified pollutant and it sets a cumulative pollutant load limit that applies to all dischargers, so as to prevent a violation of water quality standards. The USEPA and state agencies use TMDLs to compel best management practices and set discharge limits in National Pollutant Discharge Elimination System (“NPDES”) permits.

On April 3, 2010, the Pennsylvania Department of Environmental Protection (“Department”) published its draft 2010 Integrated Water Quality Monitoring and Assessment Report (“Draft Integrated Report”) for public comment. The Draft Integrated Report does not reveal how the Department reached the decision to designate a water body as being impaired, nor does the Department provide any supporting data for its designations. It is also unclear how pollutant loading allocations will be handled with respect to water bodies that extend into contiguous states.

Should a party wish to challenge an impairment designation, it is unclear when this agency action would be ripe for appeal. In a recent Pennsylvania Environmental Hearing Board case, an Administrative Law Judge offered his view of the process in dicta.

[A] state’s Section 303(d) list submitted to the EPA would not appear to be a final disposition of even what is on the list since, once submitted, it is for the EPA to pass upon the propriety of the list…. Even if the state’s listing as such of a waterway on the state’s Section 303(d) list were construed as a purely state action we still do not see that the state’s mere listing or de-listing of a waterway on the Section 303(d) list creates any immediate duties or liabilities which would be the key to appealability to the Board.

Telford Borough Authority, et al. v. DEP, EHB Docket No. 2010-111-K, slip op. at 7 (Opinion and Order issued September 7, 2010). Although providing insight into one judge’s view, whether a designation is ripe for appeal at the time a state submits a Section 303(d) list to EPA and/or at the time EPA approves or disapproves the list is still an open issue in Pennsylvania. It is also unclear whether a failure to perfect an appeal at either of these points in the process would affect appeal rights of individual sources at the time limitations are set in permits based upon the impairment designation. Given this uncertainty, an appeal of the designation is a prudent step for a source or group of sources that could ultimately be impacted by state actions designed to address the impaired status of a water body.

Because of the significant economic impacts associated with an impairment designation and the potential that such impacts could extend beyond state borders, it is important to monitor state and federal activities for designated water bodies and to consider the potential impact on your client and whether an appeal of the designation is necessary to protect your client’s rights and defenses.

Tribal Claims to Water Continue in Oklahoma

Posted on October 29, 2010 by Mark Walker

Last year, in State of Oklahoma v. Tyson (Case No. 05-cv-329-GKF-PJC), a federal court threw out the State of Oklahoma's claims against poultry companies for $600 million in environmental damages to the Illinois River Watershed (IRW) due to the State's failure to join the Cherokee Nation as a party to the lawsuit. The Court held the Cherokee Nation was an indispensable party because of its potential "substantial interests" in the IRW, but the Nation could not be joined as a party because of its sovereign immunity. The Nation's last minute request to join as a party was denied as untimely. The case then proceeded solely as to injunctive and other equitable relief.


On the heels of the Tyson decision, in early 2010, the Apache Tribe filed a lawsuit in federal court seeking a declaratory judgment that it has Winters water rights (referencing the 1908 United States Supreme Court case establishing the doctrine of tribal federal water rights) in the Red River Basin within its historical tribal boundaries in southwest Oklahoma. Ironically, the State of Oklahoma now seeks to dismiss this lawsuit claiming the Tribe has failed to join indispensable parties, namely the Tribal "allotees" who received individual allotments of Tribal lands in the 1890's, as well as all other persons who claim an interest in the basin. The State claims that, in order to resolve the Tribe's claims, the Court must necessarily determine how much water the Tribe owns or can use, which the State contends puts the Tribe at odds with all other users within the basin.


In response, the Apache Tribe asserts it is not seeking a quantification of its reserved water rights, rather it is only seeking a determination that it has reserved rights under the Winters doctrine.


The motion to dismiss is still pending. If the case survives the motion, the Court will have to grapple with the issue of how the allotment of tribal lands, which occurred with most tribes in the late 1800's and early 1900's, affected the water rights which the tribes held prior to allotment, and the water rights associated with the lands which remained with the tribes after the allotment process, and how such rights interrelate with State water regulatory systems that have existed for decades. The importance of these cases looms large, as most of the State of Oklahoma and its water resources lie within the historical boundaries of 39 different federally recognized tribes.

40 Years of Federal Environmental Law - How Should Lessons Learned From Our Experience Be Used?

Posted on October 14, 2010 by Charles Tisdale

Congress created the primary framework for air and water pollution control in the 1970 Clean Air Act and 1972 Clean Water Act. RCRA and TSCA were enacted in 1976 and CERCLA in 1980. Thus, we have almost 40 years worth of experience with the major federal environmental laws. What lessons can we learn and how should we use our knowledge in the future?

I began the practice of environmental law in 1973. At that time, the regulated community was very concerned that requiring the best treatment systems technologically available for air and water discharges would cause serious economic problems for U.S. industry and local governments. History has shown that this concern was not justified. The technology forcing aspects of the Clean Water Act and Clean Air Act have worked effectively to limit emissions into water and air from stationary sources. Compliance with the standards created pursuant to the Clean Water Act and Clean Air Act resulted in innovations, including recycling, innovative technology, new jobs and changes in the use of materials, all practices which were beneficial to the economy.

Technology forcing, regulation and uniform enforcement produced substantial results. Why not use the same concepts today where they are applicable to discharges which cause problems? Economic considerations are still important, technology forcing can only go so far, but improvements can be made without adversely affecting the economy. Many of the improvements made to comply with water and air laws would now fit within the rubric of “sustainability”.

American environmental laws set models for other countries. This status is changing. The European Union has created new laws that, in some cases, are better than the United States’ laws while still taking into account cost and economic considerations.

Concerns about Competitiveness

It is valid to be concerned about the competitiveness of U.S. industry if new environmental laws and regulations are passed. However, 40 years of history teaches us that carefully drawn legislation can produce new practices, new technologies and new jobs which will be beneficial to the economy and to the environment.

Coordination with Other Countries

There is serious concern that reducing emissions further will create conditions in which U.S. industry cannot compete with foreign industries. There is a need to seek commitments from other countries; however, this need should not be used as an excuse to avoid new environmental laws or regulations. China is ahead of the United States in creating new jobs through new technologies related to energy and improvement of the environment. The economic benefit of using the laws and regulations that worked best in the 1970s and 1980s should not be discounted or used as an excuse for the failure to legislate or regulate.

Environmental Priorities

Federal environmental laws were created in response to crisis. A river catching fire, the loss of visibility in cities due to air pollution, contaminated groundwater and soil from historic disposal. Many factors have created what most people view as an environmental crisis in numerous areas. Politics has played a significant role in preventing an effective response to our current problems. However, we again need to consider what history teaches us. The Clean Water Act is often rated as the most successful environmental law. It was enacted while a Republican was President. Long time EPA employees now in private practice tell me the agency worked the best under George Bush, Sr., another Republican President. Thus, politics should not be used as a basis for opposition to changes and improvements in environmental laws and regulations.

Setting Priorities

When the history of the past 40 years is accurately written, I predict we will question why so much money has been spent on cleanup to stringent levels that were not necessary to protect human health or the environment at superfund sites, and so little attention has been given to the need to improve air quality. Studies from numerous reputable sources have shown that exposure to particulates in cities has a long term effect on the health of all residents. Potential exposure to hazardous substances in soil and groundwater creates significant emotion while poor air quality in major metropolitan areas is generally accepted as inevitable. A comprehensive and holistic review of the piecemeal environmental laws may result in new priorities and the opportunity for creative solutions to the major issues.

Many significant environmental problems are created by pollution from non-stationary sources. Thus, solutions will be more difficult than the technology forcing provisions that work so well in the Clean Water Act and Clean Air Act. Nevertheless, we as environmental lawyers should use our experience and knowledge to educate others and seek legal, regulatory and voluntary changes to address the environmental issues that present the most serious problems to public health and the environment. We have the experience and the knowledge. I submit that it is our duty to the public and to future generations and our ideas can result in changes that improve the economy. Sustainability is the first significant environmental movement to come from the bottom up rather than the top down. We have a responsibility to further that movement in the development of new laws and regulations.

You Want to Preclude a Citizens' Suit? Pick Your Poison.

Posted on September 17, 2010 by Seth Jaffe

When clients are threatened with citizen suits – and particularly when the threatened litigation involves a matter where EPA or a state regulatory agency is heavily involved, the clients always want to know why they can’t somehow get rid of the citizen suit, given that EPA is on the case. The answer is that they can – but only in limited circumstances.

The recent decision in Little Hocking Water Association v. DuPont confirmed this answer in the context of RCRA. The Little Hocking Water Association provides public water to certain communities in Ohio, directly across the Ohio River from a DuPont plant which uses , also known as PFOA or C8 – also known as the contaminant du jour. According to the complaint, the Little Hocking wells have among the highest concentrations of C8 of water supply wells anywhere and its customers have among the highest C8 blood levels anywhere. Little Hocking Water Association thus sued DuPont under RCRA’s citizen suit provision, claiming that DuPont’s release of C8 had created an “imminent and substantial endangerment."

Section 7002 of RCRA contains provisions precluding such citizen suits if either EPA or a state “has commenced and is diligently prosecuting” an action under RCRA to abate the endangerment. In the DuPont case, releases of C8 from the DuPont facility had been the subject of at least two administrative orders on consent entered into by DuPont and EPA. However, consent orders aren’t the same as “an action” under § 7002 or § 7003 of RCRA – and they thus do not preclude a citizen suit.

DuPont tried the next best argument – that EPA had primary jurisdiction over the regulation of C8 – and that the existence of EPA’s regulatory authority and the issuance of the consent orders meant that the courts should defer to EPA. DuPont’s argument was that a court could not fashion a remedy in the case without essentially establishing a new cleanup standard for C8 and that doing so is the job of EPA, not the courts.

The Court gave the primary jurisdiction argument short shrift. As the Court noted, using the doctrine of primary jurisdiction in citizen suits would dramatically reduce the scope of such suits. Since Congress provided a citizen suit mechanism – and provided very specific, discrete, circumstances in which citizen suits are precluded – it doesn’t make sense to use primary jurisdiction to establish another defense, particularly where the defense would almost eliminate the remedy. 

The bottom line? If you don’t want to face a citizen suit (and you’re not in compliance), get yourself sued by EPA or your state regulatory agency. The mere existence of EPA or state regulation, even if requirements are embodied in a consent order, is not enough.

Oklahoma v. Texas--Water Wars

Posted on August 24, 2010 by Linda C. Martin

Tarrant Regional Water District (“TRWD”) provides water to more than 1.7 million Texans in an 11-county area, and wants to buy water from Oklahoma. However, Oklahoma isn’t selling. Oklahoma has enacted statutes that impose restrictions on water sales across state lines which, as a practical matter, preclude the interstate sale of Oklahoma water to the TRWD. In 2007, TRWD sued to have those restrictions lifted, arguing that under the Commerce Clause of the US Constitution, state laws that discriminate against other states regarding water, an alleged article of commerce, are unconstitutional.

TRWD also argued that the Red River Compact (“Compact”) supersedes Oklahoma’s laws and would permit the sale of water to TRWD. This Compact was signed by Texas, Oklahoma, Louisiana and Arkansas in 1978 and approved by the U.S. Congress in 1980. The Compact essentially “divided” the water from the Red River and its tributaries between the states involved. In November, the U.S. District Court for the Western District of Oklahoma granted partial summary judgment rejecting TRWD’s claims based upon the Commerce Clause. The Court determined that, in fact, protection of Oklahoma water for use in Oklahoma was one of the purposes of the Compact, although the judge noted that this case presented a close question.

TRWD amended its complaint, and argued that the law in Oklahoma would not preclude the sale of groundwater to TRWD. Although the judge agreed, he determined that this claim was not yet ripe for consideration, as TRWD had not yet filed an application with Oklahoma to obtain groundwater. In addition, another new claim was added--- that the purchase of water from the Apache Tribe of Oklahoma was not covered by the Compact. This claim was dismissed as not providing the basis for a justiciable claim, since the arrangement with the Tribe had too many contingencies and uncertainties.

The judge entered judgment in the TRWD case on July 16, 2010, and TRWD filed its appeal with the Tenth Circuit on August 12, 2010. Stay tuned, the water wars between Oklahoma and Texas are far from over.

Hydraulic Fracturing - To Disclose or Not To Disclose

Posted on August 5, 2010 by Robert Kirsch

The ongoing developments in the Gulf of Mexico, together with last years coal ash and mine safety incidents have contributed to a renewed interest for regulation in Congress. One of the areas under consideration for such further regulation is hydraulic fracturing, a well drilling technique used to develop oil and gas resources.

The technology used in fracturing has been in use for decades in the oil industry. Thousands of wells across the country use the technology. The renewed interest in regulating coincides with the expansion of fracturing into more recently confirmed deposits of natural gas, located in shale deposits thousands of feet beneath the earth’s surface. A hydraulic fracturing well, in those contexts, is first drilled vertically down, and then advanced horizontally into the shale. Then, highly pressurized water, plus very low concentrations of chemicals, added to enhance the effectiveness of the technique and to protect the related equipment, is introduced into the well. The resulting pressure cracks the shale, permitting the well to collect natural gas.

Congress exempted the fracturing process from regulation under the Safe Drinking Water Act (SDWA) in 2005. Since then, fracturing has been regulated by the states where the wells are located. However, the changed regulatory climate, coupled with the fact that shale deposits have been identified in locations like New York and Pennsylvania, which are not traditional “energy states,” has led to questions about whether that exemption should end or be modified. Most recently, efforts have focused on narrowing, not abandoning the exemption. All of this has occurred despite a positive regulatory and enforcement history for the fracturing industry.

There have been two principal avenues for the Congressional proposals related to fracturing. Both would require well developers to identify the chemicals added to the water, and provide them to an oversight body, which would publish the information on the internet. One route would amend the SDWA to allow states to compel disclosure, and would require a federal disclosure mechanism as a default, if a state failed to set one up. The other route, which has been less talked about recently, would accomplish a similar result within the framework of the Emergency Planning and Community Right to Know Act.

Industry is not of one mind on whether and how to advance the disclosure concept. Many important natural gas developers are prepared to work with a tailored federal disclosure requirement, provided the oversight entity is one other than EPA. Other, traditional elements within the industry, oppose any change to the federal exemption. And, both prongs agree that the issue has been well and adequately regulated by states for years, and should remain principally the province of the states.

In the current Washington environment, regulation seems more likely than ever, but it is far from inevitable. Despite aggressive opposition campaigns, an advocacy film and public forums crowded with well-organized fracturing opponents, those clamoring for federal change have yet to substantiate even the most often repeated anecdotes of environmental risk. 

In response to a request from Congress, EPA has launched a study to evaluate the possible influences of fracturing activities on ground water sources used for drinking. Similar, but more limited exercises also are taking place at the state level. The best result, of course, would be to maintain the current level of regulatory oversight until these studies are complete, and then to evaluate the need for change based on those scientific results. Unfortunately, that is not necessarily how our environmental laws have progressed in the past. Perhaps it will be how Congress proceeds this time. Hope springs eternal.

The Deck is Still Stacked in the Government's Favor -- Is This A Good Thing?

Posted on July 22, 2010 by Seth Jaffe

Last week, in City of Pittsfield v. EPA, the First Circuit Court of Appeals affirmed denial of a petition by the City of Pittsfield seeking review of an NPDES permit issued by EPA. The case makes no new law and, by itself, is not particularly remarkable.  Cases on NPDES permit appeals have held for some time that a permittee appealing an NPDES permit must set forth in detail in its petition basically every conceivable claim or argument that they might want to assert. Pretty much no detail is too small. The City of Pittsfield failed to do this, instead relying on their prior comments on the draft permit. Not good enough, said the Court. 

For some reason, reading the decision brought to mind another recent appellate decision, General Electric v. Jackson, in which the D.C. Circuit laid to rest arguments that EPA’s unilateral order authority under § 106 of CERCLA is unconstitutional. As I noted in commenting on that decision, it too was unremarkable by itself and fully consistent with prior case law on the subject.

What do these two cases have in common? To me, they are evidence that, while the government can over-reach and does lose some cases, the deck remains stacked overwhelmingly in the government’s favor. The power of the government as regulator is awesome to behold. Looking at the GE case first, does anyone really deny that EPA’s § 106 order authority is extremely coercive? Looking at the Pittsfield case, doesn’t it seem odd that a party appealing a permit has to identify with particularity every single nit that they might want to pick with the permit? Even after the Supreme Court’s recent decisions tightening pleading standards, the pleading burden on a permit appellant remains much more substantial than on any other type of litigant.

Why should this be so? Why is it that the government doesn’t lose when it’s wrong, but only when it’s crazy wrong? 

Just askin’.


Posted on May 27, 2010 by Ridgway Hall

On May 12, 2010, EPA, with the support of six other federal agencies, issued a Strategy For Protecting and Restoring the Chesapeake Bay Watershed. The strategy document is a major milestone in an enormous multi-stakeholder exercise involving issues of science, law, policy and politics launched a year ago by President Obama. Executive Order 13508, 74 Fed. Reg. 23099, entitled “Chesapeake Bay Protection and Restoration,” recognized the unique ecological, economic, recreational and cultural value of the Bay, and the failure of federal and state efforts over the previous 25 years to reverse its serious degradation. The Order directed the seven federal agencies to work together to develop a strategic plan to restore the Bay to a healthy condition by 2025, in consultation with the six states whose lands are included in the Chesapeake Bay watershed and the District of Columbia, plus stakeholder groups, NGOs and concerned citizens among the 17 million people who live in the watershed. While the most relevant law in this effort is the Clean Water Act, other federal, state and local laws are also in play. This article briefly describes the problems faced by the Bay and then discusses the strategy for its restoration.

The Problem

The Chesapeake Bay is the largest estuary in North America and the third largest in the world. Water quality problems are particularly challenging because it is relatively shallow compared with the land mass—64,000 square miles—which drains into it. EPA has called it a “world-class ecological treasure that is home to several thousand species of plants and animals,” including migratory birds. Its production of crabs, oysters and other seafood, plus recreational uses and shipping, “make the Chesapeake Bay a multi-billion dollar economic driver for the mid-Atlantic.”


Over a century of pollution from heavy industrial, commercial, agricultural and other uses has resulted in serious degradation. The principal pollutants are nitrogen, phosphorus and sediment, which have prevented attainment of water quality standards for dissolved oxygen, clarity/underwater grasses and chlorophyll-a (a measure of algae levels). In the summer large “dead zones” spread out across the Bay where fish cannot live because the oxygen is depleted by decaying algae which bloom as a result of excess nutrient discharges.


For the past 25 years, despite a series of cleanup agreements among federal agencies and the Chesapeake Bay states, with leadership from EPA’s Chesapeake Bay Program established under Section 117 of the Clean Water Act, efforts to stem the pollution have been unsuccessful. Regulation has been weak and enforcement has been lax. Currently 89 of the 92 tidal segments of the Bay fail to meet one or more water quality standards.



The Strategy For Restoration

On May 12, 2009, President Obama issued Executive Order 13508 in response to widespread calls from many of the Bay states and citizens groups for federal leadership. The Order required the seven federal agencies with responsibility for the Chesapeake, including EPA and the Departments of Agriculture, Interior, Commerce (including NOAA), Defense, Transportation and Homeland Security, to develop reports on environmental conditions throughout the watershed, identify tools and resources to protect and restore water quality, wildlife habitat and adjacent lands, and develop a schedule for restoration and protection of these resources by 2025, including measurable 2-year milestones.


EPA Administrator Lisa Jackson is committed to restoration of the Bay and appointed as her Senior Advisor on the Chesapeake Bay and Anacostia River Charles (“Chuck”) Fox. Fox, a Bay sailor who previously served as EPA’s Assistant Administrator for Water under President Clinton as well as Secretary of the Maryland Department of Natural Resources, has been a key player in the implementation of the Executive Order.


The Strategy document issued on May 12 lays out a series of measurable objectives designed to achieve, among other things, sustainable and healthy populations of blue crabs, oysters, fish and other wildlife; restoration of degraded wetlands and creation of new wetlands and forest buffers along the Bay and its tributaries; protection of forests, farms and land that is naturally or historically important; expanded public access, recognizing that people will work to protect the things they enjoy; and an enhanced public awareness of the importance of a healthy Bay and watershed to the enjoyment and economic well-being of its citizens.


At the heart of the Strategy is restoration of water quality, based on the establishment of a total maximum daily load (TMDL)—actually a large number of TMDLs—under Section 303 of the CWA which will cover all 92 segments of the Bay and its tidal tributaries. Based on decades of data gathering and modeling, the final TMDL will be the largest in history. It will include “waste load allocations” for point sources and “load allocations” for non-point sources addressing the three pollutants of major concern: nitrogen, phosphorus and sediment. EPA seeks to finalize it by year end.


The TMDL allocations will be applied to point sources through NPDES permits, and to non-point sources through various state regulatory programs, all of which will be collectively embodied in Watershed Implementation Plans (WIPs) which each Bay state and the District of Columbia are already developing. The WIPs will be evolving documents, updated as experience is gained with their initial application. If states fail to adopt timely WIPs, or the WIPs are not adequate to achieve reasonable progress at two-year milestone intervals, EPA will write the WIP itself, and provide backup enforcement wherever state enforcement is lax.


Compliance challenges may be especially great for non-point sources. For example, EPA currently estimates that approximately 42% of nitrogen, 46% of phosphorus and 72% of sediment discharged to the Bay come from agricultural activities, most of which involve non-point sources such as farms. States currently require nutrient management plans and best management practices for most farms, but the enforcement tools are weak. Legislation is pending before the Senate and House to strengthen the Chesapeake Bay provision of the Clean Water Act, Section 117, but as of this writing the fate of that legislation is uncertain. Funding is available to assist farmers develop and implement improved practices through the U.S. Department of Agriculture and state agencies. Technical resources are available from those agencies and various NGOs and university programs. Given traditional suspicion of government programs, however, substantial community outreach and stakeholder involvement will be required to achieve the goals of the strategy.


EPA is also launching several related regulatory initiatives. These include more effective regulation of concentrated animal feeding operations (CAFOs) to reduce runoff from animal manure and process waste, expanded regulation of municipal separate storm sewer systems, supporting state and local regulation of septic systems, and developing nutrient trading programs and the use of offsets for new and expanded discharges. More rigorous regulation is being considered for stormwater runoff from impermeable surfaces and construction sites from which large quantities of sediment are washed into rivers and streams. To address air emissions of nitrogen which result in atmospheric deposition on the Bay, the Strategy proposes more stringent regulation of power plants and other sources of nitrogen to the air.


This brief summary does not address many elements of this massive Strategy. For more information, see the EPA Executive Order web site and EPA’s web site for the Chesapeake Bay TMDL. EPA and the Bay states are conducting public meetings and outreach efforts throughout the watershed.



The Chesapeake Bay Restoration Strategy will, among many other things, provide numerous opportunities for lawyers to provide counseling to those who will be subject to federal and state permitting and regulatory requirements driven by the TMDL and the related WIPs. The restoration effort provides many opportunities to find novel approaches outside the courtroom for resolving the problems and conflicts which will inevitably result during the course of implementation. Finally, much of this activity will provide models for addressing similar problems elsewhere around the country.

Groundwater Cleanups - What If Drinking Water Standards Cannot Be Met?

Posted on April 20, 2010 by Charles Tisdale

EPA began the CERCLA program in 1980 with the view that all sites could be remediated to stringent cleanup standards, including drinking water standards for contaminated groundwater. The primary remedy selected for groundwater contamination was extraction and treatment. Consent Orders typically required groundwater remediation to be conducted for 30 years, if necessary, to achieve drinking water standards.

            New technologies are being used to remediate groundwater and there has been much progress. However, there are still sites where it is clear that drinking water standards will not be met in 30 years and where the cost of continued treatment produces only limited reduction of contaminant levels.  CERCLA is 30 years old and there are many case histories to use in the evolution of policies developed when the program began. 

            EPA provides relief for contaminated groundwater that exceeds drinking water standards through technical impracticability waivers, alternative concentration limits and monitored natural attenuation. However, these mechanisms have not provided the relief that many expected at sites where the facts show that standards will not be met.

            EPA and states have changed their original position with respect to cleanup of soil to stringent limits in all locations. Environmental agencies now look at issues of risk and actual exposure to contaminated soil rather than theoretical exposure. Some states have developed new policies with respect to groundwater remediation which include more thorough considerations of risk and actual exposure.

            There is growing concern over the availability of water, even in areas of the United States which have not experienced water supply problems in the past. Thus, there are strong reasons for remediating contaminated groundwater to drinking water standards. However, there are a number of sites where long term remediation will not achieve drinking water standards.

            Is there a need for new policies and procedures for sites where contamination levels can be reduced but drinking water standards will not be achieved? What elements are appropriate for a new policy? Should there be a procedure for environmental agencies to restrict the use of groundwater where there is no risk to actual drinking water supplies? Should EPA provide guidance to encourage the use of technical impracticability for these sites? Should the agency consider a policy to control the plume of contamination rather than requiring drinking water standards to be met throughout the contaminated groundwater?

In Search of Mitigation: Savannah Harbor Deepening Project

Posted on April 15, 2010 by Drew Ernst

With the anticipated Panama Canal expansion (expected to be completed by 2014), the Port of Savannah, Georgia is preparing for the new super-sized container vessels coming its way. Part of that preparation includes a proposed harbor deepening project (“Savannah Project”). The Savannah Project carries with it a price tag of $588,000,000 with a sizable portion of this amount earmarked for mitigation.


The primary component of the Savannah Project is deepening the existing entrance channel from forty-two feet up to forty-eight feet. The concern with any large-scale project like this, however, is the impact it will have on the surrounding environment and how that impact can be appropriately managed and mitigated. Adding to the mix is the tremendous economic impact the Savannah Harbor has on the entire State of Georgia. Georgia's deepwater ports support over 286,000 jobs and contribute 14.9 billion dollars in income to the State of Georgia.


Mitigation is both a hot topic in environmental law, and in many cases, a moving target. The Savannah Project provides a unique case study for both the process of approving a large-scale project like the Savannah Project and the creative and innovative ways mitigation can be discussed and hopefully achieved. 


With respect to the Project, the concomitant mitigation plan includes mitigation for cultural resources, natural resources mitigation, an impact avoidance plan, and in an unusual move, a monitoring and adaptive management plan. Primary concerns include the potential loss of freshwater marsh due to intrusion and an increase in salinity levels; potentially decreased dissolved oxygen levels in the Savannah River; potential harm to the Striped Bass and Shortnose Sturgeon population; and cadmium levels in dredged sediment. As an example, without mitigation of any kind, deepening the channel to 48 feet would impact approximately 1,212 acres of freshwater wetlands. With mitigation, the impact could be limited to 337 acres.


Proposed mitigation measures include altering the flow of fresh and saltwater through a variety of cuts and contouring, construction of a fish bypass structure, closing of selected channels connecting the Savannah River and its tributaries and opening cuts between various adjacent waterways. To specifically address concerns about dissolved oxygen, proposed mitigation efforts call for oxygen injection in several places in the Savannah River through a “bubbler” system made up of injection cones. Each cone would inject up to 15,000 pounds of oxygen into the river per day.


Further mitigation efforts call for the purchase and/or preservation of freshwater wetlands in the upper harbor basin to offset the impact of the Savannah Project on existing freshwater estuaries and the creation of a new 80.5 acres of saltwater marsh to reclaim marshland which will be lost. Further, in a somewhat unusual move, the adaptive management plan would monitor the success of mitigation not only during the construction phase of the Savannah Project, but for up to five years after it is completed. 


The Savannah Project is not without opposition. Beginning with a lawsuit filed in March 2000 to forestall decision-making on the Savannah Project (which was eventually dismissed), critics remain concerned that the Savannah Project will not be appropriately mitigated and are not convinced that mitigation success can be measured in a meaningful way. How the Savannah Project will shape and develop after the draft EIS is issued in the next few months is yet to be seen. However, all involved will continue to search for mitigation.

A full overview of the Savannah Project and its proposed mitigation efforts can be found here.

EPA Completes Six-Year Review of National Primary Drinking Water Regulations

Posted on April 14, 2010 by Jarred O. Taylor, II

EPA recently completed a six year review of the National Primary Drinking Water Regulations (NPDWRs) “to identify those NPDWRs for which current health effects assessments, changes in technology, and/or other factors provide a health or technical basis to support a regulatory revision that will support or strengthen public health protection.” This six-year review is mandated by the Safe Drinking Water Act. The first six year review was completed in 2003. The sixty-plus page March 29, 2010 Federal Register issuance of the notice and request for comments can be found here.


EPA reviewed the 85 NPDWRs, included in the Federal Register Statement a detailed explanation for 71, and is proposing that four of them be considered for revision. Not surprisingly, the proposed revisions are to decrease the maximum contaminant level (MCL) closer to the maximum contaminant level goal (MCLG). As a reminder, the MCLG is “set at the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety.” The MCL, a term with which many are more familiar, is the highest allowed level of a contaminant in water delivered to one using a public water system, and is supposed to be as close to the MCLG as possible. MCLs, however, are not used by regulators just to judge official public drinking water systems, but also groundwater. If you are involved at a site where cleanup standards have been set, or are in the process of being set, for these four NPDWRs, be prepared for some re-negotiation. And, it will not be long after any such changes are made that many states will follow.


The primary reason an MCL is higher than an MCLG is technology—our testing methods and analytical abilities cannot detect as low as the MCLG, many of which are zero—aka the practical quantitation limit (PQL). Thus, one of the pieces of EPA’s six year review was whether technology had advanced, with sufficient confidence, to allow a reduction in the MCL closer to the MCLG.


The four contaminants EPA is proposing receive revised NPDWRs are acrylamide, epichlorohydrin, and two more common contaminants with which most of us have run into before—tetrachloroethylene (PCE), and tricholorethylene (TCE). PCE and TCE received almost identical recommendations, and both have a current MCLG of 0.0, and an MCL of 0.005 mg/L because of PQL. EPA made no final recommendation on PCE and TCE because the risk assessment for these two contaminants was still in progress and, thus, EPA could not determine whether revised MCLs would gain potential health benefits. However, EPA concluded that advancements in analytical and treatment technologies were such that “analytical feasibility could be as much as ten times lower [than the current MCL] (~ 0.0005 mg/L)”, noting that its review also concluded that levels of PCE and TCE in the environment at this reduced level are “relatively widespread”. EPA is giving stakeholders the opportunity to submit information to it about what laboratories “can reliably and consistently achieve.”


Stay tuned—technology’s exponential increase in our ability to detect smaller and smaller concentrations of contaminants in the environment may very well exponentially increase treatment costs and higher costs at cleanup sites. Whether health risks decrease sufficiently from driving down MCLs is yet to be determined, but the writing appears on the wall for now.

Dredging of Delaware River Allowed to Begin ... Will It be Completed?

Posted on March 24, 2010 by Robert Whetzel

On March 1, 2010, the Army Corps of Engineers began to dredge a section of the Delaware River to deepen the shipping channel that services ports as far north as Philadelphia and Camden. While not a remarkable event as yearly maintenance dredging occurs, the dredging of the River to a lower depth was preceded by more than twenty years of debate, administrative actions and litigation surrounding the need to deepen the channel. Yet, even as the dredging takes place, the fight continues, as the Governor of New Jersey has pledged to oppose the channel deepening on economic and environmental grounds.

Delaware Sues to Enjoin the Corps

Litigation surrounding the dredging ensued earlier this year in the United States District Court for the District of Delaware after the Corps decided to proceed with the deepening project despite not having received all state permits and approvals to do so. Before proceeding, the Corps found that Delaware had refused to provide one such permit in a timely and responsible manner, thereby interfering with its authority to maintain navigation as directed by Congress, and concluded that its actions would conform to the applicable State Implementation Plans, pending the purchase of emission reduction credits.

The State of Delaware Department of Natural Resources and Environmental Control (“DNREC”) sought to enjoin the Corps from proceeding with the deepening project until the Corps demonstrated its compliance with all applicable state and federal requirements, alleging violations of the Clean Water Act, Clean Air Act, Coastal Zone Management Act and the state regulatory regimes associated with these statutes.

The District Court Decision

The District Court analyzed DNREC’s preliminary injunction motion under the Winter v. Natural Resources Defense Council, Inc., --U.S.--, 129 S. Ct. 365, 172 L.Ed. 2d 249 (2008), standard of (i) likelihood of success on the merits, (ii) likelihood of irreparable harm, (iii) balancing of the equities and (iv) the public interest. For likelihood of success on the merits, the court analyzed each alleged violation within the strictures of the Administrative Procedures Act.

DNREC first alleged that, under Section 313(a) of the Clean Water Act, the Corps’ sovereign immunity with respect to the project had been explicitly waived, subjecting it to the State’s regulatory process by which it must obtain the necessary permit prior to commencing construction. The court found that the Section 404(t) more limited waiver specifically governing discharge of dredged mater governed the Corps’ activities for the project. This meant that the Corps would be subject to the State’s administrative requirements so long as its authority to maintain navigation remained unimpaired. The Corps, however, had already made a finding that DNREC’s delay impaired its authority, and the court held that this finding, which was afforded great deference, was not arbitrary or capricious.

Addressing the Clean Air Act allegations, the court analyzed the sufficiency of the Corps determination that the project conformed to the applicable SIPs, focusing on the Corps’ choice to purchase ERCs as a mitigation measure to demonstrate conformity. The court found that absent from the conformity determination was an enforceable measure to obtain the ERCs. Without a specific source for and amount of ERCs, the record did not support that the Corps made a rational determination of conformity.

DNREC next argued that the Corps failed to certify to its “satisfaction” that the project was consistent with the Delaware Coastal Management Program as required under the Coastal Zone Management Act. While DNREC had initially concurred with the Corps consistency determination, it claimed that substantial changes to the project mandated that the Corps engage in a supplementary consistency determination. The court found that DNREC’s “satisfaction” was not required, and that the Corps could proceed with a project so long as it concluded that its project was “fully consistent” with the State’s management plan. For any interim changes after an initial consistency determination, the Corps was required to identify if any substantially different effects resulted therefrom, and the Corps had not identified any such results.

On the issue of irreparable injury, DNREC asserted two potential harms: (1) allowing the Corps to bypass the state regulatory process would run afoul of Delaware’s sovereign authority, and (2) that the Corps’ activities would result in harm to the environment. As to the first assertion, the court found that the federal supremacy principles apparent in the CWA, CAA and CZMA require that state law yield in certain statutorily defined circumstances, and that a federal agency’s employment of such a circumstance could not result in harm relevant to the Winter inquiry. For harm to the environment, while the court recognized that injury to the environment constitutes irreparable harm, such harm must be substantiated and the court found that DNREC had failed to do so. The court found “especially telling” that DNREC could not provide any physical evidence tending to show an injury, and that the Corps had proffered the only technical studies that were before the court.

Economic vs. Environmental Interests

In balancing of the equities and the public interest, the court weighed the interests of “nation’s environmental preservation efforts” versus the continued economic vitality of the Delaware River ports and found them equally compelling. The court then looked to Congress’ determination, as evidenced by its funding decisions, that it was in the public interest to proceed with the project.

Partial Injunction As to Future Phases – Wait and See

Ultimately, the court found that DNREC had not carried its burden that the project should be enjoined and denied DNREC’s motion as to the first phase of the project. However, since the initial project stage would last through December 2010, and DNREC represented that an administrative review of the project would be concluded within a year, the court granted the motion as to the rest of the project. In doing so, however, the court went to great lengths to clarify that it was not suggesting that the project would not be completed. Rather, the court observed that further administrative review would be a means to accomplish the project without causing environmental harm, not a means to stop the project all together.

Following the district court’s decision, the U.S. Court of Appeals for the Third Circuit denied a motion by five environmental groups to block the ruling, finding that the groups had "failed to meet the standards for an injunction or stay pending appeal."

Whooping Cranes and Texas Water Rights - A Fight's A Brewing

Posted on March 18, 2010 by Paul Seals

There is a fight brewing over the management of water resources in Texas. In a lawsuit that raises significant water rights implications, The Aransas Project (“TAP”), a non-profit corporation and an alliance of citizens, organizations, businesses and governmental entities, filed suit on March 10 in Corpus Christi against the Texas Commission on Environmental Quality (“TCEQ”) alleging that the state agency’s actions have harmed and threaten future harm to Whooping Cranes, the species that has pre-eminently exemplified and symbolized the wildlife conservation movement at the heart of the Endangered Species Act. According to the petition, 23 Whooping Cranes died at or adjacent to the Aransas National Wildlife Refuge (“ANWR”) in Texas over the winter of 2008-2009. After reviewing the allegations and the relief requests, one may wonder if this is a lawsuit to protect Whooping Cranes or is it part of a strategy to control the continued population growth and economic development in Texas through the control of water resources.

The Last Wild Flock

The Aransas-Wood Buffalo Whooping Crane flock winters at the ANWR along the Texas coast, northeast of Corpus Christi, and breeds in Canada’s Wood Buffalo National Park in the summer. It is the only natural wild flock remaining in the world. After decades of government protection in this country and in Canada, the flock has increased from 16 birds in the early 1940s to 270 in the spring of 2008. ANWR is located at or near the bays that are fed by freshwater flows of the Guadalupe and San Antonio Rivers into San Antonio Bay.

Is Permitted Freshwater Use the Problem?

TAP alleges that a critical reason for the Whooping Crane deaths was the lack of sufficient freshwater inflows, which adversely impact the Whooping Crane habitat by reducing the abundance of blue crabs and wolfberries, primary food sources, as well as the availability of drinkable water. These impacts are alleged to result in actual harm to the Whooping Cranes by significantly impairing their essential behavior and feeding patterns in violation of the Endangered Species Act.

TAP alleges that the TCEQ’s water rights regulations and practices constitute a prohibited taking in violation of Section 9 of the Endangered Species Act. TAP is seeking to enjoin the TCEQ from approving or processing new or pending water rights permits, to order the TCEQ to develop an approved Habitat Conservation Plan, to appoint a special master and to maintain court supervision and oversight in order to ensure sufficient freshwater flows into the Whooping Crane habitat.

Is There Another Agenda Here?

Reviewing the relief requested, TAP has targeted major water development projects previously announced in the Guadalupe River basin. In the petition, TAP has identified the water rights application of Guadalupe-Blanco River Authority to divert flood flows as well as the Authority’s contract to supply water from an existing water rights permit to Exelon Corporation for a new nuclear power plant. In addition, TAP is requesting, as part of the Habitat Conservation Plan, that existing water rights be reduced. Through this litigation, TAP has the potential to place future water resource development and existing water rights under the oversight of a special master and the federal judiciary.

A Complex Issue

Is the Whooping Crane being used to usurp Texas water rights? All parties and all Texans agree that the Whooping Crane should be protected. Will TAP be able to demonstrate the relationship of freshwater inflows and harm to the Whooping Crane? That nexus is in dispute. The Guadalupe-Blanco River Authority and the San Antonio River Authority commissioned a multi-year study to evaluate the relationship between freshwater inflows feeding San Antonio Bay and the health of Whooping Crane population at ANWR. The San Antonio Guadalupe Estuarine System Report concluded that the environmental factors that impact the Whooping Crane’s habitat are complex and not a simple correlation to freshwater flows and salinity.

TAP estimates that as of February 2010, the Whooping Crane flock numbers 263, down from an all-time high of 270 in the spring of 2008. Is this really about the Whooping Crane? If this strategy is successful, will it be used in other river basins with other endangered species?

To cite a well-worn Texas adage: “Whiskey is for drinking, water is for fighting!”

UPDATE ON THE POULTRY LITIGATION IN OKLAHOMA Poultry litter is not a solid waste under RCRA

Posted on February 26, 2010 by Linda C. Martin

The Oklahoma State Attorney General sued several poultry companies for polluting the Illinois River and its watershed in Eastern Oklahoma as a result of the application and disposal of poultry litter in the watershed. State of Oklahoma v. Tyson Foods, Inc. et. al. Case No. 05-CV-329-GFK(PJC). The suit alleged claims under CERCLA, RCRA, and nuisance among other things. You are referred to the articles posted March 9, 2009 an September 3, 2009 for particulars regarding the claims. 


Two weeks before trial, the Cherokee Nation moved to intervene in the case as a necessary party, but the Judge wouldn’t allow it. The Court decided that the damages claims would not be tried, but that the injunctive claims as well as the state penalty claims could be tried with the absence of the Cherokee Nation in the suit. The reasoning was, among other things, that the Cherokee Nation would be potentially prejudiced if the remaining damage claims went forward without it, but that would not be the case if the remaining injunctive claims and state law penalty claims were tried. Although the Cherokee Nation filed an immediate appeal with the Tenth Circuit, it did not ask that the case be stayed pending the outcome of the appeal.


The case has now been tried to the Court. It began on September 24, 2009 and only this month concluded with closing arguments. However, during the trial the Court ruled, in response to a Rule 52(c) motion, among other things, that:

  • Poultry litter is an agricultural commodity for which there is both a market and a market value in the watershed.
  • Poultry litter has market value because it can be beneficially used as a fertilizer and soil amendment.
  • The State did not produce sufficient evidence to convince the Court that farmers, ranchers or other applicators of poultry litter in the Illinois River Watershed land-applied poultry litter within the watershed solely to discard it.
  • Under the applicable law and the evidence produced at trial, poultry litter is not a “solid waste” under RCRA, and therefore the State’s RCRA claim was dismissed. 

This ruling is very important because of the focus on nutrient issues under the Clean Water Act Nonpoint Source Pollution. EPA states on its website that “States report that nonpoint source pollution is the leading remaining cause of water quality problems.”  Indeed, EPA has a “National Nutrient Strategy” and is focusing more on these issues than ever before. 

UPDATE ON THE POULTRY LITIGATION IN OKLAHOMA Poultry litter is not a solid waste under RCRA

Posted on February 26, 2010 by Linda C. Martin

The Oklahoma State Attorney General sued several poultry companies for polluting the Illinois River and its watershed in Eastern Oklahoma as a result of the application and disposal of poultry litter in the watershed. State of Oklahoma v. Tyson Foods, Inc. et. al. Case No. 05-CV-329-GFK(PJC). The suit alleged claims under CERCLA, RCRA, and nuisance among other things. You are referred to the articles posted March 9, 2009 an September 3, 2009 for particulars regarding the claims. 


Two weeks before trial, the Cherokee Nation moved to intervene in the case as a necessary party, but the Judge wouldn’t allow it. The Court decided that the damages claims would not be tried, but that the injunctive claims as well as the state penalty claims could be tried with the absence of the Cherokee Nation in the suit. The reasoning was, among other things, that the Cherokee Nation would be potentially prejudiced if the remaining damage claims went forward without it, but that would not be the case if the remaining injunctive claims and state law penalty claims were tried. Although the Cherokee Nation filed an immediate appeal with the Tenth Circuit, it did not ask that the case be stayed pending the outcome of the appeal.


The case has now been tried to the Court. It began on September 24, 2009 and only this month concluded with closing arguments. However, during the trial the Court ruled, in response to a Rule 52(c) motion, among other things, that:

  • Poultry litter is an agricultural commodity for which there is both a market and a market value in the watershed.
  • Poultry litter has market value because it can be beneficially used as a fertilizer and soil amendment.
  • The State did not produce sufficient evidence to convince the Court that farmers, ranchers or other applicators of poultry litter in the Illinois River Watershed land-applied poultry litter within the watershed solely to discard it.
  • Under the applicable law and the evidence produced at trial, poultry litter is not a “solid waste” under RCRA, and therefore the State’s RCRA claim was dismissed. 

This ruling is very important because of the focus on nutrient issues under the Clean Water Act Nonpoint Source Pollution. EPA states on its website that “States report that nonpoint source pollution is the leading remaining cause of water quality problems.”  Indeed, EPA has a “National Nutrient Strategy” and is focusing more on these issues than ever before. 


Posted on February 8, 2010 by Joseph Manko

originally posted for the Association of Corporate Counsel's Green-House Counsel ©2009


The construction and rehabilitation of our nation’s infrastructure has come to the fore with the advent of both climate change and the transformation of our energy production.  As water shortages continue to move eastward from the western states and new water quality standards are promulgated to address previously unregulated pollutants, the handling of water will ultimately require as much, if not more, attention from corporate counsel than the current focus on fossil fuel.  To anticipate this potential sea change, counsel should be aware of the evolution of governmental regulation of the use and handling of water, as well as monetary incentives to achieve compliance with the emerging laws.

To provide a brief history, in 1972, the Clean Water Act was amended to regulate direct discharges from industrial facilities and publicly owned treatment works (POTW), and later expanded to cover indirect discharges (e.g., runoff of stormwater) from agriculture and land development.  Although the 1972 laws created a discharge permit system (NPDES) and initial funding for POTW construction, it wasn’t until the enactment of the Water Quality Act of 1987 that EPA received annual funding to award to states who set up revolving grant and loan funds to address problems with wastewater, drinking water and stormwater systems within each of their states. 

Although the amounts varied with the changes in the executive office and congressional makeup, these funds were normally matched by the states through general obligation and/or revenue bonds and derived from the loan repayments and interest earnings to ensure that the funds would continue to be available to achieve their mission year after year.  One such example is the Pennsylvania Infrastructure Investment Authority (PENNVEST), which awards grants and loans for wastewater, drinking water and stormwater projects, including brownfields, acid mine drainage and nutrient trading.  Similar programs exist in each of the 50 states.

The enactment of the American Recovery and Reinvestment Act of 2009 (ARRA) provided additional stimulus funds, designed to create jobs, and required that 20 percent of the funds be disbursed for “green infrastructure” projects.  EPA received $4 billion of stimulus money, to encourage the full recycling of wastewater and stormwater to reduce energy costs, augment future water supplies and minimize adverse impacts on water quality.  Since there are financial federal incentives from both the U.S. Environmental Protection Agency (“EPA”) and the Department of Housing and Urban Development (“HUD”), you should proceed with due diligence to determine if funding opportunities are available for your organization.  If an appropriate match is identified, assist in the requisite applications for these funds.

·               Water Quality Standards;

·               Clean Water Act;

·               Publicly Owned Treatment Works;

·               POTW;

·               Wastewater;

·               Drinking water;

·               Stormwater;

·               American Recovery and Reinvestment Act of 2009;

·               ARRA;

·               “Green infrastructure”;

·               Stimulus money;

·               Financial federal incentives; and

·               Funding opportunities.


Posted on January 21, 2010 by Stephen E. Herrmann

According to Bloomberg News, the worldwide scarcity of usable water worldwide already has made water more valuable than oil. The Bloomberg World Water Index, which tracks 11 utilities, has returned more to investors every year since 2003 than oil and gas stocks or the Standard & Poor’s 500 Index.

When you want to spot emerging trends, follow the money. Today, many of the world’s leading companies and investors are making big bets on water. Why -- there simply is not enough freshwater to go around, and the situation is expected to get worse before it gets better.

The most essential commodity in the world today is not oil, not natural gas, not even some type of renewable energy. It’s water -- clean, safe, fresh water.



In 1992, the United Nations General Assembly designated March 22 as World Water Day. Every year on that date, people worldwide participate in events and programs to raise public awareness about what many believe to be the world’s most serious health issue -- unsafe and inadequate water supplies -- and to promote the conservation and development of global water resources.


More than a billion people -- almost one-fifth of the world’s population -- lack access to safe drinking water, and 40 percent lack access to basic sanitation, according to the 2nd UN World Water Development Report.


The United Nations estimates that by 2050 more than two billion people in 48 countries will lack sufficient water. Approximately 97 percent to 98 percent of the water on planet Earth is saltwater (the estimates vary slightly depending on the source). Much of the remaining freshwater is frozen in glaciers or the polar ice caps. Lakes, rivers and groundwater account for about 1 percent of the world’s potentially usable freshwater.


According to the United Nations, which has declared 2005-2015 the “Water for Life” decade, 95 percent of the world’s cities still dump raw sewage into their water supplies. Thus it should come as no surprise to know that 80 percent of all the health maladies in developing countries can be traced back to unsanitary water. The global water crisis is the leading cause of death and disease in the world, taking the lives of more than 14,000 people each day, 11,000 of them children under age 5.




If global warming continues to melt glaciers in the polar regions, as expected, the supply of freshwater may actually decrease. First, freshwater from the melting glaciers will mingle with saltwater in the oceans and become too salty to drink. Second, the increased ocean volume will cause sea levels to rise, contaminating freshwater sources along coastal regions with seawater.


Sandra Postel, author of the 1998 book, Last Oasis: Facing Water Scarcity, predicts big water availability problems as populations of so-called “water-stressed” countries jump perhaps six fold over the next 30 years. “It raises tons of issues about water and agriculture, growing enough food, providing for all the material needs that people demand as incomes increase, and providing drinking water,” says Postel.


Developed countries are not immune to freshwater problems either. Researchers found a six-fold increase in water use for only a two-fold increase in population size in the United States since 1900. Such a trend reflects the connection between higher living standards and increased water usage, and underscores the need for more sustainable management and use of water supplies even in more developed societies. Further evidence of the coming issue with water is that while China is home to 20 percent of the world’s people, only 7 percent of the planet’s freshwater supply is located there.




With world population expected to pass nine billion by mid-century, solutions to water scarcity problems are not going to come easy. Some have suggested that technology -- such as large-scale saltwater desalination plants -- could generate more freshwater for the world to use. But environmentalists argue that depleting ocean water is no answer and will only create other serious problems. 


The cost of water is usually set by government agencies and local regulators. Water is not traded on commodity exchanges, but many utilities stocks are publicly traded. Meanwhile, investments in companies that provide desalinization, and other processes and technologies that may increase the world’s supply of freshwater, are growing rapidly. General Electric Chairman Jeffrey Immelt said the scarcity of clean water around the world will more than double GE’s revenue from water purification and treatment by 2010 -- to a total of $5 billion. GE’s strategy is for its water division to invest in desalinization and purification in countries that have a shortage of freshwater. Research and development into improving desalination technologies is ongoing, especially in Saudi Arabia, Israel and Japan. And already an estimated 11,000 desalination plants exist in some 120 countries around the world.


As individuals, we can all reign in our own water use to help conserve what is becoming an ever more precious resource. We can hold off on watering our lawns in times of drought. And when it does rain, we can gather gutter water in barrels to feed garden hoses and sprinklers. We can turn off the faucet while we brush our teeth or shave, and take shorter showers. As Sandra Postel concludes, “Doing more with less is the first and easiest step along the path toward water security.”


Posted on January 13, 2010 by Rick Glick

The regulated community is experimenting with solutions to water quality regulatory problems that are market based and implemented on a watershed scale. Such efforts are being met with guarded interest by agencies, environmental organizations and the public, but offer the best hope for true ecological restoration. Oregon has recently passed legislation to foster ecosystem services markets to facilitate this approach. 


The Clean Water Act addresses water quality degradation through establishment of water quality standards and imposition of technology based effluent limitations in point source discharge permits. The receiving waters are tested periodically to see if standards are being attained, and if not, then Total Maximum Daily Loads are set and waste load allocations given to point sources so that permits can be adjusted. Non-point sources are given load allocations in the TMDL, but since there is no direct regulatory enforcement mechanism, and since funding sources are limited, compliance is not assured. 


This model has worked out pretty well for dealing with municipal and industrial waste water discharges, and toxics in receiving waters have been  much reduced. However, there has been little effect on water quality degradation related to non-point sources. In Oregon, over 1,200 streams are listed as water quality limited, and the vast majority are on the list for non-point source related problems, such as warmer ambient water temperatures and nutrient loading. What to do?



The conventional response is to ratchet up permit requirements for point sources, or impose local mitigation requirements on those caught in the Clean Water Act § 401 water certification web.  As it is said, if all you have is a hammer, all your problems are nails. There are, however, other tools in the box. Here are a couple of examples of ecomarket approaches.


Clean Water Services is the second largest sewerage agency in Oregon. It has four treatment outfalls discharging to the flat, slow moving Tualatin River. The discharge raises  receiving water temperatures, and when it came time to renew its four permits, the agency was facing stricter requirements to control thermal loading. Rather than installing mechanical chillers at the outfalls, the CWS proposed a large-scale riparian revegetation program. It was projected that the massive tree planting effort would take about ten years to match the cooling effect of the chillers, but would double the cooling as the trees matured. And with such an effort come ancillary habitat and other ecological benefits throughout the watershed that no chiller could provide. The Oregon Department of Environmental Quality approved the program and it is being implemented.


Idaho Power Company has proposed a similar approach to resolve water temperature problems associated with its Hells Canyon Complex on the Snake River. The HCC is comprised of three dams and reservoirs that together generate over 1,100 MW.  The HCC is undergoing relicensing, which triggers the CWA 401 water quality certification process before both the Oregon and Idaho Departments of Environmental Quality, as the Snake River is a border stream. A temperature control structure installed in the HCC’s largest reservoir would probably solve the regulatory problem, but would offer few ecological benefits. Instead, the company is proposing an ambitious upstream watershed improvement program comprised of riparian planting, fencing, wetlands enhancement, irrigation efficiency upgrades and flow augmentation. The Snake River watershed is vast and complex, with heavy human influence throughout, so a program on this scale will be tough to implement. However, the potential upside piques the imagination. 


Official policy favors such watershed approaches. EPA has adopted a water quality trading policy that encourages transactions between point and non-point sources with a focus on reducing nutrient loads and thus restoring depleted dissolved oxygen. EPA also recognizes the potential for applying the policy to temperature problems. Last year the Oregon legislature enacted Senate Bill 513 , which establishes state policy supporting development of ecosystem services markets to facilitate watershed scale solutions to water quality restoration. 


I have been appointed to the SB 513 working group tasked with developing the policy and making further recommedations to the legislature. One of the greatest challenges is the lack of reliable metrics. Because there are myriad other upstream influences on water temperature, it is exceedingly difficult to measure the effect of an upstream tree planting program on downstream temperatures. Further, the benefits from watershed programs are long term in nature. 


Thus, there is risk both to the permittee and the regulatory agency that someone will sue to require immediate and measureable results. But if the goal of the overall regulatory program is truly ecological protection and restoration, then we must go beyond compliance for the sake of compliance and focus on outcomes. The huge potential for sustainable, widespread benefits resulting from watershed approaches makes this an effort well worth making.


Posted on January 5, 2010 by Fournier J. Gale, III

For more than two decades, Alabama, Florida and Georgia have clashed over water use from the Apalachicola-Chattahoochee-Flint River Basin and the Alabama-Coosa-Tallapoosa River Basin to support growing demands for water in each state.  While it may be a an over generalization, the controversy largely pits Atlanta’s need for a large enough water supply to support its tremendous population growth against water needs in Alabama and Florida for consumption, hydroelectricity, irrigation, recreation, fisheries, and endangered species protection. The states reached a Memorandum of Agreement in 1992 which set a deadline for allocating water from the two watersheds to each state; however, the states were unable to reach an allocation agreement within the deadline and previously filed litigation resumed. While negotiations since have proved futile, a recent federal court decision along with the fact that the governors from each state are all leaving office in January 2011 may lead to a permanent solution to the tri-state water wars in the near future.


Specifically, on July 17, 2009, United States District Court Judge Paul Magnuson of the Middle District of Florida ruled that Georgia was not properly authorized to withdraw substantial amounts of water from Lake Lanier (a part of the Apalachicola-Chattahoochee-Flint River Basin) to provide drinking water to Atlanta. The Court held that because Lake Lanier is a federal reservoir built for purposes of flood control, hydropower generation, and navigation support, only Congress can approve the operational changes required for increased withdrawals of drinking water. Thus, the Court froze water withdrawals at current levels for the next three years to give time for Congressional approval. Without Congressional approval, withdrawals will revert to very low, baseline withdrawal levels used in the mid-1970s. Click here for a copy of the Court’s opinion.


As a result of the new court-ordered deadline, negotiations between the three states have resumed with a new fervor. On December 15, 2009, the Governors of Alabama, Florida and Georgia met in Montgomery, Alabama to discuss plans for reaching an agreement. While the Governors did not offer specifics on their negotiations, they did indicate that they now hope to reach an agreement on an allocation plan that could be presented to their respective state legislatures for approval this year. If an allocation plan does make it through each state’s legislature, it would of course have to go before Congress for final approval as well. To meet such an ambitious goal, the Governors would have to reach an accord as early as spring of this year.

When Does The Rivers and Harbors Act of 1899 Trump the Clean Water Act?

Posted on December 3, 2009 by Karen Aldridge Crawford


United States v. Milner, Nos. 05-35802, -36126, 39 ELR 20232 (9th Cir. Oct. 9, 2009)


In a suit brought by the United States against homeowners for common law trespass to tidelands held in trust for a Native American tribe, the Ninth Circuit held that waterfront homeowners who built shoreline defense structures on this property are liable for common law trespass and for violating the Rivers and Harbors Appropriations Act of 1899 (RHA).  


 Between 1963 and 1988, the homeowners leased the tidelands from the tribe, giving them the right to erect shore defense structures on the tidelands. After the lease expired, the homeowners refused to remove the structures or enter into a new lease agreement. The homeowners argued that they cannot be liable for trespass, despite the movement of the tideland boundary, because their structures were lawfully built on the homeowners' property landward of the mean high water (MHW) line.  


 The court disagreed.  Under common law, however, the boundary between the tidelands and the uplands is ambulatory, changing when the water body shifts course or changes in volume. Because both the upland and tideland owners have a vested right to gains from the ambulation of the boundary, the homeowners cannot permanently fix the property boundary, thereby depriving the tribe of tidelands that they would otherwise gain. And although the structures may have been legal as they were initially erected, the court found that this is not a defense against the trespass action nor does it justify denying the tribe land that would otherwise accrue to them.  


The court also determined the homeowners are liable under the RHA because they have maintained at least part of their shore defense structures below the MHW line and because the structures alter the course, location, condition, or capacity of a navigable U.S. water. Addressing whether the homeowners had also violated the Clean Water Act (CWA), the court held that it was unclear from the evidence whether the high tide line actually reached the area where the homeowners discharged fill material during their maintenance of the structures. The court emphasized that although the jurisdictional reach of the CWA is generally broader than that of the RHA, the RHA is concerned with preventing obstructions, whereas the CWA is focused on discharges into water. Since the two laws serve different purposes, their regulatory powers will diverge in some circumstances, such as this one. 


Posted on December 2, 2009 by John Crawford



John Crawford, Michael Caples and Gary Rikard




On November 23, 2009, EPA finalized technology-based effluent guidelines that are likely to have a significant impact on the construction industry.   The new regulation applicable to the Construction and Development Point Source Category is found at 40 C.F.R. Part 450 and imposes both non-numeric standards and, for the first time, numeric standards designed to reduce the discharge of pollutants to stormwater.         


According to EPA, construction site owners and operators are the largest group of dischargers under NPDES permits.   Despite existing requirements (see 40 C.F.R. 122.26 and similar state regulations) pertaining to “stormwater associated with industrial activity” which regulates discharges from construction sites that disturb one acre or more, EPA believes additional standards are necessary. The new rule requires construction site owners to monitor, report, and comply with effluent limitations guidelines (ELG) and new source performance standards (NSPS) set by EPA. EPA plans to implement the rule in phases over a four-year period.   While states with delegated NPDES programs are governed by MOUs with EPA which normally require new regulations to be adopted within one year of EPA adoption, it appears that the new standards will not have to be incorporated by states until existing stormwater construction general permits expire; thus, some states may have up to six years to incorporate the new standards into their general permits.


In non-delegated states, effective in February 2010, all construction site owners and operators must meet non-numeric effluent guidelines set by EPA. Beginning in August 2011, the rule will require construction site owners and operators of projects on twenty (20) or more acres to monitor discharges and comply with numeric effluent guidelines on turbidity to be determined by EPA. By February 2014, construction site owners and operators of projects on as few as ten (10) acres will fall subject to the regulation.


EPA’s new regulation largely affects the construction and development industry. According to EPA, the new rule requires compliance of an estimated 82,000 civil engineering, residential, and commercial construction firms. Former EPA Region 4 Regional Administrator Jimmy Palmer says, “These new rules for controlling stormwater runoff from construction sites trace back to 2002, in the Bush administration.  As with the entire federal stormwater program, this is another add-on to state wastewater permit requirements under Section 402 of the Clean Water Act.  The most serious impacts of these new rules are the costs of obtaining individual permits when they are required; very significant additional project costs for tighter best management practices, new control measures, and monitoring in order to comply with permit conditions; and dramatically increased enforcement actions, especially in cases where permits are required.”


Posted on September 3, 2009 by Linda C. Martin

On March 9, 2009, we posted an article regarding issues raised in the United States District Court for the Northern District of Oklahoma, State of Oklahoma v. Tyson Foods, Inc., et al., Case No. 05-CV-329-GFK regarding the Cherokee Nation ownership interests in the Illinois River and its watershed. In this case, the Attorney General for the State of Oklahoma sued several poultry companies for polluting the Illinois River and its watershed in eastern Oklahoma as the result of the disposal of poultry litter in the watershed. The suit alleges claims under CERCLA, RCRA, trespass and nuisance, among other things. The State of Oklahoma sought money damages and injunctive relief against the poultry companies.

The Poultry Defendants filed a Motion to Dismiss for Failure to Join the Cherokee Nation as a Required Party under Rule 19, or in the Alternative, Motion for Judgment on the Pleadings alleging the State lacks standing to prosecute the case. The Poultry Defendants alleged the Cherokee Nation possessed significant, legally protected interests in the Illinois River and it’s Watershed that would be impaired or impeded by its absence from the litigation, and further that the Court should grant judgment as a matter of law to the defendants because the State did not have standing to bring the suit.


In an apparent response to the Motion, the State of Oklahoma filed a “Notice of Filing of Document” to which was attached an agreement between the Cherokee Nation and the State of Oklahoma (Agreement). The Agreement, dated May 19, 2009, acknowledged, among other things, that the Cherokee Nation “has substantial interests in . . . water and other natural resources located within the Illinois River Watershed though the extent of those interests has not been fully adjudicated.”

The Agreement stated that the Cherokee Nation “to the extent of its interests in lands, water and other natural resources in the Illinois River . . . delegates and assigns to the State of Oklahoma any and all claims it has or may have against Defendants named in the [Tyson litigation] for their alleged pollution of the lands, water and other natural resources of the Illinois River Watershed resulting from poultry waste.” The Agreement purported to have a retroactive effective date of June 13, 2005, and was signed by the Attorneys General of the Cherokee Nation and the State of Oklahoma. 

The Poultry Defendants immediately challenged the Agreement by filing a “Counter-Notice” the following day, raising several issues as to the procedural and substantive validity of the Notice and Agreement under Oklahoma Law. The Court did not allow further briefing on the issues. 

Instead, the Court ruled on the Defendants’ Motions in a recent Opinion and Order. ___F.R.D.___ 2009 WL 2176337 (N.D. Okla. July 22, 2009)  The Court held that Oklahoma law explicitly sets forth the requirements the State must follow when entering into agreements such as the purported Agreement with the Cherokee Nation, which procedures were not followed in this instance. After examining other issues negating the validity of the Agreement, the Court concluded that that the Agreement was invalid and does not resolve or moot the Rule 19 Motion to Dismiss raised by the Poultry Defendants.  Id. at **3-4.

The Court undertook a Rule 19 analysis to determine if the Cherokee Nation is a required party to the action. Under Rule 19(a)(1), the Court analyzed (1) whether the Cherokee Nation claims an interest relating to the subject of the action, and (2) is so situated that disposing of the action in the Cherokee Nation’s absence may impair or impede its ability to protect the interest or leave an existing party subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations. 

The Court stated that Rule 19 does not require an absent party to possess an interest; it only requires that it claim an interest in the subject matter of the action. Id. at *4. Thus, the Court did not actually rule on the Cherokee Nation’s rights in the Illinois River watershed. It did, however, determine that the Cherokee Nation claims rights to the Illinois River and its watershed. The Court also noted that the Agreement operates as an admission by Oklahoma of the Cherokee Nation’s interest in the action. Id. at *5.

In addition, the Court examined portions of the Cherokee Nation Code, and noted that it evidences the Cherokee Nation’s interest in protecting the Illinois River and in vindicating its rights for pollution of the Illinois River watershed. It further claims an interest in recovering for itself civil remedies, including damages, for the same injuries to the watershed which are claimed in this action. The Court noted other provisions of the Cherokee Nation Code which evidence the Cherokee Nation’s substantial interest in the subject matter of the instant action. 

The Court noted: “The claimed interests of the Cherokee Nation in the water rights portion of the subject matter of this action are substantial and are neither fabricated nor frivolous.” (citation omitted) Id. at *6. Thus, the Court concluded that the Cherokee Nation claims an interest relating to the subject matter of the instant case for Rule 19 purposes. Id. at *7.

Under the second prong of Rule 19 analysis, the Court reviewed, among other things, whether the Cherokee Nation was so situated that disposing of the action in the Cherokee Nation’s absence might impair or impede its ability to protect its interest or leave an existing party subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations. After conducting its analysis of the foregoing factors, the Court concluded that proceeding with the case in the absence of the Cherokee Nation would subject the defendants to a substantial risk of incurring double, multiple or otherwise inconsistent obligations with respect to the claims for monetary damages, and would potentially cause prejudice to the Cherokee Nation’s sovereign interests, among other things. Id. at *9 (The parties had agreed that the joinder of the Cherokee Nation in the case was not feasible because of sovereign immunity. Id. at *9.

The Court also noted that the State had an adequate remedy if the damage claims were dismissed in that it could dismiss and refile the action after the State and the Cherokee Nation entered into a legally binding agreement under Oklahoma law authorizing the State to assert the Cherokee Nation’s CERCLA and other damage claims. Id. at *11.

The Court concluded that the State lacked standing to assert the claims of the Cherokee Nation, Id. at *12, and that the Cherokee Nation is a necessary party under Rule 19 with respect to the State’s claims for damages. Id. at *13. (The Poultry Defendants did not seek dismissal of the claims for injunctive relief.) The Court held that the Cherokee Nation is not a required party to the claims for violation of state environmental and agricultural regulations. Id.

On September 2, 2009, the Cherokee Nation filed its Motion to Intervene in the case, only two weeks prior to trial, and one day prior to the Pretrial Conference. 

Stay tuned, we’ll keep you updated.