Stormwater Discharges From Construction Activity: What Next From EPA?

Posted on August 10, 2009 by Seth Jaffe

Construction and development companies praying for an economic recovery next year have something else to worry about: pending new EPA regulations regarding stormwater discharges from construction activities – and claims from environmental groups that EPA’s proposal isn’t stringent enough.

EPA issued a proposal on November 28, 2008. That proposal is complex, but the aspect of it that has received the most attention is the requirement that certain construction sites greater than 30 acres meet numerical turbidity limits (specifically, 13 nephelometric turbidity units (NTUs), which I had to include in this post just because it sounds so cool). Developers have opposed the numeric limits; the National Association of Home Builders estimates that the cost to comply would be $15,000 to $45,000 per acre.

On the other hand, the NRDC and Waterkeeper Alliance have threatened to sue EPA if EPA does not revise the propose rule to include post-construction controls as part of the rule. EPA has stated that it is not planning to do so. It’s not obvious that NRDC and Waterkeeper Alliance have the better of this specific debate, but the argument regarding post-construction controls is similar to the ongoing discussion in Massachusetts and elsewhere regarding the need for ongoing stormwater controls at properties other than industrial facilities that are already regulated.

The issue is not going to go away.  EPA is under a deadline to issue the rule by December 1, 2009.


Posted on July 17, 2009 by David Flannery

On July 7, 2009, the United States Court of Appeals for the D.C. Circuit rendered its decisions in the PM2.5 Designations Litigation, Catawba County, NC v. EPA, No. 05-1064 and consolidated cases (D.C. Cir. July 7, 2009). Applying the standard of review set forth in Section 307(d)(9) of the Clean Air Act, which “requires the Court to set aside EPA’s final actions when they are excess of the agency’s statutory authority or otherwise arbitrary and capricious,” the Court denied all of the petitions for review except Rockland County, New York and remanded the designation of Rockland County to EPA for a “coherent explanation of its designation”. Slip op. at 3, 9, 53-56. 


Overall, the Court complimented EPA on its handling of “the complex task of identifying those geographic areas that contribute to fine particulate matter pollution”. Id. The Court concluded “EPA both complied with the statute and, for all but one of the 225 counties or partial counties it designated as nonattainment, satisfied – indeed, quite often surpassed – its basic obligation of reasoned decisionmaking.” Id. (emphasis added).


The Court rendered two decisions: a published per curiam opinion and an unpublished memorandum attached to the judgment. In the per curiam opinion, the Court explains its holdings rejecting the following general challenges to the designations: (1) EPA violated the Administrative Procedure Act (APA) by failing to publish both the Designations Rule and the Holmstead Memo for notice and comment; (2) EPA violated the section of the Clean Air Act governing designations, § 107(d), by applying the C/MSA presumption and nine-factor test to identify areas that contribute to nearby PM2.5 violations; (3) EPA’s analysis contained such serious “methodological deficiencies and inconsistencies,” including the carbon error, as to render the entire Designations Rule arbitrary and capricious; and (4) EPA acted arbitrarily and capriciously in making particular designations.  Id. at 10. The court in its opinion discusses in detail the New York county designations, rejects the petition as to all of the New York counties except Rockland County, and dismisses all of the other county-specific challenges in one paragraph concluding that “none of them has merit” Id. at 55. The memorandum, which will not be published pursuant to D.C. Circuit Rule 36, sets forth the Court’s rationale for rejecting the other county-specific challenges: Oakland County, Michigan; Anderson, Greenville, and Spartanburg Counties, South Carolina; Catawba County, North Carolina; Guilford County, North Carolina; Catoosa County, Georgia; Porter County, Indiana; Randolph County, Illinois; and the Ohio Townships.


On its own motion, the Court ordered the Clerk to withhold issuance of the mandate until after issuance of any timely petition for rehearing or petition for rehearing en banc. However, “any party may move for expedited issuance of the mandate for good cause shown.” Under Rule 40 of the Federal Rules of Civil Procedure, any petition for panel rehearing is due within 14 days after entry of judgment. The judgment was filed July 7, 2009. 


Among the highlights of the decision are the following:


  1. Speciation data is useful for the area designation process. It reveals the kinds of particles (carbon, sulfate, nitrate, crustal particles, etc.) that account for an area’s PM2.5 problem and suggests, by extrapolation, the kinds of sources most responsible for the problem. Id. at 11. 
  1. No petitioner challenged EPA’s decision that a county boundary would determine the extent of an area reflected by a violating PM2.5 monitor. Id. at 13. 
  1. The Court upheld the C/MSA presumption to identify those areas that, although deemed to be meeting the standard themselves, are contributing to nearby violations.
  1. Weighted emissions scores (WESs) only provide a measure for comparing counties within the same C/MSA. “Importantly, because these scores scale a county’s raw emissions based on attributes specific to individual C/MSA – i.e., the urban excess number and total level of metropolitan emissions – [WESs] only provide a measure for comparing counties within the same C/MSA.”   Id. at 15.
  1. PM2.5 designations are exempt from notice-and-comment rulemaking. Id. at 15-18.
  1. The mandate in § 107(d)(4) that EPA apply the C/MSA presumption in ozone and carbon monoxide designations, while the section pertaining to PM2.5 designations says nothing about the C/MSA presumption and instead provides that PM2.5 designations must be “based on air quality monitoring data,” does not prove that Congress intended to preclude EPA from using the C/MSA presumption in PM2.5 designations. Id. at 22-24.
  1. The word “contribute” in § 107(d)(1)(A)(i) is ambiguous. “Contribute” does not necessarily connote a significant causal relationship. EPA may not designate a county as contributing to nonattainment even if “corrective measures in [the county] will do nothing to address the problem or help achieve compliance in the nonattainment area.” Id. at 29. A contribution may simply exacerbate a problem rather than cause it. Id. 
  1. EPA “is free to adopt a totality-of-the-circumstances test to implement a statute that confers broad discretionary authority, even if that test lacks a definite ‘threshold’ or ‘clear line of demarcation to define an open-ended term’.” Id. (citations omitted). To be reasonable such an “all-things-considered standard” must simply define and explain the criteria the agency is applying. The Holmstead Memo and the Technical Support Document satisfied this test “in spades”.  Id. at 30-31.
  1. EPA does not owe to the states “substantive deference”. EPA has “no obligation to give any quantum of deference to a designation that ‘it deems necessary’ to change.” Id. at 32. 
  1. EPA did not err in refusing to consider emissions reductions from CAIR and the NOx SIP Call. With respect to CAIR, there was no “assurance” when EPA promulgated its PM2.5 designations in December 2004 as to “which power plants would reduce SO2 and NOx emissions and how they would do so,” i.e., installation of controls or trading, “near term,” and the NOx SIP Call “has nothing to do with reducing SO2”. Id. at 37-39. EPA may account for future emissions reductions in contribution designations only when “it is evident that federally enforceable pollution controls will yield significant near-term reductions in emissions.”  Id. at 37.
  1. The carbon error did not render the designations arbitrary and capricious because EPA “used the best available information”. Id. at 39. “EPA was not obligated to upend the designation process when it discovered a mistake in its speciation profile for certain power plants. EPA used the best information available in making its designations, and that is all our precedent requires.” Id. at 41.


Posted on July 14, 2009 by Fournier J. Gale, III

Part II

And now for the rest of the story…

As reported in this blog in January, the Eleventh Circuit’s recent decision in Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3d 986 (11th Cir. 2008), left an opening for Clean Water Act citizen suits to proceed despite an enforcement action being filed by the state environmental agency on the heels of the issuance of a plaintiffs’ 60-day notice letter. However, the recent dismissal of the Cherokee Mining case upon its return to District Court may give some pause to those who file citizen suits in the future.

As reported in more detail in January, the defendant in Cherokee Mining originally filed a Motion to Dismiss plaintiff’s Clean Water Act citizen suit for lack of subject matter jurisdiction arguing that the suit was barred under Section 309 because the state environmental agency had commenced enforcement subsequent to the plaintiff’s issuance of a 60-day notice letter. The plaintiff successfully defeated the Motion to Dismiss in the District Court by relying on what was a largely overlooked provision of Section 309 stating that the bar to citizen suits does not apply to actions filed “before the 120th day after the date on which…notice is given.” 33 U.S.C. § 1319(6)(B)(ii). The Eleventh Circuit, which is still the only Court of Appeals to address this issue, affirmed the District Court’s decision. See also Black Warrior Riverkeeper v. Birmingham Airport Authority, 561 F. Supp. 1250 (N.D. Ala. 2008) (applying the 120th-day exception to the citizen suit bar and allowing the same plaintiff to go forward in a separate case filed against other defendants).


However, upon Cherokee Mining’s return to District Court, the plaintiff’s case was dismissed on mootness grounds—arguably the same grounds on which Congress based the statutory bar to citizen suits filed after a state enforcement action. Specifically, the United States District Court for the Northern District of Alabama dismissed plaintiff’s claims for injunctive relief and civil penalties as moot because the issuance of a consent order by the state environmental agency adequately addressed the plaintiffs’ alleged violations. Indeed, despite allegations of additional violations subsequent to the issuance of the consent order, the District Court concluded that the plaintiff had failed to demonstrate that there was a serious prospect that the alleged violations would continue to occur. The District Court further held that because the consent order required Cherokee Mining to pay a penalty of $15,000, the Court was reluctant to second guess the state agency enforcement action. Thus, the Court dismissed plaintiff’s claims as moot. Black Warrior Riverkeeper v. Cherokee Mining, No. 07-AR-1392-S (N.D. Ala. Jun. 5, 2009).

Notwithstanding the ultimate outcome of Cherokee Mining, the back door to citizen suits opened by the Eleventh Circuit’s opinion is still available. In other words, at least in Alabama, Florida, and Georgia, a plaintiff can proceed with a Clean Water Act citizen suit despite enforcement action taken by the state environmental agency as long as the plaintiff files suit within 120 days of its 60-day notice letter. However, the entry of an administrative order by the state may quickly make the citizen suit moot. As aptly noted by the District Court, “[i]f there is a lesson to be learned from this case, it is that a citizen who admittedly has a right to file a citizen suit seeking to remedy a perceived water violation, although knowing, as a matter of law, that ADEM has concurrent jurisdiction over the issue, is taking the risk that he will be headed off at the pass by subsequent appropriate ADEM enforcement action.” Cherokee Mining, No. 07-AR-1392-S at 14-15.

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council et al

Posted on June 24, 2009 by Theodore garrett

On June 22, 2009, the Supreme Court held 6-3 that the Corps, rather than EPA, has authority to permit the discharge of a rock and water mixture called “slurry” from a mine froth flotation process to a nearby lake, reversing the Ninth Circuit’s decision that the proposed discharge would violate the EPA’s performance standard and §306(e) of the Clean Water Act.  Coeur Alaska, Inc. v.. Southeast Alaska Conservation Council et al., __U.S.__ (No.  No. 07–984, June 22, 2009).  Section §402(a) of the Clean Water Act forbids the EPA to issue permits for fill materials falling under the Corps’ §404 authority. Because §404(a) empowers the Corps to “issue permits . . . for the discharge of . . . fill material,” and the agencies’ joint regulation defines “fill material” to include “slurry . . . or similar mining-related materials” having the “effect of . . . [c]hanging the bottom elevation” of water, 40 C.F.R. §232.2, Justice Kennedy's opinion for Court states, the slurry Coeur Alaska wishes to discharge into the lake falls within the Corps’ §404 permitting authority.  The Clean Water Act is ambiguous on the question whether §306 applies to discharges of fill material regulated under §404, however EPA’s internal “Regas Memorandum” states that the performance standard applies only to the discharge of water from the lake into the downstream creek, and not to the initial discharge of slurry into the lake.  The dissent , written by Justice Ginsburg, takes the view that a discharge covered by a performance standard must be authorized, if at all, by EPA.


Posted on May 19, 2009 by Kevin Beaton

It is well known that EPA rules developed under the Bush Administration have not fared well in the federal courts. Earlier this year, a 2006 EPA rule that exempted the application of pesticides to surface waters from Clean Water Act NPDES permitting requirements suffered a similar fate in Nat’l Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009). The effect of this ruling will likely require any person or governmental entity throughout the United States that applies pesticides and insecticides near or onto waters to first obtain an NPDES permit.           

            A.        The History of Pesticide Regulation under the Clean Water Act.

            In Nat’l Cotton Council of America v. EPA, the court evaluated the legality of a 2006 EPA rule which provided that the application of pesticides and herbicides to and over surface water to control pests, weeds and insects consistent with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not require an NPDES Permit. 


How EPA came to promulgate the 2006 rule is a familiar scenario to environmental lawyers. The operative provisions in the Clean Water Act relied on by the court in Nat’l Cotton Council to vacate EPA’s rule have been in place since 1972. For some thirty years, farmers, irrigation districts, foresters, local health agencies, fishery agencies and others have applied pesticides and herbicides to and above waters to control pests, weeds, insects and other undesireable species believing that all that was required under federal law was to follow the FIFRA labeling requirements. During this time EPA never definitively took a position whether NPDES Permits were or were not required for such applications. 

The assumption that compliance with FIFRA exempted pesticide applicators from the Clean Water Act permitting was dashed in 2001 in the case of Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001). In Headwaters,the court found that the application of an herbicide to a canal to control weeds required an NPDES Permit. Critical to the Court’s decision in Headwaters was the fact that a chemical residue which was toxic to fish remained in the water days after application. Therefore the Court found that the residue was a “chemical waste” and therefore a “pollutant” under the Clean Water Act. The Court rejected the idea that compliance with FIFRA labeling requirements obviated the need for an NPDES Permit finding that the two federal statutes served different purposes. The court’s finding on this point was based, in part, on an amicus brief filed by EPA in the case which took the position at that time that compliance with FIFRA did not exempt an applicator of pesticides from obtaining an NPDES Permit. Shortly after Headwaters, the Ninth Circuit issued another decision on whether the application of pesticides from an airplane above surface waters required an NPDES Permit in League of Wilderness Defenders v. Forsgren, 309 F.3d 1181 (9th Cir. 2002). Forsgren was another citizen suit, this time brought against the United States Forest Service (USFS) for unlawfully discharging insecticides from airplanes to control moths which infect and kill trees on national forest lands without an NPDES Permit. In Forsgren, the Court found that the aerial application of insecticides over national forest lands (including surface waters) required an NPDES Permit. The USFS argued such spraying was covered by an EPA rule exempting certain “silvicultural activities” from NPDES Permit requirements. The Court found that the USFS’ application of pesticides clearly involved the discharge of a pollutant (insecticide) from a point source (airplane) to jurisdictional waters. The Court also found that EPA’s silvicultural rules did not (and could not) exempt activities Congress clearly required to be subject to NPDES Permit requirements under the Clean Water Act.

            The Headwaters and Forsgren cases created a major stir not only in the West but around the United States. Now activities that nobody ever believed required an NPDES Permit were subject to Clean Water Act permitting. For example, during this time the spread of West Nile Virus associated with water borne vectors were causing illness and deaths around the United States. Local agencies around the United States were facing citizen suit liability for unlawfully spraying insecticides on waters without an NPDES Permit or were potentially forced to go through a lengthy permit process (if a permit was even available) to undertake an activity that required immediate action. Some states with NPDES Permit programs such as Washington and California acted quickly and issued general NPDES Permits to authorize application of pesticides and herbicides into waters to address this untenable situation. EPA chose not to issue any type of general permits, but rather adopted an “interim guidance document” in 2003. See 65 Fed. Reg. 48385. EPA opined in the Guidance Document application of pesticides and herbicides to surface waters consistent with FIFRA requirements were not “pollutants” under the Clean Water Act since such application did not involve the discharge of a chemical “waste” but rather a chemical “product” and therefore no NPDES Permit was required. EPA then went forward with a proposed rule which resulted in publication of a final rule at 40 CFR § 122.3(h) in 2006 that closely followed their interim guidance document.

            B.        The Cotton Council Decision.

After the EPA published the final rule in late 2006, a host of environmental advocacy groups, groups opposed to the use of pesticides, and industries filed challenges to the rule in numerous federal courts throughout the United States. Each group sought to have their challenge heard in a favorable forum. All of the challenges were consolidated before the Sixth Circuit Court for decision. The court in Cotton Council rejected much of the rationale offered by EPA in support of the rule. EPA’s principal position in supporting the exemption was that the application of pesticides to and above waters in accordance with FIFRA is the application of a product and not a “chemical waste” or a “biological material” and therefore not a “pollutant” under the NPDES Permit program. The court in Cotton Council focused on the definition of “pollutant” in the Clean Water Act which included the terms “chemical waste” and “biological materials.”

            The court accepted EPA’s position that some chemical pesticides that are intentionally applied to waters for a beneficial purpose are chemical products and not a “chemical waste” as long as there does not remain any chemical residue after application. This finding was consistent with an earlier Ninth Circuit case that found the discharge of a pesticide to waters with the intent of eradicating a certain species of fish and which did not leave any remaining chemical residue in the water was not a discharge of a pollutant requiring an NPDES Permit. See Fairhurst v. Hagener, 422 F.3d 1146 (9th Cir. 2005). The court in Cotton Council, however, disagreed with EPA as it relates to pesticides that leave a “residue” in the water. The court in Cotton Council agreed with the Ninth Circuit’s analysis in Headwaters that such residues were clearly a “chemical waste” and therefore a pollutant.

            The court rejected EPA’s attempt to subtly overturn Headwaters by suggesting that even if chemical residues (toxic or otherwise) remained in the water after application of chemical pesticides an NPDES Permit was still not required because at the time of discharge the pesticide was still a “product” and only turned into a waste after it was in the water. According to EPA this meant that the chemical waste was not discharged from a point source but rather was now a “nonpoint” pollution source and not subject to NPDES Permit requirement. The court rejected EPA’s logic and found the Clean Water Act did not support EPA’s “temporal” interpretation that material could be lawfully discharged without a permit but later turn into a pollutant.

            The court also found that a variety of other pesticides which utilize “biological materials” such as viruses, bacteria, fungi, and plant material were pollutants and therefore could not be exempted from NPDES Permit requirements if they were discharged to or above surface waters. The court found that the plain meaning of the term “biological materials” in the definition of “pollutant” did not require such material to be a “waste.” Therefore the court concluded that the application of any biological pesticide to jurisdictional waters from a point source whether it left a residue or not required an NPDES Permit.

            C.        Aftermath of Nat’l Cotton Council.

            EPA has requested a two-year stay of the ruling to allow the agency sufficient time to develop a general NPDES Permit authorizing pesticide application on, near or above surface waters. Industry parties may seek rehearing or request review of the ruling before the United States Supreme Court. A change in the Clean Water Act is also possible but seems unlikely in the current political environment. At this point it is clear that any chemical pesticide that is applied to or above waters from a point source that leaves any type of chemical residue in the water requires an NPDES Permit. Also the application of any biological pesticide to or above waters from a point source also requires an NPDES Permit. 

For those who are not familiar with actually obtaining an NPDES Permit from EPA, it is no simple task. For example, it is not unusual for EPA to take years to issue an NDPES Permit for a new facility or years to reissue an NPDES Permit for an existing facility whose permit has expired. Most states (approximately forty-six states) issue NPDES Permits in lieu of EPA. Often state permitting decisions are faster than EPA, but not always. General permits are authorized for certain categories of discharges. See 40 CFR § 122.28. Typical general permits issued by EPA include stormwater discharges from construction sites, stormwater discharges from industrial facilities, and discharges from confined animal feeding operations. States often mirror EPA general permits in administering state programs. 

Because of the varied water applications of various pesticides, insecticides, and fungicides to and near waters throughout the United States, it is likely that issuance of a general permit covering all of these activities will be a challenge, which explains EPA’s request to stay the decision for two years. Likely permit conditions will include instream monitoring and a variety of pesticide application management practices. No matter what happens to EPA’s stay request or any further appeals by industry, one thing is certain: the regulatory uncertainty under the Clean Water Act associated with pesticide applications to or near waters over the past seven years will continue.

U.S. EPA Issues Precedent-Setting Stormwater Decision

Posted on April 20, 2009 by David Van Slyke

On December 5, 2008, the U.S. EPA Region 1 announced that it would use its “residual designation authority” under Clean Water Act Section 402(p)(2)(3) to regulate owners of properties that discharge storm water into a three square mile urban watershed located within a major commercial center near downtown Portland, Maine. Landowners with one acre or more of existing “impervious surface” in the Long Creek watershed, such as parking lots, roads, and rooftops, will be required to obtain storm water permits under the National Pollutant Discharge Elimination System (NPDES).  The EPA decision was prompted by a March 6, 2008 petition from Conservation Law Foundation (CLF) asserting that certain storm water dischargers be required to obtain NPDES permits.  


The Long Creek Decision Reflects a Major Shift in EPA policy

The Long Creek decision, which closely follows a related decision announced by EPA Region 1 regarding the Charles River watershed in Massachusetts , represents a major shift in EPA policy.  For the first time, EPA is regulating runoff from parking lots and other impervious cover at existing commercial development (such as big box stores). EPA agreed with CLF that the percentage of impervious cover relates directly to storm water watershed degradation and that land development and associated impervious surfaces are a major source of water quality issues in impaired waterbodies such as the Long Creek and Charles River watersheds.

How will this change affect watershed landowners?

Under the program delegated to the Maine, DEP will now be regulating and issuing stormwater permits to all Long Creek watershed landowners meeting the one acre impervious cover threshold.  While storm water from new construction has been regulated by DEP under its existing stormwater rules, EPA’s Long Creek decision means that for the first time, Maine will impose stormwater permitting requirements for impervious cover on previously unregulated existing development.  

What are the requirements for watershed permittees?

EPA solicited public comment on its Long Creek RDA decision via a December 31, 2008 Federal Register Notice. The public comment period closed February 17, 2009; two public comments were recorded. Finalization of the decision is not expected until at least July 2009.

The precise scope of the requirements for prospective permittees will not be known until Maine DEP finishes its rulemaking; a draft rule regarding the new program will not be released until EPA issues its final decision.  However, it can be anticipated that landowners will have to control and treat storm water runoff from their parking lots, roads and roofs, develop and maintain various structural improvements and retrofits, monitor watershed conditions, and use best management practices at their properties.

Entergy Corp. v. Riverkeeper, Inc.

Posted on April 1, 2009 by Theodore Garrett

The Supreme Court upheld EPA’s decision not to mandate closed-cycle cooling systems, or equivalent reductions, for cooling water intake because the cost of closed-cycle would be nine times the estimated cost of compliance and because other technologies could approach the performance of closed-cycle operation. Entergy Corp. v. Riverkeeper, Inc., ___U.S. __(No. 07-588, April 1, 2009). EPA’s view that "best technology available for minimizing adverse environmental impact" allows consideration of the technology’s costs and of the relationship between those costs and environmental benefits is a reasonable interpretation of the statute, the Court held. When Congress wished to mandate the greatest feasible reduction in water pollution, it used plain language. The court noted that even respondents recognize that some comparison of costs and benefits is permitted.  It remains to be seen whether the impact of the decision will be limited to Section 316 of the Clean Water Act or whether it will be relied on to support the proposition that EPA may consider costs and benefits in other contexts where not expressly precluded by statute.

Native American Water Rights in Oklahoma

Posted on March 9, 2009 by Linda C. Martin

The ownership of the Illinois River and its watershed in Oklahoma is currently at issue in Federal Court in the Northern District of Oklahoma in a case brought against the poultry industry. State of Oklahoma v. Tyson Foods, inc., et al., Case No. 05-CV-329-GFK (PJC). 

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 a result of the disposal of  poultry litter in the watershed. The suit alleges claims under CERCLA, RCRA and nuisance, among other things. The poultry companies assert that the State has no standing to sue because, in this geographic area, under applicable treaties the natural resources (including the water in the Illinois River) are owned exclusively by the Cherokee Nation and not the State of Oklahoma. The defendants’ argument relies heavily on Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970), which held that under various treaties, the Cherokee, Choctaw and Chickasaw Nations own fee title to the land, minerals, sand and gravel in and under the bed of the Arkansas River in Eastern Oklahoma. 


The Attorney General asserts that the State of Oklahoma is the exclusive owner of the stream water, not the Cherokee Nation, and relies on the laws and authorities which prescribe the rights and privileges of a new state. The State also claims under other cited authorities that even if it does not hold exclusive ownership of the water in the Illinois River, neither does the Cherokee Nation. The Cherokee Nation is not a party and has not filed a motion to intervene in the case.


Because of treaty similarities, a decision on this issue by the Tulsa Federal Court could well determine the ownership rights of all the Five Civilized Tribes, not just the Cherokees, as to water in any stream or river within or abutting the boundaries of the lands included within their original treaty grants. Thus, it could affect the ownership of stream water in approximately half of the State of Oklahoma. It could further have a significant impact on both development of the Oklahoma Comprehensive Water Plan now in progress, and the issue of who has the right to sell water to both in‑state and out‑of‑state purchasers (i.e., Texas).

More Clean Water Act Citizen Suits on the Way?

Posted on January 20, 2009 by Fournier J. Gale, III

At least in the Southeast, the popularity of Clean Water Act citizen suits has waxed and waned over the course of the Act’s 37 year history. However, our firm’s environmental practice group began to see a renewed interest in citizen suits a couple of years ago, and a recent decision by the Eleventh Circuit Court of Appeals may lead to an even greater resurgence.


In Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, the Eleventh Circuit held that a citizen suit may proceed against a defendant for alleged violations of the Clean Water Act despite the state environmental agency’s commencing an administrative enforcement action before the citizen suit was filed. 548 F.3d 986 (11th Cir. 2008). Riverkeeper, an environmental organization supporting the preservation of the Black Warrior River watershed in Alabama, filed suit in 2007 against Cherokee Mining, an owner and operator of two coal mines in northern Alabama, for alleged illegal discharges to navigable waters in violation of the company’s permit. Pursuant to the Act, Riverkeeper first sent Cherokee Mining a “60-day notice letter,” notifying the company of its intent to file suit in federal court. The state environmental agency then commenced enforcement by issuing an administrative consent order, and Riverkeeper filed its suit in the Northern District of Alabama shortly thereafter.


            Cherokee Mining filed a Motion to Dismiss Riverkeeper’s suit for lack of subject matter jurisdiction under Section 309 of the Act which precludes citizen suites when a state agency has commenced and is diligently prosecuting an administrative enforcement action against a defendant. Riverkeeper responded by pointing to what until now has been a largely overlooked provision in Section 309 stating that the citizen suit bar does not apply to actions filed after a citizen gives its notice of intent to sue prior to commencement of an administrative enforcement action and the citizen actually files suit “before the 120th day after the date on which such notice is given.” 33 U.S.C. § 1319(6)(B)(ii). Based on language found elsewhere in Section 309, Cherokee Mining argued that this 120-day exception only applies to federal, not state, administrative enforcement actions. The district court rejected this argument and held that Riverkeeper’s suit could go forward because it met the Act’s notice of intent to sue requirements. Holding that Cherokee Mining’s interpretation of the statute “was an extremely cramped and narrow reading of the ordinary and plain meaning of the relevant language” in the Act, the Eleventh Circuit affirmed the district court’s decision. Cherokee Mining petitioned the Court for panel or en banc rehearing, and the petition was denied on January 8, 2009. There has been no word yet as to whether Cherokee Mining plans to appeal the case to the U.S. Supreme Court.


            Until now, no Circuit Court has ever addressed the 120-day rule on which Riverkeeper successfully relied as an exception to the bar on citizen suits filed after the commencement of state administrative enforcement actions. Prior to the Eleventh Circuit’s decision, state agencies routinely initiated successful administrative enforcement actions once notified of a citizen suit, and the citizen either did not file suit or had their case dismissed pursuant to Section 309 of the Act.  Certainly for companies operating in Alabama, Georgia, and Florida, the rules have now changed. Entities faced with both a citizen suit and state administrative enforcement action have a much lower incentive for resolving the matter by coming into compliance and paying state penalties when they may be required to later pay citizens’ attorneys fees and Clean Water Act statutory penalties (up to $32,500 per day per violation) or even be required to comply with court-ordered injunctive relief that may be at odds with whatever the state would have required. Because state environmental agencies recognize the dilemma regulated entities face as a result of this decision, states are also going to have to alter their strategies in dealing with potential noncompliance of clean water regulations by industry. Because administrative consent decrees will be less palatable to regulated entities, the state will have to weigh whether or not to go to the added expense (in terms of dollars and resources) of filing a lawsuit in state court.


            This state of affairs is not likely to go unnoticed by citizen groups throughout the country. As counsel for Riverkeeper stated after the Court issued its opinion—“this changes everything.” With the increase in “60-day notice” letters we’ve seen being sent to entities just in Alabama in the last few months, it’s hard to disagree.


For more information, a copy of the Eleventh Circuit’s decision can be found at

Oregon Water Developments

Posted on November 30, 2007 by Rick Glick

Oregon Governor Ted Kulongoski has announced that water will be among the top three priorities for the 2009 legislative session. During the interim, here are some developments to track:

            Oregon Oasis Project

            During the 2007 legislative session, agricultural interests in northeast Oregon proposed the Oasis Project, a bill (H.B. 3525) to withdraw up to 500,000 acre-feet of water per year for 25 years from the Upper Columbia River (above Bonneville Dam) for irrigation purposes. The Oasis Project was offered as a solution to shrinking water supplies for high value agriculture in eastern Oregon and to provide a measure of equity relative to Columbia water use by Oregon’s neighbors. 

            Of the total river flow of 198 million acre-feet per year, irrigated agriculture withdrawals comprise 6.93%. Of that amount, Idaho withdraws 52.5%, Washington 32.8%, Montana 7.3% and Oregon 7.4%. If the Oasis Project were to be implemented, its share of water drawn from the Columbia would increase to 9.25%. 

            The reason that Oregon’s share is relatively small is that the state placed a “temporary” moratorium on such withdrawals in 1994 that remains in place to this day. In December 1993, the four Northwest governors signed a letter suggesting that the states defer to the Northwest Power Planning Council for proposing a cooperative policy for salmon recovery with federal agencies. In a January 6, 1994 letter, Oregon’s representatives to the Northwest Power Planning Council requested that the WRD adopt rules temporarily restricting use of Columbia River water. This “temporary” moratorium has lasted 13 years. In the meantime, Washington has actively encouraged new irrigation in the Columbia basin and continues to do so. The 500,000 af/y withdrawal proposed by the Oasis sponsors represents about 0.0025% of the total river flow.

            Of the total diversion from the Columbia that Oasis would authorize, 195,000 would be devoted to replacing depleted ground water supplies for irrigation of 65,000 acres. 300,000 acre feet of “new” water would be used to add 100,000 acres under cultivation. 5,000 acre feet would be available for municipal use. A fee of $10 per acre-foot of new water would be used by the WRD to develop and manage instream water conservation projects in collaboration with the Warm Springs and Umatilla tribes. 

            H.B. 3525 failed to pass in 2007, but the bill’s sponsors continue to be hopeful of ultimate success. In the meantime, they are exploring other alternatives. Prime among them is withdrawing Columbia River water during the winter months for aquifer storage and recovery (ASR). ASR, if feasible, could replenish the critical ground water areas and provide a sustainable water source for many years. A bill is being proposed for the interim 2008 legislative session to fund a feasibility study of this approach. Another potential alternative is to establish a regional water bank to facilitate cooperative use of the resource. Scoggins Dam Raise and Title Transfer Project

            A consortium of Portland area municipal water and sewer utilities are joining together to form the Tualatin Basin Water Supply Project Partnership, comprised of Clean Water Services, Tualatin Valley Water District (TVWD), Tualatin Valley Irrigation District (TVID), Washington County, Lake Oswego Corporation and the Cities of Beaverton, Hillsboro, Tigard, and Forest Grove.  The partnership is working to secure future water supplies for environmental and community needs. Clean Water Services is a county service district that provides sanitary sewer service and urban surface water management to a 123 square mile area within Washington County, Oregon. The population served is approximately 470,000 within the 12 member cities and unincorporated county areas, one of the fasted growing areas in the state.

            The Project seeks to provide an additional 52,000 acre-feet of water for multiple uses in the Tualatin Basin through title transfer of the federal Tualatin Project to a local entity, a raise of Scoggins Dam and construction of a raw water pipeline.  The partnership and the U.S. Bureau of Reclamation will jointly fund the Project. Currently, the partnership is pursuing federal funding from Reclamation to complete a Planning Report/Draft Environmental Statement and is exploring the possibility of transfer of title of the physical facilities associated with the Tualatin Project.

            Oregon Water Supply and Conservation Initiative

            The Oregon Water Resources Department has launched and the 2007 legislature appropriated funds to create a means of identifying Oregon water needs and potential solutions. It is the first major statewide planning action for future water resources in a very long time. 

            The Oregon Progress Board’s State of the Environment Report (2000) noted that one of the state’s major environmental challenges is inadequate water supply. That is the impetus for the Oasis and Tualatin projects described above. Surface waters in most of Oregon during non-winter months are fully appropriated by existing out-of-stream and instream uses. Ground water resources are showing signs of overuse and are becoming unstable in many areas. Conflicts between instream and out-of-stream needs, exacerbated by listings of aquatic species under the Endangered Species Act, have become increasingly divisive and expensive to resolve.  The Initiative consists of five key components:

(1)   Assessment of existing and future water needs in Oregon

(2)   Completion of a statewide inventory of potential storage sites;

(3)   Statewide analysis of conservation opportunities;

(4)   Completion of a statewide investigation of basin yield estimates;

Match funding for community-based and regional water supply planning.