Sorry, The Pollywogs Win and Your Crops Lose

Posted on February 3, 2015 by James Palmer Jr.

Lawyers who regularly practice in the realm of the Clean Water Act (the “Act”) well know that the fight causing the most widespread panic in the regulated community for many months has been the joint proposal by EPA and the Corps of Engineers to amend the definition of “Waters of the United States.”  Even though the agencies jointly withdrew the proposal on January 29, 2015, water lawyers and their clients shouldn’t let their guards down, because another inevitable regulatory slugfest is coming, and it will be over water use. 

In its original form in 1972, the Act contained a concise “savings clause”   that was intended to keep EPA from meddling with the authority of the States to determine how water resources will be allocated for beneficial uses. Section 510(2) simply states:  “Except as expressly provided in this chapter, nothing in this chapter shall be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.” 

Wyoming Senator Malcolm Wallop became very concerned that the Section 510(2) “shield” wasn’t strong enough to protect the States, so he successfully led to passage in the 1977 amendments to the Act a much more robust policy statement, which was codified as Section 101(g), as follows:

It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources. 

On its face, the Wallop Amendment appears to be “bulletproof,” but at best  it’s really just “bullet resistant.” On November 7, 1978, EPA Assistant Administrator for Water and Waste Management Thomas Jorling and General Counsel Joan Burnstein issued to all Regional Administrators an “interpretive memorandum,” which concluded that the Wallop Amendment does not absolutely prohibit legitimate use of the Act for water quality purposes, even if water rights and water usages allowed under State laws are negatively affected.  While noting that Section 510(2) remained unchanged in the 1977 amendments, Jorling and Burnstein grounded their legal analysis principally in passages from Senator Wallop’s floor statement in support of his proposed amendment. Specifically, Senator Wallop acknowledged that implementation of water quality standards requirements, among other major features of the Act, might “incidentally” affect individual water rights, and that the purpose of his amendment was “to insure that State allocation systems are not subverted, and that effects on individual rights, if any, are prompted by legitimate and necessary water quality considerations.”

So, thus was born what could loosely be called the “legitimate and necessary” test for determining what is, or is not, an “incidental” effect on State-conferred water rights resulting from implementation of water quality programs arising under the Act. But, without further definition, the scope of this determination brings to mind another (and historic) subjective test – the language in the 1964 Supreme Court decision in the Jacobellis obscenity case, in which Mr. Justice Potter Stewart, in his Concurring Opinion, wrote: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it….”

In 1994, the Supreme Court essentially applied the Wallop Amendment test  in its P.U.D. No. 1 vs. the Washington Department of Ecology decision.  There, as a condition for the issuance of a Water Quality Certification under Section 401 of the Act, the State required a proposed hydroelectric dam to pass through certain minimum flows to protect downstream fisheries.  In holding for the State, the Court cited Senator Wallop’s floor statement and summarily rejected the argument that Sections 101(g) and 510(2) limit the reach of the Act to water quality issues only.

Considering the legislative history of the Wallop Amendment, the 1978 Jorling-Burnstein interpretive memorandum, and the Supreme Court’s decision in  the 1994 P.U.D. No. 1 case, there is understandable angst that EPA (or anybody else, for that matter) will use one or more of the three bedrock water quality factors in Section 101(a) of the Act (i.e. chemical, physical, and biological) as offensive weapons to limit or block State water allocation proposals.  Simply put, the scientific premise would be that instream ecosystems can be degraded by depleting flows below the point at which sustainability of these resources is compromised, thus causing or exacerbating a violation of the biological component of the established water quality standards at the proposed point of withdrawal.  (Of course, antidegradation requirements would also be in play.)

On January 7, 2015, EPA sent to the Office of Management and Budget for regulatory review the proposed Final Rule in the recent Water Quality Standards Program rulemaking, and EPA projects that the Final Rule will be published in May 2015.  To say the very least, these major changes will make even more vexing the already difficult quantity-quality, federal-state tensions over how water use allocation decisions are made at the State level.

To close this review, it must be noted that, as mentioned in the 1978 Jorling-Burnstein interpretive memorandum, some States have water allocation programs in which the impacts on water quality of a proposed withdrawal must be carefully considered.  For example, in Mississippi, the statute authorizing the issuance of surface water withdrawal permits explicitly states: “No use of water shall be authorized that will impair the effect of stream standards set under the pollution control laws of this state based upon a minimum stream flow.” An appropriate case in point arose in early 2014, when a permit was sought to withdraw significant volumes of water for row crop irrigation purposes from a major stream in the Mississippi Delta.  A citizens group opposed the permit proposal, contending that further withdrawals from that particular stream should not be allowed until a biological sustainability study was performed and then used as the ultimate determinant in considering applications for additional withdrawals.  The citizens group and the applicant for the permit struck a compromise, but the fundamental questions about the impacts of such withdrawals on water quality remain.

Given the extended droughts in certain regions of the United States in recent years, the ever tightening laws and regulations governing both water quantity and water quality, and the reality of growing demands for water seemingly everywhere, “water wars” (both intrastate and interstate) will likely erupt more frequently as time goes by.  And, in those States that have little or no statutes, regulations, and administrative procedures to work with, the fundamental questions for individuals and organizations (public and private) who want to oppose proposed water withdrawals, regardless of the intended beneficial use, will be what forum to use and what principles of law to assert. One thing is certain – seasoned water lawyers will likely see more business coming their way.

The Ghost of Offshore Boundaries Past

Posted on July 24, 2013 by James Palmer Jr.

At the 2013 Offshore Technology Conference in Houston, nobody was really surprised to hear Gulf Coast and Alaska Governors calling for an expansion of offshore drilling activity and streamlined permitting processes.  But, more than a few were probably surprised to hear the Governors of North Carolina, South Carolina, and Virginia echo the same sentiments, especially because drilling activity offshore these three states is currently banned by Presidential edict.
 
As the post-BP offshore drilling debate marches on, there just might be some interesting wrinkles down the way between and among the allied states that support a resurgence of seaward exploration and production operations.  One possibility deserves a passing note.
 
During its 2011 Regular Session, the Louisiana Legislature passed, and the Governor signed into law, Act No. 336, which extended the offshore boundary of the State from the current three geographical (nautical) miles to three marine leagues (nine geographical miles), as measured from the coastline.  At its June 2012 meeting, the Louisiana Wildlife and Fisheries Commission followed suit by formally adopting the legislative mandate and conforming its marine regulatory jurisdiction accordingly.  The new boundary created by Act No. 336 by its terms is subject to recognition by Congress or the courts.
 
While a Louisiana official was quoted in the media afterwards as saying that Mississippi and Alabama should join Louisiana and launch the same initiative against the federal government, the Mississippi Commission on Marine Resources, at its July 2012 meeting, adopted a Resolution opposing the action of its Louisiana counterpart.  Thus, the issue was joined at that point, at least at the state agency level.  But, not to be outdone in statutory law, the Mississippi Legislature, in its 2013 Regular Session, amended Section 3-3-1, Mississippi Code of 1972 Annotated, through the adoption of HB 1072, which mimics the 2011 Louisiana legislation by extending the boundary of Mississippi offshore territorial waters from three geographical miles to three marine leagues.  This legislation became effective on July 1, 2013.
 
For perspective, a history lesson is necessary.  In a stunning decision in 1947, followed by two more in 1950, the United States Supreme Court decreed that coastal states have no claim to any submerged lands offshore.  Because these decisions directly impacted not only the states along the Atlantic, Pacific, and Gulf Coasts, but those along the Great Lakes, as well, the adverse reaction to them was swift and strong.  After several years of wrangling, Congress passed the Submerged Lands Act (the Act) in 1953 to undo what the Supreme Court had done.
 
Of the three major components of the Act (i.e. lands under navigable inland waters; tidelands; and lands under the open sea), the centerpiece is a Congressional grant of state title to, and jurisdiction over, certain offshore areas.  Specifically, states along the Atlantic and Pacific Coasts were granted submerged lands extending three geographical miles seaward of their respective coastlines.  The Great Lakes States were granted submerged lands extending to the international boundary.  States along the Gulf of Mexico were granted submerged lands extending not less than three geographical miles nor more than three marine leagues seaward of their respective coastlines. 
 
But, there the Congress stopped.  Except to define the term "coastline" as "the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters," the law gives no specific geodetic references or methodologies for its delimitation.  And, the ultimate decision regarding the respective offshore domains of the five states bordering the Gulf of Mexico was left to be determined by the courts. Simply put, the Act thus set the stage for more court battles to follow.

In 1960, the Supreme Court determined that the Submerged Lands Act boundaries for Louisiana, Mississippi, and Alabama should extend three geographical miles seaward from their respective coastlines.  The Court further determined that the Submerged Lands Act boundaries for Texas and the Gulf Coast of Florida should extend three marine leagues seaward from their respective coastlines, because of the different histories of admission to the Union of these two states.   But, as with the Congress, the Supreme Court made no attempt to delimit the respective "coastlines" for any of the five Gulf Coast states, which inevitably led to even further protracted litigation.
 
Following the 1960 Supreme Court decision, several bills were introduced in the Congress to amend the Act to specifically grant to Alabama, Mississippi, and Louisiana submerged lands extending three marine leagues from their respective coastlines.  These efforts failed.

The next eruption of litigation targeted the Mississippi Sound.  In April 1971, the United States for the first time publicly disclaimed the inland-waters status of Mississippi Sound by publishing a set of maps depicting several irregularly shaped polygons between the mainland and the barrier islands that were denoted "enclaves of high seas," the submerged lands underlying them thus belonging to the federal government.  The States of Mississippi and Alabama were once again launched into litigation against the United States. 
 
In 1985, the Supreme Court trounced the federal government by adopting the Special Master's determination that Mississippi Sound constitutes a "historic bay" and thus is inland waters in its entirety.  Further, the Court also adopted the Special Master's determination that the "coastline" is the line of ordinary low water on the south shore of the barrier islands.  The Court then directed the parties to prepare a proposed final decree and submit it to the Special Master for consideration by the Court.  This process, which took another seven years, involved Supplemental Decrees in which the baselines for establishing the coastlines of both Alabama and Mississippi, described using point-to-point geodetic coordinates, were approved by the Court and set out in the decrees.
 
Thus, the three-geographical-mile offshore submerged lands boundary for these two states, granted under the Act and subsequently established by the Supreme Court in its 1960 decision, was then precisely determinable.  At last, in 1992, after over three decades of fighting over the federal-state submerged lands boundary for Alabama, Mississippi, and Louisiana, the Supreme Court put the matter to rest – until now.
 
Whether or not the 2011 Louisiana legislation and/or the 2013 Mississippi Legislation will actually lead to any changes in the current offshore submerged lands boundaries of these states remains to be seen.  As already noted, attempts over a half century ago to accomplish the same objective as that of Act No. 336 and HB 1072 failed.

Quite obviously, both Alabama and Texas have considerable vested interests in the actions now taken by their neighboring states.  Less obvious, though, is the prospect that, if Congressional action is mounted in furtherance of either Act No. 336 or HB 1072, nobody should be surprised if any of the East Coast or West Coast states (or Alabama), which were also granted three-geographical-mile offshore submerged lands boundaries under the Act, might be heard to say, "Me, too."