WHO IS IN CHARGE HERE?

Posted on May 26, 2016 by Kevin Beaton

Until recently I thought state water quality agencies with oversight from EPA were in charge of setting water quality standards, establishing mixing zones and similar activities.  However, the National Marine Fisheries Service (NMFS) and the United States Fish and Wildlife Service (USFWS) has recently served notice that they are the new water quality sheriffs in the Northwest.

It is well known that the Endangered Species Act (ESA) is a comprehensive statute designed to protect and recover species that are listed as threatened or endangered by the USFWS and the NMFS (collectively referred to as "Services").  One of the key provisions in the ESA is 16 USC § 1636 (or Section 7) which requires federal agencies to utilize their authority to conserve endangered species and "consult" with the Services whenever any discretionary action by the acting federal agency has the potential to negatively affect listed species.  Many no doubt recall the decision in TVA v. Hill, 437 U.S. 153 (1978), in which the Court determined that Section 7 required the acting federal agency to halt construction of an almost completed major federal dam in Tennessee (Tellico Dam) because it would undisputedly eradicate the listed species ("snail darter" or perch), destroy its critical habitat and therefore completion of the dam would clearly violate Section 7.                                                                                                                        

What constitutes "jeopardy" and destruction of critical habitat under the ESA has come a long way since TVA v. Hill.  The ESA gets a lot of play in the Northwest principally because there are large tracts of undeveloped federal land, human population is relatively sparse and pristine waters combine to provide habitat for many listed aquatic species such as various species of salmon.  In one of the latest iterations of what constitutes "jeopardy" the Services recently determined in lengthy biological opinions that EPA's approval (some twenty years ago) of Idaho's Water Quality Standards for certain toxic metals would jeopardize the continued existence of listed species and destroy or adversely modify critical habitat. 

There is a question whether EPA approval of state water quality standards pursuant to § 303 of the CWA is the type of discretionary action that even triggers ESA consultation.  See National Association of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007) (Section 7 consultation not required when EPA authorizes state to take over the NPDES permit program under § 402 of the CWA).  Assuming consultation is required, certainly there had been a lengthy delay in EPA and the Services completing consultation on Idaho Water Quality Standards (over twenty years).  This delay gave rise to a lawsuit brought by regional environmental groups to force completion of the consultation.  See Northwest Environmental Advocates v. The National Marine Fisheries Service, USDC Idaho, Case No. 1:13-cv-00263-EJL. 

But, how can a water quality criteria jeopardize the existence of an endangered species?  Water quality standards under the CWA are goals set by each state for state surface waters.  NPDES Permits must meet state water quality standards and if a waterbody is not meeting standards then states must adopt pollution control plans (known as "TMDLs") to bring a waterbody into compliance also subject to EPA approval.  Adoption of criteria itself cannot jeopardize endangered species or for that matter save a species.

If one has the fortitude to power through the Services lengthy biological opinions, which were not subject to public comment, there is no finding that state standards at or below the current criteria are actually harming any fish in the thousands of miles of streams and rivers affected by the opinions.  Rather the Services take exception to the somewhat esoteric process by which EPA develops national recommended water quality criteria (which most states ultimately follow).  The Services found EPA should have relied on different laboratory studies in developing and approving criteria.  Many of the laboratory studies the Services relied upon do not even involve listed species.

The Services then suggested that EPA must adopt replacement criteria (or force the state to do so) over the next few years via reasonable and prudent alternatives (or RPAs) to avoid the alleged jeopardy.  An RPA are measures "suggested" by the Services under Section 7 to the action agency (EPA) to avoid jeopardy which are within the discretion of the action agency and are economically and technically feasible.  In the meantime the Services suggested as an interim measure how EPA should regulate point source dischargers into waters containing listed species by meeting certain prescribed mixing zones.

While the Services’ jeopardy determinations on Idaho's standards are a far cry from jeopardy to the snail darter caused by the construction to the Tellico Dam many years ago, the Services’ findings may go unchallenged.  It is likely EPA will follow the RPA's (or force the state to do so) for fear of another lawsuit that EPA is violating its obligations under Section 7.  Likely the only remedy to question the Services’ jeopardy determinations may be a judicial challenge to the Biological Opinions.  However in such a challenge a court would be forced to evaluate the "science" behind the Services’ jeopardy determinations which is an area the courts generally will defer to the expertise of the agency.  One would think that EPA or state water quality agencies would be the experts on setting water quality standards and establishing mixing zones, but the Services will no doubt claim they are now the experts.  Sometimes it is difficult to figure out who is in charge.

USEPA Proposes Revisions to the Water Quality Standards Program Under the Clean Water Act

Posted on October 23, 2013 by Kevin Beaton

On September 4, 2013 EPA published proposed changes to its Water Quality Standards Rule at 40 CFR Part 131 (WQS Rule).  The proposal is styled “regulatory clarifications” but the proposal represents the most significant changes made to the WQS Rule in some thirty years.  The WQS Rule currently sets forth the minimum conditions that must be met in each State’s or Tribe’s water quality standards before EPA can approve them under the Clean Water Act (CWA).  Increasingly over the years, state water quality standard decisions have been the driver behind required stringent permit limits in NPDES Permits, TMDLs for impaired waters and lawsuits against EPA.  The proposed rule is mostly an attempt to codify exciting EPA guidance and practices to ensure national consistency and “transparency.”  Many of the proposed changes were generally discussed in EPA’s Advance Notice of Proposed Rule Making (ANPRM) on water quality standards published in 1998 and many come from the Great Lakes Water Quality Guidance at 40 CFR Part 132.

First EPA is proposing to amend the use attainability analysis (UAA) requirements found in the current rule to now require a state or Tribe to identify the highest attainable use (HAU) and the water quality criteria to protect the HAU in any UAA.  A UAA is a structured analysis a State or Tribe can undertake to attempt to demonstrate to EPA that the so called “fishable and swimmable” uses required under the CWA are not attainable based on a number of factors.  These factors include low flows, natural or physical conditions, human caused conditions which cannot be remedied, dams, or because controls to achieve attainment would be too expensive.  At least in the Northwest, EPA have been very reluctant to approve UAAs because the agency has a “rebuttable presumption” that fishable uses and swimmable uses are attainable (some might call it an irrebuttable presumption) and implicitly that it is never too expensive to remedy water quality problems.  Requiring states and Tribes to also adopt a new HAU in connection with a UAA along with associated criteria may make the UAA an even less viable CWA off-ramp.

Speaking of off-ramps, the proposed rule also sets forth the conditions under which a state or Tribe can adopt “variances” to water quality standards for individual or groups of NPDES permittees.  Variances are merely referenced in the current WQS Rule and have been viewed as a “UAA lite.”  Variances are codified in water quality standards (subject to approval by EPA) and allow individual dischargers or groups of NPDES Permits to temporarily exceed water quality based effluent limits based on the same factors which justify a UAA.  EPA articulates in the proposal that it believes variances have been underutilized and therefore sets forth the conditions which the Agency will grant variances for an individual or groups of NPDES permittees.  (e.g. Demonstrate temporary unattainability, maximum timeline of 10 years and protect the HAU during the variance.)  Whether the proposal will lead to more variances may be doubtful.  EPA has typically been unwilling to approve variances for industrial or commercial dischargers (although they are more flexible with municipalities) because pollution controls to meet WQS are seemingly never too expensive.

As my colleague Patricia Barmeyer notes in her recent post, the proposed rule also proposes changes to antidegradation implementation procedures that are somewhat consistent with current practices and guidance by providing some flexibility in how states protect high quality waters and a specific requirement that states must first require dischargers to implement “practicable” pollution controls that minimize or eliminate any degradation to high quality before allowing the discharge.  “Practicable” is not defined but if this term is implemented in the same way as proving economic hardship in a UAA or variance then new and increased discharges could be subject to additional (and expensive) hurdles in going through antidegradation reviews.  Finally, the proposed rule addresses compliance schedules in NPDES permits consistent with current practice and specifies the conditions under which the EPA Administrator will make determinations that a water quality standard does not meet the requirements of the CWA.  Comments on the proposed rule are due on December 3, 2013 (unless an extension is granted).

Water Quality Trends in the Northwest (Fish Consumption Rates)

Posted on July 9, 2012 by Kevin Beaton

The criterion to protect human health found in state water quality standards under the Clean Water Act are getting more stringent in the Northwest.  This is occurring because people in the Northwest supposedly eat more fish from Northwest waters than other parts of the country.  The esoteric standard setting process to protect people from toxic pollutants in surface waters is premised upon numerous risk based assumptions which include the amount of surface water an average person consumes combined with the amount of fish consumed from such waters.  The more water and fish people consume the more stringent the criteria becomes.  EPA establishes national defaults for states to use in their human health standard setting process for both water ingestion and fish consumption rates (“FCR”).  The national recommended FCR is 17.5 g/day.  A detailed description of the standard setting process can be found in EPA’s Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (2000).

Until recently, use of the EPA default FCR was acceptable in the Northwest.  However the state of Oregon recently adopted (and EPA approved in 2011) a FCR ten times higher than the national default.  The principal driver behind Oregon’s change was a FCR study funded by EPA in the 1990’s that evaluated the FCR of members of a number of Northwest Tribes in Oregon, Washington and Idaho.  See A Fish Consumption Survey of the Umatilla, Nez Perce, Yakima, and Warm Springs Tribes of the Columbia River Basin (CRITFC 1994). The CRITFC study showed that Tribal members consumed much higher rates of fish.

In May 2012, EPA disapproved Idaho’s human health criteria in Idaho’s water quality standards which were based on EPA’s national recommended default FCR.  EPA disapproved Idaho’s standard because the state did not “consider” the CRITFC study.  (Idaho believes it did consider the CRITFC study.)  EPA also questioned whether Idaho’s standards were protective of Oregon’s downstream standards.  Idaho now has 90 days to respond to EPA’s disapproval.  Meanwhile the state of Washington is in the process of reevaluating its human health standards and FCRs. Whether this trend moves into other states or other EPA regions remains to be seen.

One might legitimately ask whether this issue is nothing more than an academic exercise amongst toxicologists and risk assessors.  Ultimately the answer to that question is found in the Clean Water Act itself.  Roughly calculated, increasing the FCR ten times equates into the criteria for many toxic pollutants becoming ten times more stringent.  Under the Clean Water Act NPDES Permit limits must be established to meet these new criteria.  Under the new standards adopted by Oregon some of the toxic pollutants that are likely to present particularly challenging compliance issues for permittees will include mercury, PCBs and arsenic, as the presence of these pollutants are somewhat pervasive in Northwest waters.  In most instances, requiring permittees to implement costly pollution controls to attempt to achieve the new criteria at the end of the pipe will have minimal affect on achieving the new stringent standards in the receiving waters.  In light of EPA’s recent disapproval of Idaho’s standards, the state must now decide if it needs to amend its criteria or conduct its own fish survey statewide.  Untested legal issues are raised by EPA’s disapproval like whether a state must establish a state-wide FCR based on a very small percentage of the population or because a downstream state (Oregon) has decided to adopt more stringent criteria.  Like many increasingly complex issues under the Clean Water Act, these issues may have to be settled in federal court.

NUMERICAL EFFLUENT LIMITS IN STORM WATER DISCHARGE PERMITS

Posted on December 7, 2011 by Kevin Beaton

In recent years, the states and EPA have placed greater emphasis on regulating storm water discharges from various industrial and municipal sources under the Clean Water Act.  These discharges are typically regulated by a general NPDES Permit issued by EPA or an authorized state.  The standard approach required in these general permits is for a facility to develop a storm water pollution prevention plan (SWPPP) incorporating best management practices (BMPs) that will be followed to reduce pollutant impacts to storm water discharged from the facility.  Typically some type of periodic monitoring is required during storm events.  The monitoring can be just visual monitoring and less frequently chemical analysis of certain pollutants associated with the particular industry.  In lieu of numerical effluent limits, typically the general permit will establish “benchmark levels” for industry specific pollutants that are not to be exceeded.  If a benchmark level is exceeded, the facility is required to undertake and document corrective measures to address the problem.  Typically corrective measures involve modifications to BMPs.  Unlike a numerical effluent limit in non-storm water NPDES permits, benchmark levels are not enforceable effluent limits under the Clean Water Act.  Therefore exceeding a benchmark level by itself does not subject a facility to an enforcement action by EPA, an authorized state or a third party citizen suit.

Over the past five years there has been a significant increase in Clean Water Act storm water enforcement actions.  The emphasis has been on actions against the home construction industry as well as confined animal feeding operations (CAFOs).  The typical enforcement action has been focused on facilities that failed to obtain a required general permit or failed to comply with SWPPS and related paperwork requirements.  Also in the West we have witnessed a significant increase in third party citizen suits for violation of general storm water permits.

Over the past 15-20 years, the BMP approach in general permits has provided relative certainty of the requirements and ease of implementation for permittees.  EPA has taken the position, however, that the BMP approach to storm water permits is just a first phase in the program while the agency gathers data to support future actual numerical limits.  The future is now here.  An EPA Guidance document entitled “Guidance on Establishing TMDL Waste Load Allocations for Storm Water Discharges in NPDES Permits (EPA November 2010),” although not finalized, is already being implemented by EPA to establish numerical criteria. 

For those not familiar with “TMDLs” and “waste load allocations,” some brief background may be helpful.  The total maximum daily load (TMDL) program is dictated by Section 303(d) of the Clean Water Act.  The program requires states to identify impaired waters not meeting water quality standards and to then develop TMDLs to bring the waters back into compliance.  TMDLS are basically pollution reduction plans that identify the loading capacity (with a margin of safety) of a water body which is the level of particular pollutant causing the impaired condition that will bring the water body back into compliance with water quality standards.  The TMDL thus requires reductions of pollutant loading from both point sources (known as “waste load allocations” or “WLAs”) and nonpoint sources (known as “load allocations”).  Typical of Clean Water Act programs, the regulatory onus of complying with TMDLs falls on point sources through the NPDES permit program.  Nonpoint sources are not regulated by EPA and state nonpoint source programs are generally based on a non-regulatory approach.  Also typical of Clean Water Act programs involving water quality standards, a states’ identification of impaired waters and development of TMDLs are subject to EPA review, approval or disapproval.  In many instances EPA will actually develop a TMDL in the face of state inaction.

In the past storm water NPDES permits were often overlooked by the states and EPA in establishing TMDLs.  EPA’s recent Guidance makes clear that storm water permits will be considered when EPA reviews state TMDLs.  In fact the Guidance makes clear that it is EPA’s intent in approving TMDLS to ensure that numerical WLAs are included in general storm water NPDES Permits.  Although the Guidance suggests some flexibility in such an approach by stipulating that WLAs will only be included in storm water permits when “practical,” we all know that “practicality” is in the eye of the beholder.

Inserting WLAs into storm water permits raises a host of technical and compliance issues.  First, because of the variability of storm events it is often difficult to quantify the actual loading of pollutants from a particular facility.  Often times the data on such loading is lacking and is therefore based on modeling which may or may not predict actual conditions.  Thus if EPA implements this Guidance in storm water permits the cost and frequency of monitoring storm water discharges is likely to increase substantially.  Secondly, it is often very difficult to control the concentration or loading of a particular pollutant during storm events absent the installation of expensive wastewater treatment controls.  Thus the cost of compliance may increase substantially once this Guidance is implemented.  Finally, once WLAs or numeric effluent limits do find their way into general storm water NPDES permits, exceedence of these limits will subject facilities to EPA, state or third party citizen suits enforcement actions.

Despite these concerns, numerical limits or WLAs in storm water discharge permits appear to be the next wave of regulation.  Practitioners in this area should make sure that clients with regulated storm water discharges to impaired waters become involved in the TMDL development at the state level to ensure that they receive a reasonable WLA that can be consistently complied with and which will not be too costly to achieve.

IDAHO ADOPTS ANTI-DEGRADATION IMPLEMENTATION RULE

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.

CLEAN WATER ACT PERMITTING REQUIRED FOR PESTICIDE APPLICATIONS

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.

SALMON WARS IN THE PACIFIC NORTHWEST

Posted on November 24, 2008 by Kevin Beaton

Each year thousands of salmon and steelhead protected under the Endangered Species Act (“ESA”) migrate up and down the Columbia River and its tributaries and into the Pacific Ocean as part of the species’ cycle of life. Seemingly, each year armies of lawyers migrate to federal court to argue whether the federal government is carrying out its obligations to protect these species under the ESA. “As part of the modern cycle of life in the Columbia River system, each year brings litigation to the federal courts of the Northwest over the operation of the Federal Columbia River System (“FRCPS”) and, in particular, the effects of system operation on the anadromous salmon and steelhead protected by the Endangered Species Act.” National Wildlife Federation v. National Marine Fisheries Service, 422 F.3d 782 (9th Cir. 2005).

            2008 is no exception as the National Wildlife Federation, the state of Oregon and the Nez Perce Tribe have again filed a lawsuit in the United States District Court of Oregon against the federal government for allegedly failing to carry out their obligations under the ESA in the operation of the FRCPS. The precipitating event for the 2008 lawsuit, is a 2008 Biological Opinion authored by NOAA Fisheries pursuant to Section 7 of the ESA opining that if the action agencies, the U.S. Army Corps of Engineers (“COE”) and U.S. Bureau of Reclamation (“BOR”) carry out a comprehensive reasonable and prudent alternative (“RPA”) then jeopardy to the listed species and adverse modification to critical habitat will be avoided.

 

The portion of the FRCPS that is at issue in the 2008 litigation is a series of fourteen (14) federal hydropower dams authorized by Congress on the Columbia and Lower Snake Rivers which are operated by the COE and BOR. Congress has directed that the dams are for multiple uses including providing power to the Northwest, irrigation, transportation, recreation, flood control and protection of fish. The stakes are high in the litigation, if some of the dams are substantially modified, or breached as some Plaintiffs are advocating, industries, rate-payers and communities reliant upon the multiple uses of the FRCPS will be significantly affected. Thirteen separate salmon and steelhead species that live out a portion of their life cycle in the Columbia River and its tributaries have been listed as endangered or threatened under the ESA.

            The federal government’s attempt to operate the FRCPS in compliance with ESA has been mired in litigation for some 15 years. The science and the law surrounding the FRCPS’ compliance with the ESA is complex. Like 2008, the precipitating event for past litigation has been a § 7 consultation between NOAA fisheries and the COE and BOR and a Biological Opinion (BiOp) and Incidental Take Statement. In recent litigation the federal government has not fared well. For example the 2000 BiOp found that the FRCPS operation did jeopardize certain listed species but that jeopardy could be avoided if off-site mitigation and hatchery initiatives were implemented. The court found the 2000 BiOp was invalid as NOAA could not rely upon off-site and non-federal actions that were not reasonably certain to occur as an RPA. See NWF v. NMFS, 254 F.Supp. 2d 1196 (D.Or 2003).

            The federal government tried again with a 2004 BiOP which found no jeopardy to listed species and no adverse modification to critical habitat. The 2004 BiOp was different from prior BiOps in so far as NOAA Fisheries attempted to segregate the effects of the existence of the 14 dams from the operation of the dams claiming that only the operation of the dams was discretionary and subject to Section 7 consultation. The lower Court struck down the 2004 BiOp on a variety of grounds finding that NOAA improperly separated the existence and operation of the dams in their § 7 consultation, NOAA did not properly take into consideration how the operation of the dams would affect recovery of the listed species and their critical habitat and that the actions relied upon were too uncertain to occur. The Ninth Circuit affirmed the lower Court decision in its entirety. See National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917 (9th Cir. 2008). The Ninth Circuit did note that in considering the affect of the agency action on the potential recovery of the species in connection with a Section 7 consultation, NOAA Fisheries did not have to first develop a recovery plan consistent with the requirements of Section 4(f) of the ESA.

            While the appeal was pending before the Ninth Circuit, NOAA Fisheries under some prodding from the lower Court embarked upon an unprecedented collaboration with the four affected states (Washington, Oregon, Idaho and Montana) and eight Indian tribes to reach consensus on the appropriate methodologies to evaluate the effects of the FRCPS on listed species, operational modifications focusing on each of the listed species and hundreds of millions of dollars in funding commitments to the Tribes to carry out mitigation. In developing the 2008 BiOp and RPA, NOAA Fisheries also adopted a “trending to recovery standard” in order to fulfill the directive from the Court concerning the evaluation of survival and “recovery” in a Section 7 consultation. The 2008 BiOp finds that operation of the FRCPS for the next ten (10) years with implementation of the comprehensive RPA will avoid jeopardy to the thirteen species, avoid adverse modification to critical habitat and future recovery of the protected species will not be compromised by implementation of the RPA.

            The Plaintiffs quickly challenged the 2008 BiOp arguing it is legally and technically flawed and more of the same. The federal defendants, a trade association, three states (Washington, Idaho and Montana) and one Tribe argue that based on Court directives the 2008 BiOp got it right this time. The Defendants argue that Plaintiffs challenge is nothing more than a disagreement on the science and that the court should defer to NOAA Fisheries on these issues. Of interest to Clean Water Act attorneys, one of the Plaintiffs (“NWF”) argues that the incidental take statement (“ITS”) issued as part of the 2008 BiOp is equivalent to a “permit” under § 401 of the Clean Water Act and therefore requires water quality certification from the states. If the Plaintiff prevails on this novel theory, it means that potentially four states and three Tribes would need to issue a 401 certification that the ITS will comply with state and tribal water quality standards before the ITS would go into effect.

            A preliminary injunction and summary judgment hearings are set in January 2009. If the Court finds that the disputes surrounding 2008 BiOp are basically scientific disputes a recent Ninth Circuit case could be beneficial to the federal defendants. See, Lands Council v. McNair, 537 F.2d 981 (9th Cir. 2008). In Lands Council, the court noted that federal courts should defer to the scientific judgments of a federal agency when reviewing agency action under the Administrative Act Procedures. Stay tuned to the outcome of this litigation to see if the “cycle of life” of litigation in FRCPS continues or takes a breather to give the federal government, the states and tribes a breather to implement the 2008 BiOp.