ORSANCO ADDS FLEXIBILITY TO OHIO RIVER WATER QUALITY PROGRAM

Posted on November 26, 2019 by David Flannery

In an earlier blog, I raised the question of “When Should A Regulatory Program Be Eliminated”. After a four-year effort, three public comment periods, four hearings and six webinars, the Ohio River Valley Water Sanitation Commission (ORSANCO – the interstate compact that regulates the water quality of the Ohio River) acted in June 2019 to answer this question. ORSANCO did so by revising its Pollution Control Standards to make it clear that while its Ohio River numerical water quality criteria would remain in place, the designated use for the Ohio River established by the ORSANCO Compact would be the primary mechanism by which ORSANCO would protect the quality of the Ohio River. 

In explaining the significance of its decision to leave its numerical water quality criteria on-the-books, ORSANCO offered the following sentence making it clear that its standards were to be considered by member states but were not mandatory:

The standards were adopted by the Commission for use or consideration by signatory States as they develop and implement their programs to assure that those designated uses and other goals regarding pollution control and prevention set forth in the Compact will be achieved. Emphasis added.

At its meeting in October 2019, ORSANCO adopted the process by which it would assess the consistency of the state-issued NPDES permits with its revised Pollution Control Standards.  Under that review process, ORSANCO’s staff will review the conditions on permits issued by member states and will compare those permit conditions to what they would have been had the ORSANCO numerical water quality criteria been applied.  If the state-issued permit contains any less stringent conditions, the state will be given the opportunity to explain how the terms of its permit would protect the designated uses of the Ohio River established by its Compact.

In short, while the ORSANCO numerical water quality criteria will continue to be available for “consideration” by States, the only mandatory duty imposed on the member states is the issuance of permits that are protective of the designated uses that the ORSANCO Compact has assigned to the Ohio River. 

Twenty Years of Waterkeeper Alliance: How the Waterkeeper Movement Shaped and Was Shaped by U.S. Environmental Law

Posted on August 6, 2019 by Karl Coplan

In the late 1980s, when I was an associate at the environmental boutique law firm of Berle, Kass, and Case in New York City, Robert F. Kennedy, Jr. and John Cronin came to visit the firm to discuss a new project they had started with sportswriter and Hudson River environmentalist Bob Boyle. Boyle wanted to take the British estate tradition of having a streamkeeper to protect streams from poachers and expand it to the entire estuary. Boyle’s organization, the Hudson River Fishermen’s Association, had designated Cronin as the Riverkeeper for the Hudson River estuary, patrolling it for polluters and other modern-day river poachers. Thus was born the idea of having Waterkeepers – individuals acting as non-governmental environmental monitors and enforcers, supported by local, waterbody-based grassroots organizations. The Waterkeeper idea caught on – programs were started in San Francisco, Atlanta and Portland, Maine at about the same time.  And in 1999, the fledgling Waterkeepers formed an alliance to spread the Waterkeeper model and support the growing network of Waterkeeper organizations.

As Waterkeeper Alliance celebrates its twentieth anniversary, it is worth reflecting on how the movement has both shaped, and been shaped by, U.S. environmental law. In a way, the Waterkeeper movement was a natural outgrowth of mid-20th century developments in the law of judicial standing and the Congressional innovation of the environmental citizen suit. By mid-century, the Supreme Court recognized the role of public interest intervenors in agency proceedings, describing these participants as “private attorneys general.” The Riverkeeper concept sought to take this “private attorney general” idea literally and have non-governmental water monitors enforce the environmental laws.

Standing for private law enforcement was a potential hurdle, and the Storm King case on the Hudson River proved pivotal to opening up environmental enforcement standing to non-governmental plaintiffs. Bob Boyle wrote a Sports Illustrated article about the proposed Storm King pumped storage hydroelectric facility and the devastating impact it would have on the Hudson River striped bass fishery. This story led to the 1965 Scenic Hudson Preservation Conference v. Federal Power Commission case in which the Second Circuit Court of Appeals explicitly recognized judicial standing based on non-economic recreational, environmental, and aesthetic harms.  A year later, Boyle founded the Hudson River Fishermen’s Association, the predecessor organization to Riverkeeper.

The Supreme Court went on to adopt the Scenic Hudson standard for environmental standing in Sierra Club v Morton, but with an important limitation: organizational plaintiffs would have to show that some individual member of the organization personally suffered one of these environmental, recreational, or aesthetic injuries. This holding set the stage for the growth of waterbody-based grass roots membership organizations litigating to protect their waters from pollution – exactly what became the Waterkeeper model. And in the 1972 Federal Water Pollution Control Act Amendments Congress gave such groups something to enforce and the means to enforce it, with strict permitting requirements for point source discharges, numeric permit limits, monitoring requirements, and, most importantly, specific authorization for citizen suits. Congress thus gave life to Waterkeepers as enforcers. In 1983, John Cronin became the Hudson Riverkeeper and started patrolling the river looking for cases to bring as a private attorney general.

While many of the early Clean Water Act citizen suits of the 1980s were brought by Natural Resources Defense Council, as the Riverkeepers, Baykeepers, and Soundkeepers popped up across the country, their influence on the development of US environmental law grew. The grass-roots membership model based on recreational use of rivers, lakes, sounds, and bays was a natural fit with environmental standing requirements. Not surprisingly, given their roots in the Storm King power plant fight, Waterkeepers have played an important role in ensuring regulation of power generation water intakes. John Cronin got the ball rolling when he successfully sued to force EPA to issue the long delayed cooling water intake structure regulations under Clean Water Act § 316(b). When EPA finally issued these rules, it was a Riverkeeper suit that prompted the Second Circuit to remand the rules to remove reliance on offsite restoration as “Best Technology” to reduce aquatic species impacts. It was also (less successfully for Riverkeeper) the same Riverkeeper litigation that later led the Supreme Court to graft cost-benefit analysis onto the “Best Technology” standard in Entergy v. Riverkeeper. Waterkeepers continue to play the role of regulatory watchdog over the power industry. This year, Waterkeeper Alliance won a case requiring reconsideration of the coal ash impoundment effluent limits under the Clean Water Act as well as another case requiring reconsideration of the Resource Conservation and Recovery Act regulations governing disposal of power plant coal combustion residuals.

Waterkeepers played a key role in development of Clean Water Act regulations in other areas as well. Another one of the founding Waterkeepers, the Upper Chattahoochee Riverkeeper, helped bring combined sewer overflows to the regulatory agenda with a successful suit against the City of Atlanta for violating water quality standards. Long Island Soundkeeper brought the cases establishing that recreational trap and skeet shooting ranges required Clean Water Act permits for their discharges, and were responsible for cleaning up past lead shot and target contamination in water bodies. Waterkeeper Alliance brought one of the first cases seeking enforcement of Clean Water Act and RCRA requirements against massive hog Confined Animal Feeding Operations (CAFOs). Waterkeeper Alliance also brought a successful challenge to EPA’s revisions of the CAFO effluent limitations regulations.

The Waterkeeper movement has grown to over three hundred forty organizations in forty-seven countries, and Waterkeeper affiliates around the world are influencing the global development of environmental law just as the earliest Waterkeepers did in the United States.


NOTE: The author serves as outside counsel for Riverkeeper and Waterkeeper Alliance, and is a member of the Waterkeeper Alliance Board of Directors.

HEY CONGRESS: PLEASE FIX THIS “JUST PLAIN NUTS” SITUATION

Posted on June 10, 2019 by Dick Stoll

Seth Jaffe’s recent ACOEL post correctly laments that the current judicial review regime for EPA’s Waters of the United States (WOTUS) rule is “just plain nuts.”  He points to two recent (May, 2019) conflicting federal district court decisions, leaving the Obama WOTUS rule in place in one area and remanding it in another.

I similarly complained of a “whole lot of craziness going on” regarding WOTUS judicial review in my 2015 ACOEL post.  I related how inconsistent decisions coming out of various courts were leaving the rule in force in some states, yet throwing it out in other states.  Since then, we have seen even crazier situations with some counties left subject to the rule while other counties in the same State are not!

Here is a recent sad summary from the May 29, 2019 Inside EPA: “Due to a variety of district court decisions, the 2015 rule continues to apply in 23 states and 23 of New Mexico’s 33 counties, but it is blocked in 26 states and in the other 10 New Mexico Counties.”  And to make the patchwork even crazier, the 23 states where the rule remains in place are anything but contiguous – looking at a U.S. map, it appears someone threw darts.

As Rick Glick recently reminded us, we will soon have a brand new WOTUS from the Trump EPA folks.  This will inevitably trigger a slew of new judicial review actions in numerous federal district courts, with another crazy-quilt patch of inconsistent results sure to follow.

Seth appears to blame this situation on the Supreme Court, which ruled last year that initial judicial review of the WOTUS rule must lie in the federal district courts – not, as the federal government had urged, in a U.S. Court of Appeals.  Seth notes that “the Supreme Court had the luxury of ignoring the chaos that would ensue” from its decision.

I blame this situation squarely on Congress, however.  Given the way the Clean Water Act is drafted, I just don’t see how the Supreme Court could have ruled otherwise.  And it is telling that the Court’s opinion was unanimous.  That’s right, a unanimous opinion from this Supreme Court! 

The heart of the problem is straightforward.  Under the federal APA, direct judicial review of final agency rules lies in federal district courts except where Congress has provided that certain types of rules are to be reviewed directly in a Court of Appeals.  As I outlined in my 2015 “craziness” post, Congress has provided that all sorts of national rules under the Clean Air Act, the Resource Conservation and Recovery Act, and many other statutes, shall be directly reviewed by a Court of Appeals.

But in 1972 Congress took a different approach in the Clean Water Act, and specified that only seven types of final EPA actions would be directly reviewed in a Court of Appeals.  As the Supreme Court unanimously ruled last year, the WOTUS rule does not fit within any of these seven types of actions.  As a matter of pure (and unfortunate) logic, this means the district courts have initial jurisdiction over the WOTUS rule.

The federal government argued before the Supreme Court that the policy arguments in favor of direct Court of Appeals review are overwhelming.  The crazy-quilt patchwork that would take years (probably decades) to resolve would be avoided, as federal rules would require challenges filed in various Court of Appeals circuits to be consolidated in one Court. 

I wholly agree with these policy arguments, and I believe it is up to Congress to fix this mess. Just a few words added to the CWA would do it.  For example, Congress could simply provide that final rules defining the extent of “waters of the United States” would be the eighth type of action subject to direct Court of Appeals review.  Or many other formulations with just a few words could do the trick.

I know we live in polarized political times, and it is hard to secure Congressional consensus on major issues like reproductive rights, immigration, etc.   But should it be polarizing to provide direct Court of Appeals review of a critical EPA rule to avoid “just plain nuts” and “whole lot of craziness” inconsistencies throughout the nation?  If it is, I think that is just plain nuts.

2019 WOTUS Rule Seeks to Make the Complex Simple—It Won’t Work

Posted on June 6, 2019 by Rick Glick

What is the jurisdictional reach of the Clean Water Act?  The Act applies to “navigable waters”, which are defined as the “waters of the United States, including the territorial seas.” That’s all the CWA says about jurisdiction.  Congress left it to the implementing agencies—EPA and the Corps of Engineers—and the courts to define the contours of CWA jurisdiction.  In the 45 years following enactment, we are not much closer to clarity. 

The 2019 proposed “waters of the U. S.” or WOTUS rule is the latest attempt and, like all its predecessors, it has generated a lot of controversy.  Setting aside for the moment whether the rule is ultimately adopted and survives the inevitable court challenges, will it achieve the CWA’s object “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters”?  Unfortunately, the approach taken in the rule seeks an easy resolution to a complex problem as it avoids the interconnectedness of natural systems.  That approach will be of limited use in meeting the CWA’s objective.

The central strategy underlying the CWA is adoption by the states of water quality standards.  The standards would be protected through grant funding of public treatment facilities on the one hand, and on the other, a regulatory program allowing for limited discharges of pollutants or filling of wetlands to ensure attainment of standards.  Early cases looking at discharges or fills subject to the CWA stressed whether the receiving waters were “navigable in fact,” that is, capable of carrying interstate commerce.  However, regulations adopted by the Corps of Engineers extended jurisdiction to tributaries and adjacent wetlands, as degradation of these results in degradation of the navigable waters.  These regulations also included certain intermittent streams among WOTUS.

In its 2006 decision in Rapanos v. U. S., a majority of the Supreme Court found the regulations too broad, but did not quite agree as to why.  Writing for the plurality, Justice Scalia criticized the Corps for regulatory overreach and argued for a common sense, dictionary understanding of WOTUS:

In sum, on its only plausible interpretation, the phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] … oceans, rivers, [and] lakes.” See Webster’s Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. 

In other words, if you can see it and your feet get wet when you stand on it, the CWA applies.  Applying his usual strict constructionist approach, Justice Scalia found no statutory justification for a nuanced approach to jurisdiction.  By Executive Order, President Trump directed EPA and the Corps to replace the Obama WOTUS rule with one based on Justice Scalia’s interpretation, and the proposed rules do just that.

Will this approach serve the stated objective of the CWA to protect our waters?  Justice Kennedy, in his concurring opinion in Rapanos, thought not.  He chastised both the plurality and the dissent for not applying the test established by the Court just five years earlier in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers.  That case pegged jurisdiction to whether there is a “significant nexus” between the wetland in question and a navigable waterway.  In SWANCC, the Court rejected Corps regulations that imposed jurisdiction over isolated wetlands because they served as habitat for migratory birds.  That was not, per the Court, enough to show a significant nexus between those wetlands and a navigable waterway. 

However, in Rapanos, Justice Kennedy argued that the Court must do the SWANCC analysis, with all its inherent complexity, before simply concluding there is no jurisdiction:

Taken together [prior Court opinions show that], the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a “navigable water” under the Act. In other instances, as exemplified by SWANCC, there may be little or no connection. Absent a significant nexus, jurisdiction under the Act is lacking.

* * *

The required nexus must be assessed in terms of the statute’s goals and purposes. Congress enacted the law to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U. S. C. §1251(a), and it pursued that objective by restricting dumping and filling in “navigable waters,” §§1311(a), 1362(12). With respect to wetlands, the rationale for Clean Water Act regulation is, as the Corps has recognized, that wetlands can perform critical functions related to the integrity of other waters—functions such as pollutant trapping, flood control, and runoff storage. 33 CFR §320.4(b)(2). Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.”

The analysis called for by Justice Kennedy is complex and requires professional judgment.  Granting agencies the discretion to exercise that judgment makes many uncomfortable, but such discretion is inherent in our current framework in which Congress provides vague direction that agencies must implement.  There is much talk about the Supreme Court eviscerating Auer and Chevron deference to agency interpretations of their own rules or statute, but surely there must be some leeway for agencies that courts can find acceptable.  If not, already ponderous and glacially slow regulatory processes will get only more so. 

The Obama WOTUS rule took the Kennedy approach and then tried to put certain sideboards around it to determine CWA jurisdiction, which played to mixed reviews—a million comments and scores of legal challenges were filed.  The Trump WOTUS rule swings the pendulum toward the simplistic Scalia approach, which will also draw broad opposition.

Getting clarity on the scope of CWA jurisdiction has proved elusive.  However, in our zeal for clarity and preventing overly aggressive federal regulation, we must not lose sight of the clarion purpose Congress gave in enacting the CWA in the first place.

Clean Water Act §401—Whose Certification Is It?

Posted on April 19, 2019 by Richard Glick

As part of the Administration’s policy in favor of domestic oil and gas development, President Trump issued an Executive Order on April 10 “Promoting Energy Infrastructure and Economic Growth.”  The EO seeks to make the regulatory process more efficient and to create “increased regulatory certainty.”   

A policy focus in the EO is water quality certification under section 401 of the Clean Water Act.  Section 401 provides that before a federal agency may approve a project that could result in a “discharge” to navigable waters, the state or tribe with jurisdiction must certify that the discharge would comply with water quality standards, effluent limitations and “other appropriate requirements of State law.”  The statute imposes a one-year period for the state or tribe to act. 

This issue arises most often in the context of permits issued by the Corps of Engineers under section 404 of the CWA to fill wetlands, and licenses issued by the Federal Energy Regulatory Commission for hydroelectric projects under the Federal Power Act.  Both trigger state review under section 401.  Gas pipelines and LNG terminal developments almost always involve stream crossings or shoreline work, which means filling of wetlands.

The EO directs EPA to take the lead to review federal policy and regulations concerning section 401 implementation.  In particular, EPA is to revisit the 2010 interim guidance entitled “Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and Tribes.”  In its review, EPA is directed to focus on a list of issues, including the appropriate scope of 401 review, the “types of conditions that may be appropriate to include in a certification,” reasonable review times and how much information should be requested of the applicant.

Who could be opposed to improved regulatory efficiency and certainty?  To be sure, the section 401 process can be contentious and time consuming. Although section 401 prescribes a one-year review period, the issues are thorny and it has become a common practice for applicants to withdraw and refile applications to restart the clock.  A recent decision by the D. C. Circuit Court of Appeals throws a shadow on that practice, but one year doesn’t necessarily mean one year.  It is also true that states have used section 401 as a cudgel to block LNG developments, as in the AES Sparrows Point LNG Project.

The problem with the EO is that it directs EPA to “fix” a problem over which it has little authority.  Section 401 is a program administered by the states and EPA has just a marginal role to ensure that one state’s 401 decision doesn’t violate a downstream state’s water quality standards.  Even EPA’s 2010 interim guidance is just a compendium of case law and general principles to aid state implementation, not a document that establishes policy.

Indeed, the scope of state section 401 authority is broad, and states use that authority to promote state policies far beyond water quality standards.  Any limitations on state discretion over the process and conditions of certification are likely to come from the courts, not EPA.  States are not shy in asserting their sovereignty and no state is going to cede any of its authority to EPA, regardless of what any new guidance or rules might suggest.

North to the Future: Alaska and the Risks of Pursuing a Trump Legacy

Posted on April 5, 2019 by Peter Van Tuyn

On the last Friday in March, Judge Sharon Gleason of the Federal District Court for the District of Alaska issued two opinions in closely-watched cases* concerning federal public lands and waters in and offshore of Alaska.  In both cases, the Trump administration’s actions were overturned by the court, having immediate impact on two State of Alaska priorities and potential impact on a number of other State and private development efforts. 

The first case concerns a land trade approved by Interior Secretary Ryan Zinke in which the United States agreed to transfer formal Wilderness in the Izembek National Wildlife Refuge to an Alaska Native Corporation.  Izembek Refuge is internationally significant and of critical importance to many species of wildlife, including migratory waterfowl.  For example, virtually the entire global populations of Pacific Brant and Emperor Geese migrate through Izembek.  The land trade was intended to enable the construction of a road between the Alaska communities of Cold Bay and King Cove.  In multiple analyses since the 1980s the Interior Department had found that such a road would harm wildlife in the Refuge.  In 2013 Interior Secretary Sally Jewell formally rejected a land trade due to harm it would cause to “irreplaceable ecological resources,” and because “reasonable and viable transportation alternatives” exist between the communities.  In 2018, Secretary Zinke reversed course and approved the land trade.  A coalition of conservation groups then sued.

In rejecting the land trade, Judge Gleason found that Secretary Zinke had not addressed anywhere in the record his reasons for reversing course; indeed, he had not even acknowledged the change in agency position. Relying on the seminal U.S. Supreme Court administrative law cases of Motor Vehicle Manufacturers v. State Farm and FCC v. Fox, which require an acknowledgement and reasoned explanation for such a change of course, Judge Gleason invalidated the land trade, writing that while a court should “‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,’ a court may not ‘supply a reasoned basis for the agency’s action that the agency itself has not given.’”

Later that same day Judge Gleason issued an opinion in a challenge to a 2017 President Trump executive order concerning areas where offshore oil and gas leasing can take place.  In that case, conservation organizations and an Alaska Native-focused NGO challenged Trump’s  revocation of President Obama’s earlier withdrawals from oil and gas leasing of most of the United States’ Arctic Ocean and a number of canyons within the Atlantic Ocean. 

This lawsuit turned on an interpretation of presidential withdrawal authority under the Outer Continental Shelf Lands Act. Section 12(a) of OCSLA provides the president with the clear authority to withdraw certain areas of the Outer Continental Shelf from oil and gas leasing, and the central question in the lawsuit was whether it also provides authority for a president to undo existing  withdrawals that were intended, like Obama’s Arctic and Atlantic actions, to be of unlimited duration.  Judge Gleason found that section 12(a) authority works only in the direction of presidential withdrawals, and not the undoing (or “revocation”) of such withdrawals.

Looking to the future, should Acting (and likely soon-to-be-confirmed) Secretary David Bernhardt revisit the Izembek land trade, he will need to either win on appeal during his tenure (should he take one) or directly confront the agency’s previous rejection of a land trade and the reasons for that rejection.  Furthermore, Trump’s “energy dominance” effort to expand offshore oil drilling in the Arctic Ocean is dealt a blow.  Notably, the OCSLA issue is similar to one raised in litigation over Trump’s revocation of National Monument designations under the Antiquities Act and Judge Gleason’s treatment of the issue thus may influence other courts. 

More broadly than even these implications, the two Gleason decisions may portend the result of other Alaska-related federal policy and decision-making.  For example, the Corps of Engineers is fast-tracking Clean Water Act section 404 permitting for the proposed Pebble mine in Southwest Alaska.  And the proposed mine’s developers are trying to get EPA to reverse course on its intended use of its Clean Water Act section 404(c) authority to restrict or prevent any Corps’ permit for the mining of the Pebble ore deposit.  EPA’s proposed restrictions were based on a Bristol Bay Watershed Assessment, which the developer had waived challenging in settling a previous lawsuit with EPA.  Given the clarity of Judge Gleason’s Izembek opinion on what it would take for the agency to reverse course, and the settled science of EPA’s watershed assessment, securing a 404 permit won’t be as simple for proponents as winning a policy argument, which appeared to be the case with the Izembek land trade. 

Looking back to the Interior Department, the Bureau of Land Management is moving forward with oil and gas lease sales on the Coastal Plain of the Arctic Refuge.  Critics of that effort, including a former Interior official, say the legal process is being illegally shortcut, which is an attribute it may thus share with the Izembek land trade.  Interior is also speedily-redoing a 2013 management plan for the 23 million acre National Petroleum Reserve with a goal of expanding oil and gas leasing in the Reserve starting in 2020.    

Ironically, on Thursday, March 28, the day before Judge Gleason issued her decisions, Interior Secretary-nominee David Bernhardt had his confirmation hearing before the U.S. Senate Energy and Natural Resources Committee.  This committee is chaired by Alaska’s Senator Lisa Murkowski, who is a supporter of expanded oil and gas development on federal lands in and offshore of Alaska.  The judicial smackdown the next day, however, is sure to complicate Bernhardt’s efforts to implement such an agenda before the next presidential term, which is the timeframe which appears to underly Interior’s and other agencies’ efforts on Alaska issues.  And if the rush to secure more decisions in this presidential term leads to more losses in court, Alaska development interests could face complicated bureaucratic and legal landscapes, and strong political backlash, well into the future.

* Izembek case:  Friends of Alaska Wildlife Refuges, et al, v. Bernhardt, 3:18-cv-00029-SLG (March 29, 2019, D. Ak).

* Arctic OCS case:  League of Conservation Voters, et al, v. Trump, 3:17-cv-00101-SLG (March 29, 2019, D. Ak)

 

What Happens When the Green New Deal Meets the Old Green Laws?

Posted on March 27, 2019 by JB Ruhl

Representative Alexandria Ocasio-Cortez and Senator Ed Markey made headlines when introducing the Green New Deal resolution to Congress. Within milliseconds, contesting waves of support and opposition flooded the news wires, social media, and blogs. Critics focused on the proposal’s perhaps overly hopeful (some say, delusional) absence of any accounting for the funding, political feasibility, and technological capacity needed to get to net zero greenhouse gas emissions by the Green New Deal’s target date of 2050 (some Green New Dealers advocate an even earlier date), especially under the other conditions they demand. After all, the Green New Deal movement is basically asking our nation to replace one national energy infrastructure with another, plus demanding that government also ensure social justice for present and future generations, provide millions of new jobs, install an awesomely sustainable economy, extend free health care, and the list goes on.

But let’s put all that aside. Let’s say we had a blueprint for the Green New Deal’s carbon goal and a whole lot of money to spend. The stark reality is that the Green New Deal is going to run smack dab into the wall of the Old Green Laws. I’m talking about the National Environmental Policy Act, the Endangered Species Act, Section 404 of the Clean Water Act, the National Historic Preservation Act, the Migratory Bird Treaty Act, the Clean Air Act, the…do I really need to keep going, because the list is really long.

What the Green New Deal movement simply does not seem to appreciate is that the nation’s existing energy infrastructure is a vast physical, social, and economic entity that has been defined in its geographic, technological, and economic dimensions largely by decades upon decades of lawsuits brought under those Old Green Laws by many of the interest groups now behind the Green New Deal. The infrastructure the New Green Deal envisions—particularly if it rules out hydropower and nuclear power—can’t just land where the existing fossil fuel energy infrastructure is located, as if we are just changing car tires. Wind power has to follow wind, and solar power has to follow the sun, and neither of those geographic footprints has much overlap with where the fossil fuel infrastructure is currently located. So, making the Green New Deal happen means putting vast new renewable energy production facilities on the landscape. And then, because our existing transmission grid is based on where fossil fuel generation occurs, which is generally not where solar and wind generation will occur, we’ll need to put new transmission lines on the landscape. Just looking at NEPA alone, it would take 25 years just to get the Environmental Impact Statements done and through the courts before the first shovel of dirt is moved!

To put it bluntly, this is going to be ugly. Environmental protection special interest groups already are attacking wind and solar energy projects around the nation, claiming they will kill too many bats, birds, and desert creatures. Yet, if you were to map out what would be needed to implement the Green New Deal, we’ll need to locate new wind and solar power generation infrastructure, and their transmission line infrastructure, on the landscape at a pace and scale unprecedented in our nation’s history. Believing that everyone will be behind that is naïve. Wherever this Green New Deal landscape transformation machine goes, it will face opposition by narrow-interest environmental groups, not-in-my-backyard landowners, states, local governments, and companies threatened by the new regime, and so on. To think otherwise is delusional. And their first weapon of choice is going to be the Old Green Laws. After all, look around and ask, what has for decades impeded and often stopped new fossil fuel infrastructure such as pipelines, processing facilities, and port facilities. It’s the Old Green Laws.

Looking into the Law 2050 future, the “green” interests that are promoting the New Green Deal sooner or later will have to come up with a convincing soundbite explanation for how they propose to comply with the Old Green Laws in a way and time frame that meets their 2050 deadline. Doing so without in some substantial ways relaxing the current Old Green Laws seems implausible, but relaxing any current regulations seems a nonstarter for Green New Deal politicians. In other words, the Green New Deal is between a rock and a hard place, and they can blame their predecessor “green” generations who designed and implemented the Old Green Laws that must be satisfied regardless of the climate virtues of the Green New Deal.

One can easily imagine that many industry and landowner special interest groups long pitted against the environmental protection special interest groups have grins on their faces, as the latter will seem to have been hoisted by their own petard. It is not hard to envision how the Green New Deal will splinter the environmental interest group universe—indeed, more than 600 groups recently signed a letter to Congress supporting the Green New Deal agenda, but a good number of leading national groups such as the Sierra Club and Audubon Society did not sign on.

There is perhaps a third path, however. To make its agenda complete, the Green New Deal could propose a new environmental law regime as well, one that does not tinker with the Old Green Laws and thus face the claim of “deregulation” or “backsliding.” The Green New Deal must acknowledge the environmental disruptions its infrastructure proposal will cause and design an environmental planning, assessment, permitting, and regulatory regime (perhaps even with--gasp!--market mechanisms like trading and taxes) built from scratch around concepts of resilience, adaptive management, and collaborative adaptive governance. This will mean dispensing with the Old Green Laws’ morass of comprehensive pre-decision studies and rounds of lawsuits. In short, the New Green Deal needs New Green Laws.

Does the Clean Water Act Cover Discharges to or Through Groundwater, Part III?

Posted on March 7, 2019 by David Buente

In both 2016 and 2017, I blogged to discuss a key Clean Water Act (“CWA”) jurisdictional issue:  whether the indirect discharge of pollutants into groundwater which is hydrologically connected to a surface water of the United States is regulated under the CWA.  At the time, the district courts were split on this issue, and the only courts of appeals to rule on this point (a Fifth Circuit opinion from 2001 and a Seventh Circuit opinion from 1994) got the issue right by rejecting CWA or Oil Pollution Act jurisdiction over such discharges.  Since then, the landscape has shifted dramatically.  In 2018 alone, three circuit courts weighed in on this topic in five decisions.  And, as noted on this blog last month, the Supreme Court recently granted a petition for certiorari in one of these cases, meaning that years of confusion will finally be resolved, in some fashion, by 2020. 

The first circuit court to issue an opinion in 2018 was the Ninth Circuit in February 2018, in Hawai’i Wildlife Fund v. County of Maui (the opinion was amended in March 2018).  That case addressed whether treated wastewater effluent which traveled from the County’s underground injection wells, through groundwater, into the nearby Pacific Ocean constituted discharges regulated under the CWA.  The Ninth Circuit held that the wastewater was a covered discharge since it came from a point source (the wells) and was “fairly traceable from the point source,” even if it did not make its way directly from the wells to the ocean. 

The next circuit to weigh in was the Fourth Circuit, in April 2018 in Upstate Forever v. Kinder Morgan Energy Partners, L.P.  This decision held that the movement of gasoline which resulted from a pipeline spill in 2014 and was allegedly still seeping through groundwater approximately 1000 feet into surface waters constituted a CWA discharge, since it originated from a point source (the pipeline rupture) and there was evidence of a “direct hydrological connection between [the] ground water and navigable waters….”  This decision in fact expands the CWA even further than the Maui opinion, because it held that the CWA covered discharges when the original release of pollutants from the point source has ceased, but the pollutants continue to travel diffusely through groundwater.  In a September 2018 decision, a different Fourth Circuit panel in Sierra Club v. Virginia Electric & Power Company acknowledged the Upstate Forever panel’s adoption of the direct hydrological connection theory but rejected liability on the grounds that the coal ash landfills and basins at issue were not point sources.   

Finally, on the same day in September 2018, the Sixth Circuit issued decisions in Kentucky Waterways Alliance v. Kentucky Utilities Company and in Tennessee Clean Water Network v. Tennessee Valley Authority.  Both cases dealt with alleged discharges through groundwater from coal ash basins to navigable waterways.  Contrary to the Fourth and Ninth Circuits (and in line with the earlier circuit court case law), the Sixth Circuit held that groundwater was not a point source and that these discharges are not regulated since they must be directly from the point source to a water of the United States.

Petitions for writs of certiorari before the Supreme Court have proceeded on similar timeframes in the Maui and Upstate Forever cases.  In each case, the petitioners filed their petitions in August 2018.  The Maui petition addressed the indirect discharge via groundwater issue and a fair notice question.  The Upstate Forever petition raised both the indirect discharge through groundwater issue and whether an ongoing violation for purposes of a CWA citizen suit occurs when the point source ceased discharging but pollutants are still reaching navigable waters via groundwater.  In December 2018, the Supreme Court, signaling interest in the cases, requested the Solicitor General to file an amicus brief in both cases by January 4, 2019, expressing the view of the United States.  In that amicus brief, the United States urged the Supreme Court only to accept the Maui case, and only on the groundwater discharge issue.  The United States’ rationale was that Maui presented the groundwater discharge issue more squarely, since the ongoing violation issue in Upstate Forever was a threshold concern.  The brief separately observed that EPA was planning to take action shortly in response to its February 2018 request for comment on the groundwater discharge issue. 

On February 19, 2019, the Supreme Court, adhering to the United States’ request, accepted only the Maui petition and only on the groundwater discharge question.  The Maui case will likely be the Supreme Court’s most seminal CWA decision in over a decade, since the split decision in Rapanos v. United States, 547 U.S. 715 (2006).  Industry should track this case closely, as its resolution will have an effect on everything from federal and citizen suit enforcement to National Pollutant Discharge Elimination System permit requirements.   

EPA Calls for Market-Based and Collaborative Approaches to Achieve Nutrient Reductions

Posted on January 10, 2019 by Todd E. Palmer

Last month, the U.S. Environmental Protection Agency (EPA) and Department of Agriculture (USDA) issued a letter to their state counterparts highlighting plans to improve water quality and seek “meaningful reductions” in nutrient loadings to waterways. EPA and USDA leadership note that while progress has been made, national water quality data indicate that nutrient losses from agricultural lands continue to be widespread, especially in the Mississippi River basin. Moving forward, the agencies plan to identify further opportunities to address nutrient loadings from nonpoint sources, including non-regulatory conservation efforts and market-based programs.

The agencies’ recommitment to these topics should come as welcome news to the regulated and environmental community alike. Existing market-based solutions, such as water quality trading, have helped allocate limited resources toward technologies and practices with a lower cost per unit of nutrient reduction. EPA and USDA state that they have heard that additional regulatory flexibility in areas such as TMDL implementation may be useful in facilitating market-based strategies. EPA’s willingness to engage with stakeholders on how it can remove regulatory barriers to such efforts is commendable.

Perhaps even more significantly, the agencies indicated a desire to partner with local stakeholders to develop local solutions to nutrient-loss challenges. State and local partners are well-positioned to develop innovative approaches to reducing nonpoint source pollution that are both effective and responsive to local needs. For example, since Wisconsin adopted more stringent numeric phosphorous water quality criteria in 2010, municipal and industrial wastewater dischargers have improved water quality and realized compliance savings through one of several market-based phosphorous compliance options. Those options include water quality trading, as well as adaptive management and the phosphorous multi-discharger variance, where sources comply with interim limits and fund local efforts to reduce nonpoint source contributions. Strategies to amplify existing market-based solutions, including creation of a “clearinghouse” to facilitate trades and other compliance strategies, are also being discussed around the country.

EPA’s willingness to support and build on these efforts by evaluating regulatory barriers and providing technical and financial support for local efforts should open the door to innovative nutrient control strategies. Federal support for these efforts is also especially critical in the current farm economy, which finds farmers managing through a prolonged period of low commodity prices that may limit the resources available for voluntary environmental enhancements.

WOTUS Lives! . . . at Least in Half the States (for Now)

Posted on September 11, 2018 by Rick Glick

On August 16, a federal judge in South Carolina invalidated the Trump Administration’s suspension of the rule defining “waters of the United States” (WOTUS), under the Clean Water Act.  In South Carolina Coastal Conservation League v. Pruitt, the court found that the notice-and-comment opportunity supporting the Suspension Rule was too narrow and thus violated the Administrative Procedure Act.  The WOTUS suspension is the latest in a series of attempts by the Administration to stall implementation of Obama era regulations, none of which have met favor with the courts. 

As reported here about one year ago, the Trump Administration announced a two-step process to undo WOTUS.  The first step was to suspend WOTUS for two years, during which a revised WOTUS rule would be developed.  In the meantime, guidance on jurisdictional waters that had been issued in the 1980s by the EPA and Army Corps of Engineers would be reinstated.  The public notice of the Suspension Rule requested comments only on the suspension, but not the substance of either the Obama WOTUS rule or the 1980s guidance.

U. S. District Court Judge David C. Norton, a George H. W. Bush appointee, reasoned that the practical effect of the Suspension Rule is that the WOTUS rule would not apply and instead the 1980s guidance would control.  The court then noted that the definitions in the WOTUS rule and the 1987 guidance are “drastically different” and it is hard to comment on the Suspension Rule without talking about that difference.  That refusal to allow comment on the substantive differences violates the notice-and-comment provisions of the APA:  “An illusory opportunity to comment is no opportunity at all.”  The judge therefore rejected the Trump Suspension Rule, and imposed a nationwide injunction. 

Explaining the jurisdictional reach of the Clean Water Act has flummoxed the federal agencies and courts for decades.  Far from bringing clarity, the Obama WOTUS Rule drew over one million comments and multiple judicial challenges on the merits of the rule.  Initially the question was whether such challenges should be made in the U. S. district courts or the Circuit Courts of Appeal.  The Sixth Circuit held that the appellate courts had original jurisdiction and stayed all of the pending district court actions, but that decision was reversed earlier this year in a unanimous decision of the U. S. Supreme Court.  Thus, those lower court cases can continue.

Judge Norton, in South Carolina Coastal Conservation League, was clear that he was not ruling on the merits of the WOTUS Rule, but just the procedural correctness of the Suspension Rule.  In challenges on the merits, other federal courts have stayed the WOTUS Rule in 24 states.  Striking down the Suspension Rule means that WOTUS remains in effect in the other 26 states. 

At the moment, then, about half the country is subject to the WOTUS Rule, while the other half is not.  What could go wrong?

When Should A Regulatory Program Be Eliminated?

Posted on August 9, 2018 by David Flannery

It is certainly not unusual for regulatory agencies implementing water quality standard programs to conduct periodic reviews of the appropriateness of those programs.  Such has been the case with the Ohio River Valley Water Sanitation Commission (“ORSANCO”) for many years. In connection with the current triennial review of its Pollution Control Standards, ORSANCO recently offered the following statement in a public notice and request for comment

This review of the Pollution Control Standards differs from past reviews in that it asks your input on whether ORSANCO should continue to maintain, administer, and periodically update the current Pollution Control Standards, or should eliminate the Pollution Control Standards and withdraw from the process of maintaining and updating such standards.

The proposal to eliminate this regulatory program was undertaken by ORSANCO following a multi-year comprehensive assessment of ORSANCO’s function and role in partnership with its member states, USEPA, and the many other water quality protection activities that are currently administered to protect the Ohio River. This review caused ORSANCO to reach the conclusion “that all member states are implementing approved programs under the federal Clean Water Act” and that “there appears to be little or no purpose for the Commission to continue the triennial review process of updating the PCS rules.” ORSANCO also concluded that elimination of its regulatory program was being proposed with full confidence that the public would have “the full and complete protection of the federal Clean Water Act and the oversight of USEPA and the states without the redundancy of the current PCS program”. http://www.orsanco.org/wp-content/uploads/2016/09/Preferred-Expanded-Alternative-2-and-Minority-Report.pdf   

ORSANCO is seeking comment on this proposal through August 20, 2018. Details of the proposal and the public comment process can be found on the ORSANCO web site.  I am sure that ORSANCO would be very interested in hearing from any of you that have a comment on the proposal or any thoughts on the title question about when a regulatory program should be eliminated.

 ORSANCO is an interstate compact whose member states include Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia and West Virginia.  The Compact forming ORSANCO was signed in 1948 following the consent of the United States Congress and enactment of the Compact into law by the legislatures of the eight member states.

Strong Headwinds Face Water Quality Trading in the Chesapeake

Posted on August 2, 2018 by Ridgway Hall

The Chesapeake Bay watershed covers 64,000 square miles in parts of Maryland, Virginia, Pennsylvania, Delaware, New York, West Virginia and the District of Columbia. When the six states and the District asked EPA to establish a multi-state Total Maximum Daily Load under the Clean Water Act in 2010 and assign each state its fair share, they took on the job of reducing discharges of nitrogen from all sources by 25%, phosphorus by 24% and sediment by 10%. The goal is to have all necessary measures in place to achieve this by 2025 to meet applicable water quality standards. With funding at the state and federal levels in short supply, a search was on for the most cost-effective ways to reduce these pollutants.  The states with the biggest burdens, Pennsylvania, Virginia and Maryland, each turned to the emerging practice of water quality trading.

Trading enables a discharger for whom the cost per unit of pollution reduction is lower than for other dischargers to reduce its pollution below what the law requires and sell that extra reduction as a “credit” to another discharger for whom the cost per unit of pollutant reduction is greater.  The result is that the seller makes money from the credit sale, and the buyer attains compliance at a lower cost than it would otherwise incur. Sounds simple, doesn’t it?  In October the Government Accounting Office published the results of a nationwide survey in which it found that only 11 states have water quality trading programs, and the only significant use being made was in Pennsylvania, Virginia and Connecticut, even though EPA has been promoting it since 1996. (I discussed this in “Water Quality: Wading into Trading” posted Nov. 28, 2017).

To encourage the Bay states to adopt trading programs that will comply with the Clean Water Act and its implementing regulations, EPA published a series of “Technical Memoranda” (TMs) addressing key elements of a trading program including “baseline” (the maximum amount of pollution allowed under any applicable law before a credit can be generated), protecting local water quality where a credit is used, credit calculation, and accounting for uncertainty. This is needed where a nonpoint source, like a farm, is generating credits by installation of best management practices (BMPs) and the pollution reduction benefits must be estimated using modeling. The TMs also address credit duration, certification by the agency, registration and tracking on a publicly posted registry, and verification that the BMPs on which the credits are based are being maintained.  Finally, they address sampling and public participation. (See my blog post of Sept. 26, 2016 “New Tools for Water Quality Trading”).  Credits can also be used to “offset” new or expanded discharges. The TMs are not regulations, but set forth EPA’s “expectations”.

Common Elements

Pennsylvania, Virginia and Maryland have adopted trading regulations which are intended to be consistent with the TMs.  The principal elements include . . . [CLICK HERE TO READ THE REST OF THIS ARTICLE]

DAVID AND GOLIATH AT THE CONOWINGO DAM

Posted on June 26, 2018 by Ridgway Hall

Exelon owns and operates the Conowingo Dam across the Susquehanna River in Maryland just below the Pennsylvania border, including a 573 megawatt hydroelectric power plant. It is seeking a renewal of its operating license from FERC under the Federal Power Act for 50 years. Section 401 of the Clean Water Act requires that any applicant for a federal license that may result in a discharge submit a certification by the state where the discharge will occur that the discharge “will comply with the applicable provisions” of the CWA, including water quality standards. The certification may include conditions and requirements, including monitoring and reporting, deemed necessary to ensure compliance. The certification becomes part of the federal license, and the licensing agency may not change it.

The facts in this case are unusual, and the outcome will likely be precedential. For decades, sediment has flowed down the 450 miles of the Susquehanna River from New York and Pennsylvania and accumulated in the reservoir behind the dam, trapping nitrogen, phosphorus, metals, PCBs and other pollutants along with the sediment,  Now the trapping capacity has been reached. Several times in recent decades severe storms have scoured out tons of this sediment and carried it over the dam and into the Chesapeake Bay 10 miles downstream, causing not just violation of water quality standards, but severe damage to oysters, bay grasses and benthic organisms.  In addition, the dam has blocked historic fish passage. Measures such as fish ladders and transportation have produced only modest relief. Since 2010 the entire Chesapeake Bay and its tributary system has been subject to a multi-state total maximum daily load (TMDL) for nitrogen, phosphorus and sediment, but at the time that was set, it was not anticipated that the Conowingo trapping capacity would be exhausted this soon.

On April 27, 2018, the Maryland Department of the Environment issued a CWA certification in which it determined that numerous conditions must be complied with by Exelon in order to reasonably ensure compliance with water quality standards. It requires, among other things, measures to ensure compliance with standards for dissolved oxygen (DO), chlorophyll-A (an indicator of algae), turbidity, temperature, pH and bacteriological criteria in the reservoir and downstream waters including the Bay, plus compliance with plans to protect various fish species, waterfowl and habitat. It also requires shoreline protection, removal of trash from the reservoir and a variety of monitoring programs.

Notably, to satisfy the DO standards, which are adversely affected by nutrients and are critical to aquatic life, MDE requires that starting in 2025 Exelon must annually reduce the amount of nitrogen in its discharges by 6 million pounds, and phosphorus by 260,000 pounds. Exelon can also satisfy this requirement by installing best management practices elsewhere upstream or paying $17 per pound of nitrogen and $270 per pound of phosphorus for any amounts not removed.

Exelon promptly filed a request for reconsideration and administrative appeal with MDE. It also filed a complaint in Maryland state court seeking a declaration that the certification could not be considered “final action” until proceedings before MDE were concluded, including Exelon’s right to an evidentiary hearing; an injunction against any consideration of the certification by FERC, and, alternatively, for judicial review. Exelon also filed suit in the U.S District Court in Washington, D.C., claiming that MDE’s certification exceeded its CWA authority and constituted an unconstitutional taking of its property, and seeking declaratory and injunctive relief.  See Exelon’s filings at here.

Among Exelon’s complaints is the fact that the certification would require it to spend vast sums to remove pollutants that did not come from its operations, but from upstream polluters. The fee equivalent of the nitrogen and phosphorus removals would amount to $172 million per year – far more than Exelon earns from the operation of Conowingo. An environmental impact statement had concluded that efforts to remove the sediment from behind the dam “would be cost-prohibitive and ineffective.” Releases from the dam, Exelon contends, are not “discharges” but “pass-through.” Exelon also argues that fish passage damage was caused decades ago and it would be unfair to make Exelon bear the full cost of restoring it.

Some environmental groups have joined the administrative appeal process.  Stewards of the Lower Susquehanna and Waterkeepers Chesapeake (a group of 18 Waterkeeper organizations in the Chesapeake Bay watershed) appealed to MDE asking that protection against scouring by big storms be strengthened and that likely effects from climate change be considered, but otherwise supporting the certification. The Nature Conservancy and the Chesapeake Bay Foundation, both with longstanding interests in water quality and restoration of the fisheries and fish passage, have also been actively involved.

The stakes are high. MDE, “David” in my title, has taken some bold measures to address some enormous problems, and Exelon is fighting back hard. However it comes out, the resolution will have precedential value for other CWA 401 cases across the country, and particularly for hydroelectric projects.

Regulation of Groundwater under the Clean Water Act

Posted on June 4, 2018 by William Brownell

In the early 1980s, the State of Michigan filed a Clean Water Act citizen suit against the United States alleging that chemicals from a federal facility located near Lake Michigan could “enter the groundwaters under the … area” occupied by the facility and then “be discharged [through that groundwater] into Grand Traverse Bay.” The Department of Justice told the Court that “these claims are not allowed under the Clean Water Act since the Act does not regulate pollutant discharges onto soil or into underlying groundwater,” and the suit was eventually dismissed.  According to the United States, “[t]he statutory language, the legislative history, the case law, and EPA’s interpretation of the Act all support this conclusion.” 

Thirty years later, in 2016, the Hawaii Wildlife Fund and other environmental groups filed a Clean Water Act citizen suit against the County of Maui, alleging that the County was violating the Clean Water Act by disposing of treated waste water through underground injection wells into groundwater that was hydrologically connected to the Pacific Ocean.  According to a Department of Justice amicus brief, this claim was allowed under the Clean Water Act because a discharge “that moves through groundwater with a direct hydrological connection [to surface water] comes under the purview of the CWA’s [NPDES] permitting requirements.”   

Which is right:  the 1985 government or the 2016 government?  Not surprisingly, both sides assert that they offer the government’s “longstanding” position.  For example, those concluding that releases to hydrologically connected groundwater are not subject to the Clean Water Act’s NPDES permit program point to (among other statements) an Office of General Counsel memorandum from 1973 that “the term ‘discharge of a pollutant’ is defined so as to include only discharges into navigable waters…. “[d]ischarges into ground waters are not included”; to EPA’s assertion in 2004 that NPDES “regulations apply to … [e]xisting facilities that discharge directly to surface waters”; and to EPA’s statement in 2017 that “discharges to groundwater are not regulated by the NPDES permit program.”  

Proponents of regulating releases to groundwater under the NPDES program rely principally on statements made in the preamble to a 2001 proposed rule for Concentrated Animal Feeding Operations, and on the amicus brief filed in 2016 by the Department of Justice in the County of Maui case.

This “hydrological connection” theory of Clean Water Act groundwater regulation is now pending before the Second, Fourth, and Sixth Circuits, and the period for certiorari is running in the Ninth. Clearly, the Clean Water Act cannot mean two opposite things at the same time.  Which Department of Justice is right?  

EPA recently issued a Federal Register notice asking the public to weigh in on the confusion created by its prior statements.  Perhaps instead of debating who said what when, what is needed is a dispassionate return to the statutory language.  As the Supreme Court said unanimously in 2004 in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, the Clean Water Act “defines the phrase ‘discharge of a pollutant’ to mean ‘any addition of any pollutant to navigable waters from any point source,’” and in turn defines a “point source” as a “‘discernible, confined and discrete conveyance’ … ‘from which pollutants are or may be discharged.’” The Court explained this “definition makes plain” that “a point source need not be the original source of the pollutant,” but “it need[s] [to] … convey the pollutant to ‘navigable waters.’”  If the NPDES program applies only where a point source conveys the pollutant to navigable water and EPA agrees that groundwater is not a point source, shouldn’t that be the end of the debate? 

Does Upstate Forever Mean Potential Citizen Suit Liability Forever?

Posted on May 24, 2018 by Patricia Barmeyer

Maybe.

If, as held by the Fourth Circuit in the recent decision in Upstate Forever v. Kinder Morgan,

  • A release from a point source to groundwater that reaches jurisdictional surface waters in measurable quantities is an unpermitted discharge in violation of the Clean Water Act, and
  • The unpermitted discharge is deemed to be “continuing” so long as the seepage through groundwater continues to add pollutants to jurisdictional waters, even though the discharge to groundwater has ceased

then, indeed, the potential for citizen suit liability has been vastly increased and, most troubling, the requirement for an “ongoing violation” has been significantly eroded.

The recent decision of Upstate Forever v. Kinder Morgan, L.P. (4th Cir. April 12, 2018), addressed a citizen suit arising out of a spill of gasoline from an underground pipeline. The pipeline operator repaired the pipeline shortly after the spill, implemented remediation and recovery measures required by state regulators, and recovered much of the gasoline from the spill site. NGOs brought a citizen suit under the CWA, alleging that actions taken by the pipeline operator were insufficient to abate the pollution, and that gasoline and other pollutants were continuing to seep from the spill site, through groundwater, into surface waters regulated under the CWA. The district court dismissed the suit, finding that (1) the CWA does not regulate the movement of pollutants through groundwater, and (2) the alleged violation was not ongoing because the pipeline had been repaired and was no longer discharging pollutants “directly” into navigable waters.

The Fourth Circuit reversed on both points and allowed the citizen suit to move forward. The decision has two key holdings:

  • First, while acknowledging that the CWA does not generally regulate releases to groundwater, the Fourth Circuit panel held that discharges to groundwater with a “direct hydrological connection” to surface waters may be regulated by the CWA, so long as the  discharge results in pollutants reaching jurisdictional waters in “measureable quantities.”
  • Second, the Court found that the repair of the pipeline breach was not sufficient to render the alleged CWA violations “wholly past,” because the continuing seepage of gasoline was continuing to add pollutants to jurisdictional waters.

Assuming the majority opinion stands, the implications are very troubling.

The first holding makes even an accidental release to groundwater an unpermitted discharge under the CWA, if the pollutant makes its way to jurisdictional waters. This “groundwater as a conduit” theory, also adopted in County of Maui v. Hawaii Wildlife Fund, 2018 WL 1569313 (9th Cir. Feb. 2018), is the subject of much debate in the courts, in Congress and at EPA, which has solicited comment on the issue. 

The second holding is at least as problematic. Even assuming that the accidental discharge to groundwater was an unpermitted discharge to jurisdictional waters in violation of the CWA,    one must wonder how the party responsible could ever cut off liability. According to the decision in Upstate Forever, stopping the point source release and even remediation to state standards does not make the violation “wholly past.” Depending on the amount released, the amount remaining after remediation, the distance to jurisdictional waters, the soil characteristics, the speed of groundwater movement, and other factors, it is possible that the risk of citizen suit liability could continue for years—long after the incident has been corrected, repaired and remediated.

There is a strong, well-reasoned dissent that concludes that there is no ongoing discharge of pollutants from a point source because “the only point source at issue—the pipeline—is not currently leaking or releasing any pollutants.” Slip Opinion at 40. The defendant pipeline operator has filed a petition for rehearing and rehearing en banc, arguing that the panel decision is erroneous on both issues and emphasizing the inconsistency with Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987).

If it stands, however, the Upstate Forever decision could indeed create the risk of citizen suit liability almost “forever.”

HOW I BECAME AN ENVIRONMENTAL LAWYER

Posted on April 25, 2018 by H. Thomas Wells Jr.

When someone asks what type of law I practice, and the answer is “environmental law”, the next question often is, “How did you become an environmental lawyer?”  My answer to that question is simple: I reported for duty on Tuesday.  The full story is a bit more complicated.

Having gone through undergraduate school at the University of Alabama on an Air Force ROTC scholarship, I had a commitment to serve as an Air Force officer.  Upon graduation from undergraduate school in 1972, I was commissioned as second lieutenant in the United States Air Force. (This was during the Vietnam War. Although my draft number was over 300, I still went through advanced ROTC because of the scholarship).  The Air Force then granted me an educational delay to attend law school.  With the Vietnam War still ongoing, obtaining the educational delay was not guaranteed, but once it was granted, I was off to law school.

If there were any courses at the University of Alabama School of Law in environmental law at that time, I didn’t take them.  The field of environmental law was not on my radar screen at all.  In fact, it was not on many radar screens back then.

The day after my law school graduation ceremony, I received a call from a Colonel who was the Executive Officer for the Air Force General Counsel’s office in the Pentagon.  He asked if I might be interested in coming up to the Pentagon for an interview.  The explained that the Air Force General Counsel’s office had a “Military Honors Program” under which they took two or three recent law school graduates who had an obligation to serve in the Air Force to work in the General Counsel’s office rather than becoming a JAG officer.  Of course, the interview had to be at my own expense.

So I flew to D.C., interviewed, and was selected as one of the three recent law graduates with an obligation to serve in the Air Force on active duty to work in the Air Force General Counsel’s office.  This office was on the civilian side of the Department of the Air Force.  That meant we reported to the civilian General Counsel, rather than to The Judge Advocate General (“TJAG”); The GC, in turn, reported to the Secretary of the Air Force rather than to the Chief of Staff.  As noted, none of us were JAG officers, but were nevertheless promoted to Captain by order of the Secretary of the Air Force.

Upon moving to the D.C. area, I still didn’t know what area of law to which I would be assigned within the General Counsel’s office.  There were three slots: one was Government Procurement law, one was International Law, and the third was Real Estate and Environmental Law.  Without my knowledge, the lawyers in the office had decided the assignments would be based on when we reported for duty.  Since I reported on the day after Columbus Day, a Tuesday in October 1975, I was assigned to be in the Real Estate and Environmental Law section of the office.

Environmental law in 1975 was really just beginning.  We had NEPA, the old Clean Water Act, as amended in 1972 and the old Clean Air Act of 1970, and that was just about it.  RCRA had yet to be enacted; TSCA wasn’t around, and Superfund was nonexistent.  So I became an environmental lawyer with on the job training and by learning the amendments to the relevant Acts as they were enacted.  All in all, things worked out pretty well, and I indeed became an environmental lawyer because I reported for duty on Tuesday.

The Proposed Pebble Mine: Too Toxic for Trump?

Posted on April 17, 2018 by Peter Van Tuyn

EPA Administrator Scott Pruitt began his tenure by decrying the so-called “sue and settle” policy approach, where EPA settles lawsuits brought against it in a manner that dictates EPA actions on court-approved deadlines, often well into the future.Observers were therefore somewhat surprised when, two and a half months later, EPA settled a lawsuit brought against it years earlier by the Pebble Limited Partnership (PLP), the want-to-be developers of the proposed Pebble mine in Alaska.  PLP declared victory and touted the settlement as providing it a “clear path” to the permitting process for the proposed mine.

It turns out that Administrator Pruitt himself made the decision to settle this lawsuit.  As reported in media, “[w]ithin hours of meeting with a mining company CEO, the new head of the US Environmental Protection Agency directed his staff to withdraw a plan to protect the watershed of Bristol Bay, Alaska, one of the most valuable wild salmon fisheries on Earth.”

The Pebble ore deposit sits at the headwaters of Bristol Bay, and the region produces roughly half of the world’s commercial sockeye salmon catch, with over 56 million sockeye returning to the Bay’s fresh waters in 2017 alone.  The commercial fishery supports 14,000 full and part time jobs and generates roughly 1.5 billion in annual revenue.  Bristol Bay salmon also support the subsistence lifestyle of area residents, and are one reason why Bristol Bay is a sought-after sport fishing destination.  The Pebble ore deposit is massive, contains low-grade quantities of copper, gold and molybdemum, and also has the potential to produce acid as the ore is disturbed.  It also lies at the headwaters of two of Bristol Bay’s most productive river systems.  In 2014, the EPA found that the mining of the Pebble ore could result in “irreversible” impacts to fish habitat.  EPA thus used its authority under Section 404(c) of the Clean Water Act to propose certain restrictions on the mining of that deposit to protect the salmon fishery.

Notwithstanding the response of the mine developer, a closer look at the settlement reveals that EPA did not abandon its proposed restrictions, but rather only committed to an agency process “to propose to withdraw” them.  Pursuant to the settlement, EPA initiated a public process and held public hearings in Bristol Bay, seeking input on whether to actually withdraw the proposed protections.  In that process, EPA received over one million comments, with over 99% of the comments supporting the proposed restrictions and asking EPA to leave them in place.

In what was called a “surprise reversal” by some observers, in January of this year Administrator Pruitt decided to leave the proposed restrictions in place.  In announcing his decision, Administrator Pruitt stated that “it is my judgment at this time that any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection.”

The result of this decision is that the EPA’s proposed restrictions under Section 404(c) will remain in place as the U.S. Army Corps of Engineers processes PLP’s Section 404 permit application for the mine, submitted by PLP to the Corps in December 2017.  Looking forward, the Corps cannot issue a final permit decision approving the mine unless and until EPA’s concerns are fully addressed. EPA retains the opportunity to finalize its proposed restrictions before the Corps makes its decision.  This leads one to wonder, as did many people from Bristol Bay, whether the proposed Pebble mine is simply “too toxic” for Trump?  

Disclosure:  Bessenyey & Van Tuyn, L.L.C. represents a client that opposes the proposed Pebble mine because of risks to Bristol Bay salmon.

Troubled Waters – Blue Lakes Turning Green From Toxic Algal Blooms

Posted on February 6, 2018 by Virginia C. Robbins

Frank DeOrio knows a lot about protecting drinking water.  For more than 25 years, Frank was Director of Utilities for the City of Auburn located in the pristine Finger Lakes region of Upstate New York.  He was responsible for the water supply drawn from Owasco Lake and the protection of the lake’s watershed.  During Frank’s tenure, the City won awards for the best water in the state and the U.S. 

Frank and I recently discussed his concerns about the potential impacts to drinking water from summer algal blooms in our region’s lakes.   Algal blooms can occur when spring rains flush nutrients, for example, phosphorous, into waterbodies.  Summer temperatures raise water temperatures, creating optimum growth conditions.    

Owasco Lake, September 18, 2017

Owasco Lake, September 18, 2017

Summer algal blooms now occur in more lakes, their duration has increased, and they are producing toxins that pose health risks to the public when ingested or during recreational contact.  These toxins are not easily treated by water suppliers because the technology to treat one toxin may not be effective for another.  And unlike bacteria, boiling water does not remove these toxins. 

In 2017, harmful algal blooms (HAB) occurred in all 11 of the Finger Lakes, reportedly for the first time.  Blue-green algae are cyanobacteria and they can produce several species of cyanotoxins.  What is disturbing about the recent HAB outbreaks is that some classes of these cyanotoxins (e.g., microcystins), are particularly toxic.  If present at high concentrations, they can be difficult or impossible to treat using the technology of most public water systems.  One of these is Microcystin-LR, a liver toxin that is considered one of the more toxic.  These toxins can also cause skin, digestive system and other health issues.

Mycrocystin-LR has been identified in raw water drawn from Owasco Lake and Skaneateles Lake, both jewels of the Finger Lakes.  And Owasco Lake provides drinking water to more than 50,000 customers.  In 2016, the City of Auburn was using filtration to treat its raw water.  When the level of Mycrocystin-LR increased, the City considered moving the location of its water intake away from the area of the lake containing the toxin.  But would the new intake remain safe if the toxin shifted location?  The City decided against moving the intake and instead added carbon filtration. 

Skaneateles Lake is the primary water supply for the City of Syracuse and surrounding communities.  The water authority operates under a “filtration avoidance” authorization.  After a severe storm on July 1, 2017, phosphorous levels in the lake rose, resulting in algal blooms, and Microsystin-LR was then detected in the raw water pumped from the lake.  The levels were low enough that treatment was not required and the toxin was not identified in the water that reached customers.  Nonetheless, the presence of this toxin in the raw water is a disturbing development. 

These examples are lakes in my area.  But similar algae toxins and blooms are occurring in New England states, including New Hampshire and Maine. 

The broader challenges?  The science around algae toxins is emerging.  Further, there are no federal or state drinking water standards for microcystins (though there are health advisory guidelines published by USEPA and some states).  Water treatment plants are generally designed to avoid taste and odor concerns and to manage the most commonly tested algae toxins.  The next generation of plants will need to have more flexible designs to accommodate advanced treatment technologies.  And water authorities will need to consider spatial needs, hydraulics, connections, utilities and process control for these technologies. 

Frank’s concerned.  So am I.  It may get worse before it gets better.  While we wait for science, regulatory efforts and focused treatment technology to develop, at least municipalities can take steps to control the potential for toxic algal blooms by a combination of runoff control, nutrient reduction and stream-bank restoration.  Why wait to build that bridge from troubled waters to cleaner lakes?

One Brief Shining Moment of WOTUS Clarity

Posted on January 24, 2018 by Rick Glick

In a rare moment of clarity in the benighted history of the Waters of the United States or WOTUS rule, a unanimous Supreme Court declared that jurisdiction to review the WOTUS rule lies in the District Courts and not the Courts of Appeal.  The immediate effect of the January 22 ruling in National Assn. of Manufacturers v. Dept. of Defense  is to lift the nationwide stay of the rule imposed by the Sixth Circuit—which held that the appellate courts have original jurisdiction over the rule—thus reigniting a lot of dormant trial court challenges. 

The Clean Water Act applies to “navigable” waters, which is defined simply as “waters of the United States, including the territorial seas.”  EPA and the Army Corps of Engineers administer the CWA, and have tried without much success to refine this vague definition.  The latest attempt is the WOTUS rule, adopted by the Obama EPA in 2015.  The issue in National Assn. of Manufacturers is not whether that attempt hits the mark, but in which court should challenges be heard.

As noted in Bob Brubaker’s take on this case, the Court looked to the plain language of the statute, and to context when further explanation is needed.   The CWA extends original jurisdiction to the Circuits for EPA “approving or promulgating any effluent limitation or other limitation.”  The government argued that the WOTUS rule falls within “any . . . other limitation.”  The Supreme Court rejected that argument, holding that such other limitations must be related to effluent limitations, and the WOTUS rule just establishes a definition that would apply generally to the scope of CWA.  The Court also rejected applicability of another CWA basis for Circuit Court jurisdiction advanced by the government, “issuing or denying any [NPDES] permit,” concluding simply that the WOTUS rule is not the same as permit issuance.

So what difference does it make if a trial judge or an appellate judge makes the initial decision on WOTUS?  WOTUS has drawn a multitude of challenges in both the District Courts and Courts of Appeals, including some in which plaintiffs filed in both courts to be on the safe side.  The case will end up at the Supreme Court anyway, right? 

True, but consider that the Sixth Circuit consolidated all the challenges in other Circuits and issued a decision that applied across the country.  The district court litigation has not been consolidated, and some cases have come to different conclusions, with many remaining to be litigated.  So, we can expect years of litigation in many different courts, followed by years of appeals heard by the Circuits, and finally to the Supreme Court . . . again.

But wait, Scott Pruitt’s EPA has initiated a rulemaking process to rescind and replace the WOTUS rule, so wouldn’t that moot the pending challenges to the rule?  It would not.  EPA has announced it is delaying the effective date of the 2015 rule for two more years to allow the Agency to develop its replacement.  But, in the meantime, the 2015 WOTUS rule remains in place.

The practical result is that the current round of cases in the District Courts will continue, followed -- if not accompanied -- by a new round of litigation challenging the proposed change of effective date, and the proposed rescission and replacement rules.  Safe to say there will be no certainty on the definition of WOTUS and the scope of Clean Water Act jurisdiction for many years to come.

Are RCRA Endangerment Claims Becoming The Preferred Way for Third-Parties To Regulate Point Source Discharges?

Posted on December 18, 2017 by Edward F. McTiernan

In 1972, Congress adopted the Clean Water Act (CWA) prohibiting discharges of pollutants from point sources without a permit.  Four years later, when Congress enacted the Resource Conservation and Recovery Act (RCRA), it included two notable provisions.  First, Congress excluded from the definition of “solid waste”—and thereby from regulation under RCRA—“industrial discharges which are point sources subject to permits under” CWA Section 402 (i.e., NPDES permits).  Second, Congress barred RCRA from applying to “any activity or substance which is subject to” various environmental statutes (including the CWA), “except to the extent that such application (or regulation) is not inconsistent with the requirements of such” other environmental statutes.  The net effect of these two RCRA “anti-duplication” provisions prevents RCRA from encroaching upon activities regulated by the CWA.  While much of this year’s Clean Water Act action seemed to focus on the WOTUS rule, 2017 may ultimately be remembered as the year in which plaintiffs were able to break through RCRA’s anti-duplication provisions and use endangerment claims to regulate point source discharges.

In Tennessee Riverkeeper, Inc. v. 3M Co., plaintiffs convinced a district court that they were entitled to pursue RCRA endangerment claims to regulate discharges of perfluorinated chemicals.  The court  refused to dismiss the case because, in its view, the defendants had failed to provide ‘‘any authority stating that a citizen cannot bring an RCRA claim to try to impose stricter limits on the disposal of hazardous waste than those imposed by an EPA-approved State permit or to supplement the terms of such a permit.”  Slip Op. at 20.  On November 2, the Ninth Circuit reached a similar result.  Ecological Rights Foundation v. Pacific Gas & Electric Company, (“ERF”).  Following an extensive (and largely unnecessary) analysis of RCRA’s non-duplication provisions, the Ninth Circuit stated: “RCRA’s anti-duplication provision does not bar RCRA’s application unless the specific application would conflict with identifiable legal requirements promulgated under the CWA or another listed statute.” Slip op. at 25.  In other words, plaintiffs may use RCRA to impose discharge limits on any substance not specifically named in a Clean Water Act permit, and perhaps to lower the discharge limits of substances that are.

By encouraging exactly the sort of dual regulation of a single discharge under both the CWA and RCRA that the RCRA non-duplication provisions appear intended to prevent, these decisions appear to be inconsistent with a proper reading of RCRA’s non-duplication provisions.  They may allow a judge to set discharge limits, displacing the limits (or the lack thereof) established by agency scientists following a public process.  This is problematic for several reasons.  A CWA permitted discharge may contain tens or hundreds of pollutants, but the permit typically regulates only those of most concern.  According to the Ninth Circuit,  however, the rest can now be regulated by RCRA.  Indeed, these recent decisions may open the door to using RCRA to cover pollutants  already regulated under the permit, as long RCRA imposes “stricter limits” (in the words of the Tennessee Riverkeeper court) than the CWA permit.  If the sole criterion is that RCRA endangerment claims must impose “stricter limits” than the CWA permit, plaintiffs may now have a legal basis for rewriting permits to contain whatever regulatory standards, technology requirements or procedural measures they can convince a court to impose.

Water Quality: Wading Into Trading

Posted on November 28, 2017 by Ridgway Hall

For over 20 years EPA has been promoting water quality trading – with particular emphasis on nutrients and sediment – as a way to improve water quality at reduced costs. Trading is based on the simple proposition that if Party A can reduce a pollutant at a lower per-unit cost than Party B, who needs to reduce its discharges of that pollutant, it is more economically efficient for Party A to reduce its discharges below what is required by law, and sell the additional reduction, or “credit”, to Party B. If the price is less than what Party B would otherwise pay and more than it costs Party A to make the reduction, B will save money and A will make money. 

The focus is on nitrogen, phosphorus and sediment because these pollutants have for many years been leading causes of water quality impairment and, in the case of nutrients, adverse effects on human health when the resulting algae blooms release toxins and harmful bacteria.  In 2016 EPA reported that nutrient-caused algae blooms were on the rise, causing fish kills, contamination of fish and shellfish, and beach closures, resulting in significant damage to local economies and impairments to human health. The biggest source of these pollutants is farming operations. Trading seems especially well-suited to help reduce polluted runoff from farms because their per unit cost of removing nutrients is far lower than for wastewater treatment plants. Finally, because farm runoff is a nonpoint discharge, it is not regulated under the Clean Water Act. Regulation is left to states. While many states require farms to have nutrient management plans, because the states have limited resources to inspect and enforce, finding incentives to stimulate a market-driven solution has obvious appeal.

So why are there so few trading programs in place? The GAO attempted to find the answers in its report Water Pollution: Some States Have Trading Programs to Help Address Nutrient Pollution, but Use Has Been Limited (October 2017). The report addresses (1) the extent to which nutrient trading programs are being used, (2) how EPA and the states oversee these programs, and (3) what factors affect participation in trading.  As of 2014, eleven states had some form of trading programs: California, Connecticut, Florida, Georgia, Idaho, Minnesota, North Carolina, Ohio, Pennsylvania, South Carolina and Virginia. Most of the trading was being done in Connecticut, Pennsylvania and Virginia, so GAO focused primarily on these programs.

All three of these states established their trading programs through legislation and implementing regulations. All three allow point-source to point-source trading, but as of 2014 only Pennsylvania allowed non-point sources to generate credits. Virginia appears to be moving in that direction through pending regulatory amendments.  Connecticut uses a general permit that allows 79 point sources in the Long Island Sound watershed to trade nitrogen credits through a Nitrogen Credit Exchange Program. Each year plants that are not meeting their discharge limits can buy credits from plants who are below their required limits.

Virginia allows trading of nitrogen and phosphorus credits between point sources.  Most but not all sales are through a Nutrient Credit Exchange Association, which is privately run in consultation with the state, and provides tracking of credit generation and sales.  Pennsylvania allows a point source to buy credits generated by nonpoint and point source dischargers. It has a credit exchange, PENNVEST, but most trades are outside it.  The state keeps a registry of credits generated, sold and used. During 2014, there were 39 trades in Connecticut, 151 in Pennsylvania, and 31 in Virginia.

Trading programs are managed by the states, with oversight by EPA to be sure that both the elements of the trading program and individual permits that incorporate trades comply with the Clean Water Act. Those who buy credits said that the benefits of doing so include reduced cost of compliance, risk management (credits can be used to address plant failures which cause noncompliance), and flexibility in timing technology upgrades. 

GAO cites two primary disincentives to trading. First, if water quality criteria are written in narrative form, permits are also often written in narrative form, so it is difficult to determine whether or when use of a credit might be helpful. While EPA has been pressing states to adopt numerical criteria for nutrients, GAO reported that as of 2017 only 6 states had them.  I believe that this problem can be mitigated by including numerical water-quality based effluent limits (WQBELS) in NPDES permits even when the criteria element of a water quality standard is narrative.  I don’t know how widely this is done, but typically a total maximum daily load (TMDL), which is required for water bodies not meeting water quality standards, is expressed in numerical terms, and that provides the basis for WQBELs. GAO observed that the Ohio River Basin Interstate Water Quality Trading Project allows trading among sources in Ohio, Kentucky and Indiana, but almost no trading has occurred because there are no numerical limits in the water quality standards or a TMDL.

The second reason given by stakeholders to GAO for limited trading is the difficulty in determining the water quality benefits of a best management practice (BMP), which is what is installed on farmland to reduce runoff. Models do exist for converting the benefits of BMPs, such as vegetated buffers, no-till farming and cover crops, to numerical pollution reduction on an annual basis, but these are only estimates, and lack the precision that a point source discharger looks for in deciding whether to buy a credit from a farmer. EPA has recommended the use of an “uncertainty factor”, such as 2:1, by which a buyer of 100 nitrogen credits would have to buy 200 credits. This could be modified upwards or downwards based on site-specific conditions. It is still an estimate, and any trading program will need to apply a dose of adaptive management if it wants nonpoint source trading to get up and running.  The potential cost savings are sufficiently great that such an uncertainty ratio would not by itself, in most cases, discourage trading.

Several other factors, not discussed by GAO, also tend to discourage nonpoint source trading. There is the uncertainty of the buyer, who will rely on the credit to meet its NPDES permit terms: what if the BMP on which the credit is based fails? This is a particular concern for public utilities, whose managers and ratepayers may not want the utility relying for compliance on a set of BMPs over which the utility has no control. On the farmer side, what if the farmer invests substantial sums in BMPs to generate credits, but there turns out to be little or no market for them? Several states and some financing institutions are exploring ways to create a market to jump start the process, and we will likely see more on that. Finally, there is an inherent reluctance to be among the first in what is still largely an experimental program – especially if it is being run by a government agency.

It is no coincidence that two of the three most active programs, Pennsylvania and Virginia, are in the Chesapeake Bay watershed, where a numerical multi-state TMDL has been in place since 2010. (That TMDL was discussed in my blog article EPA Issues Biggest TMDL Ever for the Chesapeake Bay Watershed, posted March 4, 2011.) At this writing Maryland, also in the Chesapeake watershed, is developing a trading program which will include nonpoint source trading and will be run jointly by the Maryland Departments of Environment and Agriculture.  The only way the goals of the Chesapeake TMDL will be achieved is through major reductions of the nitrogen, phosphorus and sediment released by farms. In a future post, I will explore those three programs in more detail.

AN UNDERGROUND RIVER RUNS THROUGH IT

Posted on November 8, 2017 by Andrew Goddard

Environmental groups have for years sought greater regulation of coal ash waste from coal-fired power plants.  It turns out an old-fashioned Clean Water Act (CWA) citizen suit is sometimes a more effective tool.

In August, Judge Waverly Crenshaw, of the U.S. District Court for the Middle District of Tennessee, ordered the Tennessee Valley Authority to “wholly excavate the ash waste disposal areas” at the Gallatin Steam Plant and “relocate the excavated coal ash to a lined impoundment with no significant risk of discharge to waters of the United States.”  TVA estimates that this will take 24 years at a cost of $2 billion.  The least surprising aspect of this case: TVA has filed a notice of appeal.

How?  In 2015, the Tennessee Clean Water Network and the Tennessee Scenic Rivers Association filed a CWA citizen suit claiming that groundwater flowed through two ash pond areas and then to the nearby Cumberland River was an unpermitted point source.  Judge Crenshaw’s 125-page opinion in support of the Order includes this diagram showing one zone of earth penetrated only vertically (by storm water) and one penetrated both vertically and laterally (by storm water and groundwater):

 

This pretty much sums up the central issue in the case:  Is the groundwater flow through the lower part of coal ash landfill, picking up contaminants and transmitting them laterally to the Cumberland River, regulated by the CWA?

In his lengthy opinion, Judge Crenshaw found that the CWA does regulate groundwater where there is a direct and immediate hydrologic connection if plaintiffs are able to “prove a link between contaminated groundwaters and navigable waters.”  TVA argued that the CWA cannot reach discharges enabled by infiltration of rainwater that was not channeled by human act because they are not point sources, but Judge Crenshaw found that the ultimate question regarding point source is whether the pollutants were discharged from a discernable, combined, and discreet conveyance by any means.  He found that the entire ash dewatering complex was a discernible, combined and discreet manmade concentration of waste and that it was a “conveyance” because it is “unlined and leaking pollutants,” and thus is by definition “conveying pollutants.”

It takes a lot for a judge to impose $2 billion of costs on a public utility.  His displeasure with how the problem had been addressed over the past several decades was palpable.  He wrote that the older of the two coal ash sites

“…offers a grim preview of what it means to leave an abandoned unlined coal ash waste pond in place next to a river.  [It] has not been a waste treatment facility for over forty-five years. It has been ‘closed’ for almost twenty years.  Still, water infiltrates it.  Still, it leaks pollutants.  Still, counsel for TVA and counsel for environmental groups are locked in conflict about what can and should be done about it. … As long as the ash remains where it is in either site, there is every reason to think that the dangers, uncertainties and conflicts giving rise to this case will survive another 20 years, 45 years or more.  While the process of closure by removal would not be swift, it would, at least, end.” 

With that, he ordered that TVA remove the coal ash to an appropriate lined site that will not discharge into waters of the United States.

There was one bit of good news for TVA: because of the cost of the chosen remedy, Judge Crenshaw decided not to assess penalties. 

Not every argument was about such large costs.  TVA’s objection to the plaintiffs’ request for attorney’s fees and costs included an objection to caviar included in a claim for $200 for food and snack items purchased from Kroger before and during the trial.  The plaintiff’s response included a receipt showing the “caviar” purchase was $16.24 of “Texas Caviar,” and attached Kroger’s recipe therefor.  It is devoid of fish eggs but does include chopped cilantro.  The recipe is available through PACER here.

Looking for Shelter under the Permit Shield

Posted on October 4, 2017 by George House

As a follow up to Kenneth Gray’s post on PFASs, the PFAS situation in the lower Cape Fear River of North Carolina is a new battleground for the Clean Water Act NPDES permitting process.  GenX is a product that DuPont, and now Chemours, began manufacturing in or about 2010 as a substitute for PFOA of Parkersburg fame.  When GenX is used in other processes at the same plant facility, it is released in the process wastewater as a byproduct.  While testing Chemours discharge for GenX, two other perfluorinated compounds, identified by EPA as PFESA Byproducts 1 and 2, were discovered.

The Department of Environmental Quality (DEQ) of North Carolina sued Chemours (spin-off of DuPont) on September 7, 2017 and sought injunctive relief from the North Carolina Superior Court for an order requiring Chemours to, “immediately cease discharging the substances identified as PFESA Byproduct 1 and PFESA Byproduct 2  . . . from its manufacturing process into the surface waters . . . and, to continue to prevent the discharge of process wastewater containing GenX into the waters of the State.”   DEQ alleged among other things that Chemours and its predecessor DuPont, “failed to timely disclose to DWR (the permitting authority) the discharge of GenX and related compounds into the Cape Fear River” and, “In particular, none of the DuPont and Chemours NPDES permit applications referenced ’GenX’ or any chemical name, formula, or CAS number that would identify any GenX or related compounds in the Facility’s discharge.”  Further, DEQ alleged, “Part of the permit applicant’s burden . . . is to disclose all relevant information, such as the presence of known constituents in a discharge that pose a potential risk to the human health.” 

By letter from counsel dated September 8, 2017, Chemours responded, “The NPDES permit specifically describes the portion of the Fayetteville Works’ complex that generates the PFESA’s and, in accordance with well- and long-established NPDES permitting practice as construed and ratified by the courts, this is sufficient for the discharges to be covered by the permit . . . . chemical substances did not have to be enumerated by name in Chemours’ NPDES permit in order to be covered under the permit, so long as the process from which they were generated was described in the permit.”  Chemours further stated that this situation, “characterizes the circumstances that also prevail at countless permitted facilities throughout North Carolina and the rest of the United States, where numerous untested and unregulated trace-level compounds are present in permitted discharges”.

North Carolina courts will now have to grapple with the issues presented in Piney Run Pres. Ass'n v.Cnty. Comm'rs that was recently cited with approval in S. Appalachian Mt. Stewards v. A&G Coal Corp., both Fourth Circuit cases, and rule upon the issue of how much information a permit applicant must disclose to successfully avail itself of the “permit shield.”

PFAS – NOT JUST ANOTHER “EMERGING” CONTAMINANT

Posted on September 19, 2017 by Kenneth Gray

No longer emerging, Per- and Polyfluoroalkyl Substances (PFASs) have exploded on the environmental and toxic tort landscape in 2016 and in 2017.  Cognoscenti will recall U.S. EPA phase-out initiatives dating back to 2000, EPA Drinking Water Health Advisories set in 2009 and the TSCA action plan of the same year, the 2012 EPA drinking water monitoring rule, and even a blog in this very space “way back” in 2011.

Why have PFASs recently been compared to asbestos and PCBs for potential costs and impacts?  And why will they continue to be significant even if there is no further federal regulation in the near term?  Here’s why:

·        The compounds have many uses in many products and were therefore manufactured or used (and released) at a large number of facilities. Commercial products included, among others, cookware, food packaging, personal care products, and stain resistant chemicals for apparel and carpets.  Industrial and commercial uses included photo imaging, metal plating, semiconductor coatings, firefighting aqueous film-forming foam, car wash solutions, and rubber and plastics.  Sources include landfills.

·        PFASs are highly mobile and highly persistent in the environment, and so will be present for many decades.

·        The EPA Drinking Water Health Advisory level was reset (lower) in 2016 at 70 parts per trillion (ppt).

·        EPA estimates that 6.5 million people are affected by PFASs in public water systems, which does not include any impacts to smaller water systems or private wells.

·        More and more public water systems are voluntarily testing for PFASs – and more states are compelling testing.

·        Airborne releases of PFASs have contaminated groundwater and surface water.

·        They’re ubiquitous in the environment and present in human blood.  PFASs are also found in fish, and thus fish advisories are being set by states. 

·        California has proposed listing PFASs under Proposition 65 based on reproductive toxicity.

·        Many U.S. Department of Defense properties (and former properties) were the sites of PFAS releases in firefighting foam, and DOD is ramping up additional testing on its facilities.  

·        Toxic tort lawsuits have been filed over PFAS contamination in Parkersburg, WV; Decatur, AL; Merrimack, NH; and Hoosick Falls, NY. More lawsuits are likely.

·        Several Attorneys General are reportedly considering lawsuits on behalf of the citizens of their states.

It may only be the end of summer, but can you sense a snowball?

Is Tier 3 Coming to a High Quality Waterbody in Your State?

Posted on August 16, 2017 by Eric Fjelstad

The Alaska Department of Environmental Conservation (ADEC) has taken on the task of defining a process to designate so-called Outstanding National Resource Waters.  These are often called “Tier 3” waters.  A quick recap of the Clean Water Act’s antidegradation regulations.  Under relevant EPA regulations, waters which do not meet water quality standards are classified as Tier 1 waters.  Waters which meet or exceed water quality standards are classified as Tier 2 waterbodies.  The best waters - Tier 3 waters - are defined by EPA in 40 CFR 131.12(a)(3) as follows:

Where high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.

The regime has proven controversial in Alaska because it would apparently impose a “no degradation” prohibition on new and expanded discharges.  The term “degradation” is not defined in EPA’s regulations which leave open the question whether Tier 3 allows for any detectable pollutants. 

The State of Alaska is blessed with an abundance of high quality waters.  It also is a resource development state, and many projects occur in areas with high quality waters.  Conservation groups argue that Alaska’s water resources should be protected before they are compromised through development.  Development interests believe Tier 3 is just another regulatory initiative to stop projects.  ADEC has struggled to implement a Tier 3 regime, finding few friends in industry and conservation corners as it works to develop a program.  Amongst the questions ADEC has grappled with. 

· What criteria should be employed to screen potential Tier 3 candidates?  Alaska has many high quality waters and the debate has centered on whether the waterbody should be truly exceptional or unique by Alaska standards versus exceptional or unique compared to the Lower 48. 

· How much information should be in the proposal?  Conservation groups generally favor a streamlined proposal process.  For example, a few paragraphs on why a waterbody merits Tier 3 status, along with information on the basic social and economic implications of the designation.  Industry stakeholders argue that a Tier 3 designation effectively imposes a “no discharge” regime on an entire watershed and should be rigorously evaluated in a study akin to an environmental impact statement with the costs to be borne by the proponent. 

· Who should make the designation?  Conservation groups argue a Tier 3 decision should be made by ADEC or by an administrative commission and be reviewable in the courts.  Industrial stakeholders believe a Tier 3 designation is fundamentally a political decision, comparable to establishing a state park or wildlife refuge, and should be made by elected officials in the legislative process. 

· How would the “no degradation” standards work in practice?  ADEC has indicated that temporary discharges with minor impacts would be permissible under Tier 3.  However, ongoing discharges would be prohibited, even if the discharge complied with water quality standards at the “end of the pipe.”  There are unresolved questions how Tier 3 would apply, if at all, to nonpoint sources of pollution.

· Can a Tier 3 designation be changed?  There has been no clear statement from EPA on whether a Tier 3 designation could be changed.  The regulatory grapevine has yielded mixed signals with some suggesting a Tier 3 designation would be permanent.

EPA’s one sentence regulation leaves much to the imagination, and stakeholders would benefit from greater clarity from EPA in its regulations.  Given the open questions and the potentially significant restrictions a Tier 3 designation places on waterbodies, it is not a surprise that Alaska is struggling to define a rational Tier 3 process.