Section 316(b) of the Clean Water Act – Cooling Water Intake Requirements – Update on EPA and State of Maine Actions

Posted on January 18, 2013 by Philip Ahrens

Section 316(b) of the Clean Water Act requires that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.  Although the statutory language is straight-forward, EPA has run into enormous difficulties in promulgating rules to implement Section 316(b).

The latest in a series of rulemaking efforts began on April 20, 2011 when EPA published a proposed rule to protect fish from being killed at water intake structures that withdraw at least 2,000,000 gallons per day from waters of the United States and use at least 25% of the water they withdraw exclusively for cooling purposes.  Pursuant to a Settlement Agreement with the environmental group, Riverkeeper, and other organizations, EPA was required to issue the revised rule by July 27, 2012. 

When I last wrote about this rulemaking effort by EPA, EPA had received more than 1,100 comment letters and more than 80 documents containing new data for possible use in developing the final impingement mortality limitations.  On June 12, 2012, EPA offered a 30-day comment period on the new information with comments due on or before July 11, 2012. 

Through the Notice of Data Availability published by EPA on June 12, 2012, EPA also presented data it had received related to the results of EPA’s stated preferences survey.  Comments on the data related to EPA’s preference survey were also required to be submitted on or before July 12, 2012. 

In my previous blog on this subject, I wrote it was hard for me to understand how EPA would be able to comply with a court-ordered issuance date of new rulemaking by July 27. 

Not surprisingly, EPA was unable to issue its new rule by July 27.  Instead, EPA entered into a Second Amendment to the Settlement Agreement with Riverkeeper and other organizations.  The Settlement Agreement contains the following language:  “Not later than June 27, 2013, the EPA Administrator shall sign for publication in the Federal Register a notice of its final action pertaining to issuance of requirements for implementing Section 316(b) of the CWA at existing facilities.”  Since entry of the extension, EPA has been remarkably silent about any steps it plans to take prior to the June 27, 2013 deadline for notice of final action.

Concurrent activity at the state level is also of interest.  Prior to this latest extension, EPA Region 1 sent about ten extensive Section 308 information requests to facilities in Maine to set the stage for possible issuance of case-by-case, best professional judgment permit requirements pursuant to 316(b) for the selected facilities.  It is unclear how the facilities were selected given other Maine facilities also met the proposed thresholds.  Those facilities have responded to the information requests but further action even on those facilities is on hold.  EPA Region 1 and the Maine DEP have now determined that DEP, which administers a partially delegated NPDES program, now has the statutory capacity to administer the 316(b) program.  DEP is in the process of formally seeking explicit delegation for the 316(b) program as anticipated under the original EPA-DEP NPDES Memorandum of Agreement.  The DEP has indicated it intends to wait until after EPA issues a final rule implementing Section 316(b) before DEP decides how it proposes to implement 316(b) as a delegated state.

Accotink Creek: Innovative TMDLs Down the (Storm) Drain?

Posted on January 11, 2013 by David Van Slyke

On January 3, 2013, an EPA-set TMDL for Accotink Creek (a Fairfax County, Virginia tributary of the Potomac River) was invalidated on the grounds EPA exceeded its statutory authority when it attempted to regulate, via the TMDL, a Clean Water Act pollutant – sediment – by instead regulating a surrogate non-pollutant – stormwater flow.  The opinion granted plaintiff’s motion for judgment on the pleadings; in a separate order Judge O’Grady vacated the Accotink Creek TMDL and remanded the matter to EPA for further consideration.

Utilizing the two-step Chevron statutory interpretation analysis, the court found the first of the two criteria had been met:  Congress had addressed in unambiguous language the precise question at issue “… and its answer is that EPA’s authority does not extend to establishing TMDLs for nonpollutants as surrogates for pollutants.”  While directly acknowledging he did not need to reach the second Chevron criterion (whether the agency’s reading of an ambiguous statute is “permissible”), Judge O’Grady nonetheless noted in some detail that “there is substantial reason to believe EPA’s motives go beyond ‘permissible gap-filling.’”

Based upon EPA’s own pleadings, the opinion notes it appears the Agency could have set a TMDL based upon the underlying problem – sediment in the creek – rather than pursuing a surrogate approach.
In recent years, EPA has been pursuing so-called “innovative” TMDLs in an attempt to address stormwater’s contribution to impaired watersheds.  In particular, those TMDLs purport to set load limits based upon various surrogate approaches, including such things as the percentage of impervious cover (“IC”) allowed in the impacted watershed, or (as with Accotink Creek) stormwater flow rates.  While the Accotink Creek TMDL was in EPA Region 3, New England’s Region 1 seems to be in the forefront of this approach and currently has at least three stormwater-source TMDLs in place (including two so-called IC-TMDLs), as well as others in development. 

Given the extensive resources EPA has invested in trying to manage stormwater impacts to impaired streams (see e.g., TMDLs to Stormwater Permits Handbook (Draft Nov 2008)), the Virginia Dept. of Transportation case is clearly a significant setback for the surrogate approach propounded by the Agency.  Whether the United States appeals the decision or retreats and re-evaluates its initiatives in this area is yet to be determined.  Whichever way EPA decides to go, communities dealing with impaired watersheds certainly will need to pay close attention.

SUPREMES CONFIRM NO DISCHARGE PERMIT NEEDED FOR POLLUTED WATER TRANSFERS WITHIN SAME RIVER

Posted on January 10, 2013 by Richard Glick

On January 8, 2013, the U. S. Supreme Court unanimously held that flow from an improved portion of a waterway into an unimproved portion of the same waterway—even if polluted—does not qualify as “discharge of pollutants” under the Clean Water Act (CWA).  Although this case arises in the context of a municipal separate storm sewer system (MS4), it has major implications for dam owners everywhere.  The case reaffirms evolving doctrine that dams are not point sources requiring National Pollutant Discharge Elimination (NPDES) permits per Section 402 of the CWA.

In Los Angeles County Flood Control District v. Natural Resources Defense Council, environmental groups brought a CWA citizen suit against the District for violating the terms of the District’s NPDES permit to operate the MS4 facilities.  It was undisputed that water quality standards had repeatedly been exceeded for a range of pollutants, as measured at the District’s monitoring stations in the Los Angeles and San Gabriel Rivers.  The District collected storm water in concrete channels before discharging back to the river, and the monitoring stations were within the concrete channels.  It was also undisputed that many other upstream parties contributed to the contamination.  

Plaintiffs argued that since the monitoring stations were within the control of the District, the District had responsibility for meeting standards.  But that was not the issue for the Court.  Instead, the Court focused on whether a “discharge of pollutants” occurs when polluted water flows from one portion of a river, through an engineered improvement, and then back again to the same river.  The Court answered in the negative, citing its 2004 decision in South Fla. Water Management Dist., v Miccosukee Tribe.  In Miccosukee, the Court held that pumping polluted water from one part of a water body to another part of the same water body is not a discharge of pollutants.

This decision should come as welcome news to dam and hydroelectric plant owners.  Prior to Miccosukee and now LA County, the federal Courts of Appeal simply deferred to EPA judgment as to whether a dam could be said to “add” pollutants originating upstream when it passes them through penstocks or spillways to the river below.  The Supreme Court, however, has firmly established a rule of law that CWA Section 402 is implicated only where the upstream and downstream river segments are “meaningfully distinct water bodies,” a condition that will rarely exist for in-river dams.

UPDATE ON THE DEEPWATER HORIZON OIL SPILL AND RESTORATION OF THE GULF COAST ECOSYSTEM AND ECONOMY

Posted on December 28, 2012 by Jarred Taylor

By: Jarred O. Taylor II and Shannon K. Oldenburg

The Gulf Coast Ecosystem Restoration Council (the “Council”) held its first public meeting on December 11, 2012, in Mobile, Alabama, intended to introduce the Council to the public and to give the public feedback opportunity on the Council’s plans.  The Council, established by the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012 (the “RESTORE Act”), is charged with developing and overseeing implementation of a comprehensive plan to help restore the ecosystem and economy of the Gulf Coast region in the wake of the Deepwater Horizon oil spill. 

The RESTORE Act will fund the Council’s work via a Trust Fund made up of 80 percent of all Clean Water Act administrative and civil penalties related to the oil spill:

• 35 percent of the money will be divided equally between the five Gulf States;
• 30 percent will be spent through the Council to implement a comprehensive plan;
• 30 percent will be used through States’ plans to address impacts from the oil spill;
• 2.5 percent will be used to create the Gulf Coast Ecosystem Restoration Science, Observation, Monitoring and Technology Program within the Department of Commerce’s National Oceanic and Atmospheric Administration (“NOAA”); and
• the remaining 2.5 percent will be used for Centers of Excellence Research grants, which will each focus on science, technology, and monitoring related to Gulf restoration.

Overarching themes of the comments from both the Council and the public in attendance at the meeting were that ideas for Gulf restoration should originate from the Gulf Coast, not from the federal government, and that the Gulf of Mexico Ecosystem Restoration Strategy developed by the Gulf Coast Ecosystem Restoration Task Force (“GCERTF”) should be used as a framework for the Council’s work.  To much approval from the audience, Rachel Jacobson, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior (Ken Salazar’s designated representative on the Council), commented that the Council should incorporate the “four pillars” of the GCERTF strategy into the process and work of the Council in determining how the RESTORE Act funds should be distributed and used.  These four pillars are (1) restore and conserve habitat; (2) restore water quality; (3) replenish and protect living coastal and marine resources; and (4) enhance community resilience.  Notably, Jacobson and many of the other designated representatives to the Council served as members of the GCERTF and also act as Trustees for the Natural Resources Damage Assessment (“NRDA”) for the Deepwater Horizon oil spill.

The Council has only 180 days from passage of the RESTORE Act to publish: 1) procedures to assess whether programs and activities carried out under the Act are in compliance with the Act’s requirements; 2) auditing requirements for disbursing funds from the Trust Fund; and 3) procedures to identify and allocate funds for the expenses of administering the Trust Fund.  The Council will publish a “proposed plan” by the end of this year that will be the focus of public hearings in late January and early February 2013, likely to be in the style of the public “listening sessions” held by the GCERTF last year.  The Council also will release a “draft comprehensive plan” for restoration in Spring 2013, and publish a final plan on July 6, 2013, the anniversary of enactment of the RESTORE Act.

An incredible amount of work has already gone into Gulf restoration, but much work remains.  Only time will tell if these legislative acts and work will translate into true restoration in the Gulf area.

New Hampshire's Great Bay, Nitrogen, and the Limits of Technology

Posted on December 26, 2012 by Gregory H. Smith

As the Clean Water Act celebrates its 40th anniversary, it has ignited a controversy in New Hampshire with potentially hundreds of millions of dollars at stake.  In the law’s early days,  publicly owned treatment works (“POTWs”), mandated and financed in large part with federal funds, were viewed as the “good guys” in the national effort to restore quality in receiving water bodies into which raw sewage was being discharged.  That view of POTWs seems to have changed in New Hampshire, at least as relates to the State’s largest saltwater estuary; the Great Bay.  Faced with the potential need to finance significant POTW upgrades or reconstruction, New Hampshire POTWs are challenging EPA’s permitting decisions in the courts, through administrative channels and in the press.

As we know, POTWs are regulated through National Pollutant Discharge Elimination System (“NPDES”) permits that monitor and control a variety of effluent criteria.  Interestingly, however, New Hampshire was and remains one of the few states that has not obtained authority to issue new and renewed NPDES permits.  Because of this status as a non-delegated state, dischargers in New Hampshire with expiring permits must apply to the federal government for renewal.  As environmental regulation has progressed, however, and as federal funds have diminished or disappeared, POTWs and the towns and sewer districts that operate them have found themselves opposed to the EPA’s efforts to impose stricter standards  to address pollutants that were not of primary concern when the POTWs were constructed and initially permitted.

In New Hampshire, this is seen vividly in NPDES renewal efforts EPA is undertaking for several POTWs that discharge under expired and expiring permits, directly or indirectly, into the Great Bay estuary located on the State’s coast.  Once a rich habitat for oysters, eel grass and other sea life, Great Bay is now stressed by a variety of factors including both point and non-point discharges as well as other environmental factors.   At the heart of the controversy  in New Hampshire is EPA’s intention to reduce effluent limitations for nitrogen to as low as three parts per million (the limits of technology) in order to ameliorate nitrogen related problems in Great Bay.  From the municipalities and POTWs perspective, the costs to comply with these new lower limits are exorbitant.  One widely cited study estimates that, for the Great Bay estuary POTWs to comply with the new nitrogen limit, it will cost in excess of one half billion dollars in capital,operation and maintenance expenses.  Those costs will, of course, be passed along to a relatively small population of ratepayers. 

A coalition of communities with affected POTWs has joined forces in response, proposing “adaptive management programs” combining somewhat lower discharge limits with comprehensive non-point controls aimed together at achieving EPA’s stated goals.  It is unclear at this time whether those efforts will be successful.  The coalition communities certainly have in mind the experiences in Chesapeake Bay, or closer to home in neighboring and similarly non-delegated Massachusetts, where EPA is using its  Residual Designation Authority (“RDA”) to require permits in the Charles River watershed.  EPA has been public with its view that the Charles River RDA program may become a model for watersheds elsewhere in New England and nationwide.  It is thought that an adaptive management program as proposed by New Hampshire’s coalition communities would obviate the need to utilize RDA for Great Bay, but that issue remains to be addressed in the future.

Numeric Nutrient Criteria - High Stakes in the States

Posted on December 4, 2012 by John Milner

On March 13, 2012, eleven environmental organizations, led by Gulf Restoration Network ("GRN"), filed
a federal Clean Water Act (CWA) citizen suit which demanded that the U.S. Environmental Protection
Agency (EPA) set federal numeric standards for nitrogen and phosphorus for water bodies within the 31
states comprising the Mississippi River Basin ("Basin States"). Gulf Restoration Network v. Jackson,
E.D. La., No. 2: 12-cv-00677 ("GRN Suit"). The complaint alleges that EPA has failed to develop
numeric water quality criteria for nitrogen and phosphorus in the Basin States. EPA's answer states that it
is appropriately deferring to each state to promulgate numeric nutrient criteria ("NNCs") that satisfy
Clean Water Act water quality standards within the state and that, consequently, federal NNCs are not
appropriate. The trial judge ruled on September 19, 2012 that the case will be decided on "cross-motions
for summary judgment, with no initial disclosures or other discovery." In the same order, the judge set a
briefing schedule for the parties (including numerous entities to which the court granted permission to
intervene) that will extend through the beginning of June of next year.

The GRN Suit, as well as other similar suits that are active in other regions, have prompted many state
environmental agencies to work diligently, pursuant to EPA's deference and also its demand, to develop
NNCs as quickly as possible. If EPA wins the GRN Suit, the Basin States will have to be ready to go
forward with promulgation of their NNCs. If EPA loses, they may be subjected to more stringent federal
NNCs on a "one size fits all" basis. A settlement could mean an even different outcome for all ofthe
parties.

In Mississippi, the state's Department of Environmental Quality ("MDEQ") has formed a Nutrient
Technical Advisory Group (TAG) to develop scientifically defensible NNCs that are appropriate for
Mississippi's surface waters. The TAG is composed ofMDEQ staff, MDEQ's external consultants and
in-state university personnel who have water quality expeiiise and is meeting on a regular basis. MDEQ
staff members have stated that the agency's plan is to have draft NNCs developed for all state waters,
excluding the heavily agricultural Delta counties, by June 30, 2013. The draft NNCs for the Delta are to
be developed by November 30, 2014. MDEQ wil then publish these draft NNCs for public comment.

MDEQ has held several stakeholder meetings to discuss the development of Mississippi's NNCs and to
provide an opportunity for questions and comments. The MDEQ staff members have consistently
explained that they are considering "what is protective of the environment" rather than "what is
technically achievable." The new NNCs wil be "worked into permits" as they come up for renewal and
permittees wil be allowed a "reasonable time frame" to come into compliance with the new NNCs.

The key issue for the regulated community in Mississippi, as in other states, will be the cost of
compliance with these new NNCs, which could bear a very expensive price tag. In Florida, for example,
a national environmental engineering consultant prepared an economic analysis of proposed NNCs. The
estimate for direct compliance costs ranged from $ 1.5 bilion annually (best management practices for
impaired water categories) to $4.5 billion annually ("end of pipe" requirements for all water categories).
Regulated communities in Mississippi and in other states across the country are engaging with scientific
and economic data and consultants in order to have an impact concerning this volatile issue. A lot is on
the line.

Flooding the High Court’s Docket With Water

Posted on November 12, 2012 by Richard Lazarus

Written October 3, 2012

Water, lots of it, promises to dominate the Supreme Court’s October Term 2012 with three significant environmental cases already on the docket and potentially a couple more looming on the horizon.

In Arkansas Fish & Game Commn v. US, No. 11-597, argued on October 3rd, the Court will decide a Fifth Amendment Takings claim against the Army Corps of Engineers for temporarily flooding downstream riparian property.  The parties and their supporting amici proffer competing per se “takings” and “no takings” tests.  The Court seems likely to reject each in favor of the Justices’ preferred ad-hoc balancing approach.  The other two cases, set for argument on consecutive days in December, are Decker v. Northwest Environmental Defense Center, No. 11-338 (consolidated with Georgia-Pacific v. Northwest Environmental Defense Center, No. 11-347) and LA County Flood Control Dist v. NRDC, No. 11-460 (I am co-counsel for respondents in the LA County case).  Both cases concern the application of the Clean Water Act to storm water discharges: logging in Decker and municipal storm water in LA County.  The cases are the Court’s first opportunity to address storm water issues.  The environmental respondents plainly have reason for concern in both cases.  They won in the Ninth Circuit, the Supreme Court’s favorite circuit for reversal in environmental cases.  One sign of potential trouble for the respondents:  The Court asked the Solicitor General in both cases whether the cases warranted review.  The SG said no, that neither case presented an important legal issue.  Typically, the Court will take a case despite the SG’s negative view only if there are at least four Justices (the number required to grant review) contemplating reversal.  Of course, Justices can and do change their minds once they have the benefit of full briefing and oral argument.  For both Decker and LA County, environmental respondents are plainly hoping for just that.

Whether the October Term 2012 is a true blockbuster for environmental law may depend on the fate of petitions, should they be filed with the Court, seeking further review of the D.C. Circuit’s recent Clean Air Act rulings in Coalition for Responsible Regulation v. Jackson (EPA’s greenhouse gas regulations) or EME Homer City Generation v. EPA (EPA’s Cross-State Air Pollution Rule).  EPA won the first in June and lost the second in August.  Should the losing parties in either case successfully petition for Supreme Court review, the promise of a blockbuster Term will likely materialize.

COURTS FRIENDLIER TO EPA IN CLEAN WATER ACT CONTEXT THAN CLEAN AIR ACT?

Posted on September 19, 2012 by Rick Glick

In his blog post of August 27, Rob Brubaker reported on three cases in which the courts refused to grant deference to EPA decisions under the agency’s Clean Air Act authority.  EPA has fared a bit better in two recent Clean Water Act cases.

In Upper Blackstone Water Pollution Abatement District v. EPA case, the issue was whether EPA properly issued a stringent NPDES permit renewal to a sanitary district to control excessive nitrogen and phosphorus loading.  The First Circuit Court of Appeals rejected the district’s argument that EPA should have waited until the district could complete its modeling effort, even though the model did not seem close to ready, and that EPA did not apply the best science.  The court declined to conduct a de novo review of EPA’s scientific analysis, limiting its inquiry to whether EPA followed the appropriate administrative process, based its decision on record evidence and clearly articulated its reasoning. So long as the criteria imposed are within the “zone of reasonableness”, the court will not strike it down.

Interestingly, the Upper Blackstone court also rejected the district’s argument that the new permit is improper because even with stricter criteria, it would not be sufficient to correct the eutrophication problem in the watershed.  The court set that aside, noting that the CWA contemplates multiple sources of contamination and no one party is responsible for cleaning up the river. 

The Upper Blackstone case is consistent with the U. S. District Court’s decision in the Northwest Environmental Advocates v. EPA, which I discussed in my March 23 post.  In the latter case, the court upheld EPA’s approval of Oregon’s numeric temperature standards, deferring to the EPA’s scientific expertise.  It took issue with the narrative Natural Conditions Criteria because it was so broad that the court concluded it supplanted numeric standards.  The court left the door open for the Oregon Department of Environmental Quality to rewrite the narrative standard for EPA review, based on the agencies’ own review of the science and a good explanation in support of the standard. 

It appears the theme running through three Clean Air Act cases cited in the Brubaker post is that the reviewing court found no authority supporting EPA’s action, or that EPA’s interpretation defied the plain meaning of the statute.  In the Clean Water Act cases, EPA overreaching on the Upper Blackstone permit or approval of Oregon water quality standards was not at issue.  The focus instead was on whether EPA demonstrated it properly considered the best science available under the authority it had, and then explained how it got to its decision.  In that context, EPA and state regulatory agencies will win more than they lose.

Lucy, Ethel, and the Chocolate Factory – Reflections on EPA’s Draft Vision Statement for the Clean Water Act 303(d) Program

Posted on September 11, 2012 by Allan Gates

EPA recently issued a new draft vision statement for the Clean Water Act 303(d) program, the program under which impaired water bodies are identified and TMDLs performed.i   It is fitting that this draft vision statement coincides with the 60th anniversary of the classic episode of I Love Lucy in which Lucy and Ethel struggle mightily to wrap chocolate bonbons as they proceed down a conveyor belt.ii  At first all goes well.  Then the conveyor belt speeds up.  Lucy and Ethel are soon frantically pulling candies off the conveyor belt, stuffing them into their hats, their mouths, and even down the front of their uniforms in order to keep pace with the conveyor belt.

The CWA 303(d) program started off quietly.  States occasionally sent EPA lists of impaired water bodies (the so-called 303(d) lists), and EPA dutifully filed most of them away.  Even a few TMDLs – the studies intended to describe how impaired water bodies should be restored – got performed.  Then came the TMDL litigation.  Dozens of lawsuits in the 1990’s led EPA and the states to begin serious periodic assessments of state water bodies for compliance with water quality standards; and quotas were set by judicial decree or regulatory fiat for the issuance of TMDLs for all of the water bodies found to be impaired.  Soon TMDLs were flying down the conveyor belt at a speed never previously experienced.  EPA reports that we are very close to reaching the milestone of 50,000 TMDLs.

With two decades of experience issuing thousands of TMDLs per year it is reasonable to step back and consider the water quality results obtained.  The simple truth is that restoration of impaired water bodies has not come anywhere close to keeping up with the pace at which TMDLs have been rolling off the bureaucratic assembly line.  There are a variety of reasons for this paucity of results in restoring impaired water bodies.  Frequently the principal causes of impairment identified in a TMDL are non-point source contributions that are largely beyond the direct reach of regulatory programs.  Load reductions prescribed by TMDLs usually require significant expenditures, but funding is rarely available.  Public buy-in for the changes prescribed by TMDLs is often lacking, frequently because the TMDLs are viewed as products of obscure regulatory processes that are not responsive to stakeholder sentiment.  Although the problems addressed by TMDLs are commonly quite complex, the quality of the analysis in some TMDLs is indefensibly poor.  Sometimes the water quality standards that triggered the TMDL are unrealistically ambitious to begin with.  Even when the relevant standards are appropriate, the process of identifying impaired water bodies is commonly mired in bureaucratic minutiae and delay.  States are frequently late in sending in their biennial 303(d) lists to EPA; and EPA is equally delinquent in meeting the 30-day time limit set in its own regulations for completing federal review and approval of state 303(d) submissions.

Given the litany of issues that have limited the success in achieving most TMDL load reductions, it is interesting to read EPA’s new draft vision statement:

“The Clean Water Act Section 303(d) Program provides effective integration for implementation of activities to restore and protect the nation’s aquatic resources, where the nation’s waters have been assessed, restoration and protection objectives have been systematically prioritized, and Total Maximum Daily Load and alternative approaches are being adaptively implemented to achieve water quality goals with the collaboration of States, federal agencies, tribes, stakeholders, and the public.”

In fairness to EPA’s draft, almost all vision statements are insufferably stuffy and meaningless to everyone except those few who were in the room and argued vigorously for the addition or deletion of a particular word or phrase when the inscrutable language was crafted.  Moreover, EPA’s new draft vision statement is accompanied by “goals statements” that offer somewhat more concrete prospects for program improvements at the margin, such as protection of unimpaired waters, increased focus on prioritization, and more flexible approaches to TMDL implementation.  If we want to achieve major improvements in water quality, however, we need visionary leaders not a new vision statement.  We need to spend a lot of money, and we need to spend it in a smart way.  We need new programs that fix the regulatory limitations of the current laws, not repackaged versions of the status quo.  And we need a broad public commitment to achieve change.  In the early 1970s political leaders managed to do these things on a bipartisan basis for the sake of improving the nation’s water quality.  Unfortunately, the current state of partisan gridlock offers little hope for major change in the foreseeable future.

Maybe a new vision statement is the best we can hope for given the strong anti-regulatory sentiment in the current public discourse.  Against this background, one cannot help but reflect on the end of the iconic scene in the chocolate factory.  The supervisor comes into the room, pleased that Lucy and Ethel have not allowed a single bonbon to make it past their work station unwrapped.  She announces “Why you girls are doing splendidly,” and then yells to the conveyor belt operator, “Speed it up a little!”

i A Long-Term Vision for Assessment, Restoration, and Protection under the Clean Water Act Section 303(d) Program, FINAL DRAFT FOR STATE/EPA REVIEW (1 August 2012).  An earlier version of the same document, a Stakeholder Review Draft dated June 2012, is accessible here.
ii I Love Lucy, Season 2, Episode 4, broadcast on September 15, 1952, accessible here. Copies of the chocolate factory scene are accessible on YouTube.

What Ever Happened to Reasonable Further Progress?

Posted on August 8, 2012 by Robert Falk

Under the federal Clean Water Act (CWA), most municipalities in the United States are now required to have National Pollutant Discharge Elimination System (NPDES) permits for discharges of stormwater/urban runoff.  As intended by Congress, both the U.S. Environmental Protection Agency (EPA) and authorized state NPDES permit writers originally took a programmatic approach relative to the requirements they put into such Municipal Separate Storm Sewer Systems or “MS4” permits.  Over time, though, municipalities have, in various ways, been required to address water quality standards more directly, including where such standards are expressed quantitatively. 

In California, this has manifested itself in the issuance of MS4 permits containing provisions called “Receiving Waters Limitations,” which, among other things, preclude the permitted municipal stormwater discharges from “causing or contributing to a violation of an applicable water quality standard.”  Since this ambitious goal is a tall order that likely cannot be met without the construction of large, capital-intensive detention and treatment facilities for which no funding is available, other language contained in these MS4 permits has instructed the municipality that if “exceedances of water quality standards persist,” they must evaluate and submit plans to improve their stormwater management programs to address the situation and then implement such plans and improvements according to a schedule they propose – an “iterative process” that envisions reasonable further progress towards the achievement of water quality standards over time and which inherently recognizes that resource and feasibility constraints may inform the pace of that progress.

Last year, in NRDC v. County of Los Angeles, et al., 636 F. 3d 1235 (9th Cir. 2011), the U.S. Court of Appeals ruled that demonstrating compliance with the iterative process language in these MS4 permits did not create a safe harbor and shield a municipality from direct enforcement of the Receiving Water Limitations themselves, including by means of a citizens’ suits.  The U.S. Supreme Court recently granted cert. in this case, raising a glimmer of hope for municipalities that a reasonable further progress approach might somehow be restored.

Unfortunately, the High Court may well not speak directly to this issue notwithstanding its practical import for municipalities.  Its cert. grant instead requested briefing and argument on the more unusual and academic issue of whether water that flows from one portion of a river that is navigable water, through an MS4 or other engineered channel, and into a lower portion of the same river is “discharge” from an “outfall” requiring an NPDES permit.  As its cert. grant itself suggests, this is an issue the U.S. Supreme Court likely already addressed in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004).  Accordingly, if the Ninth Circuit’s decision is reversed on this basis and without a discussion of the broader issues that caused it to arise, it will be left to Congress, EPA, or state permit writers to decide if they are willing to restore a reasonable further progress approach to municipal stormwater permitting.

Water Quality Trends in the Northwest (Fish Consumption Rates)

Posted on July 9, 2012 by Kevin Beaton

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

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

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

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

Encouraging the Use of Abandoned Coal Mine Drainage for Hydraulic Fracturing in Pennsylvania through a Good Samaritan Statute

Posted on June 21, 2012 by Chester Babst

The development of natural gas shale formations, such as the Marcellus and the Utica in Pennsylvania, Ohio and West Virginia, requires reliable sources of water for hydraulic fracturing that makes gas extraction from tight shale possible.  In Pennsylvania―a state with relatively plentiful ground and surface water sources―there are water sourcing challenges presented by various regulatory frameworks as well as withdrawal limitations in sensitive headwater areas of the state that coincide with current oil and gas activities. 

One alternative to using fresh water for hydraulic fracturing is the use of water supplies affected by acid mine drainage (AMD), which are also plentiful in Pennsylvania.  While the use of AMD by the oil and gas industry offers many potential benefits, operators are reluctant to become entangled in long-term liabilities created by the current legal framework for such pre-existing contamination.

Recognizing the need to encourage the treatment of abandoned AMD, Pennsylvania adopted the Good Samaritan Act, 27 Pa. Cons. Stat. §§ 8101 et seq., in 1999 to provide liability relief for various stakeholders, volunteers and watershed groups to undertake cleanup efforts of pre-existing contamination from AMD.  One recent legislative proposal would amend the Act to allow relief from liability for the use of mine drainage, mine pool water, or treated mine water for the development of a gas well.  This amendment, which has bi-partisan support in the Pennsylvania legislature, provides relief from third party claims as well as enforcement under various liability schemes.

On a parallel track, the Pennsylvania Department of Environmental Protection (PADEP) has been investigating means by which it could encourage the use of AMD by oil and gas operators.  See PADEP’s draft White Paper: Utilization of AMD in Well Development for Natural Gas Extraction, November 2012.  PADEP is engaging in ongoing discussions with stakeholders regarding possible processes and solutions for the treatment, storage, and liability issues associated with such an undertaking. 

At the federal level, the United States Environmental Protection Agency (EPA) has developed a Good Samaritan Initiative to protect volunteers from liability for the remediation of drainage from abandoned hard rock mines.  EPA’s program, however, does not encompass coal mine drainage, which is the primary source of AMD in Pennsylvania.  Short of legislative changes to the Clean Water Act or CERCLA to protect operators from potential liability, an expansion of EPA’s initiative to encourage the use of AMD for hydraulic fracturing in Pennsylvania would provide greater confidence to the oil and gas industry that both state and federal agencies are willing to provide appropriate relief to encourage the use of AMD.

While it seems like a win-win-win for the environment, industry and the Commonwealth, it remains to be seen if workable solutions will be found to encourage the use of AMD while limiting long-term liability related to that use.

Section 316(b) of the Clean Water Act – Cooling Water Intake Requirements – UPDATE

Posted on June 12, 2012 by Philip Ahrens

Section 316(b) of the Clean Water Act requires that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.  EPA embarked on three rulemaking phases to implement the statutory requirements.

The latest rulemaking effort began on April 20, 2011 when EPA published a proposed rule to protect fish from being killed at water intake structures that withdraw at least 2,000,000 gallons of water per day from waters of the United States and use at least 25% of the water they withdraw exclusively for cooling purposes.  The proposed rule resulted from a request by EPA to the Fifth Circuit to take back portions of its cooling water rule relating to existing facilities (ConocoPhillips v. EPA, 5th Circuit No. 06-60662, July 23, 2010).  Pursuant to a Settlement Agreement with the environmental group Riverkeeper and other organizations, EPA is required to issue the revised rule by July 27, 2012.

EPA has just published notice in the Federal Register presenting a summary of the significant new information and data EPA has received since its April 20, 2011 proposal and a discussion of possible revisions to the final rule that EPA is considering that were suggested by the data and comments.  77 Fed. Reg. 34315 (June 11, 2012)

During the comment period on the April 20, 2011 draft rule, EPA received more than 1,100 comment letters.  It also received more than 80 documents containing new impingement and entrainment data for possible use in developing the final impingement mortality limitations. 

EPA has now made the submitted information available for public review and has offered a 30-day comment period on the new information the agency will consider in making its decision on the final rule.  Comments must be received on or before July 11, 2012.

A second key part of the Section 316(b) rulemaking, scheduled for publication on June 12, is a Notice of Data Availability which summarizes from a stated preference survey conducted by EPA after the April 20, 2011 proposed rule was published.  EPA likewise is expected to allow a 30-day comment period on the preference survey summary and results.

To quote from the pre-publication version of the Federal Register notice, “. . . a stated preference survey attempts to gauge the value of an item through questions designed to mimic consumer decision-making in actual markets.  . . . The stated preference survey estimates the value held by the public for ecosystem improvements based on the choices the surveyed members of the public make between hypothetical policy options and current conditions.”  EPA will solicit comment on all aspects of the study and the appropriate role, if any, the study should play in EPA’s Section 316(b) rulemaking proceeding.  EPA asks for comments even though it has not yet completed its statistical analysis of the survey data and is not in a position to determine whether the results of the survey will play a role in the benefits analysis for the final rule. 

Given these two federal notices and the 30-day comment periods ending in the second week in July, it is hard for me to understand how EPA is going to comply with the court-required issuance date of new rulemaking by July 27.  Stay tuned.

Shallow Victory In Sackett Highlights Morass Caused by Murky Jurisdictional Waters

Posted on March 29, 2012 by Zach C. Miller

As Ted Garrett reported in his recent blog, the Supreme Court has issued its long-awaited decision in Sackett v. EPA.  Not surprisingly (based on the questions asked at oral argument), the Court unanimously reversed the Ninth Circuit and ruled that the recipient of an administrative compliance order to restore wetlands under Section 404 of the federal Clean Water Act (CWA) can challenge that order in court under the APA.  The Court soundly rejected the Government’s argument and the Ninth Circuit’s conclusion that the CWA implicitly precludes “pre enforcement” judicial review of such orders. 

In addition to that important ruling, this decision is noteworthy for what it did not do.  Even more pointedly, the decision highlights the enormous underlying problem of uncertainty about the scope of waters regulated by the CWA, which remains untouched and unfixed by this opinion. 

One of the important issues not addressed by the Sackett decision is the constitutional due process argument made by the plaintiffs that precluding judicial review of such orders is unfair and unlawful.  The decision simply says that the CWA itself does not preclude judicial review, so the right to review of this final agency action is presumed under the APA.  As a result, it left for another day whether other statutes (like CERCLA § 113(h)) that expressly preclude pre-enforcement judicial review would pass constitutional muster. 

Second, it did not expressly address whether a party can judicially challenge any aspect of an administrative order, or can only make the basic “jurisdictional challenge” regarding whether the agency in fact has regulatory authority over the subject property or persons.  Justice Ginsburg, in her concurring opinion, states that the decision only addresses the jurisdictional issue and leaves the question of whether other types of challenges can be brought “open for another day and case.”  It remains to be seen whether EPA and the lower courts will adopt this narrow reading of the decision. 

Third, the opinion emphasizes the clear finality of the administrative order at issue in the Sackett case as a basis for APA judicial review.  It remains to be seen whether an agency order or ruling subject to some additional agency appeal, review or deliberative process, no matter how futile or fore-ordained, would be considered a “final agency action”.  It also remains to be seen whether EPA and other agencies will attempt to address and undercut this “finality” factor by creating post-order administrative processes that delay or frustrate judicial review.
 
Finally, while some will trumpet this as a great victory for the regulated community, Justice Alito’s concurring opinion got it right in saying that this “decision provides a modest measure of relief”, but the huge underlying problem reflected by this dispute is the “hopelessly indeterminate” scope of “waters of the United States” regulated under the CWA, which this decision does nothing to alleviate or address.  As a result, while a tiny fraction of regulated persons may now choose to challenge an administrative compliance order in court, the very significant cost of doing so, and the low chance of success combined with the draconian and mounting penalties resulting from a failed challenge, will still leave nearly all regulated persons (in Justice Alito’s words) “with little practical alternative but to dance to the EPA’s tune.” 

The bottom-line is that allowing regulated persons to sue in these circumstances (again in Justice Alito’s words) is “better than nothing,” but the underlying regulatory morass will not be fixed unless and until Congress or EPA and the Corps develop a clear, appropriate and formal delineation of waters regulated by the CWA.  The informal “Jurisdictional Guidance” floated last year by EPA and reportedly now parked at the White House, if adopted, would worsen rather than resolve this uncertainty.  After 40 years, it’s time to fix this mess and pass a clear law or rule on the reach of the Clean Water Act.