On January 8th, the United States Supreme Court unanimously held that water flowing from an “improved portion” of a waterway into an “unimproved portion” of the same waterway is not a “discharge of a pollutant” under the Clean Water Act. The case, Los Angeles County Flood Control District v. Natural Resources Defense Council, affects dams as well as sewer and storm systems. This reverses a previous decision by the Ninth Circuit of the U.S. Court of Appeals that caused some concern among hydropower stakeholders. The opinion was delivered by Justice Ginsburg.
Archive for the ‘Clean Water Act’ Category
A new study entitled “Murky Waters” released by the Environmental Working Group (EWG) exposes a flaw in the otherwise effective Clean Water Act of 1972: that there is nothing in the document or its amendments that tackles pollution that results from agriculture, mainly from the byproducts created from it. In the Act, farms were mostly exempted from all water quality requirements, in an attempt not to interfere with the growth of American agriculture. However, this means that farmers wanting to limit their water runoff and tighten environmental standards on their farms have had to take it on themselves to do so, and thus, farm pollution continues to be a problem, especially in the country’s agricultural heartland.
As such, the study focuses on Iowa, where an EWG analysis of the last four years show water quality ranking between “poor” and “very poor” in 60% of the streams monitored by the Iowa Water Quality Index (and that number jumps to 80% during the summer months). Runoffs of nitrogen and phosphorous end up contaminating drinking water and thus effecting the health of Iowa’s clean water sources, and the study says that, if anything, the quality is getting worse. The trends of the last decade indicate that water quality will still be rated as “poor” on average a decade from now, if we continue on “business as usual.” Tom Vilsack, the Obama Administration’s agricultural secretary, a native of Iowa, advocates for the voluntary approach currently in place, which indicates that, even with the statistics showing a need for reform, getting tighter farm pollution regulations through Congress could be quite the challenge. See also an ambitious and detailed collection of stories and infographics on agricultural pollution in Iowa via Perry Beeman at the Des Moines Register for more valuable information.
The 2011 proposed rule was in part a response to a 2010 settlement between the EPA and the Natural Resources Defense Council, Sierra Club, and Waterkeeper Alliance, and would have required all concentrated animal feeding operations (CAFOs) to report information about their facilities to the EPA.
Specifically, the settlement required that:
“No later than twelve months after the Effective Date of this Agreement, EPA will propose a rule under section 308 of the Clean Water Act, 33 U.S.C. § 1318, to require all owners or operators of CAFOs, as point sources under the Act, regardless of whether they discharge or propose to discharge, to submit information to EPA.”
…and mandated that the EPA to take “final action” by July 13, 2012.
Well, define “final action.” In the recent withdrawal, the EPA points out:
“The settlement agreement does not commit the EPA to any particular final action. The settlement agreement expressly states that nothing in the agreement shall be construed to limit or modify the discretion accorded the EPA by the CWA or by general principles of administrative law. Today’s final action fulfills the Agency’s commitments per the settlement agreement with the petitioners.”
The Federal Register notice goes on to cite the EPA’s “rationale” for withdrawal, citing “duplicate efforts” and the ability to “obtain much of the desired CAFO information from federal agencies, states, and other existing data sources.”
The pork industry, for one, is elated, calling the proposed rule “the result of a sweetheart settlement between EPA and environmentalists that would have provided no public health protections.”
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Yesterday, 3/21/2012, the Supreme Court handed down a decision in Sackett v. EPA, No. 10-1062, concluding that
“[...] the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.”
A federally prompted US Fish and Wildlife Service study released earlier this month took a close look at selenium contamination in Idaho’s Snake River as a result of the nearby Smoky Canyon phosphate mine. Selenium is a chemical that can be toxic in large amounts, often created as a bi-product in the synthesis of other elements. Last year, the J.R. Simplot Company, owner of the Smoky Canyon Mine, requested that restrictions surrounding selenium disposal be loosened, which is authorized by Idaho water quality laws and the federal-level Clean Water Act, so long as it can be proven that relaxing these restrictions would not cause any harm to the health of nearby humans and animals.
Environmentalist outcries over this request prompted the US Senate to request an official USFWS study, which in turn found that, indeed, increasing the amounts of selenium in the Snake River would negatively affect its population of “prize-winning” brown trout. Toxicologists involved in the study found that many trout died as a result of selenium poisoning, while others birthed larval fish with two heads, a mutation that would most likely prove fatal in the wild. The percentage of affected fish was found to be quite high, nearing 70% for trout alone, without considering other animals in the surrounding environment that may feed on this affected fish population.
The USFWS study concludes that “it seems highly doubtful that the proposed site-specific criterion would comply with the Clean Water Act’s mandate to protect wildlife,” and while Simplot Company has argued that loosening the desired constrictions surrounding selenium would open up room in their budget to contribute financially to clean up and other environmental efforts, environmentalists argue that making an exception in this case could lead to a snowball effect in dealing with similar cases in the future.
Our previous coverage of Sackett v. United States Environmental Protection Agency generated the most traffic of almost any other post on our blog. The people – including Chantell and Michael Sackett – want to know: “If EPA essentially seizes control of your property by labeling it as ‘wetlands,’ do you have a right to appeal to a court of law?”
In 2007, the Sacketts started construction on a small plot of land in Idaho without first obtaining a Clean Water Act permit. Shortly thereafter, the EPA determined that the parcel of land contained federally recognized wetlands, ordering the Sacketts to halt construction and restore the parcel to its previous condition. When the Sacketts were unsuccessful in petitioning the EPA for a hearing, they filed suit. The case has seen both a District Court and the Ninth Circuit Court of Appeals, and, so far, everyone has ruled in favor of the government. Now the case has landed in the Supreme Court.
Quoted above, unsurprisingly, is Damien M. Schiff, an attorney from conservative law firm and Sackett rights champion, Pacific Legal Foundation. Schiff argued on behalf of the Sacketts in front of the US Supreme court today, January 9th, asking for the Sacketts’ right to challenge the EPA’s decision in a federal court.
As the Huffington Post points out, things weren’t looking great for the EPA in the hearing:
Justice Samuel Alito called EPA’s actions “outrageous.” Justice Antonin Scalia noted the “high-handedness of the agency” in dealing with private property. Chief Justice John Roberts said that the EPA’s contention that the Sacketts’ land is wetlands, something the couple disagrees with, would never be put to a test under current procedure.
According to Huffington, the justices are expected to rule by summer. Keep up with law firm analysis of the case by checking out Knowledge Mosaic’s Law Firm Memo search page. Do a text search for Sackett to bring up relevant memos.
Late last week, the EPA announced that Dow Chemical Company, after 5+ years of investigations and inspections, violations and corrections, has finally settled with both the EPA and the Department of Justice, agreeing to pay a $2.5 million civil penalty for alleged violations of the Clean Air Act, Clean Water Act and the Resource Conservation and Recovery Act.
The alleged violations (24 in all) centered around Dow’s chemical manufacturing and research facility in Midland, Michigan, and ranged from leak detection failures to threatened structural integrity in several containment structures.
In addition to the civil penalty, the Consent Decree also calls for Dow to implement a program designed to reduce emissions from leaking equipment and implement enhanced “work practices.”
$2.5 million might seem like a lot for these arguably administrative infractions, but it doesn’t look like much compared to the cost of cleaning up contamination in the same area. In their May 10-Q of this year, Dow estimated a hefty $36 million in potential obligations (remedial actions, investigations) relating to the Midland site.
Still, $2.5 million is a LOT more than the generic $100,000+ in civil penalties that the company estimated for the Midland matter in their 10-K in February.
In the spring of 2007, Chantelle and Michael Sackett began laying dirt and rock as a preliminary step to building a three-story house on their property on idyllic Priest Lake, in Idaho. Priest Lake, which rests snuggly in the Northern portion of the Idaho panhandle, is a federally recognized wetland, and has a burgeoning tourist industry that demands preservation of the flora and fauna of the area.
Personal side note: I have been to Priest Lake, albeit when I was very little. It was breathtaking – one cursory glance at the picture used on its Wikipedia page will confirm as much.
Non-personal, non-pertinent side note: The largest Lake trout ever caught on record in the United States was caught at Priest Lake, and weighed in at over 57 lbs! I can see why this lake is worth protecting – it’s magic!
So, just weeks after the Sacketts began work on their Priest Lake house, they were notified by the EPA that they had violated the Clean Water Act by beginning work on their property, which sits on the federally recognized wetlands, without first obtaining the proper permits. The EPA ordered the Sacketts to cease work immediately and to remove all added dirt, to return the dug-up soil, and to replant the property with vegetation, or face fines of up to $32,500 per day. In addition, the EPA told the Sacketts that they would have to wait three years, to allow for regrowth on the property, before applying for the necessary permits. The Sacketts felt the EPA’s actions to be unjust, and made a formal complaint to the Supreme Court asking for the right to challenge the EPA’s decision in a federal court. In September 2010, the Ninth Circuit Court of Appeals ruled that the Sacketts had no grounds to bring a case against the EPA until federal regulators sought to enforce the threatened fines. The Sacketts were upset – they felt they had no avenue to defend themselves against the government agency. In a youtube video put together by the conservative law firm Pacific Legal Foundation, Chantelle Sackett calls the EPA “ungovernable,” and laments that “what’s right is right, and I get so sick and tired of the government telling us what to do.” Today, however, the Supreme Court announced that it would hear the Sacketts’ argument once their new term begins in October, signaling a new chance for the Sacketts to get their voices heard.
That should bring us up to date. Without speculating on the political beliefs of the Sacketts or drawing up partisan lines, it is clear that this case raises larger questions about the state of the US justice system. With the simultaneous rise of both a “don’t tread on me” attitude and a conservationist awareness in contemporary America, cases such as this one present a grey area – on the one hand, you have property owners who feel they have a right to build on what they own. On the other, you have the EPA defending a territory which clearly has environmental significance, and is federally protected. Do citizens accused by government agencies of violating environmental laws have a right to immediate defense in the federal courts? Whatever the Court’s decision, it’s bound to be an important one.
Update: Read more about the Sackett case and the January 9, 2012, oral hearings here.
40 CFR 122.27 (the EPA’s “silviculture rule”) exempts from NPDES permitting all discharges from silvicultural (forestry) activities such as thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance resulting from natural runoff.
But recent opinions from the U.S. Court of Appeals for the Ninth Circuit have restricted the interpretation of this exemption.
In Northwest Environmental Defense Center (NEDC) v. Brown, 617 F.3d 1176, the Northwest Environmental Defense Center brought suit against Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and various timber companies for their failure to obtain permits for discharges from systems of ditches, culverts, and channels that receive stormwater runoff from two logging roads in the Tillamook State Forest. The Defendants argued that these discharges are “point source” discharges under the Clean Water Act (CWA) and that they therefore require permits under the National Pollutant Discharge Elimination System (“NPDES”).
The Ninth Circuit agreed, filing their original opinion in the case on August 17, 2010. According to Perkins Coie’s Update on the case, the silviculture rule’s exemption for natural runoff “ceases to exist as soon as the natural runoff is channeled and controlled in some systematic way through a ‘discernible, confined and discrete conveyance’ and discharged into the waters of the United States.”
On October 5, 2010, the defendants filed petitions (here and here) for rehearing and rehearing en banc, but just two weeks ago, the Ninth Circuit issued an order and opinion denying the petitions, and environmentalists everywhere rejoiced.
EPA and Army Corps of Engineers Issue Draft Guidance on Identifying Waters Protected by the Clean Water Act
On May 2, 2011, the EPA and the U.S. Army Corps of Engineers jointly issued a request for comments in the Federal Register on draft guidance that is intended to clarify how the two agencies will make determinations about whether waters are protected by the Clean Water Act (33 USC §1251 et seq.).
The proposed guidance, which also implements two relevant Supreme Court decisions that concern the extent of waters covered by the Clean Water Act (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States), once finalized, will supersede a 2003 ‘‘Joint Memorandum’’ on the topic and existing 2008 guidance entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States.”
The agencies believe that “under this proposed guidance the number of waters identified as protected by the Clean Water Act will increase compared to current practice and this improvement will aid in protecting the Nation’s public health and aquatic resources.”
Law firm Fulbright & Jaworski published a Briefing late last week that highlights some of the expected changes resulting from the adoption of this proposed guidance, focusing on the agencies’ increased jurisdictional reach – a change that, according to Fulbright & Jaworski, “legal challenges are guaranteed to follow.”
You can read more about the guidance – including an analysis of potential economic benefits and impacts associated with the guidance – on the EPA’s Clean Water Act Definition of “Waters of the United States” webpage. Comments will be accepted on the proposal through July 1, 2011.