THE CLEAN WATER ACT BLOG

by Mark Ryan

November 14, 2019

 

These seven new cases deal with the perennially controversial issues in the CWA: water quality standards, wetlands and WOTUS. Note that Sound Action and Black Warrior River-Keeper come out with opposite results on government motions to take voluntary remands. Delek Logistics is an interesting case mostly because of the large size of the penalty. Bobby Wolford Trucking is an odd case. The court delves into proximate cause analysis to determine whether a trucking company that hauled dirt to the wetlands site was the proximate cause of the fill being placed in wetlands. The CWA is strict liability statute. Either the defendant discharged to wetlands, control another’s discharges or it didn’t.

 

Center for Biological Diversity v. USACOE, ___ F.3d ___, 2019 WL 5690619 (11th Cir. 2019) (when issuing a 404 permit to a phosphate mining operation, Corps need not consider the effects of radioactive water rock on downstream environments; it was reasonable for the Corps to conclude that the environmental effects of phosphogypsum production and storage fell outside the scope of NEPA review; NOTE dissent)

 

Sound Action v. USACOE, 2019 WL 5617571 (W.D. Wash. 2019) (granting motion for voluntary remand of Corps’ interpretation of OHWM in Puget Sound, held that Corps’ promise to abide by old rule and evaluate situations on a case-by-case basis justified allowing it to take a remand)

 

Black Warrior River-Keeper, Inc. v. EPA, 2019 WL 5864138 (N.D. Ala. 2019) (denying EPA’s motion for voluntary remand of approval of state water quality standards, held that the equities weighed against remand where EPA didn’t consider relevant data and where evidence showed that EPA failed to exercise its oversight responsibilities; court ordered summary judgment briefs on the merits to be filed)

 

Slater Park Land and Livestock, LLC v. USACOE, 2019 WL 5593306 (D. Colo. 2019) (dismissing case by rancher challenging Corps NOV issued for authorized fill material placed in creek; held that NOV is not a final agency action subject to review; NOV is different from compliance order because no penalties are attached and it does not commit the agency to any particular course of action; dismissed 5th amendment argument on the grounds that there was not final agency action to review)

 

United States v. Delek Logistics Operating LLC, 2019 WL 5866073 (W.D. Ark. 2019) (granting motion to enter consent decree resulting from oil spill, held that $1,705,460 settlement with an additional $550,000 to the state plus injunctive relief was a fair and reasonable settlement)

 

United States v. Bobby Wolford Trucking & Salvage, Inc., 2019 WL 5693928 (W.D. Wash. 2019) (on motion for summary judgment, held that triable issue of fact exists whether trucking company that hauled fill material to farm to fill in wetlands actually placed fill in wetlands when it was delivered; court engaged in unique “causation” analysis; rejected defendant’s argument that the area in question was exempt under “normal farming operations” where the fill material at issue resulted in the complete destruction of some wetlands)

 

Tan Phu Cuong Investment LLC v. King County, 2019 WL 5892665 (W.D. Wash. 2019) (plaintiffs claim of operating construction site without a stormwater permit dismissed for failure to submit a 60-day notice to the parties)

November 13, 2019

 

I am in the process of reading and digesting several new CWA cases handed down by the courts in the last couple of weeks. I hope to post those in the next few days.

 

In the meantime, for those of you interested in palace intrigue at the EPA, see the attached EPA Inspector General letters regarding failure of the EPA front office to comply with requests for information from the IG. I spent most of my career at the EPA, and there was never a lot of love for the IG. Who likes being investigated? But this current fight is taking it to a new level and does seem to reflect the current administration’s general attitude toward oversight. 

November 9, 2019

For the true CWA nerds out there, below is the link to the audio of the Supreme Courts oral argument in the Maui case. It was an active bench.  Maui's argument, essentially, is "trust the states to regulate under state law." The liberal Justices were clearly not buying Maui's or the United States' argument on lack of point source regulation once the pollutant hits groundwater. Similarly, the conservative Justices were all over the lawyer for the plaintiffs. No surprises there. The case turns largely on the statutory text. Section 502(12) describes a "discharge" as a discharge of pollutants from a point source to navigable waters. Scalia's reading of the word "to" in his Rapanos plurality decision came up more than once. There was also a lot of give and take over what "from" means. This is why people hate lawyers.

 

The Justices were looking for a reading of the CWA "that wouldn't lead to absurd results."  Roberts: "What is the limiting principle?" It's a fair question to ask at what point is the point source too distant and the impact on surface waters too attenuated. The 9th Cir. said the impact on surface waters had to be "fairly traceable" to the point source. The conservative Justices clearly didn't like that standard. I think it will be a 5-4 decision limiting the "fairly traceable" standard from the 9th Cir., but I don't think they'll go as far as Maui and EPA want, and say all point sources discharges that touch groundwater are not covered by the CWA. Either way, we'll likely see a new CWA after this decision.

 

The argument lasts just over an hour. Plaintiffs' argument starts at 28:38. Rebuttal argument starts at 102:36. Here's the link: https://www.supremecourt.gov/oral_arguments/audio/2019/18-260

November 7, 2019

 

The Maui case went to oral argument yesterday at the Supreme Court. Based on what I’ve heard from the argument, the Justices clearly understood the issues. The 9th Cir. had held that where a point source discharge to groundwater is fairly traceable to surface waters, it falls within the jurisdiction of the CWA. See case summary below. I predicted after SCOTUS granted cert. that it would be a 5-4 vote reversing the 9th Cir. with the open question being how will the Court limit the ruling. If you buy Maui’s argument, any discharge to groundwater, even if just feet from the river, is nonjurisdictional. That would create a loophole in the law so wide, nothing would be left of it unless the states stepped in. But the premise of the federal CWA was to create minimum federal standards to alleviate the water quality problems facing the nation pre-1972 when the states were in charge. Water flows downhill. So the question is, where will the Justices draw the new line.

 

At yesterday’s argument, the usual conservative-liberal divide was present, but Roberts seemed to be active in the middle. Breyer called Maui’s argument an “absolute roadmap for people wanting to avoid regulation.” Alito and Gorsuch focused on possible liability for individual homeowners’ septic tanks. Kagan implied that septic tanks wouldn’t be subject to regulation if you couldn’t trace a discharge back to a specific tank. The full oral argument audio should be available tomorrow. I’ll provide a link as soon as it’s posted.  Any bets on the outcome?

 

Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018) (ground-injection wells used by POTW to dispose of treated wastewater are point sources where they are hydrologically connected to the ocean; the CWA does not require that the point source itself convey the pollutants directly into the navigable water; the wells are not nonpoint source pollution because they are discrete in number and capable of being regulated through individual permits)

November 6, 2019

 

The Supreme Court heard oral argument today in the Maui case.  I will post a link to the oral argument audio as soon as it is available, and I’ll post my thoughts on the arguments as soon as I hear the first reports.

 

In other CWA news, three different lawsuits were filed in the District of Alaska in October challenging EPA’s reversal on the Pebble Mine 404(c). The three lead plaintiffs are Bristol Bay Economic Development Corporation, Trout Unlimited and Salmonstate (with several other enviro groups). I understand that the three cases have been consolidated. All three complaints are lengthy and provide significant (if biased) background material on the Pebble Mine permitting process. Here are copies of the complaints: 

 

The main claims are that EPA’s decision to withdraw its 404(c) is not supported by the record, it failed to comply with 404(b)(1) guidelines and it ignores the science. EPA prepared a large science review of the project during the Obama administration that was the basis for preemptively asserting 404(c). The current administration is disregarding it. These lawsuits address some very important issues under section 404(c). EPA has been attacked in the past by industry for invoking 404(c) after the fact. EPA was attacked by industry in this case for acting before the fact. The enviros and others are now attacking EPA for flipping on the science and the law. Under what circumstance EPA should invoke its mighty 404(c) veto authority and at what point in the project development should EPA pull the 404(c) trigger remains controversial. The veto authority has been exercised very few times in the 47-year history of the CWA, so there’s not a lot of caselaw on these issues. We’re about to see some more.

 

October 26, 2019

 

Here are two new cases from the last week.  Both are a bit unique. The Menominee River case involves a 404 permit challenge in an authorized state. There are only two – Michigan and New Jersey.  The second case, Garrison v. New Fashion Pork LLP, deals with land application violations at a CAFO. Those cases are very hard to prove, and are therefore seldom brought. If you’re in the ag sector, that may be one to watch.

 

Coalition to Save Menominee River Inc. v. EPA, 2019 WL 5394202 (E.D. Wis. 2019) (on motion to dismiss, held that plaintiffs challenging EPA’s withdrawal of objections to Michigan 404 permit could not show a violation of nondiscretionary duty by EPA and EPA objection to the state 404 permit was not a final agency action subject to review)

 

Garrison v. New Fashion Pork LLP, 2019 WL 5399510 (N.D. Iowa 2019) (plaintiffs bringing CWA suit against CAFO owner alleging improper land application of manure properly provided notice of the alleged violations before filing suit; “adequate notice does not mandate that citizen plaintiffs list ever specific aspect or detail of every alleged violation.”)

 

October 24, 2019

The Southern Environmental Law Center has filed a complaint challenging the 2015 repeal rule in the Dist. of S.C. Here's a copy of the complaint.       There are now two pending challenges to the rule, one by a property rights group and one by an environmental group. I expect that at least one group of states will file as well.  Let the litigation begin.

On the 401 cert. rule making front, the number of public comments is up to 85,527 from the 5,296 I wrote about in my  October 21 blog post. No one can say the public isn't engage in the Trump administration's CWA rule making efforts.

October 23, 2019

 

The Pacific Legal Foundation, filing on behalf of the New Mexico Cattle Grower’s Association filed what appears to be the first challenge to the 2015 WOTUS rule repeal, which published yesterday in the Federal Register. Here’s a copy of the complaint. 

 

PLF is going for broke here. If I’m reading their complaint correctly, they’re arguing that by repealing the 2015 WOTUS rule and reinstating the 1986 definition of WOTUS as interpreted by the 2008 Rapanos Guidance, that EPA and the Corps essentially re-opened that old rule to challenge. They’re asking the court to invalidate CWA coverage of all tributaries, and adjacent wetlands, among other things. It’s a pretty bold move and it goes beyond even the very restrictive proposed replacement rule that EPA is working on.

 

This new move by PLF further complicates an already very complicated legal situation. EPA’s haphazard attempts to first put off the implementation date of the 2015 rule, then twice public noticing the repeal rule, with the replacement rule happening in the middle, but not yet final, has created a massive administrative law problem worthy of a law school exam question. And since all of the challenges to the repeal rule will be filed simultaneously in various district courts around the country, all hand-picked by their respective plaintiffs to yield the most favorable results, a very messy situation is about to get worse. And we haven’t even entered the phase of challenging the final replacement rule. Congress, are you listening?

 

 

October 22, 2019

 

EPA and the Corps today finalized the repeal of the 2015 WOTUS rule. It becomes effective December 23, 2019.  Here’s a copy of the Federal Register notice.       I quickly read through the notice, and the agencies are to no one’s surprise sticking with their very cramped reading of Supreme Court precedent on WOTUS and the view that they exceeded their authority with the 2015 rule. The economic analysis at the end of the notice is interesting. The agencies concluded under all scenarios involving states taking or not taking over duties dropped by the feds, the saved costs to the regulated community are greater than the benefits to the environment.

 

This means that the country is no longer split into two WOTUS camps, and all states will be subject to the pre-2015 rule law as of December 23, 2019. The pre-2015 law is governed by the 2008 Rapanos guidance. That is, until the first lawsuit is filed, and a stay issued. Start you stop watches.

 

On another front, I read a press report this morning that the mayor of Maui has decided to move forward with the Supreme Court case challenging CWA jurisdiction over discharges to groundwater that are hydrologically connected to the ocean. The Maui County council had voted in September to settle the case. Oral argument is set for November 6, 2019. That will a fascinating argument to watch.

October 21, 2019

Today was the deadline for submitting comments on the proposed changes to the 401 cert. regs.  According to the regulations.gov webstie, 5,296 comments have been received so far. I suspect that number will go up over the next couple of days, but I doubt it will reach the high levels of the WOTUS rule. 401 cert. is a bit more obscure, and harder to understand. I leafed through the first few, and they were all negative. Attached is the comment from the Association of State Wetlands Managers, which is pretty comprehensive.     Here's a link to the regulations.gov if you want to see others:  https://www.regulations.gov/docket?D=EPA-HQ-OW-2019-0405

October 16, 2019

 

The two summarized cases below are worth noting. The unpublished decision out of the Minnesota Court of Appeals may be the first NPDES permit case in the country to be tied to global warming. The case was remanded to the state agency, and will be one to watch. The Coalition to Protect Puget Sound case is interesting because NWPs are seldom overturned.

 

Also in the news. The Formosa Plastics case, which I summarized in my July 18 blog post, just settled for a whopping $50 million. All of the money will be spent on SEPs over several years, and not paid as a penalty. Nevertheless, it’s a very big CWA settlement. Here’s a copy of the proposed consent decree, which is out for public comment. 

 

In re Daley Farms NPDES Permit, 2019 WL 5106666 (Minn. Ct. App. 2019) (unpublished) (state agency reviewing application for NPDES permit to expand dairy operation was arbitrary and capricious in not considering whether the project’s greenhouse gas emissions would have the “potential for significant environmental effects” under the state NEPA law)

 

Coalition to Protect Puget Sound v. USACOE, 2019 WL 5103309 (W.D. Wash. 2019) (held that Corps was arbitrary and capricious in reissuing NWP 48 where there was insufficient evidence in the record to support the conclusions that the permit would have minimal individual and cumulative adverse impacts on the aquatic environment; the Corps must analyze the individual and cumulative impacts of the proposed activity against the environmental baseline, not as a percentage of the decades or centuries of degrading activities that came before it)

 

October 15, 2019

 

Pozsgai is back in the news. Again. The late Mr. Pozsgai and now his widow have been locked in battle with EPA and the Corps since 1988. It is, of course, a wetlands case. See my summaries below of the prior reported decisions. He is back in the news because he has filed a motion to disqualify the judge in the case on the grounds that her law clerk from 14 years prior is now one of the U.S. Attorneys assigned to the case to represent the government. Here are the briefs. You be the judge.

 

United States v. Pozsgai, Docket No. 88-6545 (E.D. Pa. March 8, 2007) (defendants held in contempt for violation of previous court order requiring them to cease discharges to the wetlands on their property and to restore the wetlands; applying the Kennedy test, held that defendants’ wetland, which connected to downstream navigable waters through surface water connection that flowed much of the year, was jurisdictional under Rapanos)

 

United States v. Pozsgai, 999 F.2d 719, 733 (3d Cir. 1993), cert. denied, 114 S. Ct. 1052 (1994) (as long as the wetland is “adjacent” to a waters used or formerly used in interstate commerce or a tributary thereof, the interstate commerce nexus is established)

 

United States v. Pozsgai, 947 F.2d 938 (3rd Cir. 1991) (remanding to district court for reconsideration of $200,000 fine for filling wetlands without a § 404 permit on grounds that district court did not consider defendant’s ability to pay the penalty under 18 U.S.C. § 3572)

 

United States v. Pozsgai, 1991 U.S. Dist. LEXIS 8255 (E.D. Penn. 1991), aff’d, 999 F.2d 719 (3d Cir. 1993), cert. denied, 510 U.S. 1110 (1994) (citing 33 C.F.R. § 328.3(c) held that “[T]he courts have broadly construed the adjacency requirement to find that the wetlands in question are covered by the CWA even when the wetlands were separated by some distance or by barriers from the water body.”)

 

October 11, 2019

 

On October 9, President Trump signed “Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents.” A link to the full text of the EO is below. The EO does a number of things. First, it requires all federal agencies to put their guidance documents on their websites. That’s a good thing, by any standards. Guidance documents are often issued to clarify regulations or interpretations of recent Supreme Court cases (e.g, 2008 EPA/Corps Rapanos Guidance). And agencies rely on them because they’re much easier to gin up quickly than regulations, which require lengthy, time-consuming and expensive public notice and comment periods, and which routinely end up in years of litigation (e.g., the WOTUS rule).

 

The second important thing the EO does is it requires agencies to submit all “significant” guidance documents to public notice and comment, which is a big departure from past practice.  “Significant” is defined as, among other things, a “guidance document that may reasonably be anticipated to  . . . . adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities . . .”

 

This seems to set a low bar for deeming a guidance document must go out for public notice and comment and may result in many, if not most guidance documents being subject to APA-like rulemaking requirements. That may be a good thing if you’re an industry or environmental group unhappy with an agency’s view of a regulation. It’s a bad thing if you’re someone looking for clarity from the government on an important issue, and you don’t have years to wait for formal public notice and comments followed by years of litigation.

 

There are deadlines for OMB to issue further instructions to the agencies and all agencies must promulgate new regulations regarding use of guidance documents within 300 days of OMB issuing an implementing memorandum, which must be out within 120 days of the EO. My math puts those deadlines past the next election, and within range of the Congressional Review Act. I think we’re going to see more and more of these efforts in the next thirteen months.

 

https://www.whitehouse.gov/presidential-actions/executive-order-promoting-rule-law-improved-agency-guidance-documents/

October 7, 2019

 

In January, the D.C. Cir. handed down the Hoopa Valley Tribe case, holding that the state could not extend the one-year statutory deadline for issuing a 401 cert. by having the applicant withdraw then resubmit the 401 cert. application. See summary below.

 

On August 26, Trout Unlimited, which was an intervenor in the Hoopa Valley case, filed cert. petition with the Supreme Court. See here:       On September 27, 22 states filed an amicus brief in support of granting cert., which is attached here:      There are some strange bedfellows in that amicus brief. Have California and Idaho ever been on the same side of an environmental issue? 

 

The SG’s brief is due on October 28.  It will be interesting to see what position the SG takes. Given that EPA just issued a draft 401 cert. rule that will significantly curtail states’ rights, it’s not clear whether they will support cert. and argue to affirm the D.C. Cir. or oppose cert. and deal with the issue in their proposed rule (which will be challenged).

 

Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) (FERC was arbitrary and capricious in finding that the states had not failed to timely § 401 certify dam relicensing where dam each year for ten years withdrew its application and resubmitted it the next year; the resubmissions were of the same license application, and not a new or modified one; FERC violated the § 401(a)(1) requirement that the state certify within a reasonable period of time not to exceed one year; “[T]he purpose of the waiver provision is to prevent a State from indefinitely delaying a federal licensing proceeding by failing to issue a timely water quality certification under Section 401.”)

 

October 6, 2019

 

Here’s a grab-bag of new CWA cases.  The first case, United States. v. R.M. Packer Co., Inc., is worth of a read if you have a client facing possible penalties by the EPA. The opinion covers the statutory penalty factors pretty well. It was a big penalty relative to economic benefit.

 

United States. v. R.M. Packer Co., Inc., 2019 WK 4770666 (D. Mass. 2019) (after finding liability under the CWA and CAA, held that court would employ “bottom-up approach to calculating penalty; defendants enjoyed an economic benefit of noncompliance of $110,567; defendants had a prior history of noncompliance; defendants had a lengthy period of noncompliance; defendants did not make good faith efforts to comply; discharges were to a sensitive marine environment; defendants’ businesses made yearly profits of $1.4 to $2 million; defendants could afford to pay a sizeable penalty; penalty of $1,157,000 assessed again R.M. Packer and $143,000 against Tisbury Towing)

 

United States v. Blankenship, 2019 WL 4805766 (4th Cir. 2019) (unpublished) (affirming criminal conviction of defendant on two counts of discharging sewage and portable toilet waste into creek; court did not abuse its discretion in excluding evidence of fecal pollution in creek from dates that did not match dates defendant dumped into creek)

 

Blackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc., ___ F. Supp.3d ___, 2019 WL 4762223 (D. Mass. 2019) (where CGP was issued to owner of facility, construction company owned by the same owner of the facility, could not be held liable for violations of the permit)

 

Idaho Conservation League v. Poe, 2019 WL 4777296 (D. Id. 2019) (denying motion to dismiss by suction dredger, held that plaintiff’s 60-day notice sufficiently alleged violations and reference on-going violations; plaintiffs had standing to sue because the allegations sufficiently alleged injury that is traceable to the challenged activity)

 

United States v. Stabl, 2019 WL 4747967 (D. Neb. 2019) (in government attempt to prove fraudulent conveyance of money out of company before penalties were assessed for CWA violations at a rendering facility, held that triable issue of fact exists whether transfers of money were for fraudulent or legitimate purpose; court dismissed defenses for waiver, estoppel, and unclean hands)

October 1, 2019

In my September 26 blog post, I wrote about the EPA's letter to California putting it on notice that it needs to improve its CWA and SDWA programs, citing noncompliance stats to support its claim.  Cynthia Giles, who led the EPA Office of Enforcement and Compliance Insurance in the Obama administration - - and who knows how to mine the EPA enforcement data bases - - wrote a letter to Administrator Wheeler, pointing out that California is actually doing pretty well relative to most states.  Here are the charts she attached to her letter.  Pretty interesting.    

The City of San Francisco has now responded to the EPA letter.  Here'a copy.      Needless to say, S.F. takes issue with EPA's characterization of their efforts to comply with the CWA. 

September 30, 2019

 

The Southern Appalachian Mtn. Stewards case below is an interesting application of the § 402(k) permit-as-shield defense. Here, the state mistakenly concluded the discharges were nonpoint sources. The court agreed with plaintiffs on the point source issue, but decided it would be unfair to penalize the defendant when the defendant did everything the state asked in the NPDES permit. Normally, § 402(k) cases turn on whether the discharge was disclosed during the permitting process, and not on a mistaken assumption by the state regarding the discharge’s status as a point source. I suspect this will get appealed.

 

Southern Appalachian Mtn. Stewards v. Red River Coal Co., Inc., 2019 WL 4674318 (W.D. Va. 2019) (granting motion for summary judgment in favor of defendant, held that toe drains from defendant’s coal mine spoils dumps are point sources; even though state believed the discharge to be nonpoint sources, because state was aware of discharges and didn’t regulate them under NPDES permit issued to mine, 402(k) permit shield applies and discharges are not unauthorized)

 

National Audobon Society v. USACOE, 2019 WL 4686337 (E.D.N.C. 2019) (in challenge to Corps 404 permit for construction of a rock wall and a beach fillet on Ocean Island Beach, held that Corps adequately considered indirect environmental effects of the project and Corps analysis of beach nourishment and its potential impacts was not arbitrary and capricious)

 

In re: Gold Kind Mine Release, 2019 WL 4671515 (D. N.M. 2019) (certifying for interlocutory appeal question of the application of Colorado state statute of limitations (vs. New Mexico’s) to tort claims where the SOL will not frustrate the goals of the CWA)

 

Lewis v. United States, 2019 WL 4738791 (M.D. La. 2019) (on motion to dismiss in challenge to JD, held that plaintiffs regulatory takings claim was not ripe because the Corps’ cease and desist order addresses only fill material and does not prohibit plaintiffs from engaging in silviculture or installing a drinking water supply line; plaintiffs failed to show a constitutional procedural due process right because they cannot show that they are entitled to a 404 permit; the United States waived sovereign immunity for claims alleging “undue delay, extending land use and restriction beyond wetlands” and other claims)

 

September 26, 2019

 

The Trump administration has been relentless since taking office on pushing CWA issues, which is a good or a bad thing depending on your political persuasion. Between WOTUS, 401 cert., groundwater, and many other issues, it’s hard to keep track of it all. I give them credit. They know how to churn.

 

Today, EPA opened up a new front, this time against the State of California, allegedly for not complying with the CWA. Here is a copy of the letter EPA sent to the state:       . It’s rather unusual for EPA to send a letter like this to a state, and is typically only done when a state is in serious non-compliance, and after EPA has spent a considerable amount of time working with the state. The violations listed in the letter seem mostly routine, and not that numerous. It’s possible that there are far more violations than set out in the letter, but I can only go on what is listed.

 

It is important to remember that NPDES violations occur all the time, everywhere in the country. The question is how do states and the EPA spend their limited resources enforcing those violations. EPA, and especially the states, routinely look the other way on most violations because they just don’t have the resources to go after them, and many violations are minor or short-term.

 

I was an EPA enforcement attorney for 24 years. I mostly filed CWA actions. Idaho, where I did much of my work, had far worse violations than most of the incidents cited in the letter. We had small and medium POTWs that had been out of compliance for years. The San Francisco CSO discharges to the Bay are indeed a serious problem and need to be dealt with, but many large municipalities have had similar problems. San Francisco is hardly unique for having raw sewage overflows.

 

It is a bit odd that at a time when EPA is aggressively trying to shrink the scope of the CWA by amending the WOTUS and 401 cert. rules, by eliminating the application of the CWA to hydrologically-connected groundwater discharges and specifically calling part of San Francisco bay non-jurisdictional (see my September 25 blog post), that they would now call out California for not protecting the public from polluted waters. It will be interesting to see how EPA follows up on this.

 

 

September 25, 2019

 

In my March 14, 2019 blog post, I wrote about EPA’s about-turn on the Cargill salt pits in San Francisco Bay, in which EPA declared that the salt ponds are not WOTUS because they’re used for industrial activity. See that blog post for my analysis and a link to the EPA decision. I predicted that someone would likely challenge that decision. Yesterday, the state of California and the California Baykeeeper, in separate lawsuits, did just that in federal court. Here are links to the complaints.             The six-month statute of limitations on federal APA claims was about to run, which I suspect prompted these filings this week.

 

The complaints are a challenge to EPA’s jurisdictional determination (JD) that the salt ponds at issue are not WOTUS. This is a twist on the typical JD challenge to positive findings of jurisdiction by farmers or developers. Interestingly enough, California cites to the 2015 WOTUS rule, which is still technically in effect in California, claiming that EPA ignored it. The complaints makes multiple APA claims to challenge EPA’s JD.  Given the unique and largely untested legal theory underpinning the EPA JD, I think EPA will have a hard time defending this one in the N.D. of California and the 9th Cir. The EPA’s game plan must be to get these types of cases before the Supreme Court for a 5-4 change to the law.

 

September 24, 2019

 

Press reports this morning say that the Maui town council has voted to settle the groundwater-connection case set for oral argument in November before SCOTUS. The mayor still needs to approve. If the parties settle, the Court will likely drop the case, which will leave no pending groundwater-connection cases before the Court. Another groundwater case out of Massachusetts involving septic systems is winding its way through the system, but has not yet gone to trial. I will report on that case once I get the underlying documents.

 

I’m catching up on the recent case law.  The Montana Supreme Court decision below, Montana Envt’l Information Cnt’r v. Montana DEQ, is an interesting application of water quality standards to ephemeral streams. The Idaho Conservation League case below has been kicking around for years, and the defendant continues to have a hard time complying and not racking up penalties. Finally, the Chahaba Riverkeeper case is another reminder how hard it is to get EPA to withdraw an NPDES program. It never has, and every administration has fought that battle. EPA has never wanted the programs back, and courts are largely deferential to that position.

 

 

Montana Envt’l Information Cnt’r v. Montana DEQ, ___ P.3d ___, 2019 WL 4267359 (Mont. 2019) (reversing lower court, held that were law allowed state to not apply water quality standards to ephemeral waters, state did not improperly designate streams by mine site as ephemeral, which relieved the state of the need to apply water quality standards to mine’s NPDES-permitted discharges to those streams; state was not required to go through a use attainability analysis or to reclassify streams as ephemeral; deference given to state’s interpretation of state law governing classification of stream)

 

Boucher v. United States Dept. of Agriculture, 934 F.3d 530 (7th Cir. August 8, 2019) (NRCS determination that portions of plaintiffs’ property were wetlands and therefore ineligible for USDA benefits was arbitrary and capricious where NRCS agents wrongly assumed that plaintiffs farmland had been drained of hydrology to support wetlands by installation of a drain field)

 

Idaho Conservation League v. Atlanta Gold Corp., 2019 WL 4544548 (D. Id. 2019) (where defendant succeeded in reducing much, but not all of the pollutant loading from an adit discharge to the creek, the defendant was in substantial compliance with its NPDES permit, and the civil contempt penalty of $251,000 was reduced to $115,500)

 

Chahaba Riverkeeper v. EPA, ___ F.3d ___, 2019 WL 4309089 (11th Cir. 2019) (EPA has discretionary authority under § 402(c)(3) to commence the withdrawal NPDES program authorization from a state where the state is not complying with the requirements of the CWA; the implementing regulation at 40 C.F.R. § 123.63(a) is discretionary; none of the state transgressions alleged by petitioner rise to the level that would require EPA to revoke the NPDES program)

 

 

September 13, 2019

 

In reading the some of the news reporting yesterday on the repeal of the Clean Water Rule (CWR), I was struck by the number of reference to the CWR’s effect on the agricultural industry. Some of the comments were opinion, but some of the reporting was factually wrong. For example, the NYTimes reported that “Under the rule, farmers using land near streams and wetlands were restricted from doing certain kinds of plowing and from planting certain crops, and would have been required to obtain E.P.A. permits in order to use chemical pesticides and fertilizers that could have run off into those bodies of water. Those restrictions will now be lifted.” I don’t know how the CWR would possibly restrict planting of certain crops. The restriction on discharging pesticides directly to WOTUS is a result of the Eighth Circuit’s decision in National Cotton Council, not the WOTUS rule. Limiting the number of streams and ditches designated as WOTUS will limit the reach of the pesticides decision, but it won’t remove it. 

 

But more importantly, there is a significant misunderstanding of how the CWR would affect ag. The answer is very little.  Most ag discharges are exempt from the point source definition in the Clean Water Act. Some adjacent wetlands on farm property that were not covered post-SWANCC, would be included under the CWR, and, as noted above, farmers might need fewer pesticides permits under the proposed replacement rule when they’re discharging directly into the water, but otherwise, most runoff is, and always has been, exempt. (On the flip side, as I noted in my September 10 blog post, there is potential harm to farmers in the new exemptions introduced by the CWR and the replacement rule – finding ag ditches and drains to be point sources.) Given that the pesticide permit is a general permit, and requires little effort by a farmer to comply with - - and only applies where farmers are spraying directly over water - - it is hard to understand the intense backlash by the ag community. Farm field runoff (technically ag stormwater and return flows from irrigated agriculture) has been exempt since the beginning of the modern CWA, and I can’t imagine Congress ever taking that away.

September 12, 2019

 

EPA announced today the release of the WOTUS repeal rule, which removes from the books the 2015 rule, aka The Clean Water Rule (CWR). This has been in the works since the start of the Trump administration, and was prompted by an early executive order. I only had a chance to quickly read through the rule.  Attached here.       It appears to track closely the draft rule from earlier in the year. The intro to the rule states that EPA is repealing the CWR because the Obama administration misinterpreted Kenney’s opinion in Rapanos, EPA did not give enough weight to CWA § 101(b), and the CWR pushed the constitutional and statutory limits of interpretation. I helped write CWR, so I’ll keep my opinions to myself. I do find it interesting, however, that EPA is touting 101(b) just weeks after announcing a plan to curtail states’ rights with new 401 cert. regs. 

 

I understand California has already announced it will challenged the repeal rule, and I wouldn’t be surprised if other states jump on board. Twenty one states are currently under the CWR, and most of those want to be there. I have heard that at least one environmental group has a complaint prepared to file once the repeal rule is published in the Federal Register. I also heard that the Pacific Legal Foundation may be filing. That will be an interesting complaint to see. I'm eager to see where all of these lawsuits get filed. I have no idea how DOJ is keeping up with all of this defensive litigation.

 

Where from here?  I think there’s a fair chance the repeal rule will get stayed. EPA’s new interpretation of Kennedy is not supported by any of the courts of appeals that have interpreted Rapanos and the reliance on 101(b) is both new, and only gets one so far.  Congress still put 101(a) first in the statute. If the repeal is stayed, it’ll be status quo with 21 states covered by the CWR, and the rest not. When the new rule is promulgated, I’m not sure how it goes into effect if the CWR is still on the books, even if it’s stayed. The courts will have to decide that one. The litigation will last well past the next election, and we may get conflicting opinions from different courts. If Trump wins a second term, the litigation will play itself out in that term. If he is not re-elected, the new administration will likely start the unwinding process of all of this, and industry will slot in for the environmental groups to become the new litigants. The only way this will ever end is if Congress steps in, and fixes the problem.  Don’t hold your breath.

 

 

September 10, 2019

 

The 9th Circuit just handed down an important new case regarding ag drains. The case, Pacific Coast Fed. of Fishermen’s Assoc.’s v. Glaser, deals with the ag drain exemption found in § 402(l) of the CWA. At issue was whether plaintiffs could proceed to trial to prove that a large ag drain in California carried non-ag-related pollutants, and was, therefore, an unpermitted discharge. The lower court had held that the § 402(l) requirement that return flows be comprised entirely of ag flow should not be strictly construed, and the exemption applied if the drain was mostly return ag flow. The Ninth Circuit reversed, concluding that entirely means entirely. The Ninth Circuit also concluded that it was the defendant’s burden to show that the § 402(l) exemption applies, not plaintiff’s.

 

In my July 16 and 17, 2019 blog posts, I wrote about the recent District of Hawaii case, Nakia’ikai v. Nakatani, 2019 WL 2997774 (D. Haw. 2019), and how the ag ditch exemptions in the 2015 Rule and the WOTUS replacement rule put many ditches and drains at risk of being classified as point sources. This new Ninth Circuit decision makes that prediction more likely by pushing the burden of proving the exemption on the owner of the ditch and by requiring that the ditch be essentially 100% return ag flow. I doubt many are. If the ditch is not WOTUS, and the § 402(l) exemption does not apply, it’s hard to escape the conclusion that the ditch is a point source discharger of pollutants. I doubt that’s the result the drafters of those two rules intended.

Other CWA news: The plaintiffs in the TVA groundwater case just filed a motion to dismiss the petition before the Supreme Court on the grounds that they've settled the matter in state court. Here's a copy of the motion.      If granted (likely), that would leave the Maui case as the only pending groundwater connection case at SCOTUS.

 

Pacific Coast Fed. of Fishermen’s Assoc.’s v. Glaser, ___ F.3d ___, 2019 WL 4230097 (9th Cir. 2019) (reversing District court, held that burden of showing lack of need for an NPDES permit under § 402(l) falls on defendants and the district erred in concluded “entirely” means “majority” when construing “composed entirely of return flow from irrigated agriculture;” § 402(l) exempts discharges from all activities that are related to crop production, construing broadly the term “irrigated agriculture” [note good statutory history of § 402(l) in the opinion])

September 9, 2019

 

This is an interesting case that went to trial in 2017, but the court ruled only last week. The judge’s opinion is long and detailed. A developer sued EPA over a JD on four tributaries, and EPA counterclaimed. The EPA inspections that led to this case occurred in 2010, so this one has been brewing for a long time. The court applied both the Scalia and Kennedy tests to determine jurisdiction, which is less common (most courts use the Kennedy test only; the government usually asks for both). The fine struck me as rather small for a federal court case where the violator continued to place fill after the inspection and after he claimed he had stopped. It’s in the range of a mid-size administrative case. EPA started with a small proposed penalty and the judge found no economic benefit, which may explain the low number. It will be interesting to see if the case is appealed.

The small size of the penalty underscores why so few cases, especially administrative cases, go to trial or hearing. The trial in this case was five days long, and involved numerous lay and expert witnesses.  The attorney and expert witness fees for the developer certainly exceeded the amount of the penalty by a large margin.  Unless you're on a crusade against the government - - and can afford it - - it makes little economic sense to litigate these cases.  When I was an EPA litigator, I tried a number of administrative cases, mostly against defendants who refused to settle on any terms, and I never tried a single federal court case in 24 years at the agency despite a heavy case load. It's just too darned expensive to go to court when the proposed penalty is five figures.

 

Foster v. EPA, 2019 WL 4145583 (S.D.W.V. 2019) (after trial, held that stream channels developer filled, including flow across a hay field, met the significant nexus test and one of the four also was a RPW; plaintiff discharged pollutants (excavated dirt and rocks) from a point source (bulldozer and dump trucks) to WOTUS without a 404 permit)

 

Foster v. EPA, 2019 WL 4148067 (S.D.W.V. 2019) (plaintiff ordered to conduct off-site compensatory mitigation and pay $100,000 fine for unauthorized work in stream channels; no economic benefit where plaintiff lost money on development pending litigation)

 

September 4, 2019

 

More WOTUS news. The Office of Information and Regulatory Affairs public noticed yesterday its conclusion of regulatory review of the WOTUS withdrawal rule.  Here’s the link to the notice:  https://www.reginfo.gov/public/do/eoDetails?rrid=129319 .

 

This means the final rule with response to comments will be published soon. I’ll post it when it’s available. It will be fascinating to see how the administration deals with the large volume of comments, many of which likely opposed withdrawal. It will also be interesting to see how many lawsuits will be filed and where. Will the states play a bigger role here than the enviros? Remember, the 2015 rule that is about to be formally withdrawn is in effect in about half of the states. See the EPA webpage below for a map showing who’s currently in and who’s out. (I’m still waiting for some enterprising grad student to look at the two sets of states and see if water quality changed or if the economies of either group was helped.) Or will the states and enviro groups hold fire pending the promulgation of the replacement rule. I doubt it. WOTUS will continue to generate a lot of work for the legal community.

 

As a practical matter, assuming the final rule is not stayed by the courts, the states now under the 2015 rule will revert to the 2008 Rapanos Guidance for determining CWA jurisdiction. We now have nine years of experience implementing the Rapanos Guidance, and it’s still horribly confusing and difficult to implement. Nevertheless, it’s more protective that the proposed replacement rule.

 

https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update

 

 

September 3, 2019

 

I published this article in the ABA’s Natural Resources & Environment magazine in 2017 about citizen suits.        In that article, I questioned why defendants challenge standing so often when the courts routinely find standing. The Fifth Circuit just issued a new standing decision that underscores why defendants push the issue in most case. This new decision arguably raises the bar in the 5th Cir. for standing, and it will be interesting to see if the hard look the court takes here is picked up by other Circuits. Interestingly, the standing argument was raised by the intervenor American Petroleum Institute – not the EPA.

 

Center for Biological Diversity v. EPA, ___ F.3d ___, 2019 WL 4126355 (5th Cir. 2019) (dismissing petition for review of challenge to EPA general permit for offshore oil & gas operations in Gulf of Mexico, held that petitioners lacked standing; three of the four declarants did not allege injuries in close proximity to permitted facilities - - assertions of using the Gulf of Mexico are specific enough; one declarant asserted use of waters near platforms, but did not tie his use to the discharges at issue in the case; “Whether a court can infer a causal link between a source of pollution and at least some portion of a petitioner’s injury is a fact-specific inquiry that turns on many factors, including the size of the waterway, the proximity of the source and the injury, forces like water currents, and whether discharges will evaporate or become diluted.”)

 

 

August 28, 2019

 

Here are two new cases with the first being the more important of the two. The Fifth Circuit ruled today that EPA properly revised the effluent guidelines for steam electric power plants. When EPA complies with the procedural rules, the courts will often defer to it. 

 

Clean Water Action v. EPA, ___ F.3d ___, 2019 WL 4047518 (5th Cir. 2019) (upholding EPA’s new ELG for steam electric power generating plants, held that reconsideration of the 2015 rule did not violate the APA or the CWA; EPA did not illegally stay the prior rule because the delay in implementation was the result of the promulgation of a revised rule that was subject to public notice and comment; EPA relied on all of the relevant statutory factors in revising the rule; EPA has significant discretion to weigh the statutory factors and re-evaluate the policy arguments supporting the rule; the 3-year statutory deadline for complying with the ELG applies only to the initial promulgation of BAT in 1989)

 

Garrison v. New Fashion Pork LLP, 2019 WL 40440223 (N.D. Iowa 2019) (on motion to dismiss for failure to comply with 60-day notice requirements, court ordered additional briefing on whether an unsigned notice letter is sufficient and whether failure to comply with notice letter requirements is a condition precedent to filing or is a jurisdictional issue)

August 23, 2019

 

A lot happened this week. On Wednesday, EPA published in the Federal Register its proposed new rule on 401 cert. Here’s a copy of the notice.        See my August 12, 2019 blogpost for an analysis of that rule making. The public comment runs through October 21, 2019.

 

On Wednesday, the S.D. of Georgia issued a broadside denunciation of the 2015 WOTUS rule in the opinion I summarize below. The plaintiffs in that case were Georgia, West Virginia, Kentucky, South Carolina and Utah. EPA did not defend the rule. Two environmental groups took up that oar instead.

 

Because a preliminary injunction was already in place, this ruling shouldn’t change the map of who’s in and who’s out of the 2015 rule, but it further complicates the picture by adding a large number of grounds for invalidating the 2015 rule. The opinion is long and detailed. If you dislike the 2015 rule, you’ll find much to love in this opinion. It is interesting that the current administration argued that the case was not ripe for review because of the ongoing WOTUS rule making efforts. I suspect EPA wants to keep this out of the courts pending the finalization of the repeal and replace effort to avoid inconsistent rulings.

 

Georgia v. EPA, 2019 WL 3949922 (S.D. Ga. 2019) (invalidating the 2015 WOTUS rule, held that rule was ripe for review despite concurrent EPA effort to repeal and replace rule; Kennedy significant nexus test applies; EPA’s inclusion of all interstate waters violates significant nexus requirement; EPA’s inclusion of all tributaries to navigable waters was over broad because definition of tributaries using bed and bank designation captured waters with little to no flow; EPA’s inclusion of adjacent waters was over broad because of underlying problem with tributaries; EPA’s case-by-case category relying on significant nexus test is appropriate; 1,000-foot setback for adjacency is based on sound science and is consistent with significant nexus test; other setbacks are arbitrary and capricious; rule is unlawful encroachment on state authority; final rule was not a logical outgrowth of the draft rule; EPA was not given Chevron deference in its interpretation of the CWA)

August 21, 2019

 

For those of you believing no humor can be found in the CWA - - or for those dealing with a “colorful” client, and needing to know they’re not alone - - read Higbee v. Starr, 598 F. Supp. 323 (W.D. Ark. 1984). Ms. Higbee was suing the neighboring hog farm for polluting her water source. Paraphrasing the case won’t do it justice, so I present here the relevant facts from the opinion.

 

13. Higbee utilized the Sallee property not only as living quarters for herself and her family, but also as a shelter for a large brood of domestic animals. She stated in answer to interrogatories that between November, 1978, and July, 1982, she kept approximately 75 dogs, 40 cats, 2 horses, 30 goats, 8 pigs, 400 chickens, 4 peacocks, 130 turkeys, 1 cow, 30 pigeons, 60 rabbits, 35 ducks, and 30 geese.

 

14. Higbee prided herself on the fact that she did not keep her animals in pens, but allowed them to have the free run of her yard and of her house. She testified that goats, as well as cats and dogs, urinated and defecated in her house, and the record includes pictures of chickens frolicking among the Christmas packages underneath the tree.

 

15. With few exceptions, Higbee permitted her animals unrestricted access to drink from, to swim and bathe in, and to foul all of the water sources on her property. She testified that she also drank from these water sources, and that she felt that if the water was clean enough for her “critters” to drink, it was clean enough for her and her family to drink.

 

16. During the period of time when Higbee, her family, and her animals lived on the Sallee property, the ground surrounding the Higbee home was contaminated by large quantities of animal feces and urine from the animals kept there by Higbee.

 

17. Higbee maintained two outhouses in the yard of her dwelling on the Sallee property, which were periodically repositioned when the spots in which they were located had become fouled. In order to avoid visiting one or the other outhouse at night, chamber pots were kept in the house. These were emptied each morning on or near the family garden plot, which was located 15–20 feet from the spring.

 

18. Higbee complained that after the Low Gap Hog Farm commenced operations, her previously pure water supply became polluted and could no longer be used for drinking or bathing. She stated that her house smelled of hog waste, and that her children went to school each day smelling of hogs.

 

Id. at 326-27 (citations omitted).

August 20, 2019

Here's a new unreported decision from the Third Circuit dealing with yet another pipeline challenge.

Deleware Riverkeeper Network v. Penn. Dept. of Envt’l Protection, 2019 WL 382224 (3rd Cir. 2019) (unreported) (state was not required to public notice general permit because NOI that required no site-specific information is not an application for a permit to trigger the 402(j) public notice requirements; state did not violate 401 cert. requirements when it certified the general permit for discharge pipeline hydrostatic testing water conditional upon obtaining other permits)

 

 

August 13, 2019

 

Here are four new CWA cases. The must-read is United States v. Brace, a copy of which I attach here:     . Whenever I see a judge get impatient with a party, I pay attention for lessons learned. This is an extreme example of counsel playing out of bounds and the court finally throwing the book at them.  It’s worth a read.

 

The Anacostia Riverkeeper case is also worth paying attention to. The courts continue to hold EPA to the exact statutory language on TMDLs and are requiring “daily” load limits, even when it may make practical sense to do something different.

 

Central Sierra Env’tl Resource Cntr. v. Stanislaus National Forest, 2019 WL 3564155 (E.D. Cal. 2019) (granting defendant’s motion for summary judgment, held that Forest Service was not arbitrary and capricious in complying with California’s Porter-Cologne Act in granting grazing rights for cattle that would result in nonpoint source pollution where F.S. worked closely with the state in developing plan to minimize pollution)

 

United States v. Brace, 2019 WL 3778394 (W.D. Pa. 2019) (on motion for summary judgment, held that wetlands abutting creek that discharges to Lake Erie meets both the Scalia and Kennedy tests for jurisdiction; wetland met the Corps ’87 manual definition of wetland using the atypical delineation method; defendant’s heavy equipment used to land clear was a point source; the dredge spoils were pollutants; defendant’s response brief and expert reports stricken after repeatedly missing deadlines and violating court orders)

 

SOSS2, Inc. v. USACOE, 2019 WL 3767043 (M.D. Fla. 2019) (in case challenging Corps’ environmental assessment of beach erosion project, held that plaintiffs may not supplement the record where the request is open-ended; denied Lido Key Residents Assoc. motion to intervene on grounds that the organization had not identified a legally-protectable interest in the Corps’ project)

 

Anacostia Riverkeeper, Inc. v. EPA, No. 16-cv-1651 (CRC) (D.D.C. Aug. 12, 2019) (on motion for summary judgment, held that EPA wrongly approved e. coli TMDL that relied on monthly averages rather than daily maxes to determine compliance; held that D.C. must comply with both narrative and numeric criteria in complying with TMDL; court rejected argument that meeting the numeric criteria can serve as a proxy for satisfaction of the narrative criteria; remanded the case with a one-year stay of vacatur)

August 12, 2019

 

On Friday, EPA released its proposed new rule regarding 401 certification. This follows on the recent release of the new 401 cert. guidance. Both efforts stem from an Executive Order in April instructing the EPA to reconsider the 401 cert. process, which has been used recently by some states to slow pipeline projects. Here is a link to the proposed rule that released on Friday:      . There will be a 60-day public comment period for the proposed rule that will begin to run once it is published in the federal register. I’ll post a link to the Fed. Reg. notice once it is available. This is the third major proposed change to the CWA under this administration, the other two being WOTUS and jurisdiction over groundwater connections. All are focused on reducing the reach of the CWA.

There is a lot to unpack in this proposed rule, and I won’t attempt to cover it all in this blogpost. Rather, I’ll focus on the highlights and a few interesting points.

As I noted in my June 9 blogpost on the new 401 cert. guidance, this proposed rule is a significant retreat from current practice, and will limit states’ and tribes’ ability to place restrictions on projects that are subject to 401 cert. Given the broad deference SCOTUS has given to states’ rights under 401 cert., it will be interesting to see how this new rule holds up to the inevitable challenges to it that will be filed. See e.g., S.D. Warren Company v. Board of Envt’l Protection, 547 U.S. 370 (2006); PUD No. 1 of Jefferson Co. v. Washington State Dept. of Ecology, 511 U.S. 700 (1994). EPA works hard in this rule making to distinguish PUD No. 1, but, in my opinion, fails.

The summary of the rationale for the proposed rule can be found at pages 52-73 of the attached document. The proposed reg text starts at page 150. The important changes are: (1) EPA will now limit 401 cert. to water quality impacts, (2) 401(d) will no longer be interpreted to allow states to place other restrictions on the applicant, (3) 401 cert. will be limited to point source discharges and (4) new restrictions will be placed on how long a state my review a project. These are significant changes to the current rule.

 

The proposed rule turns largely on the § 401(a)(1) use of the term “reasonable” when describing how long states and tribes may take to grant or deny cert. See discussion beginning at page 103. Congress limited the time to “not exceed one year,” but EPA now views that 1-year limit as giving it the ability to limit the review time frame to less than a year. The clock begins to tick upon submittal of the application, whether the application is complete or not.  Id. at 104. The certifying authority may not ask for the application to be withdrawn to give more time to review. Each reviewing agency may establish its own test for reasonableness based on set criteria. Id. at 107.

 

Look at page 21 of the proposed rule and accompanying footnote 8. EPA states, “Congress therefore hoped to achieve the Act’s objective ‘to restore and maintain the chemical, physical and biological integrity of the Nation’s waters’ by addressing pollution of all waters via non-regulatory means and federally regulating the discharges of pollutants to the subset of waters identified as ‘navigable waters.’” This is another first for this administration. I’ve never seen any prior interpretations of the CWA that differentiated between the “Nation’s waters” and “navigable waters” and that attempts to create a non-regulated subset of the former. Similarly, I’ve never seen the goal of the CWA portrayed as primarily a non-regulatory approach. These are new interpretations of the CWA that no prior EPA administration has offered or supported, nor are they part of the CWA jurisprudence. The Trump administration, through this effort, as well as the redefinition of WOTUS and the limiting of jurisdiction over groundwater discharges, is pushing to significantly change how the CWA is interpreted.

 

Expect lots of litigation on this one.

July 31, 2019

 

EPA yesterday issued its withdrawal notice of the 404(c) determination it made for Pebble Mine under the Obama administration. Pebble has been controversial for years. It will be one of the largest gold mines in the world, and it will be located at the headwaters of an important salmon fishery. EPA previously determined after years of study that the mine could not be safely built, and invoked its rarely-used 404(c) veto authority to stop the permits before they were issued by the Corps. The primary rationale for the withdrawal is spelled out on page 14 of the withdrawal notice, which is attached here: 

 

Like many of the Trump Administration environmental rule making efforts, this one will surely be challenged, and it will be interesting to watch how it plays out in the courts. It’s not clear that the courts will overturn this one. I think many of proposed EPA CWA rule makings in the Trump-era have had weak legal underpinnings and are likely to be overturned. This is one is a closer call. EPA was aggressive in vetoing the permit before it was issued, and before the full record supporting such a permit was in place. EPA did, however, undertake a significant scientific review of the project, including two rounds of public comments and peer review of the science before vetoing. Given that mining companies have argued in the past that EPA can’t veto a 404 permit once its issued and they’ve relied on the permit, the legal arguments here will be interesting.

 

Given the length of time litigation takes, this rule may suffer the same fate as the WOTUS rule and others. If Trump is not re-elected in 2020, the new administrator will likely settle all of the lawsuits and take voluntary remands. Environmental law in the U.S. - - long a fairly stable affair - - is becoming a ping pong ball between the competing ideologies of the two parties that alternate visits to the White House. It makes it hard to plan for the future if you’re a business.

July 26, 2019

 

Here are two new case. The first case below, Ward v. Stucke, is a good example of challenges of litigating wetlands cases. Wetlands law is complex. There are lots of exemptions and they’re not always easy to understand. And then there’s the old question of how does one interpret Rapanos. My brief summary below does not do the case justice. Defendant’s counsel threw out every argument they could think of and lost. I suspect the judge got it right.

 

Ward v. Stucke, 2019 WL 3350161 (S.D. Ohio 2019) (denying motion to dismiss, held that plaintiffs alleged sufficient facts of construction of tile drain system in wetlands without a permit to survive motion to dismiss; rejecting Rapanos plurality test for jurisdiction, held that complaint alleged sufficient facts to find jurisdiction under the Kennedy test where the wetlands are adjacent to a navigable water and have a significant nexus to downstream waters; construction equipment is a point source; discharge of dredged spoils constitutes a discharge of pollutants; normal farming exemption does not apply because discharges of dredge spoils by heavy equipment were not an ordinary part of maintaining and operating a farm; ag stormwater exemption does not apply to discharges of dredged spoils; rejected argument that complaint fails because CWA does not regulate increased flow or rate of discharge)

 

Friends of the Capital Crescent Trail v. USACOE, 2019 WL 3238749 (D. Md. 2019) (granting transportation department’s motion to intervene in case where plaintiffs challenged 404 permit issued for road construction; held that intervenor was involved in the case and would suffer consequences of an adverse ruling)

July 18, 2019

 

Here are four new CWA cases. They include a consent decree violation (don’t do that), a bench trial, an interesting Gwaltney issue and, of course, WOTUS. Also below is a brief article on the topical groundwater issue.

 

OVEC v. ERP Environmental Fund, Inc., 2019 WL 2607000 (S.D. W.Va. 2019) (finding defendants in default of consent decree, and ordering defendants to pay $1.95 million to plaintiffs to comply with consent decree; plaintiffs’ attorney fees awarded; enforcement of a consent decree does not require a motion for summary judgment; the court retained jurisdiction to enforce decree when the decree was entered)

 

Wild Fish Conservancy v. Cooke Aquaculture Pacific, LLC, 2019 WL 2616640 (W.D. Wash. 2019) (on motion for summary judgment in case involving discharges of non-native salmon from an ocean net-pen operation, held that plaintiff could show an ongoing violation where some of the salmon remain in the ocean, but could not show that other NPDES permit conditions were still being violated where the facility had been destroyed and was no longer operational; claims for injunctive relief are moot where the facility is no longer operational, but case is not moot where plaintiff can obtain relief in form of penalties; motion for leave to amend answer to add defense of preemption denied where state action was not “comparable” to federal law because state did not share the same public participation features as the CWA; leave to amend to add res judicata defense granted based on settlement of state enforcement action)

 

San Antonia Bay Esturine Waterkeeper v. Formosa Plastics Corp., 2019 WL 2716544 (S.D. Tex. 2019) (following a bench trial, held that plastics company violated its SPDES permit by discharging plastics in greater than trace amounts since January 2016, and failing to report violations; settlement with state for $122,875 for a subset of the total violations does not moot the case; plaintiff members had standing to bring this action where they suffered damages to their recreational, aesthetic, and economic uses of the receiving waters; parent corporation is liable as a “person” under CWA where it “managed, directed, conducted, and took such actions or failed to take actions that caused non-compliance” with the SPDES permit; plaintiffs are awarded attorney fees)

 

Washington Cattlemen’s Assoc. v. EPA, 2019 WL 3206052 (W.D. Wash. 2019) (granting three enviro groups joint motion to intervene as defendants and to file response brief to motion for summary judgement in lawsuit challenging 2015 WOTUS rule)

 

Frank Holleman, “Addressing surface water pollution carried by groundwater,” ABA SEER Trends (July 9, 2019)

July 17, 2019

 

More on Nakia’ikai v. Nakatani and ag ditches, which was the subject of yesterday’s blog. I have for some time argued that exempting ditches from the WOTUS definition leaves them vulnerable to being labeled point sources. The ruling in Nakia’ikai offers some support to that argument.

 

The 2015 WOTUS rule, which is now in effect in about half of the country, exempts ditches with intermittent flow that are dug in uplands. That includes many, if not most of the irrigation ditches in the arid west. The proposed Trump Administration replacement rule, which is not yet in effect, exempts most ditches.

 

By calling those ditches non-WOTUS, I think we’re setting up the ditch owners to be point sources owners. If the ditch is 100% ag return flow, one can argue it’s exempt under § 402(l)(1).  But most ditches carry some non-ag stormwater runoff, and § 402(l)(1) exempts from NPDES permitting requirements only ditches and drains that are “composed entirely of flows from irrigated agriculture. . .” Comingled flows are likely subject to regulation. Most ag drains and tail water from irrigation ditches flow back into regulated surface water bodies. The points where these drains and ditches enter WOTUS are “discernable, confined and discrete conveyance[s].” CWA § 502(14).

 

The water transfer rule (WTR), arguably helps so long as there is no intervening use. See 40 C.F.R. § 122.3(i) (“water transfer” is defined as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. This exclusion does not apply to pollutants introduced by the water transfer activity itself to the water being transferred.”) But if the ditch received stormwater or NPDES-permitted effluent and is not merely moving water from point A to point B, then arguably the WTR doesn’t apply. See Nakia’ikai.

 

Being a WOTUS is not without consequences, and regulatory burdens of meeting water quality standards or dealing with adjacent wetlands can be problematic. But being a point source, I maintain, is much more difficult to deal with. I’ve long argued that it’s only a matter of time before an environmental group finds a really great fact scenario to bring a case against a ditch owner. That has now happened. Katie bar the door.

July 16, 2019

 

This is a really interesting case. In Nakia’ikai v. Nakatani, 2019 WL 2997774 (D. Haw. 2019), the court held that an ag drainage ditch is a point source, and the water transfer rule (WTR) does not apply to exempt the discharge from NPDES permitting. In an other-side-of-the-sun scenario, the enviro plaintiffs and ag defendants flipped their usual positions with the plaintiffs arguing the ditches are not WOTUS, and defendants arguing that they are.

 

The facts are a bit complex, and I won’t lay them all out here, but the case turned  on whether a man-made drainage ditch that pumped contaminated water (mixed ag drain and non-ag stormwater) into the ocean was a point source or whether it was a water transfer similar to the pump system used in the Miccosukee case. The court held it was a point source, concluding that the entire drain system added pollutants, rejecting the argument that the pumps alone have to add pollutants to fall outside of the WTR. This is one of only a few cases I’m aware of interpreting the WTR, so it will be carefully scrutinized, especially by the ag sector. It’s also interesting that the court does not cite ONRC Action v. Bureau of Reclamation, 798 F.3d 933 (9th Cir. 2015) (artificial irrigation canal that was routed through previously natural waterways, is not a point source discharge subject to regulation under the CWA), which has very similar facts and is from the same circuit.

 

In other WOTUS news, EPA sent the repeal rule to OMB on July 12. This should be the final step in promulgating the repeal of the 2015 WOTUS rule (aka Clean Water Rule). Expect immediate litigation when the Federal Register notice is published, likely in the fall. Given the litigation history of the WOTUS rule making, I would not be surprised if the final rule is enjoined.

 

Nakia’ikai v. Nakatani, 2019 WL 2997774 (D. Haw. 2019) (100-year-old man-made drainage ditch designed to drain wetlands via a pump system into the ocean held to be a point source; ditch is not WOTUS because it was designed and built to be a conveyance system to remove polluted water from former orchards and was regulated under an NPDES permit until WTR was promulgated; WTR does not apply because the system adds pollutants; burden is on defendant to show exemption applies; exemptions from CWA coverage are narrowly construed)

July 15, 2019

 

Respondents in the Maui case filed their brief with SCOTUS on the July 12. Here’s a copy of the brief.      The brief offers a good summary of the law and a rationale interpretation of the Act. As I have written in past blogposts on the Maui case and the recent EPA interpretive rule, the new conservative majority on the Court may well side with EPA and Maui to hold that the CWA doesn’t apply to point source discharges that enter WOTUS via groundwater connections. What will be interesting, is how the Court limits the size of the loophole such a ruling will create. Why have an NPDES permit, if you can just pump your effluent into the gravel next to the river? Point sources discharging directly to surface waters are covered by the CWA. Discharges to deep aquifers that may not surface for millennia are not. That much is clear. Where in the middle the court decides to draw the new line will define how the CWA is used to protect our nation’s waters for years to come.

June 27, 2019

First, and most importantly, the winner of the last week's CWA quiz was John Kolanz of Otis & Bedingfield LLC in Colorado who correctly spotted that Idaho was mistakenly listed on the EPA website as one of the states that has not yet been authorized to run the NPDES program. Idaho was authorized in June 2018. The other mistake, which most missed, is EPA's use on that webpage of the term "delegation." EPA doesn't delegate authority under CWA section 402(b), it "authorizes."  It's an important distinction because EPA retains all of its CWA authorities even when a state takes over the NPDES program.

In lesser news, the Supreme Court yesterday issued its opinion in Kisor v. Wilkie. Here's a copy of the opinion.      This is an important new decision on Auer deference. Anyone who has litigated against a federal government agency has dealt with Auer deference. This new decision is nuanced, and will take some time to see how it's applied by the lower courts. The take-away is that SCOTUS has limited the scope of Auer. How much and under what circumstances will remain to be seen. This new decision puts more power in the hands of judges. How they wield that power will, I suspect, depend more on how much the judge likes your case, and less on how much deference the judge thinks is owed to the agency. See my April 14 and 16 blog posts for more on the case.

June 21, 2019

Test your CWA nerdiness. Can you spot the errors in this EPA webpage on state NPDES permit systems around the country?  I'll post the answers next week. If you want CWA-Blog-reader bragging rights, send me your answers, and I'll give you a shout-out.

https://www.epa.gov/npdes-permits

June 18, 2019

 

I’m back from an extended week of teaching trial ad in beautiful Boulder, Colorado, and I’m playing catch-up on the recent CWA decisions by the courts. The Waste Action Project and Starlink opinions below are good reminders of the importance of making timely and well-researched arguments.

 

Sierra Club v. U.S. Fish & Wildlife Service, ___ F.3d ___, 2019 WL 2297454 (9th Cir. 2019) (in challenge to F&W Service withholding of documents under FOIA related to cooling water intake structures regulated under 306(b), held that district court properly ordered release of draft jeopardy biological opinions and statistical and instruction documents because they were not both pre-decisional and deliberative process and therefore not exempt; district court improperly ordered release of April 2014 draft jeopardy opinion because it was pre-decisional and deliberative)

National Parts Conserv. Assoc. v. Semonite, ___ F.3d ___, 2019 WL 2306755 (D.C. Cir. 2019) (reaffirming remand to district court to determine whether Corps complied with NEPA in issuing 404 permit for power line construction, held that issue is not moot even though electric towers have been constructed because petitioners argued below that the towers could be removed if plaintiffs prevailed)

Starlink Logistics, Inc. v. ACC, 2019 WL 2342403 (M.D. Tenn. 2019) (denying motion to dismiss case alleging violations of stormwater construction GP, held that defendants failed to properly cite to the record to support their arguments, and the motion should have been a motion for summary judgment; “’Judges are not like pigs, hunting for truffles’ that might be buried in the record.”)

United Affiliates Corp. v. United States, ___ Fed. Cl. ___, 2019 WL 2276703 (Ct. Cl. 2019) (granting motion to dismiss claim that EPA’s decision to veto 404 permit for coal mine was a categorical taking, held that plaintiff did not allege facts that they suffered a physical invasion of their property or that their property has been deprived of all economically beneficial or productive use; plaintiffs pled sufficient facts to possibly prove a regulatory taking where they alleged that the 404 permit withdrawal deprived them of use of their property for coal mining)

 

Puget Soundkeeper Alliance v. APM Terminals Tacoma, 2019 WL 2224920 (W.D. Wash. 2019) (in response to challenge to enforceability of state-issued NPDES permit that is broader than federal standards, court delayed ruling pending its invitation to state to file amicus brief interpreting its own permit)

 

Eden Envt’l Citizen’s Group LLC v. Laptalo Enterprises, Inc., 2019 WL 2423417 (N.D. Cal. 2019) (denying motion to dismiss, held that plaintiffs had sufficiently alleged Article III standing  where complaint alleged that member of plaintiff’s organization continues to suffer concrete injury traceable to defendant’s alleged violations of the CWA; CEO has responsibility and authority to prevent or to correct the alleged violations; responsible corporate officer doctrine applies to CWA; under CWA “a person is a ‘responsible corporate officer'  if the person has authority to exercise control over the corporation’s activity that is causing the discharges.”)

 

Boylean v. United States, 2019 WL 2410861 (N.D. Ohio 2019) (denying motion to vacate criminal sentence related to discharging trucked wastewater into WOTUS without a permit, held that defendant knowingly waived his right to appeal when he entered into a plea agreement; the CWA does not violate the Commerce Clause; “It has long been settled that Congress has extensive authority over this Nation’s waters under the Commerce Clause.”; the term “person” in the CWA applies to individuals and not just to corporations)

 

Waste Action Project v. Port of Olympia, 2019 WL 2409636 (W.D. Wash. 2019) (denying motion to amend complaint to add claims to case alleging violations of stormwater permit, held that plaintiffs did not show good cause for amending the complaint late in the process and provided no explanation why the proposed claims could not have been added earlier)

 

Ohio Valley Envt’l Coalition v. EPA, ___ F. Supp. 3d ___, 2019 WL 2385865 (S.D. Va. 2019) (granting motion for award of attorney fees, held that plaintiffs were a substantially prevailing party where their lawsuit caused EPA and the state to enter into an MOA to address shortcomings in the TMDL program; fees would be allowed only up to the date of the MOA)

 

United States v. Lapant, 2019 WL 2355612 (E.D. Cal. 2019) (approving entry of consent decree in wetlands enforcement case where defendant would pay $1,750,000 penalty, buy $3,550,000 in mitigation credits and be permanently enjoined from disturbing 616 acres of property)

 

Hammes v. City of Davenport, 2019 WL 2183365 (S.D. Iowa 2019) (pro se plaintiff’s complaint alleging stormwater violations dismissed for failure to first send a 60-day notice letter; plaintiff’s prior email and telephonic complaints to EPA for its failure to act do not meet the notice requirements of 40 C.F.R. § 135.2)

June 9, 2019

On Friday, the EPA released its new guidance document regarding 401 cert. EPA, “Clean Water Act Section 401 Guidance for Federal Agencies, States and Authorized Tribes (June 7,2019).       EPA issued the Guidance in response to the Executive Order issued in April. See my April 10, 2019 blog post for more on that EO. News reports indicate that the EO was issued to help push interstate pipeline projects through that have been held up by 401 certs in blue states.

It is apparent from document that the administration is trying to clip the states' wings on 401 cert. review by shortening timelines and instructing federal agencies to deem cert. waived if not completed in an undefined “reasonable” amount of time. Given the vagueness of the Guidance and that it will likely be used to cut off State’s and tribal rights, expect it to be challenged in the courts, even though it expressly states it is not a rule and is not binding.

One of the big changes from past practice is the time for review will now start ticking when the application is submitted, even if it's incomplete. In the past, states have often sent back applications asking for additional information. This new practice may create the incentive to submit incomplete applications that the state cannot process, which, in turn, will encourage states to deny cert. if there is any doubt to avoid running past the undefined "reasonable time period" for review. Under this guidance, federal agencies are given pretty broad authority to deem the certification waived.

The other significant change is the Guidance limits review to water quality problems. This runs counter to SCOTUS precedent that allows states to tack on minimum flow conditions for protecting fish, for example. Remember, 401 cert. applies to “discharges,” not “discharges of pollutants.” It’s hard to see how this part survives challenges.

Under the Guidance, federal agencies have authority to establish "reasonable timeliness," whatever that means. Without a better structure for determining what is reasonable, it’s possible to imagine that reviewing courts will find federal agencies acting arbitrarily and capriciously if they start deeming 401 cert. waived. The states and tribes will certainly challenge those calls.

The bottom line: this Guidance may prove counterproductive. It may lead to lots of litigation, which will slow everything down. And I don't see many of the calls made pursuant to this Guidance surviving in the real world. One can legitimately argue that some 401 certs take too long. But this Guidance was hastily drafted, and it seems like a heavy-handed attempt to correct a problem perceived by the administration. And, as I pointed out in my April 10 blog post, it's ironic that the administration is trying to limit states' and tribes' right when it has been using states' rights as a prime reason for limiting federal authority on the WOTUS.

May 30, 2019

 

WOTUS is in the news yet again. The S.D. of Texas just issued its long-awaited ruling on the state’s challenge to the Clean Water Rule. It remanded, but importantly did not vacate the rule. I’m not surprised that the judge found a violation of the logical outgrowth test with the 2015 rule. I think there are good arguments both ways on that one, but that was the first problem that occurred to me when I saw the final rule in 2015 (I left EPA in 2014 and had no involvement in the WOTUS rule after that leaving).

 

I think the judge’s reasoning on the underlying science report is less strong, but in the end it doesn’t matter. EPA recently announced that it intends to finalize the repeal of the 2015 rule by August 2019 and to issue a final replacement rule by December 2019.  I think meeting the second date is unlikely. As of today, the agencies have received 613,369 comments on the proposed replacement rule. It will be a very heavy lift for the agency to respond to comments by December. It is conceivable that EPA will have the final repeal rule out by August, but it will be instantly challenged, and given the prior court rulings, EPA will face a skeptical judiciary on that effort. There’s a good chance it will be stayed.

 

Also, this week, the N.D. of Oklahoma denied a request for a preliminary injunction against the WTOUS rule.  See summary below.

 

In other CWA news, the Sacketts today filed their notice of appeal from their loss on the merits in the District of Idaho case challenging the EPA jurisdictional call on their wetlands. That will be one to keep an eye on.

 

Texas v. EPA, 2019 WL 2272464 (S.D. Tex. 2019) (on motion for summary judgment, held that EPA violated the APA in issuing the 2015 WOTUS rule because the final rule was not a logical outgrowth of the draft rule where the draft agency rule was hydrology-based and the final rule was distance based; held that EPA had a duty to public notice the science report upon which the 2015 WOTUS rule relied; court remanded, but did not vacate the rule)

 

Oklahoma v. EPA, 2019 WL 2288446 (N.D. Okla. 2019) (denying motion for preliminary injunction against 2015 WOTUS rule, held that evidence of potential harm from rule remaining in effect “is not so ‘certain and great’ that it rises to the level of irreparable harm;” rule has been in effect in Oklahoma for some time and “the State can identify no evidence of an aggressive expansion of federal regulation of Oklahoma waters;” granted motion by Riverkeeper Alliance to intervene as defendant)

May 22, 2019

 

One of the joys of working with the Clean Water Act is that it frequently coughs up little tidbits of information and interesting subsections that one never knew existed. Following a thread from a recent case and supporting briefs I was reading, I happened upon Section 511 of the Act. In particular, it states that “[t]his chapter shall not be construed as . . . . affecting or impairing the provision of any treaty of the United States.” 33 U.S.C. § 1371(a)(3).

 

This provision came up in the recent case involving alleged NPDES permit violations at a wastewater treatment plant that is treating Mexican wastewater under a US/Mexico treaty.  See City of Imperial Beach v. Int’l Boundary and Water Comm., 2018 WL 6504081 (S.D. Cal. 2018).

 

This leads to the question what effect his provision of the CWA would have on Indian treaties in the U.S. Many tribes have treaties protecting their fishing rights. The (a)(3) language cited above says the CWA shall not be construed as “affecting or impairing the provision of any treaty of the United States.” If a treaty protects a tribe’s right to fish, can an EPA approval of a state wqs for say cold water biota or human health criteria be overridden by a treaty right?  It’s an interesting question. I searched for case law on 511(a)(3), and found none.  If you have any thoughts on this, I’d be interested in hearing them.

May 13, 2019

 

Here are six new CWA cases from the district courts. The Tressler case is interesting in that it deals with the oft-over-looked law of owner/operator liability. Under the CWA, dischargers rather owners are liable, although a discharger is often an owner. Liability turns on control over the discharge, not ownership of it. Think landlord/tenant or owner/contractor. 

 

Verdier v. Bost, 2019 WL 1864090 (W.D. Wash. 2019) (on motion for summary judgment, held that plaintiffs failed to provide any evidence of on-going discharges in connection with repair of a seawall without a permit in 2012)

 

Wild Fish Conserv. v. Cooke Aquaculture Pacific LLC, 2019 WL 1880035 (W.D. Wash. 2019) (plaintiff’s 60-day notice provided sufficient information regarding violation of § S.6 defendant’s NPDES permit, but not § S.7; defendant violated § 301(a) and section S.6. of its aquaculture net pen permit where it failed to comply with various provisions of the permit)

 

Tressler v. Summit Township, 2019 WL 1900397 (W.D. Pa. 2019) (on motion for summary judgment in case involving discharges resulting from repairs by township and DOT to sewage lines, held that triable issue of fact exists as to whether township was an operator for purposes of CWA liability because it was not clear whether township was responsible for performing work that resulted in the discharge; rejected argument that township must be an owner to be held liable)

 

City of Seattle v. Monsanto Co., 2019 WL 1983936 (W.D. Wash. 2019) (on motion to strike, held that Monsanto lacked standing to bring CWA counterclaims against City where City alleged that PCB contamination was caused by Monsanto’s manufacture of the chemical for years, and Monsanto’s claims of harm were speculative)

 

United States v. Lapant, 2019 WL 1978810 (E.D. Cal 2019) (denying motion to dismiss in case involving alleged unauthorized filling of wetlands, held that court had jurisdiction under 28 U.S.C. § 1345 because the United States (rather than EPA or the Corps) is the plaintiff; rejected argument that Congress intended to limit § 1345 jurisdiction with the subsequent passing of the CWA; rejected argument that only EPA can initiate a lawsuit under § 309 of the CWA)

 

Black Warrior River-Keeper, Inc. v. Drummond Co., 2019 WL 20122396 (N.D. Al. 2019) (denying motion for summary judgment on grounds of the existence of triable issues of fact related to WOTUS, existence of acid mine drainage, and continuing violations, held that the mine refuse pile and its appurtenant dams and drainage ditches are point sources)

May 12, 2019

 

Two interesting briefs were filed in high-profile CWA cases in the last week. The County of Maui filed its brief in the groundwater connection case pending before SCOTUS. The brief argues that point source discharges can’t be regulated if they migrate to WOTUS via nonpoint source groundwater. Here’s a copy of the brief.

 

The other case worth watching is Columbia Riverkeeper v. EPA in the 9th Cir. That case is an appeal from the Western District of Washington, where the judge found that EPA had engaged in a constructive nonsubmission in connection with the temperature TMDL for the Columbia River. The United States is cleverly arguing in its brief that Congress never waived sovereign immunity for the constructive submission theory, which is judge-made law. Attached is the government’s brief from April 11 and the plaintiffs’ response brief filed on May 10.                 

 

Here’s my summary of the lower District Court decision:

 

Columbia Riverkeeper v. EPA, 2018 WL 5024027 (W.D. Wash. 2018) (on summary judgment, held that EPA had failed to act on temperature TMDL for the Columbia and lower Snake Rivers and therefore a constructive submission occurred; “A construction submission occurs only when a state has clearly and unambiguously abandoned its obligation to produce a TMDL or TMDLs.”; court rejected argument that states’ authority to prioritize TMDLs required the court to look at the entire state TMDL program to find a constructive submission; EPA was ordered to either approve or disapprove a TMDL within 30 days)

April 28, 2019

 

EPA’s new interpretive statement regarding the applicability of the CWA to groundwater was published last week in the Federal Register.  See 84 Fed. Reg. 16,810 (April 23, 2019). The 45-day comment period ends on June 7, 2019. For the full text of the statement, see my April 15 post.

 

I have finally read the statement, and I’m left with three basic observations: (1) EPA has reversed at least 29 years (likely more) of practice on this issue, and it tried very hard to find that hydrologically-connected discharges should not be covered, (2) it is ignoring the giant loophole in the law this interpretive statement creates and (3) SCOTUS is likely to decide this issue in the Maui case consistent with EPA’s new interpretation (it will be a 5-4 opinion).

 

The law on discharges that travel some distance over ground to reach WOTUS has long been settled. Those discharges are covered even though the pipe doesn’t discharge directly to the creek.  See Sierra Club v. Abston Construction Co., Inc., 620 F.2d 41, 45 (5th Cir. 1980). To hold otherwise would simply encourage dischargers to pull their pipes back a few feet from the river to avoid the need for an NPDES permit.

 

To exempt the same discharges to the same creek because they travel subsurface for a short distance makes no sense. Yes, hazardous wastes would be covered under RCRA, but not conventional pollutants like BOD, TSS and nutrients. If discharges via groundwater are no longer covered under the CWA, why would any POTW get an NPDES permit? Just dig a hole next to the river and discharge to that.  It’ll all seep into the river.  See

Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006), vacated, 496 F.3d 993 (9th Cir. 2007), cert. denied, 552 U.S. 1180 (2008) (abandoned gravel pit with wetlands adjacent to Russian River, which was being used as a discharge point for the city’s POTW, is waters of the U.S.; significant nexus found were pollutants from pond were found to migrate through groundwater into adjacent river).

 

The interpretive statement is correct when it states that EPA has never attempted a comprehensive look at the question of CWA jurisdiction over hydrologically-connected discharges. And the courts have for years been all over the map on both the methodology for finding jurisdiction and whether jurisdiction exists. A rule making on this issue is long overdue.

 

Hydrologically-connected discharges are not a hypothetical problem. Look at coal ash ponds, CAFO waste ponds, the City of Healdsburg, and industrial land application areas that are adjacent to rivers and lakes to name just a few. These facilities can cumulatively have a big effect on water quality. Some states may step in to regulate, but others will not, which would give us the patchwork of regulation we had in 1972. And water flows downhill.

 

Rather than issuing an interpretive statement - -which is likely designed to influence SCOTUS in the Maui case - - exempting all discharges from the CWA, EPA should be defining what discharges are covered, and which are not.  A principled look at the science and policy of regulating these discharges is needed. Discharges to deep groundwater with a 200-year year travel time to surface waters should not be covered by the CWA.  Congress was clear on that. But industrial discharges to a waste pond or to a land-app area adjacent to a creek that flow into the creek within hours of the discharge should be covered. The hard question that has never been analyzed is where in the middle should we draw the line. This interpretive statement by EPA punts on that effort, and simply says it’s all out of bounds. 

 

For those wishing to submit a comment letter by the June 7, 2019 deadline, here are the materials I’ve collected on the issue that you may find helpful. 

April 26, 2019

The number of comments submitted on the proposed WOTUS rule continues to climb. As of this morning, it was up to 466,356. It will be fascinating to see how the numbers break out on support/opposition to the proposed rule.

At a panel discussion I recently moderated in Washington D.C. on the proposed WOTUS rule, Steve Samuels, who was the lead WOTUS attorney at DOJ for years before he retired, brought up a simple, but often over-looked point in connection with the Sackett case. You will recall that the Sacketts went to the Supreme Court on their right to challenge an EPA compliance order to stop filling wetlands on their property, and they won. The case went back down to the District Court, and the judge recently ruled that EPA was not arbitrary and capricious in finding jurisdictional wetlands on the Sackett's property.  When EPA files an enforcement case against a wetlands owner, it must show by a preponderance of the evidence - - a much higher standard than under the APA - - that the wetland is subject to CWA regulation.  Landowners, it turns out, put themselves in a much tighter spot by challenging an order versus waiting for the EPA to enforce. Of course, waiting possibly years for EPA to enforce creates its own host of problems for landowners, but they stand a better chance of prevailing if EPA is the plaintiff rather than the defendant. Interesting point.

April 19, 2019

Two days ago I blogged that EPA had received 159,869 comments on the proposed WOTUS rule. The number is now up to 322,831, and I'm told that they're still processing a lot of comments that came in at the last minute.  It's clearly a rule proposal that has stirred passion in the water community. I hope to post more of the institutional comments in the coming days as I get may hands on them.

April 18, 2019

Two environmental groups filed a cert. petition on April 15 in the TVA case, asking SCOTUS to take up the groundwater issue that is also up for review in the Maui appeal. Here is a copy of the brief.       This continues to be a hot issue. See my April 15 blogpost on EPA's recent interpretive rule. It will be very interesting to see if the Court grants cert. given that Maui is already pending, and that case presents better facts to reject the use of hydrologic connections. The Court already rejected cert. in the Kinder Morgan case, which had more compelling facts for asserting jurisdiction. I suspect the Court will stick to Maui and reject cert. in the TVA case. This is an important issue because hydrologic connections not only form the basis of jurisdiction for many adjacent wetlands under the current WOTUS definition, those connections also are often used to discharge pollutants to surface waters, such as we saw in the Healdsburg case out of the 9th Cir. 

 

 

April 16, 2019

The public comment period closed yesterday on the proposed new WOTUS rule. EPA received 159,869 comments, which is fewer than I expected, but I suspect there were fewer mail-in post cards this time around.  I scrolled through the last two days worth of on-line comments, and there were many substantive comments in the form of lengthy attached letters.  Comments from farmers and environmentalists appeared to predominate.  This one stood out for it's length and thoroughness.  A tip of the hat to the authors at the Southern Environmental Law Center.  

For those interested in hearing the SCOTUS oral argument regarding due deference in Kisor v. Wilkie, here's a link to audio:  https://www.supremecourt.gov/oral_arguments/audio/2018/18-15 .  As I noted in my April 14 post, this is one to watch.

April 15, 2019

The EPA today released its long-awaited interpretive statement addressing discharges to hydrologically-connected groundwater, in so doing taking the position that discharges to groundwater are not regulated under the CWA.  Here's a copy of the statement.  

 

I have not yet had a chance to read it.  It is likely controversial. Given that this issue is now before the Supreme Court, expect possible changes depending on where SCOTUS lands in the Maui case.

April 14, 2019

 

The courts have been very busy this last month, and I’ve been traveling, so there’s a lot to catch up on. Here are 16 new cases. Last Friday’s Southwestern Electric Power Co. v. EPA case out of the 5th Cir. is noteworthy for the court’s complete disdain for EPA’s arguments. Read the first paragraph of the opinion, and you’ll get the drift. The other case worth keeping an eye on is Exelon Generation Co., LLC v. Grumbles, which deals with 401 cert. (See my April 10 blogpost for discussion of the recent executive order on 401 cert.) The state got pretty creative with its cert. requirements, and I’m not convinced they’ll prevail despite the Supreme Court’s prior deference to state cert actions. I’m also not convinced that Exelon will prevail in its federal court challenge to the cert. Challenges to state cert. are usually taken in state court. But there’s a lot of money at stake, the dam at issue is a player in the Chesapeake Bay TMDL, and dams sometimes create interesting case law because of their often-special status as nonpoint sources (see, e.g., National Wildlife Fed. v. Consumers Power Co., 862 F.2d 580, 583 (6th Cir. 1988)), so it will be interesting to see how that case develops. Tip of the hat to the Exelon lawyers for creative thinking.

 

You’ll note below that several of these decision turn on the due deference standard, which was the subject of recent Supreme Court oral argument in Kisor v. Wilkie. If SCOTUS changes the due deference standard, that could have a huge effect on the courts’ review of EPA administrative actions. Stay tuned to that one.

 

Just about everything else in the CWA is covered in these new cases, 404, stormwater, Corps FOIA requests, NPDES permits, effluent guidelines, OPA, TMDLs, 401 cert., water quality standards, standing, 60-day notices, etc.

 

Southwestern Electric Power Co. v. EPA, ___ F.3d ___, 2019 WL 1577740 (5th Cir. 2019) (held that two elements of EPA’s new effluent guidelines for steam-generating electric power plants were arbitrary and capricious; EPA may not set a time limit for legacy wastewater because the BAT standard does not allow for it; EPA’s adoption of 1980’s settling pond technology as BAT was not supported by the record; leachate provision of new guideline setting BAT as 1982 impoundment technology not supported by CWA 301(b)(2)(A), which requires BAT to eliminate discharges of all pollutants if technologically and economically feasible; no deference given to EPA where agency’s own data and record do not support its decision)

 

California v. Int’l Boundry and Water Comm., 2019 WL 1572994 (S.D. Cal. 2019) (granting motion by City of San Diego to intervene in lawsuit alleging NPDES permit violations by WWTP operated near the U.S/Mexico border)

 

New York Power Authority v. The Tug M/V Ellen S. Bouchard, 2019 WL 14110368 (S.D.N.Y. 2019) (on motion for summary judgment, held that underwater cable that was struck by an anchor and leaked dielectric fluid was not a “facility” under OPA and tug operator was therefore not liable for response costs)

 

Missouri Coalition for the Env’t v. USACOE, ___ F. Supp. 3d ___, 2019 WL 1411063 (D.D.C. 2019) (Corps violated FOIA by maintaining a policy or practice of withholding non-agency documents under the deliberative process privilege in connection with 404 permit applications)

 

Nat’l Wildlife Fed. v. Dept. of Transp., ___ F. Supp. 3d ___, 2019 WL 1426310 (E.D. Mich. 2019) (on motion for summary judgment, held that defendants response plans complied with CWA and OPA; the pipeline and appurtenant onshore and offshore structures were one facility requiring one response plan under 311(j); the Pipeline and Hazardous Material Safety Adminstration was arbitrary and capricious in approving the plan where PHMSA made only a cursory review of the plans and did not explain why it was approving; “there is nothing in the administrative record explaining why the Response Plans were sufficient to meet the CWA’s requirements.”)

 

California River Watch v. City of Escondido, 2019 WL 1429236 (S.D. Cal. 2019) (denying motion to dismiss, held that plaintiffs’ 60-day notice listing SSO’s was sufficient where plaintiffs listed 44 SSO events over five years; where allegations of unlawful discharge provide a range of dates, notice is sufficient; plaintiffs are not required to list every single violation with their respective dates, especially when defendants are in a better position to ascertain the dates of their own misconduct)

 

Huntress v. United States, 2019 WL 1434572 (S.D.N.Y. 2019) (granting motion to dismiss, held that Tort Claims Act does not allow claims that are based on the government’s exercise of a discretionary duty, and EPA’s decision to enforce against plaintiff for wetlands violations was discretionary)

 

Exelon Generation Co., LLC v. Grumbles, 2019 WL 1429530 (D.D.C. 2019) (denying motion to dismiss challenge to Maryland’s 401 cert. requirements for dam to remove phosphorus from river or pay in-lieu fees of $172 million/year, held that venue was proper in both D.C. (where FERC license was issued) and Maryland (where dam is located) where complaint alleged violations of CWA §§ 117 and 303 for interfering with Chesapeake Bay TMDL and violating § 401)

 

Potomac Riverkeeper, Inc. v. EPA, 2019 WL 1440128 (D.D.C. 2019) (on motion for summary judgment, held that EPA properly approved Virginia’s 2016 303(d) list; EPA appropriately declined to find impairment based on observations of floating algae where the data provided was not conclusive; 40 C.F.R. §§ 130.7(b)(5) and (b)(6)(iii) require the state to assemble all of the relevant data, then decide whether or not to use it - - evaluation does not require use of the data)

 

Center for Regulatory Reasonableness v. EPA, 2019 WL 1440303 (D.D.C. 2019) (on motion for summary judgment, held that EPA, in its approval of Minnesota’s river eutrophication criteria, adequately considered the relevant factors and provided a reasonable basis for its approval; deference given to EPA where complex scientific and technical issues were involved; “Happily, it is not for the judicial branch to undertake comparative evaluations of conflicting scientific evidence.”)

 

Lighthouse Resources Inc. v. Inslee, 2019 WL 1436846 (W.D. Wash 2019) (on motion for summary judgment, held that state’s denial of 401 cert. for coal transfer facility is not preempted by the foreign affairs doctrine)

 

Heal Utah v. Pacificorp, 2019 WL 1318350 (D. Utah 2019) (granting motion for summary judgment, held that plaintiff did not adequately notice violations that occurred after issuance of 60-day notice letter; plaintiff failed to prove any harm based on alleged reduced flow in the river resulting from unauthorized fill activity; court declined to recognize a procedural injury as a basis for standing in a suit against a non-governmental party; court declined to find an on-going violation where fill material was placed outside the statute of limitations)

 

Rauseo v. USACOE, ___ F. Supp. 3d ___, 2019 WL 1367767 (D. Mass. 2019) (granting motion to dismiss where plaintiffs alleged that EPA had failed to enforce against a wetlands violation, held that EPA and the Corps enforcement authorities are discretionary; EPA is not required to investigate every complaint because it has discretion to investigate and enforce violations it believes to be the most serious)

 

Blue Water Baltimore, Inc. v. EPA, 2019 WL 1317087 (D. Md. 2019) (on motion for summary judgment, held that EPA’s denial of plaintiffs’ 40 C.F.R. § 122.26(f)(2) petition to determine whether stormwater discharges are violating wqs was arbitrary and capricious because the regulation does not allow EPA to rely on state programs to solve the problem when data show that violations are likely occurring)

 

In re: Gold King Mine Release, 2019 WL 1282997 (D.N.M. 2019) (granting motion by EPA contractor defendants at CERLA mine site that discharged polluted mine drainage to river to strike joint and several liability claims, held that law of state where point source is dictates the law to be applied, and Colorado law does not provide for J&S liability)

 

Californians for Alternative to Toxics, 2019 WL 1259159 (N.D. Cal. 2019) (on motion for summary judgment, held that plaintiffs showed injury in fact where they showed that they derived recreational and aesthetic benefit from their use of the receiving waters, but their use has been curtailed because of concerns about pollution; plaintiffs must not show to a scientific certainty that defendant’s effluent caused the precise harm suffered by the plaintiffs in order to establish standing; a plaintiff must merely show that a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged in the geographic area of concern; defendant violated parts of its stormwater permit, but other violations are less clear for purposes of summary judgment)

 

Charleston Sanitary Bd. v. EPA, ___ F3d ___, 2019 WL 1119586 (4th Cir. 2019) (the CWA does not clearly spell out when approval of state wqs is required; EPA’s authority to approve or disapprove wqs is discretionary; court rejected state’s argument to expunge from admin. record all docs produced after the 60-day statutory review period; EPA’s disapproval of W. Virginia’s standards was not arbitrary and capricious where EPA concluded that the standards would not protect fish and other aquatic life; EPA’s choice of method for measuring copper toxicity was justified based on the record; deference given to EPA’s technical calls)

April 10, 2019

 

Today, President Trump signed an Executive Order entitled “Promoting Energy Infrastructure and Economic Growth.” Section 3 of the Order instructs the EPA to undertake review of its 401 cert. regulations and guidance. Here is a copy of the Order:  

 

The Order is clearly tied to energy development and likely grows out of the recent setbacks to pipeline and coal transfer facilities in the courts arising out of state certification efforts. The Order instructs the EPA to review and re-issue its 2010 401 cert. guidance within 60 days. A copy of that guidance document is here.    .  EPA is to propose new 401 cert. regs within 120 days and finalize new regs within 13 months. That would have the new regs in place before the end of the current administration’s first term, but it’s a very difficult timeline to meet, especially given how thinly stretched EPA staff is these days. I think it’s a safe bet that the states will exercise a lot of resistance to any proposed changes that would rob them of their authority to place conditions on federal permits, and that will likely slow things down. The quick timeline also assumes no legal challenges, which likely will come from the states, tribes and environmental groups

 

The Order also instructs EPA to conduct inter-agency review of all federal permits subject to 401 certification.

 

The Order does not propose a limitation on states’ rights, that will be the likely result of the ordered review.  How else will they speed up approval of these large projects? It is interesting that the administration would propose limiting the states’ section 401 certification authority at the same time it’s promoting states’ rights as a basis for the WOTUS rule changes. Industry groups have, in the past, challenged the use of guidance documents as an end-run around APA rule-making. Will we see the same arguments made this time around by the states, tribes and environmental groups?

 

 

April 2, 2019

 

Remember Sackett? You will recall that the Supreme Court handed EPA a stinging 9-0 loss in 2012, holding that respondents were entitled to pre-enforcement review of EPA 309(a) orders, and the Court remanded the case back to the district court for trial on the merits. (Full disclosure: I was the EPA lawyer assigned to the case after remand until I left EPA in 2014.) Five years after the briefing started, the court has finally ruled. Judge Lodge (Reagan appointee) ruled in favor of the government on all counts. See my summary below. Here's a link to the opinion:    

 

For those who do a lot of litigation over administrative records, this is an interesting one to read. Plaintiffs unsuccessfully attempted to exclude much of the administrative record on the grounds that the documents were not in the record on the day the EPA issued the order. The opinion is also notable for its holdings on adjacency, atypical delineations, significant nexus and artificial barriers severing jurisdiction.

 

Given the litigiousness of the plaintiffs, I suspect this one will get appealed to the 9th Cir., which will not be a favorable forum for them, but will be viewed as a necessary pit stop on the way back to the Supreme Court. That will, of course, take years.  If the proposed WOTUS rule becomes law, the case will likely get tossed because their wetland would not satisfy the new adjacency requirements of the proposed rule. If the rule does not go into effect, I think they will have a difficult appeal.

 

Sackett v. EPA, No. 2:08-cv-00185-EJL (D. Idaho March 31, 2019) (granting EPA’s motion for summary judgment, held that the agency was not arbitrary and capricious in issuing 309(a) order based on conclusion that plaintiff’s property contained wetlands; record supported finding that wetland was adjacent to a TNW and was part of a larger wetland complex with a significant nexus to downstream navigable-in-fact waters; artificial barriers do not cut off jurisdiction; EPA properly used an atypical delineation to show the presence of wetlands where the site was disturbed; rejected numerous motions by plaintiffs to exclude documents from the administrative record; rejected argument that adjacency to other wetlands is an exclusion from jurisdiction)

March 28, 2019

I will be moderating a panel on WOTUS for the D.C. Bar on April 10 at 12:15. Also on the panel will be David Fotouhi from the EPA Office of General Counsel, Jan Goldman-Carter of the National Wildlife Federation and Tom Ward from the National Homebuilders Association.  Come join us for a lively discussion of this controversial new rule on the eve of the public comment due date.

 

For registration, go to: https://join.dcbar.org/eWeb/DynamicPage.aspx?site=dcbar&webcode=EventInfo&Reg_evt_key=2758554c-3dad-4dab-871e-c47326c9eacc&RegPath=EventRegFees&FreeEvent=&Event=Clean%20Water%20Act%20Jurisdiction:%20The%20Future%20of%20%E2%80%9CWaters%20of%20the%20United%20States%E2%80%9D&FundraisingEvent=&evt_guest_limit=9999

March 26, 2019

More WOTUS news. The Southern District of Ohio just denied a motion to enjoin the WOTUS rule.  This will leave the 2015 rule in place in Ohio and Tennessee. Someone needs to take a look at the roughlly half of the country that is under the 2015 rule, and the half that is not, and see if there are any changes to water quality or to the economies of those states. 

 

I have seen recent news reports that Michigan and New Mexico have withdrawn their support of the WOTUS challenges previously filed in their names. Meanwhile, the April 15 deadline for submitting comments on the proposed WOTUS replacement rule is coming up quickly.  I pity the poor souls at the EPA who are going to have to read and summarize the large mountain of comments they will be receiving.

Ohio v. EPA, 2019 WL 1368850 (S.D. Oh.  2019) (denying motion to preliminarily enjoin the 2015 WOTUS rule in Ohio and Tennessee, held that plaintiffs had failed to prove any particularized harm to them in the absence of an injunction)  

March 22, 2019

Here are three new CWA cases that were handed down by the courts in the last week.

Riverkeeper, Inc. v. EPA, 2019 WL 1227936 (S.D.N.Y. 2019) (granting motion to dismiss, held that EPA did not have a nondiscretionary duty to meet a date certain to promulgate state standards after rejecting the state’s proposed new wqs because 303(c)(4) only requires that EPA “promptly” promulgate new standards)

 

United States v. Mashni, 2019 WL 1229788 (D.S.C. 2019) (granting motion to dismiss counterclaim, held that request for declaratory judgment that wetland at issue in the case was non-jurisdictional was not allowed because government had not waived sovereign immunity)

 

Eden Environmental Citizens Group LLC v. Laptalo Enterprises, Inc., 2019 WL 1202056 (N.D. Cal. 2019) (denying motion to dismiss, held that plaintiff group’s member adequately described use and enjoyment of receiving waters to establish Article III standing in stormwater case)

March 18, 2019

The 4th Cir. issued the opinion below on March 12. It’s a fairly routine water quality standard challenge case. What is interesting, however, is Court’s concluding paragraph on page 8 of the decision, which states:

 

This is not to say the agency’s final judgment will please everyone. Public debate on environmental issues often rejects and disowns the relevant science when it proves convenient to do so. The law, however, reflects a different posture. Through standards of review and court/agency interactions, this case and many others underscore that law and science must work in tandem on environmental issues, not at loggerheads. Indeed, it is that partnership between law and science, as illustrated here, that offers the best hope of avoiding environmental disruptions that may one day visit serious adverse consequences upon us all.

 

Sanitary Board of the City of Charleston v. EPA, ___ F.3d ___, 2019 WL 1119586 (4th Cir. 2019) (affirming dismissal of case challenging EPA rejection of state WQS, held that EPA has a nondiscretionary duty to review and state WQS within 60 days, but it is not compelled to reach any particular conclusion; once EPA acted on the submitted standards, plaintiffs’ challenge was moot; EPA was not arbitrary and capricious in concluding that the proposed state WQS was not protective of fish and other aquatic life; deference given to EPA’s choice of proper copper assessment methodology; court rejected plaintiff’s argument that record should be closed at 60 days even if EPA has not yet made a decision)

March 14, 2019

 

On March 1, EPA issued its decision in the special-case determination of the Redwood City Salt Plant site in San Francisco Bay. The case was initiated in 2015 and addresses the jurisdictional status of owner’s pre-1972 salt pond impoundments of S.F. Bay that are within the OHWM of the bay. Here’s a copy of the EPA determination:

 

The EPA has determined that the ponds are not WOTUS. The decision is interesting because it appears to rely heavily on the fact that the site is industrial. There is no exemption in the CWA or the implementing regulations for such an exemption. There is for waste treatment systems, but this not one of those. It’s a salt production facility that was built many years ago in WOTUS.

 

If salt ponds are nonjurisdictional because they were separated years ago from surrounding waters and are now used in industrial production, what about peat bogs that are mined for peat or cranberry bogs?  The latter is farming, not industry, but the distinction is irrelevant. Both are used for production. Are dam-controlled impoundments with harbors now nonjurisdictional because they’ve been “separated from surrounding waters”? It’s not clear to me where EPA is drawing the line here, and based on what law.

 

I suspect this will be challenged in the courts. Because of the shortage of buildable space in the Bay Area, the land at issue in this case is priceless if allowed to be developed. With development pressure growing around the country, we're going to see more and more of these types of cases.  WOTUS issues will be with us forever, regardless what the EPA does with the definition.

March 13, 2019

 

On March 11, the Solicitor General filed its brief in opposition to the cert. petition in the Robertson case.       Last year, the 9th Circuit upheld the criminal conviction of Mr. Robertson for, among other things, mining in wetlands in Montana without a permit. See United States v. Robertson, 875 F.3d 1281 (9th Cir. 2017). The defense in that case relied mostly on Rapanos/WOTUS issues.

 

The United States is opposing cert. in Robertson on three grounds: (1) the CWA definition of navigable waters is not unconstitutionally vague and there is no conflict amongst the circuits on that issue, (2) all of the courts of appeals agree that the Kennedy test is the appropriate reading of Rapanos, and review now would be premature because EPA is working on a new WOTUS definition, and (3) there was sufficient evidence to convict.

 

First, it’s interesting that the United States opposes cert. This administration has focused on repealing and replacing the WOTUS rule with a much narrower interpretation of the Act. This could have provided the administration with an opportunity to argue for adoption of the Scalia test before the new five-conservative-Justice majority. The administration may not get another opportunity before the end of the Trump administration’s first term. 

 

The second argument raised by the SG is an interesting one. The SG notably does not attempt to argue that Scalia is the proper interpretation of Rapanos, nor does he attempt to undermine the Kennedy test, both of which we saw in the most recent WOTUS rulemakings from EPA and the Corps. The SG’s office usually plays it safe in its briefs to the Supreme Court, and usually tries to not contradict its prior positions. I suspect that history guided the choice of argument here.  But it’s still rather interesting that the government adhered so closely to it pre-Trump administration arguments interpreting Rapanos.

March 11, 2019

 

The WOTUS rule is back in the news. According to Inside EPA, the government filed motions on March 8 to withdraw its appeals of the two district court decisions that invalidated the suspensions rule. Those appeals were pending in the 4th and 9th Circuits. (Quick recap: EPA has three rulemakings outstanding: the agency first proposed withdrawing the 2015 rule, then proposed suspending the 2015 by changing the “applicability date” to two years down the road, then in December 2018 proposed a new replacement rule. The second rulemaking to suspend the 2015 rule was overturned by district courts in Washington and South Carolina, and the government appealed those two decisions.) See my August 17 and November 26, 2018 blog posts for discussions of those two cases.

 

This is an interesting development. It is unusual for DOJ to withdraw an appeal. I suspect DOJ convinced EPA that the odds of prevailing were low, and EPA decided to put all of its effort into the new replacement rule that it promulgated in December. (It’s interesting to note that both the Washington and S.C. judges were Republican appointees.) It’s also possible that the agency just decided to not fight three battles at once on this issue - repeal, suspend and replace. 

 

This will leave us with the patchwork of states we now have, with some states covered by the 2015 rule and some operating under the 2008 Rapanos Guidance. This is hardly the clarity that EPA was seeking with these rulemakings.  Here’s a link to the EPA website showing what states are covered by what: https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update

 

The public comment period for the new proposed rule runs through April 15, 2019. It will likely take EPA and the Corps a year to go through the mountain of comments they will receive and prepare a final rule with response to comments. That puts us into April 2020.  The rule will certainly be challenged by environmental groups and some states, and I think the likelihood of a nationwide stay is high because the rule is based on the Scalia test from Rapanos, which no court of appeals has adopted as the sole basis for determining jurisdiction, and which the 11th Cir. has specifically rejected. The appeal will then take a year or more, which puts us past the next Presidential election.

 

Meanwhile the Congressional Research Service has released this document entitled, “Evolution of the Meaning of ‘Waters of the United States’ in the Clean Water Act” (March 5, 2019).      I have not read the entire document, but it appears to give a relatively good history of the issues surrounding the ever-controversial WOTUS definition, although I found it interesting that the authors appear to have spent little time on the Congressional history of the WOTUS definition.  In any case, it appears to be a good resource for anyone interested in this issue.

March 10, 2019

 

Here are two new cases.  The Courts have been relatively quiet on the CWA for the last month or so.

 

Puget Soundkeeper Alliance v. Total Terminals Int’l, LLC, 2019 WL 1013458 (W.D. Wash. 2019) (denying motion to dismiss, held that plaintiff’s 15-page notice 60-day notice letter that included a table of discharge violations at specific monitoring point by date sufficiently gave defendant notice of the alleged violations; defendant need not be an NPDES permit holder for CWA liability to attach; “other persons can also be liable for permit violations if plaintiff establishes that, through their acts or omissions, the non-permitee violated the effluent standards or limitations specified in the permit.”)

 

American Waterways Operators v. Dept. of Ecology, ___ P.3d ___, 2019 WL 1033902 (Wash. Ct. App. 2019) (state’s certificate of need, which was part of the application to EPA to ban all marine sanitation device discharges to Puget Sound under 40 C.F.R. § 140.4, was not an adjudication of a person’s rights and therefore the industry challenge before the Pollution Control Hearings Board was properly dismissed)

February 19, 2019

The Supreme Court today granted cert. in Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018). In that case, the Ninth Circuit held that ground-injection wells used by POTW to dispose of treated wastewater are point sources where they are hydrologically connected to the ocean. The court interestingly has not granted cert. in the Kinder Morgan case, which involved discharges to the river from an adjacent coal ash pond.  I suspect the Court has taken up the Maui case because it has a better fact scenario for limiting CWA jurisdiction. This will be a very interesting appeal to watch, and will certainly attract a lot of amicus briefs. If the Court rules that the discharges to the ocean via groundwater are not jurisdictional, how will it explain the difference between the Maui scenario and that from Sierra Club v. Abston Construction Co., Inc., 620 F.2d 41, 45 (5th Cir. 1980), where the discharges ran across the ground into the creek. One discharge is above ground, the other below, and the result is the same. This has the potential to create a huge loophole in the CWA. It will be very interesting to see how the Court limits its ruling, either way it rules.

Here are the authorities I've collected on this issue, for those who are interested:       

February 18, 2019

 

Here are two new cases from this last week.

 

Atchafalaya Basinkeeper v. USACOE, 2019 WL 634697 (M.D. La. 2019) (denying motion for leave to amend complaint, held that in earlier appeal 5th Cir. had considered and rejected arguments attacking use of Corps’ mitigation guidelines for permits associated with pipeline construction; court gave deference to Corps’ interpretation of the CWA’s mitigation requirements)

 

Norfolk Southern Raialway Co. v. City of Roanoke, ___ F.3d ___, 2019 WL 637988 (4th Cir. 2019) (stormwater charges by city to railroad are a fee, and not a tax subject to restriction of the Railroad Revitalization and Regulatory Reform Act of 1976; “In sum, the charge is part of a regulatory scheme, rooted in the Clean Water Act, whose purpose is to remedy the environmental harms associated with stormwater runoff and to hold stormwater dischargers responsible for footing the bill.”)

February 15, 2019

 

For those who are following developments in hydrologic connection theory of jurisdiction under the CWA, there was some interesting language in the most recent appropriations bill. The conference report stated: 

 

Regulation of Groundwater.-The Agency is directed to continue following the guidance contained in the explanatory statement accompanying Public Law 115-141. The Conferees reiterate that, since enactment in 1972, the Clean Water Act (CWA) has regulated effects to navigable waters, while regulation of groundwater has remained outside of the Act's jurisdiction. Instead, legislative history surrounding the CWA indicates that Congress intended for groundwater pollution to be regulated through the CWA's nonpoint source program and other Federal and State laws.

 

Also in the House Committee report for PL 115-141.

Regulation of Groundwater.—Since enactment in 1972, the Clean Water Act (CWA) has regulated impacts to navigable waters, while regulation of groundwater has remained outside of the Act’s juris-diction. Instead, legislative history surrounding the CWA indicates that Congress intended for groundwater pollution to be regulated through CWA’s nonpoint source programs and other Federal and State laws. For example, releases into groundwater from solid waste units are regulated at a Federal level by the Resource Conservation and Recovery Act (RCRA). Recently, some courts have imposed a broad view of CWA liability based on a theory of hydrological connection between groundwater and surface water. Other courts have taken a more narrow view and have focused on statutory distinctions between surface water and groundwater. The Committees are aware that the Agency has requested comment on its previous statements ‘‘regarding the Clean Water Act (CWA) and whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.’’ After completing the public comment process, the Committees encourage the Agency to consider whether it is appropriate to promulgate a rule to clarify that groundwater releases from solid waste units are regulated under RCRA and are not considered point sources, and, that re-leases of pollutants through groundwater are not subject to regulation as point sources under the CWA. The Agency is directed to brief the Committees about its findings and any plans for future rulemaking.

February 14, 2019

The EPA and the Corps finally published in today's Federal Register the replacement draft WOTUS rule they made public in December.  Here is a link to the Federal Register notice.       The clock is now officially ticking on the public comment period.  Comments are due by April 15, 2019.  For a brief analysis of the proposed rule, see my December 12, 2018 blog post.

 

February 8, 2019

On February 6, EPA issued a press release announcing that it will be hosting a webinar on March 7 to discuss its new water quality trading memo. The Agency has long endorsed water quality trading, but past efforts have been tepid, at best. I negotiated one of the first offsets deals (an entity trading with itself between two sites) in the country when I was at EPA, and it was very problematic. The overall impact of the offset on the river was net positive, but we had to fudge quite a bit on short-term impacts near the upstream outfall. The new plan will likely run into similar problems.  For example, in the February 6 press release EPA states that water quality credits may be banked for future use. It's hard to imagine how one can bank a credit and not violate in-stream water quality standards in the short-run. 

 

The CWA just isn't built for trades, and we got the plan I worked on to fly mostly by getting the local environmental groups to agree to hold fire.  Given the limitations imposed by the CWA and the implementing regulations, it will be interesting to see if EPA can successfully push water quality trading on a large scale.  If done right, it can be a good thing.  If done wrong, it can lead to all kinds of shenanigans. 

February 7, 2019

For those interested in the recent Corps memo addressing the shortened review time for the states' 401 cert. process, here's a copy. This memo apparently engendered the Western Governors' Association letter I blogged about on February 5. 

February 6, 2019

Here are two new cases.

Sound Action v. USACOE, 2019 WL 446614 (W.D. Wash. 2019) (denying motion to dismiss, held that an internal Corp memo dictating how to calculate the high tide line was a final agency action and therefore reviewable under the APA; plaintiffs have standing to sue where they recreate in the waters affected by the fill material placed under the contested high tide line)

 

National Fuel Gas Supply Corp. v. N.Y. State Dept. of Env’tl Conserv., 2019 WL 4469900 (2nd Cir. 2019) (unpublished) (remanding denial 401 cert. of pipeline project to state, held that state did not adequately explain its rationale for denying cert. based on conclusion that project would violate wqs for turbidity and state did not consider evidence in the record from FERC)

February 5, 2019

 

The Ohio v. EPA case below is interesting because the court is allowing the citizen groups to intervene in one of the challenges to the 2015 WOTUS rule to defend the rule. The current administration is not defending the rule but is attempting to repeal it and issue a new, more-restrictive WOTUS rule in its stead. Meanwhile the EPA has yet to issue its final rulemaking on the repeal of the old rule, almost two years after announcing that it would repeal the rule.

 

Also of note this past week, the Western Governors Association sent a letter to the White House, objecting to a proposed executive order to streamline energy infrastructure projects, including changes to the 401 cert. process. Here is a link to the letter:  

 

Finally, this recent article from the Waterkeeper on the “Bipartisan Beginnings of the Clean Water Act” is a reminder of how much we’ve digressed from bipartisanship on environmental issues since 1972. https://waterkeeper.org/bipartisan-beginnings-of-clean-water-act/.

 

Puget Soundkeeper Alliance v. APM Terminals Tacoma, LLC, 2019 WL 399026 (W.D. Wash. 2019) (dismissing NPDES stormwater violations case against new tenant at previously permitted facility, held that 60-day notice is insufficient where the new tenant took possession of the property on the 60th day, which gave the tenant no time to correct problems)

 

Ohio v. EPA, 2019 WL 417297 (S.D. Ohio 2019) (granting motion by citizen groups to intervene in states’ challenge to 2015 WOTUS rule where EPA is no longer defending the rule; “As the Agencies and the Environmental Groups no longer have the same ultimate objective in the litigation, there is no presumption that the Agencies adequately represent the Environmental Groups’ interests.”)

 

Douglas J. Crouse, “Muddying the (Ground) Water: When Does the CWA Apply?” 33 Natural Recourses & Environment (ABA) at 55 (Winter 2019)

 

January 26, 2019

This is an interesting new case out of the D.C. Circuit. Trying to game the system doesn't always work.

Hoopa Valley Tribe v. FERC, ___ F.3d ___, 2019 WL 321025 (D.C. Cir. 2019) (FERC was arbitrary and capricious in finding that the states had not failed to timely § 401 certify dam relicensing where dam each year for ten years withdrew its application and resubmitted it the next year; the resubmissions were of the same license application, and not a new or modified one; FERC violated the § 401(a)(1) requirement that the state certify within a reasonable period of time not to exceed one year; “[T]he purpose of the waiver provision is to prevent a State from indefinitely delaying a federal licensing proceeding by failing to issue a timely water quality certification under Section 401.”)

January 23, 2019

 

The Sixth Circuit last week denied rehearing en banc in the TVA ash pond case. The Circuit’s earlier decision held that discharges from the coal ash ponds to the river via groundwater were not covered by the CWA. That decision created a split in the Circuits. (See my October 4, 2018 blog post for more details on that case.) The en banc denial contains two strong dissents.

 

Given that this important issue is now pending before the Supreme Court in the form of two cert. petitions, this denial of en banc review along with its two dissenting opinions is timely. EPA is also apparently on the verge of issuing an interpretive rule addressing hydrologically-connected discharges. Given EPA’s February 20, 2018 request for comments on this issue (see my February 28, 2018 blog post for more), the agency will likely side with the Sixth Circuit to find that hydrologically-connected discharges are not covered by the CWA. If I’m right, watch for a ton of litigation challenging EPA’s action.

 

Tennessee Clean Water Network v. TVA, ___F.3d ___, 2019 WL 244730 (6th Cir. 2019) (denying rehearing en banc; NOTE two dissents)

 

Benham v. Ozark Materials River Rock, LLC, 2019 WL 202161 (D.N.D. 2019) (awarding $193,271 in attorney and expert witness fees for § 404 discharge violations; rejected argument that fees should be reduced because plaintiff did not prevail on all counts; “The Tenth Circuit has held that ‘failure on some claims should not preclude full recovery if plaintiff achieves success on a significant, interrelated claim.’”)

January 15, 2019

 

Three of today’s four opinions are section 404 cases. The new Fourth Circuit opinion is yet another opinion in a line of recent  - - and mostly unsuccessful - - pipeline challenge cases. 

 

Appalachian Voices v. State Water Cntrl. Bd., ___ F.3d ___, 2019 WL 177928 (4th Cir. 2019) (denying petition to review in pipeline challenge case, held that state was not arbitrary and capricious in § 401 certifying § 404 permits for pipeline construction; § 401 does not require states to undertake a single cumulative review of all possible impacts in a single certification; state properly relied on existing wqs and regs to effectively address concerns regarding water quality determination; state was under no requirement to conduct separate antidegradation review of pipeline because of prior systematic antideg program review and because sediment impact from project was only temporary; state properly considered possible impacts of oil spill on karst terrain)

 

DeForest v. City of Ashland, 2019 WL 165698 (D. Or. 2019) (adopting opinion of magistrate judge, and granting defendant’s motion for summary judgment, held that plaintiffs had failed to prove that there was a discharge of a pollutant from a point source into a wetland; wetland at issue in case was jurisdictional)

 

Louisana Crawfish Producers Ass’n West v. Mallard Basin, Inc., 2019 WL 171693 (W.D. La. 2019) (in challenge to § 404 permit for a water control system, held that Corps was not arbitrary and capricious in its alternatives analysis; Corps cannot ignore the stated purpose of a project, and substitute a purpose it deems more suitable; Corps properly considered the impacts of the project on the local ecosystem)

 

United States v. CSX Transportation, Inc., 2019 WL 97820 (S.D.W.Va. 2019) (granting motion to enter consent decree that included $1.2 million in penalties to federal government, $1 million to state and a $500,000 SEP; case arose when train carrying Bakken crude derailed and oil entered water of river near accident)

January 13, 2019

 

The groundwater-connection issue is heating up.  As I noted in my January 4 blog post, the SG’s office filed an amicus brief in connection with the two pending groundwater-related cert. petitions. In that brief, the United States argued that the Maui case was the better avenue for review and that the court should deny cert. in Kinder Morgan. For those wanting a good primer on the issues relate to groundwater and the CWA, the SG’s relatively short brief is a good read.  See my January 4 post for a link to the brief.  Here is the reply brief filed by the defendant in the Maui case.       Here is a link to the second supplemental brief filed by Earthjustice on January 8, 2019:      

 

Also of interest in the S.G.’s brief is the reference to the an EPA rulemaking on groundwater due out “within the next several weeks.” Id. at 14. Last February, EPA requested comment on whether the CWA applies to hydrologically-connected groundwater. See my February 28, 2018 blog post for a summary of the notice. This rulemaking is an apparent follow-up on last February’s request for comments.  Stay tuned.

January 12, 2019

 

Here are the first two cases of 2019.

 

United States v. CSX Transportation, Inc., 2019 WL 97820 (S.D.W.Va. 2019) (granting motion to enter consent decree that included $1.2 million in penalties to federal government, $1 million to state and a $500,000 SEP; case arose when train carrying Bakken crude derailed and oil entered water of river near accident)

 

City of Wilmington v. United States, ___ Fed. Cl. ___, 2019 WL 92396 (Ct. Cl. 2019) (in case interpreting what constitutes a “reasonable service charge” under CWA § 1323, held that Corps internal memo discussion how to determine “reasonable service charge” for local stormwater fees is not privileged and must be produced; plaintiff’s requests for government documents describing it evaluates stormwater fees are relevant to the case and must be produced)

 

 

January 4, 2019

The Solicitor General's Office has filed an amicus brief with the U.S. Supreme Court recommending that the Court grant cert. in the County of Maui v. Hawaii Wildlife Fund case.  Here is a copy of the brief:      .  The SG argues that review is warranted because of the Circuit split, and that the Court should deny cert. in the Kinder Morgan case.

   

January 2, 2019

 

It was a busy year for the CWA in 2018. In addition to of the big news associated with the WOTUS rule rollout, there was a record-number129 court opinions. The numbers for 2017 and 2016 were 88 and 79, respectively. (It’s not clear if the number of opinions is growing over time or if Westlaw is simply picking up and reporting more cases. I suspect it might be a bit of both.) Keep in mind that a few cases generate multiple opinions in the course of a year, so there weren’t 129 new cases, but close. Here’s a complete list of the opinions I used to collect the data below:     .

 

I like to look at trends in the litigation over time. For example, who’s suing and who is being sued? In past years, the data have shown that the government makes up a large share of the defendants in CWA citizen suits, and this year is consistent with federal, state and local governments making up the majority of defendants in the reported cases.

 

Here’s how the opinions break out:

 

Plaintiffs: United States (12), citizen groups (83), cities and counties (15), states (8), industry groups (11).

 

I’ve been watching to see if the number of cases brought by the United States has slipped under the Trump administration. These data show only a few of the settlements, so it’s likely that some, if not most of the EPA enforcement actions are being settled and not reported. So, these data are not definitive, but they reflect, I think, the general activity levels in the courts. And the numbers show very little change over the last three years: 12 in 2018, 6 in 2017 and 10 in 2016. It will be interesting to see what EPA OECA reports for 2018 when those numbers come out. Based on what I’m hearing from inside the EPA, enforcement numbers are likely down under this administration.

 

Industry is suing less. In 2016, there were 19 opinions and in 2017, 21 opinions involving industry or a trade group as plaintiff. In 2018, by contrast, there were only 11 such cases. Because the Trump administration has an avowed pro-business/anti-regulatory bias, this comes as no surprise. 

 

Defendants: EPA (35), U.S. Army Corps (17), other federal agencies (14), state and local (15), private parties (47), environmental groups (1). The United States was the defendant in 66 of the 129 cases, which is 51% of the opinions released in 2018. If you add in state and local, the government was a defendant in 81 of the 129 opinions, which is 63%. This is consistent, but a little more than past years, confirming my early data that citizen suits target the government as much, if not more than private defendants.

 

How has EPA faired as a defendant under the current administration?  The enviros, states and industry are suing the government more. EPA was a defendant 35 times, as compared to 18 times in 2017 and 19 times in 2016. This is the flip side of the low industry group number noted above, and again comes as no surprise. I forecasted in my 2017 NR&E article on citizen suits that we should expect to see more challenges to EPA actions in this administration, and we have.

 

It’s also interesting to see what kinds of cases are being filed. In general, we saw a fairly typical mix of various issues that crop up under the CWA. This year, there was a lot of activity in pipeline cases (8), mostly in the form of 404 permit challenges. Groundwater was a huge issue in 2018 with 8 opinions as was WOTUS with 12. Challenges to section 404 permits (26), TMDLs (12), and stormwater (8) rounded out the top of the cases brought. Other issues: 401 cert. (7), WQS (6), consent decrees (4), standing (3), FOIA, sovereign immunity, 60-day notices, penalties (3 each), pro se litigants, attorney fees, POTWs, point sources, intervention, affirmative defenses, preemption, effluent guidelines, oil spills, NPS (2 each), pretreatment, whistle blower, climate change, WET testing, federal facilities, NPDES permit limits, federal facilities, whistle blowers, and the 1872 Mining Act (1 each).

 

Coming up in 2019. In 2019, expect to see more WOTUS rulemaking and litigation. Will it ever end? I expect to see TMDLs remain an active area of litigation in the courts as the states struggle with water quality problems associated with nutrients and temperature. I suspect the Supreme Court will grant cert. on at least one of the groundwater cases pending there, so keep an eye on that issue. Finally, I think we’ll continue to see lots of challenges to EPA’s administrative moves. One thing is certain, it won’t be a boring year.

 

December 29, 2018

 

The Courts are going out with a bang in 2018. With all of the ado over the new WOTUS rule, it was easy to forget that the courts continue to make law under the rest of the CWA. These 15 new cases were reported in the last few weeks. I placed the appellate court cases at the top. The third case down, Northwest Environmental Advocates v. EPA, is one to keep an eye on. The court is holding EPA’s feet to the flames on temperature TMDLs (pun intended). This is, I believe, just the start of problematic and far-reaching TMDLs that will be popping up with more regularity. Temperature and nutrient TMDLs will play a big role in NPDES permitting over the next decade.

 

Sierra Club v. U.S. Fish & Wildlife Service, ___ F.3d ___, 2018 WL 6713260 (9th Cir. 2018) (finding most of the F&W documents withheld under FOIA deliberative process privilege in connection with consultation with EPA on the cooling water intake structure regulations were pre-decisional and properly withheld)

 

Sierra Club v. Con-Strux, LLC, ___ F.3d ___, 2018 WL 6595577 (2nd Cir. 2018) (reversing district court, held that facility engaged in recycling of demolished concrete was engaged in an “industrial activity” for purposes of the MSGP; “We conclude that processing construction debris and waste for recycling fits within the definition of activities covered under SIC 5093.”)

 

Northwest Environmental Advocates v. EPA, 2018 WL 6524161 (D. Or. 2018) (ordering the parties to confer on schedule to re-promulgate temperature TMDLs in Oregon based on biological criteria; rejected state’s request for 12 years to study problem; held that EPA’s errors in approving TMDL’s “are serious;” “The purpose of TMDLs . . . is not merely to set a cap on anthropogenic sources of pollution  in a vacuum; the statutory purpose of TMDLs is to bring waters into compliance with the applicable criteria.”)

 

Menominee Indian Tribe of Wisc. V. EPA, 2018 WL 6681397 (E.D. Wis. 2018) (denying motion to amend complaint, held that EPA’s decision to withdraw its objections to state-issued 404 permit was discretionary; granting motion to dismiss, held that Corps could not be sued under § 505 because Congress waived sovereign immunity only for “the Administrator [of the EPA]” and the EPA/Corps decision to not assert jurisdiction over the permit was not a final agency action)

 

United States v. R.M. Packer Co., Inc., 2018 WL 6592659 (D. Ma. 2018) (granting motion for summary judgment, held that defendant failed comply with monitoring, inspection, evaluation and training requirements of MSGP at its bulk fuel facility)

 

Altamaha Riverkeeper v. USACOE, 2018 WL 6496791 (S.D. Ga. 201) (denying motion for preliminary injunction in challenge to issuance of 404 permit at private resort; held that plaintiffs did not show a substantial likelihood of success on the merits of their multi-pronged attack on the permit)

 

Bade v. Black Hawk Security LLC, 2018 WL 6492594 (D. Hw. 2018) (granting motion to dismiss with leave to amend in pro se case; “Plaintiff identifies the CWA as a basis for federal jurisdiction, but he provides no facts or law to support his conclusory allegation . . .”)

 

Lighthouse Resources Inc. v. Inslee, 2018 WL 6505372 (W.D. Wash. 2018) (granting state’s motion for summary judgment, held that state’s denial of 401 certification to coal transfer facility was not preempted by the Interstate Commerce Commission Termination Act or the Ports and Waterways Safety Act)

 

Surfrider Foundation v. Int’l Boundary and Water Comm., 2018 WL 6504154 (S.D. Cal. 2018) (§ 511(a) limits the partial sovereign immunity waiver of § 505(a)(1) where the CWA affects or impairs a treaty of the United States; denied motion to dismiss where defendant failed to provide sufficient evidence that requiring an NPDES permit for a stormwater discharge from Mexico would affect or impair the United States’ transboundary treaty with Mexico)

 

City of Imperial Beach v. Int’l Boundary and Water Comm., 2018 WL 6504081 (S.D. Cal. 2018) (§ 511(a) limits the partial sovereign immunity waiver of § 505(a)(1) where the CWA affects or impairs a treaty of the United States; denied motion to dismiss where defendant failed to provide sufficient evidence that requiring an NPDES permit for a stormwater discharge from Mexico would affect or impair the United States’ transboundary treaty with Mexico)

 

California v. Int’l Boundary and Water Comm., 2018 WL 6445929 (S.D. Cal. 2018) (granting motion by California Lands Commission to intervene by state under § 505(b)(1)(B), which allows any citizen to intervene as a matter of right)

 

United States v. U.S. Steel Corp., 2018 WL 6573164 (N.D. Ind. 2018) (granting Surfrider Foundation and City of Chicago motions to intervene in enforcement action brought by EPA and the State of Indiana, where EPA and the state had negotiated a consent decree)

 

Gulf Restoration Network v. Oscar Renda Contracting Inc., 2018 WL 6579171 (S.D. Miss. 2018) (denying motions by both parties in construction stormwater case to exclude expert testimony; parties attacks on the experts go to the weight of the evidence, not the admissibility)

 

Gulf Restoration Network v. Oscar Renda Contracting Inc., 2018 WL 6579172 (S.D. Miss. 2018) (denying motion for summary judgment in construction stormwater case, held that plaintiff need not show a discharge to WOTUS in order to prove certain NPDES permit violations)

 

Maine v. EPA, 2018 WL 6304402 (D. Me. 2018) (granting EPA’s motion to remand approval of state’s water quality standards, held that interim rule to protect Tribal fishing rights would remain in place until EPA re-issues new ruling on the state’s standards; denied motion by state to remand with vacatur of the interim rule because court could not vacate without a finding on the merits)

 

 

December 12, 2018

 

The new draft WOTUS rule is finally out. Here’s my quick review of the reg text, which begins at page 185 of the draft rule:     . In summary, this administration is interpreting the CWA’s Navigable Waters definition in a way no prior administration has. This draft rule would restrict CWA jurisdiction more than at any time since the CWA was passed in 1972.

 

Section (a) sets out the six categories of waters that are jurisdictional: (1) TNW’s, (2) limited categories of tributaries to TNW’s, (3) a very limited category of ditches, (4) lakes and ponds that flow perennially or intermittently into categories (1) – (5); (5) impoundments of the above, and (6) adjacent wetlands to the above.

 

Section (b) identifies what is not a WOTUS: (1) anything not identified above, (2) groundwater (including water flowing through tile drains), (3) ephemeral streams, (4) ditches not identified above, (5) prior converted croplands, (6) artificially irrigated areas that would revert to uplands without irrigation, (7) artificial lakes and ponds constructed in uplands, (8) water-filled depressions at mines, (9) stormwater control features, (10) wastewater recycling structures built in uplands, and (11) waste treatment systems.

 

The devil is in the definitions, which is section (c). I won’t go through it all here, but here are the big take-aways.

  • Adjacent wetlands must abut or have a continuous surface connection to a TNW or a trib (see def. of tribs). This is going to eliminate a lot of wetlands that are connected via shallow subsurface aquifers. The rule also cuts off jurisdiction if there is a berm between the wetland and the stream. This is a significant retreat from the status quo for the last 45 years. All isolated wetlands will lose coverage. Only adjacent wetlands are included in this rule. Adjacent ponds and oxbow lakes that are connected only via groundwater would not be protected.

  • Ditches. Only ditches that are TNW’s or subject to the ebb and flow of the tide (very few are) or are channelized natural streams or are constructed in jurisdictional wetlands are WOTUS. This means most ditches, especially those built in uplands - - which are very common in the arid west - - would not be WOTUS. This is a significant change in the law. Most irrigation ditches have been considered WOTUS since the 1980’s. As I’ve pointed out before, I think there’s a good argument those ditches would be considered point sources under this draft rule. See CWA § 402(l).

  • Ephemeral streams are out. This is a pretty big chunk of the stream miles in the U.S. The mining industry will benefit from this. Many mines are built in the mountains, where headwater systems are common.

  • Intermittent streams are in, but only if they have “surface water flowing continuously during certain times of a typical year and more than in direct response to precipitation.” I predict lots of litigation over this one if it becomes final.

  • Prior converted croplands. Dept. of Ag would have the say on what is PCC, not EPA.

  • Snowpack.  This is a bit whacky.  See intermittent definition.

  • Tributary: must have perennial or intermittent flow (see above definitions). By eliminating all ephemeral streams and many intermittent streams (and the adjacent wetlands), this is a big pull-back from prior law not just the 2015 rule.

  • Waste treatment system. This old definition needed a serious update. The old version, which is found at 40 C.F.R. § 122.2, had an illegally-suspended last sentence. This update, however, appears to allow waste treatment systems to be built in WOTUS. That would be a significant change in the law.

 

As I noted in my November 6 Blogpost, I think the absence of the significant nexus test sets this rule up for failure, at least at the Circuit court level. The 1st and 6th Circuits have held that Kennedy and Scalia apply. The 9th Cir. has ruled that Kennedy is the test but has left open the ability to also apply Scalia. The 11th Cir. has held that only Kennedy applies. This new draft rule is based solely on Scalia. Since the challenges to the rule will be filed in the district courts, cases filed in those four Circuits likely will result in swift summary judgement rulings in favor of the environmental groups, states and other plaintiffs challenging the rule. The district courts in other circuits will apply the Marks test, and likely reach the same conclusion as the four Circuits noted above. It is highly unlikely that the issue will reach the Supreme Court before the end of the Trump administration. If President Trump does not win re-election, then this draft rule will probably die on the vine. Also, the 2015 is still in effect, and EPA has not yet finalized the rulemaking to repeal it. Once that rule goes final, it will be challenged, and tied up in litigation for a couple of years.

 

The draft rule pays only lip service to science. See page 81. The agency is essentially ignoring the scientific conclusions of the Obama administration regarding effects of headwater systems on downstream water quality. I think EPA is going to lose on the Scalia issue described above, so the courts may never reach the question of whether the agency is arbitrary and capricious in ignoring the scientific record.

EPA and Corps field staff saw the draft rule the same time I did, when it went up on the EPA website. It will be interesting to see what input they will  be allowed to provide on the draft rule. As I noted in my November 26 Blogpost, it is the field staff that has most of the experience implementing these rules, and such staff feedback is invaluable.

 

The 60-day comment period begins after the draft rule has been published in the Federal Register, which is expected at the first of the year. EPA is going to get buried in comments.

December 6, 2018

 

According to E&E News, the new WOTUS rule is coming out next week. See https://www.eenews.net/stories/1060108967. That is consistent with the rumors I’ve been hearing. I understand that the text of the rule still has not been shared with the EPA/Corps field offices, but that EPA HQ has informed the EPA Regions by phone what the new rule generally says. Apparently, the new draft rule will go out without any input from the field staff.

 

Like the EPA field staff, I have not yet seen the text of the new draft rule, but here’s what I’ve been able to learn. There apparently will be six categories of waters: (1) TNWs and Territorial Seas; (2) tributaries to TNWs that flow perennially or seasonally; (3) impoundments of (1) and (2); (4) lakes and ponds if they are also a TNW or a trib to a TNW; (5) ditches that are perennial or meet def. of tributary (i.e., flow perennially or seasonally); and (6) adjacent wetlands, which must abut or have a direct surface hydrologic connection.

 

Isolated interstate waters that are not a TNW are not jurisdictional. The Great Salt Lake is safe, but not the small streams crossing state boundaries that don’t flow further. What about streams that cross Tribal/state boundaries?

 

I understand that the agencies have included 11 exemptions, which is not surprising. There are numerous exemptions in 2015 rule. I have not heard what the 11 exemptions are. It will be interesting to see if they’ve fixed the problems with the waste treatment exclusion.

 

The significant nexus test has been dropped. See below for my legal analysis of that.

 

There is a lot to unpack here, and without the actual reg text in front of me, and having heard all of this second-hand, it’s hard to be certain what the agencies have actually done. Assuming my summary above is correct, here are some of the initial take-aways:

 

1) All of the ephemeral streams in the country will lose protection under the CWA. They make up a huge portion of waters in the country.

 

2) It’ll be interesting to see the math, but we’ll likely lose protections for most of the wetlands in the country because the new requirement that they be abutting or have a direct surface hydrologic connection will eliminate many, if not most, of the adjacent wetlands that are currently protected under the CWA. Most of the prairie potholes, Delmarva bays and vernal pools will likely be lost, not to mention wetlands that are connected only via groundwater to nearby streams and lakes.

 

3) What is a seasonal stream? I assume that means intermittent, but how is that defined? I’m told the new rule may not define it. Fed by snow melt? What about streams that flow much of the year because of a groundwater component? Depending on how this new provision is interpreted, it could end up greatly reducing the number of streams that are protected.

 

4) The separate category for lakes and ponds is perplexing. I can’t imagine why they’ve done that. What is significant about lakes and ponds? It’ll be fascinating to read the preamble when it comes out.

 

5) I’m surprised that they’ve included some ditches. I would have thought the ag lobby would have prevented that. But it’s smart because it avoids the point source problem I’ve blogged about several times in the past.

 

6) By dropping the significant nexus requirement (aka the Kennedy test), the agencies are likely setting themselves up to fail in the lower courts. No Circuit Court has read Rapanos to allow for use of only the Scalia test. They must be banking on getting in front of the new 5-conservative-judge majority on the Supreme Court. But it’s very unlikely to get that far before the end of this administration if Trump is not re-elected. A new Democratic administration will certainly kill this rule. (And let’s not forget, the 2015 rule still hasn’t been repealed, and will be tied up in litigation for years when the repeal rule goes final.)

 

7) When EPA HQ briefed the Regions, HQ made no mention of the scientific record. As I have blogged in the past, it will be interesting to see how they ignore the substantial record put together by the Obama Administration. That record concluded that headwater systems (intermittent and ephemeral streams) have a significant impact on downstream waters. Under the APA, it is arbitrary and capricious for an agency to ignore valid and relevant evidence. In this case, I assume they’ll make the legal argument that the Scalia test doesn’t allow the agencies to consider waters upstream of TNWs.

 

8) The EPA HQ staff is going to get bombarded with comments. It’ll take a year to wade through them all and to promulgate a final rule. Environmental groups will sue all over the country the minute the rule goes final, and it will likely be stayed. (Remember, challenges to the rule under CWA section 509 are now in the District Courts, not the Circuit Courts.)

 

Finally, this draft rule is consistent with the June 29, 2018 supplemental rulemaking on the repeal of the 2015 WOTUS rule, and it’s also consistent with other Trump administration roll backs on things such as sage grouse protection and air emissions from coal fired power plants. It is the type of major retreat from past environmentally-protective rules that we've seen a lot of under this administration. None of this is a big surprise. But it will be interesting to see how much of this de-regulatory rollback actually ever sees the light of day.

November 30, 2018

 

Here are three new cases from the last week, plus an article. The Sierra Club case is an interesting twist on well-established case law regarding 401 certifications, and it also represents a rare win for an environmental group in a 404 permit challenge. The Stabl Inc. litigation has been around for a while, and is a case study in fraudulent transfers of money to avoid federal environmental liability.

 

I heard today that EPA Acting Administrator Wheeler has publicly stated that the new WOTUS rule will be so easy to understand, anyone can figure out jurisdiction without hiring an attorney. That’s a lofty goal. It will be interesting - - as I’ve said many times - - to see what the final rule looks like.

 

Sierra Club v. USACOE, ___ F.3d ___, 2018 WL 6175671 (4th Cir. 2018) (in challenge to Corps NWP 12 issued for pipeline, held that Corps lacked authority to substitute its own special condition “in lieu of” a different special condition imposed by state in its 401 cert., even if the new condition is more protective; absent completion of the notice-and-comment procedures required by the CWA, a state cannot waive a special condition previously imposed as part of its 401 cert. of the NWP)

 

Maryland v. Exxon Mobil Corp., 2018 WL 6111780 (D. Md. 2018) (denying motion to remand to state court in MTBE groundwater contamination case; defendants failed to carry their burden of showing there is a colorable CWA defense where they argued that groundwater met federal water quality standards; CWA typically governs surface water quality standards, not groundwater; states are free to set standards higher than federal standards)

 

United States v. Stabl Inc., 2018 WL 6068424 (D. Neb. 2018) (granting motion to quash prejudgment writ of garnishment, held that government did not meet burden of showing exigent circumstances in freezing millions of dollars of defendants’ accounts to satisfy prior $2.3 million-dollar CWA penalty; court ordered no further withdrawals from one account that contained sufficient assets to satisfy judgment without court approval)

 

Kathy Robb, “Groundwater & The Clean Water Act,” 177 The Water Report 15 (November 15, 2018)

November 26, 2018

 

The case below, Puget Soundkeeper Alliance v. EPA, which was handed down today, is now the second case in the country to invalidate the suspension rule that attempted to put the 2015 WOTUS rule on ice for two years until the new replacement rule is promulgated. (See my August 17 Blogpost for a discussion of the first case.) In Puget Soundkeeper, the court held that EPA was arbitrary and capricious in limiting comments when it public noticed the applicability-date rule in 2017. The court issued a nationwide injunction. This case will not affect the 28 states where the 2015 WOTUS rule is currently stayed, according to the EPA website. (See my August 30 Blogpost for a link to EPA’s map of CWA jurisdiction.) 

 

Rumors have been swirling for a bit that the new WOTUS rule will be coming out any time. The latest tidbits I’ve heard indicate that it may be released early to mid-December (after earlier rumors of mid-November). I have been poking around for a while trying to find a leaked copy of the draft rule but I have had no luck. When I was at EPA and working on the draft 2015 rule, it leaked as soon as it went out for inter-agency review. This administration, by contrast, has kept a very tight lid on its version of the WOTUS rule.

 

I hear that all of the EPA field and most of the HQ staff have neither seen the draft rule nor been allowed to comment on it. This is troubling. Complex rules like the WOTUS rule are incredibly hard to write. I’ve spent most of my legal career working in the CWA, and I found the drafting work I did on the 2015 WOTUS to be some of the most challenging legal work I had ever done.

 

And it’s not a one-man or even small-team job. To do something like this right, the agency needs to send the draft out to the field staff for vetting. It’s the people in the EPA Regions and the Corps Districts who apply such rules every day, and who have the real-world experience to spot flaws, loopholes and unintended results. Every draft rule has those problems. The more errors and misinterpretations of law the draft rule contains, the more targets the environmental groups and industry will have to shoot at when the rule goes final.

 

So, it will be fascinating to see what the Trump administration comes up with. Based on my reading of the June 29 supplemental rulemaking (see my July 2 Blogpost for an analysis), the new rule will likely be based on the Scalia test (traditional navigable waters or TNWs) and will curtail, if not eliminate, the Kennedy significant nexus test for jurisdiction. If the new rule is based on the Scalia test, all of the ephemeral streams in the country will be non-jurisdictional, many - if not most - of the intermittent streams will also be non-jurisdictional, and all of the adjacent wetlands to those waterbodies will lose coverage. Also, wetlands that are adjacent, but do not abut TNWs will be non-jurisdictional. In the arid west, a large percentage of the wetlands and other water bodies would therefore lose coverage under the CWA. Depending on how EPA and the Corps craft the new rule, Arizona, with the exception of the Colorado, may no longer have any jurisdictional rivers or streams. And ditches, which are a big deal in the arid west, will also likely be deemed non-WOTUS. If so, are they now point sources?

 

Timing is going to be an issue here. When Scott Pruitt took over the EPA in January 2017, he hoped to have the old rule repealed and a replacement rule promulgated within six months. The repeal rule was public noticed on March 6, 2017, and re-noticed on June 29, 2018, and still has not been issued in final. Now, two years later, the Obama-era 2015 rule is in effect in half of the country, and both the repeal and replacement efforts are still in rulemaking. The repeal effort will certainly be challenged when it is final, which raises the question of appropriateness of promulgating a new replacement rule when the old rule has not yet been repealed, and may be tied up in litigation for at least a year or two.

 

If the rumors are true, and EPA public notices the new rule in December, the agency will be bombarded with public comments. It will take staff a minimum of six months to a year to get through all of the comments, to draft lengthy response to comments and to issue a final rule. Assuming they can move that fast, that puts us into the election year. If the new rule goes final in a year, it will be challenged immediately in district courts all around the country. Because, as noted above, EPA is not vetting the rule carefully, there will likely be lots of low-hanging fruit to attack. The litigation will result in a hodgepodge of rulings, some of which may include nationwide injunctions. Then the appeals will follow. It is highly unlikely that the rule will go into effect in the entire country, if at all, before the next presidential election.

 

If Trump is re-elected, the rule will remain mired in litigation for some time. If he is not re-elected, a new Democratic administration would certainly kill the replacement rule, and either start defending the 2015 rule or start over with a new rulemaking. The never-ending saga of the WOTUS rule will continue well past my retirement. Congress won’t fix the problem as it should, and the lawyers will continue to feed at the trough of endless WOTUS litigation for years to come.

 

Puget Soundkeeper Alliance v. EPA, 2018 WL 6169196 (W.D. Wash. 2018) (rejecting argument that CWA does not authorize an agency to suspend a rule, held that EPA did not act ultra vires when it promulgated rule suspending the effectiveness of WOTUS rule for two years; but EPA was arbitrary and capricious in limiting comments on proposed suspension of rule, and in the process deprived the public of meaningful opportunity to comment on the “relevant and significant issues” in proposed rule; court issued a nationwide injunction vacating the rule)

November 21, 2018

 

Of these three new cases, the Prairie Rivers case is the most interesting. It is yet another coal ash discharge via groundwater case. As I have noted in the recent past, there is a pronounced split in the Circuits on this issue, and there are at least two cert. petitions pending in the Supreme Court.  I suspect we’re about to see the end of the hydrologic-connection theory of jurisdiction. It will be interesting to see how such a ruling would affect asserting jurisdiction over adjacent wetlands.

 

Prairie Rivers Network vv. Dynegy Midwest Generation, LLC, 2018 WL 6042805 (C.D. Ill. 2018) (granting motion to dismiss in case involving seepage from coal power plant ash pits into river via groundwater seeps, held that CWA jurisdiction does not extend to either discharges to groundwater or discharges to surface waters via groundwater)

 

Belfer v. Fidelity national Title Group, 2018 WL 6002905 (E.D.N.Y. 2018) (dismissing pro se plaintiff for failure to comply with 60-day notice requirement)

 

United States v. Magnolia Valley Plantation, LLC, 2018 WL 6042788 (S.D. Ga. 2018) (granting motion to enter consent decree for CGP violations; $45,000 penalty plus injunctive relief including $60,000 in wetland mitigation credits)

 

November 12, 2018

 

The last month was filled with travel and briefing deadlines that kept me very busy, so apologies for the long gap in the blog. I have heard rumors that the new replacement WOTUS rule will be issued soon. I have not yet seen a draft, but based on the June 29 supplemental rulemaking on the repeal of the 2015 rule, it will likely be a jurisdictionally-narrow version of the Scalia rule. Stay tuned.

 

The Tenth Circuit decision below, Audubon Society of Greater Denver, is another reminder of how hard it is to challenge 404 permits. As I have written in the past, citizen groups’ track records in this area of CWA litigation is very poor, and plaintiffs should think twice before bringing one of these cases.

The Columbia Riverkeeper decision is worth reading for you TMDL people out there. It’s a rare finding of a constructive submission. Finally, the Gulf Restoration Network case below is very interesting. The court dinged DOJ for not properly answering the complaint with the standard admit/deny/deny for want of information. This case could serve as a good practice pointer for all of us.

 

Audubon Society of Greater Denver v. USACOE, ___ F.3d ___, 2018 WL 5782609 (10th Cir. 2018) (in challenge to Corps permit to allow increased storage of water in reservoir, held that  Corps properly interpreted 33 C.F.R. § 230.10(a) to conclude that 404(b)(1) guidelines require that when fill is incidental to the overall project, the only alternative that need be considered is for the fill, and not the entire project; the Corps alternatives analysis was not arbitrary and capricious; district court did not abuse its discretion in denying plaintiff’s motion to supplement the record)

 

OVEC v. Elk Run Coal Co., Inc., 2018 WL 5815564 (S.D.W.V. 2018) (granting motion to amend consent decree to account for defendant’s bankruptcy where court found that the amendment adequately addressed the harms at issue in the original case; the court is empowered to modify consent decrees; the court must examine the decree to ensure that it is fair and not unlawful)

 

OVEC v. Elk Run Coal Co., Inc., 2018 WL 5833860 (S.D.W.V. 2018) (text of consent decree referenced in 2018 WL 5815564)

 

United States v. City of Colorado Springs, 2018 WL 5870530 (D. Co. 2018) (after trial on the merits, held that city violated its MS4 permit by granting a BMP waiver without making the necessary findings as required by its manual; city failed to provide adequate project oversight and failed to enforce compliance on new development; city improperly approved drainage basin that did not meet the requirements of its drainage manual)

 

Gulf Restoration Network v. EPA, 2018 WL 5297743 (E.D. La. 2018) (defendant’s answer to complaint in case challenging EPA approval of Louisiana state water quality standards did not comply with Fed. R. Civ. P. 8 where the answer stated “the document speaks for itself” or the allegations “are conclusions of law to which no response is required;” EPA was ordered to submit a new answer within 15 days that either admits or denies all of the allegations in the complaint)

 

Pennenvironment v. PPG Industries, Inc., 2018 WL 5312778 (W.D. Pa. 2018) (denying motion to dismiss, held that railroad was an indispensable party in case involving contaminated site that lay within the RR’s right of way, and which was discharging leachate via groundwater into the adjacent river)

 

Columbia Riverkeeper v. EPA, 2018 WL 5024027 (W.D. Wash. 2018) (on summary judgment, held that EPA had failed to act on temperature TMDL for the Columbia and lower Snake Rivers and therefore a constructive submission occurred; “A construction submission occurs only when a state has clearly and unambiguously abandoned its obligation to produce a TMDL or TMDLs.”; court rejected argument that states’ authority to prioritize TMDLs required the court to look at the entire state TMDL program to find a constructive submission; EPA was ordered to either approve or disapprove a TMDL within 30 days)

 

October 13, 2018

 

The first two cases below reflect standard defense tactics of moving to dismiss on standing and mootness grounds, and the difficulty of prevailing on those arguments. The third case, BNSF Railway, shows the importance of adhering to the requirements of a consent decree.

 

Freshwater Accountability Project v. Patriot Water Treatment, LLC, 2018 WL 4899089 (N.D. Ohio 2018) (denying defendant’s motions for summary judgment, held that plaintiffs established standing where the named plaintiff recreated in water in the vicinity of the discharge, and plaintiff was a member of the organization; plaintiff need not show actual harm to the environment; plaintiff’s claims are redressable even where defendant had stopped discharging because defendant could not establish that cessation wasn’t temporary; rejected argument that defendant lacked standing because monetary civil penalties would not address the injuries; civil penalties do not compensate private plaintiffs, but they deter defendants from persisting in unlawful injurious conduct)

 

Thibodeaux v. Port of Oakland, 2018 WL 4853299 (N.D. Cal. 2018) (plaintiff’s 60-day notice need not describe where the facility is located, but must just describe what the facility is; plaintiff’s failure to cite the general permit requires dismissal of counts related to alleged violations of the effluent limits in the permit; plaintiffs need not identify the date and time of every storm event that resulted in a discharge; plaintiff need not identify every individual pipe that was alleged to be discharging - - general allegations are sufficient; in order to prevail on mootness, defendant has the burden of demonstrating that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur; to show injury, plaintiff is not required to show that it performed activities immediately adjacent to the polluting site; presence of other polluters in the area does not absolve defendant from having caused or contributed to plaintiff’s injury; the City of Oakland is an indispensable party)

 

Sierra Club v. BNSF Railway Co., 2018 WL 4931605 (W.D. Wash. 2018) (defendant violated terms of consent decree requiring it to come up with prototype coal train car cover to prevent coal dust from blowing into the water where defendant missed deadline for attempting to procure prototype; defendant ordered to actively solicit functional prototypes from manufacturers over six-month period; court retains jurisdiction to enforce its consent decree; courts interpret consent decrees as contracts, applying state contract law)

October 8, 2018

 

Three interesting new cases from this past week. The Fourth Circuit Sierra Club decision below is yet another in a recent long line of pipeline cases. The environmental groups appear to be focusing on pipelines in a strong way. The Environmental Law and Policy Center case out of Ohio is a fascinating study in years-long delays by the state in addressing a serious water quality problem, the court’s acknowledgment of the problem, and its inability to provide the plaintiffs the relief they sought. Finally, the Sanitary Bd. of Charleston case below should be read by all environmental plaintiffs, as it affects the availability of attorney’s fees when the government acts before a judgment is rendered.

 

Sierra Club v. USACOE, ___ F. 3d ___, 2018 WL 4764328 (4th Cir. 2018) (per curium preliminary decision vacating Corps’ issuance of NWP 12 for pipeline construction project, held that Corps lacked authority to substitute “dry cut” method of constructing river crossings in lieu of special condition imposed by state; if any part of a project requires an individual permit, then the NWP does not apply and all portions of the project must be evaluated as part of the individual permit process)

 

Environmental Law and Policy Center v. EPA, 2018 WL 4773553 (N.D. Ohio 2018) (denying plaintiff’s motion to amend complaint, held that EPA had no duty to promulgate TMDL in Ohio where EPA approval of state 303(d) list took no position on state’s proposal to issue no TMDL; despite long delays and state’s intent to not issue a TMDL, the constructive submission doctrine is not appropriate where the state had only months earlier put the disputed waters on the 303(d) list; summary judgment entered in favor of EPA where EPA withdrew its former approval of 303(d) list, and there is no longer a final agency action to assail)

 

Sanitary Bd. of Charleston v. EPA, ___ F. Supp. 3d ___, 2018 WL 4825260 (S.D.W.V. 2018) (denying motion for attorney fees, held that the catalyst theory is precluded by 4th Cir. precedent, and plaintiff was not a substantially prevailing party as that term is used in § 505(d) without receiving at least some relief on the merits and obtaining a judicially sanctioned change in the its relationship with defendant)

October 4, 2018

 

Groundwater connections are the topic of the day. The last year or so has seen a lot of litigation in this area of the law and, as I have written in the past, it’s not a new question. The two Sixth Circuit and the District of Massachusetts decisions below follow on the heels of the Virginia Electric & Power Co. case I blogged about on September 24 – all holding the groundwater connections do not create jurisdictional point source discharges. There is now a very clear split in the Circuits on the issue. It will be interesting to see if the Supreme Court takes up one of these cases. With the soon-to-be conservative majority on the Court and EPA contemplating a rulemaking, the future is not looking good for the hydrologic connection theory. 

 

Tennessee Clean Water Network v. TVA, ___ F.3d ___, 2018 WL 4559103 (6th Cir. 2018) (reversing district court, held that discharges from coal ash pond that are hydrologically connected to river are not covered by CWA; RCRA coal combustion residual rule, not the CWA, is the framework envisioned by Congress for coal ash ponds; NOTE dissent)

 

Kentucky Waterways Alliance v. Kentucky Utilities Co., ___ F.3d ___, 2018 WL 4559315 (6th Cir. 2018) (affirming district court, held that discharges from power plant ash pond that entered river via groundwater are not controlled by the CWA; groundwater is not a point source; while groundwater is a conveyance, it is not discernable, confined or discrete; the use of the term “into” in the definition of “effluent limitation” in § 502(11) requires directness; court distinguished language from plurality decision in Rapanos indicating discharges only need to be “to” WOTUS; stated purpose of CWA is both §§101(a) and 101(b); ash pond would be exempt from RCRA if CWA applied; NOTE dissent)

 

Toxics Action Center, Inc. v. Casella Waste Systems, Inc., 2018 WL 4696750 (D. Mass. 2018) (granting motion to dismiss, held that discharges of contaminated groundwater from landfill to wetlands do not violate the CWA because the landfill is not a point source; the groundwater discharge is not from a point source because it is not a discrete conveyance)

 

Hunton & Williams LLP v. EPA, 2018 WL 4637355 (D. D.C. 2018) (largely denying FOIA appeal seeking documents related to JD and special case determination by EPA on industrial site in California, held that EPA and the Corps assertions of deliberative process privilege and other FOIA exemptions were valid)

 

City of Highland Park v. EPA, 2018 WL 4699308 (E.D. Mich. 2018) (granting EPA’s motion to dismiss, held there was no waiver of sovereign immunity in case alleging plaintiff failed to state a claim that Great Lakes Water Authority violated the CWA by overcharging plaintiff for sewer service; enforcement decisions by the agency are discretionary; where plaintiff failed to raise issues in its 60-day notice letter, it may not raise them for the first time in federal court)

 

City of Highland Park v. EPA, 2018 WL 4619594 (E.D. Mich. 2018) (granting motion to dismiss for two defendants, held that plaintiff failed to state a claim that Great Lakes Water Authority violated the CWA by overcharging plaintiff for sewer service; plaintiff alleged no facts to support claim that defendants an EPA guidance document; plaintiff alleged a violation of 40 C.F.R. § 35.2140, which is not promulgated pursuant to a CWA provision cited in § 505)

 

The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc., 2018 WL 4696749 (D. Mass. 2018) (dismissing case, held that state had commenced and diligently prosecuted case against contractor for violating the CGP; state had issued an administrative compliance order and entered into a settled with penalties prior to the filing of the citizen suit)

 

National Audubon Society v. USACOE, 2018 WL 4761024 (E.D.N.C. 2018) (denying in part, granting in part motion to supplement the record in 404 permit appeal, held that disputed documents not relied on by Corps in making its decision were not relevant; “the key inquiry in determining the scope of the administrative record is what documents the agency considered in reaching the decision under review.”; emails constitute valid extra-record evidence because they pertain to whether the Corps violated CEQ regulations in treating an entity as an independent third-party contractor)

September 24, 2018

 

The courts are definitely back from vacation. These six new cases run the gamut, but one stands out. The Virginia Electric & Power Co. case out of the Fourth Circuit is a potential game changer. It deals with the fundamental -- and previously well-settled -- question of what a point source is. The court looked at coal ash ponds that are leaching into an adjacent river, and found that they were not “confined, discrete conveyances,” which is the definition of a point source. The court reasoned that hydrologically-connected groundwater can serve as a basis for asserting jurisdiction, but only if the discharge originates from a point source. Because the ash ponds were passive holders of ash, the court reasoned that the diffuse seepage of water through them was not a conveyance whose flow could be measured, and therefore not a point source. This narrow view of a point source is arguably contrary to much of the prior 45 years of jurisprudence, which has broadly construed the definition.

 

It also raises the question of whether dischargers can now avoid the need for an NPDES permit by constructing waste ponds next to surface waters and letting the untreated effluent seep into the adjacent river, lake or ocean. If the effluent is not RCRA hazardous waste, there would be no regulatory hook to control the resulting surface water contamination. I suspect we’ll soon have a conflict in the Circuits, if one does not already exist, which may set this issue up for Supreme Court review.

 

The Texas v. EPA case below is the case I referenced in my September 12 blogpost.

 

Sierra Club v. Virginia Electric & Power Co., ___ F.3d ___, 2018 WL 4343513 (4th Cir. 2018) (hydrologically-connected discharges via groundwater fall within the jurisdiction of the CWA; coal ash pond is not a point source because it does not act as a conveyance to WOTUS, but instead allows pollutants to slowly diffuse through groundwater into surface waters; because discharges via groundwater can’t be measured, they are not conveyances)

 

Bohmker v. Oregon, ___ F.3d ___, 2018 WL 4344338 (9th Cir. 2019) (state law prohibiting suction dredging for five years not preempted by federal law, including CWA; Mining Act of 1872’s “free and open” language does not prohibit state environmental regulations; NOTE dissent)

 

Tin Cup, LLC v. USACOE, ___ F.3d ___, 20189 WL 4516123 (9th Cir. 2018) (in cases where 404 permit holder objected to mitigation requirements, held that 1992 appropriations bill requiring use of 1987 wetland delineation manual did not prohibit the Corps from using the Alaska supplement to the 1987 manual to determine that permafrost is wetlands; without a clear statement of futurity, the bill is only in force for the fiscal year of the appropriation; NOTE concurring opinion)

 

Waste Action Project v. Fruhling Sand & Topsoil, Inc., 2018 WL 4339988 (9th Cir. 2018) (unpublished) (district court improperly dismissed stormwater case on jurisdictional grounds based on assessment of evidence going to the merits of the claim; “The district court incorrectly concluded that [plaintiff’] plan to conduct discovery to prove ongoing Clean Water Act violations meant that [plaintiff] lacked a good faith basis to plead those alleged violations.”; § 505 provides federal subject matter jurisdiction where a person is “alleged to be in violation” of an NPDES permit)

 

Texas v. EPA, 2018 WL 4518230 (S.D. Tex. 2018) (enjoining 2015 WOTUS rule in Texas, Louisiana and Mississippi; “A stay provides much needed governmental, administrative and economic stability.”; court declined request to issue nationwide injunction)

 

Verdier v. Bost, 2018 WL 4335626 (W.D. Wa. 2018) (on motion to dismiss, held that plaintiffs met standards for citizen suit where they alleged that defendants’ discharges of fill material into river were unpermitted; plaintiffs may not bring 505 citizen suits for violations of 404 permits; plaintiffs’ first cause of action based on fill material that was discharged five years ago dismissed for failure to show on-going discharge; plaintiffs’ second cause of action appropriately pled an on-going discharge where it alleged continued crumbling and sluffing of fill material into river)

 

Neal McAliley, “Waters of the United States”: Practical advice on determining jurisdiction” ABA Trends, Vol. 50 No. 1 (2018)

September 12, 2018

 

Yesterday, Judge George Hanks, Jr. (Obama appointee) of the S.D. of Texas ruled from the bench enjoining the application of the Obama-era Clean Water Rule (aka the 2015 WOTUS rule) in Texas, Louisiana and Mississippi. He rejected a motion from the Farm Bureau to apply the injunction nationwide. A written order is expected soon. The 2015 rule is now enjoined in 24 states. See my August 30 blogpost for a link to the EPA map showing what states are covered by which rule. Yes, it’s a confusing mess, it will likely get worse before it gets better.

September 6, 2018

 

There are four new cases this week. Township of Bordentown and Delaware Riverkeeper Network are two more in a recent line of pipeline challenge cases. Both were decided by the Third Circuit and both involve 401 cert. issues.

 

The City of Imperial Beach case is an interesting one, even though the California district court did not reach the merits on any of the substantive issues. It involves a contaminated river that flows from Mexico to the United States, where the water is treated and discharged. Defendants, attempting to apply the unitary waters theory, argued that some of the pollution is transferred from one water to another (the New Tijuana to the Tijuana), and therefore not subject to NPDES permit requirements. The court raised the issue of whether a river flowing over a border is a unitary water or a point source because the river in Mexico is not a WOTUS. This is not just an academic question because an analogous situation is common within the United States. If an irrigation canal, for example, is declared by regulation to be a non-WOTUS, then it is arguably a point source where it enters a navigable water. This may be a case to watch.

 

Township of Bordentown v. FERC, ___ F.3d ___, 2018 WL 4212061 (3rd Cir. 2018) (in challenge to FERC approval of pipeline, held that conditional FERC permit was not arbitrary and capricious because it was conditioned on permittee obtaining 404 permit and 401 cert. from N.J. and construction could not start without the permit and cert.; remanded for further consideration under NGA)

 

Delaware Riverkeeper Network v. Penn. Dept. of Env. Protection, ___ F.3d ___, 2018 WL 4201626 (3rd Cir. 2018) (in challenge to state 401 cert. for gas pipeline under the NGA, held that NGA provides jurisdiction for challenges to final agency actions, and state’s 401 cert. was final even though it is being appealed in state court; state was not arbitrary and capricious in issuing 401 cert. conditioned on future permits being obtained; petitioners’ takings claims are brought in the wrong forum; petitioners cannot show they have been harmed by conditional cert. because required post-cert. permits have not yet been issued)

 

City of Imperial Beach v. Int’l Boundary & Water Comm., 2018 WL 4104235 (S.C. Cal. 2018) (in case involving a complex trans-boundary scenario, held that plaintiffs had standing to sue POTW even though POTW did not have full control over pollution entering country from Mexico to be treated by defendants on the American side of the border; court denied defendant’s motion to dismiss, held that factual record was not yet developed to allow the court to rule on whether the two waters at issue were meaningfully distinct to determine whether a discharge occurred to WOTUS or whether the water transfer rule applied; plaintiff’s reading of the NPDES permit sufficed to deny motion to dismiss on grounds that no dry weather discharge occurred in violation of the terms of the permit)

 

Raritan Baykeeper, Inc. v. NL Industries, Inc., 2018 WL 4110946 (D.N.J. 2018) (unpublished) (denying motion for reconsideration on standing where plaintiffs failed to provide evidence to support CWA standing in case dominated by RCRA issues)

 

August 30, 2018

More WOTUS. In my August 17 blogpost, I talked about the recent decision out of South Carolina enjoining the "applicability date" rule, which resulted in the 2015 rule going into effect in much of the country. EPA has posted a map showing what states are now covered by the 2015 WOTUS rule, and what states are still under the 2008 Rapanos Guidance. If this dual standard stays in place long, it will make for an interesting controlled test to see how many new waters are considered jurisdictional in the states governed by the 2015 rule and what effect, if any, the WOTUS rule has on the state's economies.

 

EPA emphasizes that the District of South Carolina decision is under appeal, and things may change. As always with WOTUS, it's a moving target, so stay tuned.  See https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update.

August 21, 2018

 

In addition to Friday’s important WOTUS holding out of South Carolina, the courts handed down these four new cases, which mostly deal with wetlands, in the last week. United States v. Acquest Transit LLC is a wetlands enforcement case that has been around for many years and appears to be finally heading to trial. It will be interesting to watch given the issues involved. It will definitely be a fight of the experts and will highlight the government’s ability to put on a hard-fought jurisdictional case.

 

United States v. Acquest Transit LLC, 2018 WL 3861612 (W.D.N.Y. 2018) (on motions for summary judgment in wetlands case, held that triable issues of fact exist as to whether wetland at issue met the 1987 wetlands manual definition of a wetland, the downstream receiving water was a TNW and whether there is a significant nexus to the TNW; rejected defense argument that PCC cannot be abandoned; granted summary judgment in favor of government on validity of 2007 § 402 permit on grounds that the earth-moving occurred beyond 2007 and involved more acres than set out in the permit application; denied governments and defendant’s motions to strike expert witnesses on multiple ground)

 

Sierra Club v. St. Johns River Water Mgmt. Dist., ___ F. Supp. 3d ___, 2018 WL 3853997 (M.D. Fla. 2018) (on motion for summary judgment, held that manager of wetlands mitigation bank did not violate the Compensatory Mitigation Rule by permitting portions of bank to be converted to mix use development; Mitigation Rule allows for modifications of the mitigation bank instrument; bank was allowed to release portion of land from conservation easement where it was erroneously included in original document; plaintiff provided no evidence to support argument that state authorization to pump groundwater in area would affect the bank)

 

Black Warrior Riverkeeper v. USACOE, 2018 WL 3869983 (N.D. Ala. 2018) (denying motion for summary judgment, held that Corps was not arbitrary and capricious with FONSI for new surface coal mine where record established that Corps properly relied on compensatory mitigation from NPDES permit and it was not required to undertake an independent analysis; Corps’ finding that surface water leaving the site would not impact downstream surface water quality was supported by the administrative record)

 

Puget Soundkeeper Alliance v. APM Terminals Tacoma LLC, 2018 WL 3917936 (W.D. Wash. 2018) (in stormwater case against operator of dock, court denied motion to enter consent decree, holding that decree could not settle all claims in case where third-party defendants were not involved in the settlement and had outstanding crossclaims against defendant; Port of Tacoma, which owned the dock, objected to the entry of the decree which purported to settle all claims in the case)

 

August 17, 2018

 

The District of South Carolina yesterday enjoined the WOTUS suspension rule nationwide. Quick background: when the Supreme Court overturned the Sixth Circuit stay of the 2015 rule on the grounds that the Circuit Court did not have jurisdiction to issue the stay, the rule briefly went into effect everywhere in the country except for the states involved in the District of N.D. litigation. At the same time EPA proposed repealing the 2015 rule, but that rulemaking is still underway (see my July 2 blog entry). Not wanting the 2015 rule to go into effect, EPA proposed through an abbreviated rulemaking to change the “applicability date” of the 2015 rule so that it would not take effect until 2020. That rulemaking put the 2015 rule back on ice shortly after the Sixth Circuit stay was lifted. And it was that rulemaking that was the subject of the South Carolina Coastal Conserv. League case below. See my Feb. 16 blog entry for links to some of the filings.

 

As I noted in my last blog entry, I have been wondering for some time how the courts will react to the Trump administration’s strong course changes on so many environmental issues. How will they deal with the prior administrative records? The judge in this case, who was a G.H.W. Bush appointee, gives us a hint. He held:

 

“An agency’s view...may change.... But an agency changing its course must supply a reasoned analysis.” No such “reasoned analysis” was provided in the promulgation of the Suspension Rule. By refusing to allow public comment and consider the merits of the WOTUS rule and the 1980s regulation, the agencies did not allow a “meaningful opportunity” to comment. As such, the court finds that the agencies were arbitrary and capricious in promulgating the Suspension Rule. It vacates the Suspension Rule for this reason. To allow the type of administrative evasiveness that the agencies demonstrated in implementing the Suspension Rule would allow government to become “a matter of the whim and caprice of the bureaucracy.” Certainly, different administrations may implement different regulatory priorities, but the APA “requires that the pivot from one administration’s priorities to those of the next be accomplished with at least some fidelity to law and legal process.” The agencies failed to promulgate the Suspension Rule with that required fidelity here. The court cannot countenance such a state of affairs.” 2018 WL 3933811 at *6 (citations omitted).

 

Attention now turns to the motion for summary judgment pending in the Dist. of N.D. to stay the 2015 rule. There is also a pending challenge to the rule in the S.D. of Texas. There is also a case challenging the suspension rule pending in the S.D.N.Y.

 

South Carolina Coastal Conserv. League v. EPA, 2018 WL 3933811 (D.S.C. 2018) (on motion for summary judgment, held that EPA violated the APA when it promulgated the suspension rule for the 2015 WOTUS rule without taking public comment on the substantive elements of the rulemaking; court issued a nation-wide injunction against the suspension rule)

August 14, 2018

 

The second of these two new cases this week is an interesting one. I have been wondering how the courts will address significant policy changes by the Trump administration. This case, Wild Fish Conservancy v. EPA, gives us a glimpse. In light of a significant administrative record from prior administrations taking a contrary position to the current administration’s arguments, the court was unwilling to accept the new interpretation of the law. Will this become the standard for assessing the Trump administration’s attempts to rewrite many of our environmental regulations?  Time will tell.

 

City of San Diego v. Monsanto Co., 2018 WL 3818015 (S.D. Cal. 2018) (in case by city alleging PCB contamination of bay, the court dismissed defendant’s counterclaim alleging unauthorized stormwater discharges of PCBs into bay, holding that defendant’s expected litigation costs in responding to PCB contamination do not give it Article III standing under section 505)

 

Wild Fish Conservancy v. EPA, 2018 WL 3742203 (W.D. Wash. 2018) (denying motions to dismiss, held that EPA had ESA Section 7 duty to consult with NMFS on state water quality standard approval for sediment management at salmon net pen operations; res judicata does not bar present action where prior litigation dealt with approval of 2008 agency action and current case looks at 2011 agency decision, which is separate and distinct; rejected agency arguments that it does not have the authority to approve the state’s revisions of its WQS; EPA retains “discretionary involvement and control” over its approval of a WQS if a triggering event occurs to create a duty by EPA to reinitiate consultation)

August 8, 2018

 

Senator Barrasso (R. WY) introduced a bill on July 31 to amend section 401 of the CWA. S. ___, “Water Quality Certification Improvement Act of 2018” (July 31, 2018). Here is a link to the bill:       . The bill places stricter time lines on 401 certifications. Also, by replacing “activity” with “discharge,” in paragraph (a)(1), the bill arguably narrows the currently-broad scope of section 401 certifications. It will be interesting to see how much traction this bill gets in the almost-equally-divided Senate. The co-sponsors of the bill are: Senators Shelley Moore Capito (R-WV), Jim Inhofe (R-OK), and Steve Daines (R-MT).

 

Along those same lines, in these two new cases, the Deschutes River Alliance case below is the latest is a recent string of 401 cert. cases, most of which have related to pipelines.

 

Deschutes River Alliance v. Portland General Electric Co., 2018 WL 3715706 (D. Ore. 2018) (on motion for summary judgment, held that dam operator did not violate the terms of the 401 cert. issued by the state related to temperature, dissolved oxygen and others; decision turned on technical and specific language of the 401 cert.)

 

United States v. Grimmel Industries, LLC, 2018 WL 3730856 (N.D.N.Y. 2018) (on motion to strike 25 of defendant’s 44 affirmative defenses, held that laches is not available against the United States in an enforcement action; mootness is not a defense against the United States because the government can sue for wholly-past violations)

August 3, 2018

 

Two new cases this week. 

 

Sierra Club v. State Water Control Bd., ___ F.3d ___, 2018 WL 3635962 (4th Cir. 2018) (denying petition for review of state 401 cert. of 404 permits for pipeline, held that state was not arbitrary and capricious in issuing state cert. where it reasonably assured that sediment runoff would protect state waters; state was justified in relying on EPA’s judgment regarding the general effectiveness of the types of protections chosen for the project)

 

Puget Soundkeeper Alliance v. EPA, 2018 WL 3569862 (W.D. Wash. 2018) (in challenge to EPA’s 2017 proposed applicability date rulemaking on the WOTUS rule, Farm Bureau’s unopposed motion to intervene as defendant granted; proposed intervenors held to have significant economic and litigation interests at stake)

July 25, 2018

 

Here are the week’s two new cases. The first, Cooling Water Intake Structure Coalition v. EPA, is an important decision out of the Second Circuit on cooling water intake structures, but more importantly on how the courts review EPA’s rulemakings (at least Obama-era rulemakings). The second, Freshwater Accountability Project v. Patriot Water Treatment, LLC, is a rare pretreatment case. We see surprisingly few of them, especially in the civil arena. Has section 307 become the well-oiled machine of the CWA that spurs little litigation or has it become the forgotten son?

 

Cooling Water Intake Structure Coalition v. EPA, ___ F.3d ___, 2018 WL 3520398 (2d Cir. 2018) (in multi-pronged attack of new cooling water intake structure regulation by both environmental groups and industry under CWA and ESA, held that EPA acted reasonably and within its statutory authority in establishing BTA standards to minimize aquatic mortality resulting from both entrainment and impingement; EPA adequately explained why it defined “new units” at existing facilities as new stand-alone structures and provided adequate notice of the Rule's definition of “new unit”; EPA reasonably estimated the cost of complying with the Rule's standards for “new units”; EPA reasonably interpreted the Rule as not imposing new permit application requirements on “below-threshold” facilities; EPA reasonably determined that section 316(b) of the CWA authorizes it to regulate all CWISs, including those that use only a small portion of the water withdrawn for cooling purposes)

 

Freshwater Accountability Project v. Patriot Water Treatment, LLC, 2018 WL 3417305 (N.D. Oh. 2018) (denying motion to dismiss, held that plaintiffs could enforce NPDES permit condition requiring municipality to develop pretreatment permits, among other things; rejected argument that section 505 does not allow citizens to force regulators to implement a regulation where the regulator is also a discharger; POTW’s general prohibition against interference and pass through does not relieve it of permit requirement to control inflow of TDS; POTW’s failure to limit inflow of radionuclides as required by local ordinance is actionable)

July 22, 2018

 

I was remiss in not highlighting the EPA approval of the Idaho NPDES permit program on June 5, 2018. See 83 Fed. Reg. 27769 (June 14, 2018). Idaho was the 47th state to be authorized. Massachusetts is currently in the early stages of applying for authorization, leaving New Hampshire and New Mexico as the only states where EPA is the lead in issuing NPDES permits (other than Indian lands). Florida is currently seeking assumption of the 404 program, which would make it only the third state to be approved to write 404 permits. Michigan and New Jersey have run their own 404 programs for years.

 

July 18, 2018

 

The Trump and Obama administrations’ positions on WOTUS are thoroughly different. Consequently, I’ve wondered what DOJ will say in its briefs when it starts to litigate the WOTUS issue in courts. This has puzzled me because DOJ is normally very careful to not contradict itself, and it has traditionally worked very hard to take consistent positions in the many briefs it files in courts around the country even from one administration to another.

 

In June, a group of 13 states filed a motion for summary judgment in the District of North Dakota in a WOTUS case that has been pending since 2015. Plaintiffs make many arguments against the 2015 rule, including that it violates NEPA, the CWA, the Rapanos decision, the 10th Amendment, due process and the Commerce Clause. Here is a link to the states’ brief: 

 

On Monday, DOJ filed its response brief. What is odd is that DOJ is defending attacks against the 2015 WOTUS rule at the same time as EPA and the Corps (the agencies) are trying to repeal it (see my July 2 blogpost). I’ve been wondering how DOJ was going to handle that tension. I got an answer to my question in North Dakota. They largely dodged. Here is a link to the DOJ brief: 

 

The DOJ brief squarely states that it takes no position on the merits arguments, which allows the government to avoid explaining why all the arguments it made in favor the WOTUS rule under the last administration are now wrong. Rather, DOJ defends the 2015 rule (yes, it defends it) on procedural grounds, arguing that the rule is not ripe for review because it is tied up in the step 0, 1 and 2 rulemakings (applicability date, repeal and replacement).

 

Somewhat more substantively, the brief argues that the EPA need not comply with NEPA in promulgating the WOTUS rule because the CWA exempts such rules from NEPA review. The brief also argues that the adjacent waters provisions of the 2015 rule did not violate the logical outgrowth test. I’ve long thought this to be the 2015 rule’s biggest weakness, but DOJ assertively defends it on the grounds that the definition of adjacency was clearly covered in the comments, and the agencies were responding to those comments.

 

Finally, and again somewhat surprisingly, DOJ defended the connectivity report. One of the plaintiffs argued that the report was not subject to sufficient public comment. The recent June 29 supplemental rulemaking attacks the report, but DOJ defends it here, arguing that EPA was allowed to rely on information that comes to light after the rule was proposed. 

 

Defending against NEPA, logical outgrowth and what facts can be considered in the administrative record are all administration-neutral issues, so it’s not entirely surprising that DOJ made those arguments, even when DOJ is defending a rule that the agencies are trying to dismantle. I suspect the court will likely defer ruling until the administrative process has played itself out.

 

Here are links to the Sierra Club and Farm Bureau response briefs that were also filed this week in the case. 

July 15, 2018

 

The judiciary has been busy with the CWA in the last month. None of these 14 cases or articles is groundbreaking, but each adds a bit of gloss to the existing CWA jurisprudence.

 

Orchard Hill Building Co. v. USACOE, ___ F.3d ___, 2018 WL 3132797 (in challenge to Corps’ JD, held that Corps failed to create a record on aggregation sufficient to support its significant nexus determination where the Corps referenced 165 wetlands in the watershed, but put nothing in the record to explain how any of those wetlands are adjacent to the same tributary)

 

City of Taunton v. EPA, ___ F.3d ___, 2018 WL 3342108 (affirming EAB decision in multi-pronged challenge to nutrient limits in NPDES permit, held that city may not supplement the administrative record to counter arguments raised in an amicus brief; 509(c) does not apply because EPA’s review of the challenge to the permit is an informal adjudication; EPA’s fact sheet was not deficient and the new material EPA put in the record in response to a comment does not require re-opening the record for rebuttal; EPA is not required to respond to untimely supplemental comments; EPA made a showing of reasonable potential to exceed DO water quality standards; “the ’scientific and technical nature of EPA’s decision-making’ increases our level of deference”)

 

Atchafalaya BasinKeeper v. USACOE, ___ F.3d ___, 2018 WL 3339539 (5th Cir. 2018) (reversing district court, held that Corps properly evaluated out-of-kind compensatory mitigation and cumulative impacts; NOTE dissent)

 

City of West Palm Beach v. USACOE, ___ F. Supp. 2d ___, 2018 WL 3213300 (D.D.C. 2018) (in challenge to 404 permit for highway extension, and granting defendant’s motion to transfer case to S.D. Fla., held that substantial part of the case occurred outside the District of Columbia and considerations of convenience and fairness dictated a transfer of venue)

 

Daigle v. Cimarex Energy Co., 2018 WL 3203535 (W.D. La. 2018) (granting motion to dismiss, held that past spills on plaintiff’s property by oil producer were not currently discharging; claims of past discharges are barred by SOL, and state-court action over spill that did not involve the CWA did not toll the SOL)

 

3630 Investment Corp. v. Miami-Date County, 2018 WL 3213489 (S.D. Fla. 2018) (in land dispute, plaintiff stated a cause of action where it alleged a discharge of sediment (a pollutant) from the County’s outfall pipe onto plaintiff’s property)

 

Northwest Environmental Advocates v. EPA, 2018 WL 317551 (W.D. Wash. 2018) (ordering EPA to complete review of TMDLs for 73 water bodies in Washington)

 

Kleinman v. City of Austin, 2018 WL 3132623 (W.D. Tex. 2018) (on motion for attorney fees, held that while plaintiff won the case, he did not get the injunctive relief he requested, and only a small penalty was assessed; because he vindicated a personal rather than a public interest, the court awarded 5% of the fees or $5,451 and a portion of the costs)

 

Deschutes River Alliance v. Portland General Electric Co., 2018 WL 2917356 (D. Or. 2018) (in suit against utility alleging operation of dam project violates terms of 401 certification, held that Tribe, as co-owner of the project, is a necessary party and the CWA waives the tribe’s sovereign immunity)

 

Day, LLC v. Plantation Pipeline Co., 2018 WL 2572750 (N.D. Ala. 2018) (dismissing plaintiff’s suit, held that pipeline leak that stopped in 2014 was not an ongoing discharge; plaintiff’s expert was not qualified to testify that the pipeline was still leaking)

 

Puget Soundkeeper Alliance v. APM Terminals Tacoma, 2018 WL 2560995 (W.D. Wash. 2018) (denying motion to dismiss, held that port can be held liable for stormwater discharges by lessee if the port exercised control over the discharge; rejected arguments by port that port could not be held liable because it was not covered by the stormwater general permit; plaintiffs’ 60-day notice was sufficient where new permit was issued after the notice letter was sent, but the facts did not otherwise change; alleging discharge without a permit is not an impermissible collateral attack on state order modifying existing permit)

 

Northwest Environmental Advocates v. Dept. of Commerce, 2018 WL 3390587 (W.D. Wash. 2018) (on motion for summary judgment, in case where plaintiffs alleged that EPA and NOAA failed to withhold section 319 grant funds because the state had not submitted an approvable section 306 program, held that plaintiffs lacked standing where they failed to show that it was reasonably probable that the EPA and NOAA failure to withhold funds threatens plaintiffs’ interests)

 

Neil McAliley, No clarity in sight for “waters of the United States," 40 ABA Trends, no. 6 (July/August 2018)

 

J.B. Ruhl, Proving the Rapanos Significant Nexus, 33 Natural Resources & Environment (Summer 2018) at 51

July 12, 2018

The EPA and the Corps today formally published in the Federal Register the supplemental notice on the repeal of the WOTUS rule that they posted on their websites on June 29. I discuss the notice in detail below.  Here is a copy of the Fed. Reg. notice:    .

July 2, 2018

 

On June 29, EPA and the Corps (the agencies) issued a supplemental notice to support the proposed repeal of the Obama-era “Clean Water Rule,” which they refer to as the 2015 rule. With this new attempt to justify the repeal, the agencies have looked at the CWA and interpreted it, its legislative history and the applicable Supreme Court cases in a manner contrary to any prior administration’s position. See my June 29 Blog entry for a link to the public notice.

 

[As always, in the interest of full disclosure, I was one of the authors of the draft 2015 rule. I did not work on the final rule, which was promulgated after I left EPA.]

 

The June 29 notice is 93 pages long, and I will not get deep into the weeds on every argument the agencies have made. Such an analysis is beyond the purview of this blog. Instead, I will briefly summarize the agencies’ arguments to invalidate the 2015 rule.

 

First, read as a whole, it is clear that the agencies are working hard to discredit nearly every aspect of the 2015 rulemaking by questioning the legal rationale for significant nexus, the science used to support the decisionmaking, the estimates on the potential increase in jurisdictional determinations, and all other foundations of that rulemaking. It is unusual to see two agencies tearing apart their own prior rule this aggressively, and highlighting all of the perceived faults while doing nothing to defend the prior determinations.

 

Second, the agencies have elevated CWA section 101(b) (states’ role in the CWA) to even status with section 101(a) (goal of the Act is to protect the nations’ waters). Almost every court decision interpreting the CWA cites 101(a) as the starting point of the court’s analysis. Few courts have cited 101(b). The reason is obvious: Congress made clear in the 1972 amendments that the states shall continue to run most of the CWA programs, but with minimum federal standards and a broad federally-mandated regulatory scheme to combat water quality problems.

 

That was the big change that came with the 1972 amendments. Prior to 1972, the states were in charge (the agencies wrongly state at page 18 of the notice that the Corps was) and water quality was horrible. Without minimum federal standards, the states were in a well-documented race to the bottom to avoid scaring away employers, and rivers were catching fire. Congress noticed. The 1972 amendments set minimum federal standards and directed that the CWA apply to the waters of the United States. Congress thereby recognized that water runs downhill, and often doesn’t respect state boundaries.  Here’s a link to some of the legislative history of the CWA that I have collected:      .

 

The agencies devote an entire section of the June 29 notice - - beginning at page 75 - - to the “potential impact on the federal-state balance.” This reflects the policy priorities of the current administration. The agencies question, for example, whether asserting jurisdiction over waters within the 100-year flood plain is consistent with section 101(b). See id at 77. This focus on states' rights, however, seems to miss the point that water pollution does not obey state boundaries. The 2015 rule asserts jurisdiction over waters that affect downstream navigable-in-fact waters. What happens to Arkansas v. Oklahoma with this new approach? The entire purpose of the federal CWA is to protect the nations’ waters, which are largely interconnected and which largely flow over state lines.

 

Third, the agencies look at Riverside Bayview Homes, SWANCC and Rapanos in a new light. Consistent with President Trump’s February 28, 2017, Executive Order, the agencies now emphasize Scalia’s plurality opinion (relatively permanent waters) in Rapanos, giving it equal billing with Kennedy’s (significant nexus) concurring opinion. While the agencies now read Kennedy much more narrowly than in the past, it is not clear that they are abandoning the significant nexus standard (although they have now more incentive to do so with Justice Kennedy stepping down from the Court). This will get interesting because every brief filed by the United States since 2008 has argued that either the Kennedy significant nexus test or the Scalia test can be used to assert jurisdiction. In other words, if a water body is a relatively permanent water (RPW) it is covered by the Act, and if not it is still jurisdictional if it meets the significant nexus test. The circuit courts have unanimously rejected interpretations of Rapanos that make the Scalia standard the sole test for jurisdiction. (See my June 5 and March 6 Blog entries for a discussion of the Marks issues.)

 

The June 29 notice (at page 40) states that the agencies’ long-standing “interpretation of significant nexus was expansive and does not comport with and accurately implement the limits on jurisdiction reflected in the CWA and the decisions of the Supreme Court.” I am not free to disclose EPA’s deliberative process in crafting the 2015 rule, but I can say this: EPA focused intently on Kennedy’s language in Rapanos, and EPA backed up every aspect of the 2015 rule with solid legal analysis. EPA knew where the line was and consciously stayed on the right side of it. The lengthy brief filed by the United States in the 6th Circuit at the end of the Obama administration reflects that careful analysis. The agencies now will be faced with the challenging task of convincing the courts that everything said before was wrong.

 

Fourth, the June 29 notice flips on its head the agencies’ prior interpretation of aggregation, which is an important part of the Kennedy opinion in Rapanos. Aggregation allows smaller wetlands in the same geographic area (and arguably tributaries) to be analyzed collectively to determine whether they together have a significant nexus to downstream waters. The agencies now argue that they misinterpreted Kennedy in the 2015 rule, and that aggregation may not apply on the scale used in the 2015 rule.

 

The agencies similarly turned 180 on the connectivity report, which is the comprehensive, peer-reviewed science report that EPA commissioned and which underpinned many of the findings to support the 2015 rule.  (See June 29 notice at 50-54). The agencies now go to great lengths to discredit the report, which they must do to justify a new rule that does not protect all tributaries. This is because the report concluded that small intermittent and ephemeral headwater streams collectively have a significant impact on downstream navigable-in-fact waters.

 

Fifth, the agencies state that the 2015 rules does not achieve its goal of regulatory certainty, yet the rule has essentially never gone into effect nor has it been tested in the real world (it was in effect for a few weeks in parts of the country). After Rapanos, the old WOTUS definition, as interpreted by the 2008 Rapanos Guidance, was very difficult to implement. The 2008 Guidance was drafted by the Bush Administration with no input from the EPA/Corps field offices, and it layered on confusion where none previously existed. It was (and is still) a challenge for the non-professional to understand, which is why the agencies promulgated the 2015 rule. I was an EPA lawyer during that era, and we struggled mightily to figure out jurisdiction questions under the 2008 Guidance. The agencies and the regulated community continue to be forced to expend significant resources to figure out most jurisdiction questions, especially in the arid west. The lengthy and confusing 2008 Guidance did little to streamline the analysis. It is therefore interesting that the agencies now argue that we must return to the 2008 Guidance in the interest of “regulatory certainty.”

 

Agencies can and do change policy directions between administrations, but they can’t do so without a proper foundation. The agencies clearly have an eye on future challenges to the repeal, and the June 29 notice attempts to build a record to support the repeal. When challenged (as this rule will be), the agencies’ interpretation of the CWA will get Chevron due deference in the district courts-- but only if it’s a plausible reading of the statute and if it’s not wholly inconsistent with court precedent and prior agency pronouncements. The agencies built a robust record supporting the 2015 rule that they now have to explain away.

 

Ultimately, though, it comes down to the Supreme Court -- and with Kennedy stepping down, the conservative members of the court now may have the five votes necessary to adopt the Scalia standard of jurisdiction. That will judicially rewrite the CWA to limit WOTUS to RPWs, which will, in effect, exclude most of the headwaters systems and all adjacent wetlands and other waters that do not abut an RPW. The CWA will be but a shadow of its former self. The Supreme Court has denied cert. eight times since Rapanos, likely not wanting to deal with another split decision. With Kennedy gone, that dynamic may change.

June 29, 2018

 

The EPA just released an amended notice of proposed rulemaking on the WOTUS repeal.      The 93-page notice states, “The agencies are issuing this supplemental notice of proposed rulemaking (SNPRM) to clarify, supplement and give interested parties an opportunity to comment on certain important considerations and reasons for the agencies’ proposal.”  Look for my analysis of the notice next week.

 

The Fourth Circuit recently issued an important new opinion regarding constructive submission of a TMDL. As the court points out in its decision, only one court so far has found that the state has failed so miserably in promulgating TMDLs that constructive submission warrants ordering EPA to step in. The lesson here is that the courts will intervene only where the state has clearly taken no action and no viable plan is in place to undertake TMDLs on a reasonable time schedule.

 

OVEC v. EPA, ___ F.3d ___, 2018 WL 3039954 (4th Cir. 2018) (reversing district court, held that West Virginia delay of promulgating TMDLs for biologically-impaired waters could not be construed as a constructive submission of no TMDLs, thereby triggering a requirement that EPA step in; because the state had issued some TMDLs and had a credible plan in place to produce others, the court could not find a construction submission of no TMDL; plaintiffs had standing to challenge EPA’s failure to find a construction submission)

June 13, 2018

 

Now for a bit of shameless self-promotion. The Clean Water Act Handbook 4th ed., of which I am the long-standing editor, published last week. In addition to stem-to-stern updates, we added a new chapter on federal facilities.  The 4th ed. is available on the ABA’s website at: https://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=314761688.

June 12, 2018

 

The S.D. of Georgia just issued an important new WOTUS decision. The court issued a preliminary injunction against the 2015 rule, even though it will not go into effect until 2020 (or possibly sooner if the challenges to EPA’s “applicability date” rule succeed). The judge found two substantive problems with the 2015 rule: (1) its inclusion of all intermittent and ephemeral tributaries did not comply with the significant nexus requirement set out in Rapanos, and (2) the final rule included new provisions that were not contemplated by the draft rule.

 

The judge’s ruling on significant nexus, I think, is wrong.  [Full disclosure, I was one of the authors of the draft WOTUS rule.]  She makes no mention of the extensive scientific record EPA assembled to support asserting jurisdiction over intermittent and ephemeral tributaries, yet she concludes “[t]he WOTUS rule asserts jurisdiction over remote and intermittent waters without evidence that they have a nexus with any navigable-in-fact waters.”  The science document that EPA assembled did just that.  See 80 Fed. Reg. 2100 (January 15, 2015) (EPA ORD “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence”)

 

The court’s ruling on significant outgrowth is closer to the mark.  As I have written in the past, the final 2015 WOTUS did appear to introduce new concepts that were loosely, at best, tied to the draft rule.

 

Finally, the court’s conclusion that plaintiffs will suffer irreparable harm now from a rule that will not go into effect until 2020 seems a bit of a stretch.  It will be interesting to see if the ruling is appealed.

 

Georgia v. EPA, 2018 WL 2766877 (S.D. Ga. 2018) (on motion for preliminary injunction, held that plaintiffs had shown a likelihood of success on the merits in their challenge to the 2015 WOTUS rule; EPA was arbitrary and capricious in finding that intermittent and ephemeral streams have a significant nexus to downstream waters; EPA violated the logical outgrowth test by including for the first time in the final rule distance categories for determining jurisdiction over adjacent wetlands; plaintiffs showed substantial threat of imminent financial harm and harm to state sovereignty because 2015 rule will go into effect in 2020, and possibly sooner)

June 5, 2018

 

The Supreme Court yesterday ruled in Hughes v. United States, 2018 WL 2465187 (2018).  Hughes had been watched closely by WOTUS attorneys because it ostensibly was going to rule on Marks. The Marks test is used to decipher precedent in split decisions. Rapanos was a split decision, and there continues to be much debate about how to interpret it. Had the Supreme Court used Hughes to change the Marks test, then Rapanos could be in play again.  Got it?

 

As it turns out, it was much ado about nothing. The Court in Hughes concluded it need not address Marks, leaving that important prior precedent unchanged.  The brief filed by the United States in Hughes, however, may still cause problems for the EPA when it promulgates its new WOTUS rule. See my March 6 Blog entry for a more detailed discussion of the Marks issue.

June 4, 2018

 

Rule number one: don’t ignore a court order. Crystal Conservation Coalition (W.D. Wash. 2018) highlights how important it is to comply with a consent decree and, if unable to comply, to get a court order modifying the decree. Unilaterally deciding that certain requirements of the decree are impractical will lead to the wrath rained down upon the defendant in Crystal Conservation.

 

The New York v. EPA case below arrived at the same result as the recent decision in S. Carolina Coastal Conserv. League v. EPA, 2018 WL 2184395 (D.S.C. 2018). The EPA has now twice lost attempts to consolidate all of the WOTUS litigation in the S.D. of Texas, which the agency likely considers a more favorable forum. The Texas case involves a challenge to the 2015 WOTUS rule. The New York and S. Carolina cases involve challenges to the two-year suspension of the WOTUS rule.

 

One mistake was made by the court in the New York case. In his otherwise good summary of the case at the end of section I of the decision, the judge states, “The 1980’s definition [of WOTUS] still reigns.” The old definition of WOTUS was replaced by the 2015 rule. When the Supreme Court overturned the 6th Circuit stay of the rule, the 2015 rule went into effect in all, but the 13 states affected by the District of N.D. stay. As soon as the 2015 rule went into effect, it replaced the old rule. EPA then sought to change the “applicability date” of the 2015 rule to 2020 to allow time to rescind the 2015 rule. See my Feb. 6 blog for more detail.

 

In any case, it is important to understand that there currently is no regulation defining WOTUS, and EPA recognized this when it referred to a “regulatory gap” in its notice on the proposed two-year delay of the WOTUS rule applicability date. See 83 Fed. Reg. at 5204. The 2008 Guidance is the closest thing to law on the issue that currently exists. (An interesting side issue is whether exemptions in the old rule such as the waste treatment exclusion and prior converted croplands are still available. Arguably, they are not.)

 

Crystal Conserv. Coalition v. Crystal Mountain, Inc., 2018 WL 2432936 (W.D. Wash. 2018) (on motion for summary judgment, held that defendant had violated several terms of the modified consent decree requiring treatment of stormwater runoff from its parking lots; court awarded costs and fees to plaintiffs and ordered defendant to meet all requirements of the decree within five months, and to submit progress reports to the court every 90 days; plaintiffs complied with dispute resolution procedure set out in the decree)

 

New York v. EPA, 2018 WL 2411595 (S.D.N.Y. 2018) (denying motion to transfer challenge to WOTUS suspension rule to S.D. of Texas, held that defendants did not meet standards set out in 28 U.S.C. § 1404(a); EPA does not reside in Texas, and presence of field office does not suffice; a substantial part of the case did not occur in Texas; the state plaintiffs did not intervene in the Texas litigation, and therefore could not have asserted a counterclaim)

May 29, 2018

 

The Ninth Circuit just issued three new unpublished CWA decisions. All three were quite short, and reflect that the plaintiffs all had very weak cases.

 

This week’s new cases also highlight the long-established difficulty of challenging Corps 404 permits. Plaintiffs have historically fared poorly in those challenges, and these two new 404 cases continue that trend. The Corps’ section 404 regulations are complex, and provide many opportunities to challenge a new permit. But the Corps knows its regulations cold, and generally does a good job building records that comply with those rules. Future litigants beware.

 

Finally, the HVI Cat Canyon, Inc. case offers yet another deep dive into significant nexus analysis for you WOTUS case fans out there. Rumor has it that the new WOTUS rule will be proposed soon, and that it will be based on the Scalia, rather than the Kennedy test. If it ever goes final (a big if), it will overrule a substantial body of caselaw on CWA jurisdiction.

 

Clatsop Residents Against Walmart v. USACOE, 2018 WL 2377828 (9th Cir. 2018) (unpublished) (affirming summary judgment, held that Corps had no legal duty to independently evaluate an applicant’s submission when performing an EA; Corps was not arbitrary and capricious in evaluating cumulative impacts on a five-year baseline range; Corps properly evaluated public interest by looking to local zoning codes to determine whether a Walmart would impact other local businesses)

 

Witbeck v. U.S. Dept. of Labor, 2018 2308657 (9th Cir. 2018) (unpublished) (in very brief decision, held that plaintiff failed to present evidence in support of claim that his employer violated the whistle-blower provisions of the CWA regulations, 29 C.F.R. § 24.109(a))

 

Kinney v. Three Arch Bay Community Serv. Dist., 2018 WL 2327245 (9th Cir. 2018) (unpublished) (in pro se case, held that district court properly dismissed case where plaintiff had failed to comply with 60-day notice requirements, among other procedural issues)

 

United States v. HVI Cat Canyon, Inc., ___ F. Supp. 3d ___, 2018 WL 2325398 (C.D. Cal. 2018) (on motions for partial summary judgment regarding oil spills on five different creeks, held that government had met its burden of showing significant nexus on three of the five, and issues of material fact remained on two; rejected arguments that Kennedy test applies only to wetlands and does not allow the government to rely on OHWM to prove jurisdiction; distance from intermittent stream to navigable-in-fact waterbody alone does not exclude jurisdiction; ephemeral streams may have a significant nexus to downstream waters; significant nexus does not require laboratory analysis of soil samples, water samples or other tests; government is not required to pursue “cost-effective” recovery costs under OPA; the U.S. may recover its costs unless they are arbitrary and capricious; EPA’s recovery was consistent with the NCP; no third-party liability defense under OPA where defendant’s action contributed to the spill)

 

Hall & Associates, ___ F. Supp. 3d ___, 2018 WL 2336105 (D.D.C. 2018) (deliberative process privilege does not apply to a document that post-dates the time when EPA determined that it would nonacquiesce in the Iowa League of Cities decision regarding water quality rules outside of the 8th Cir.)

 

National Parks Conserv. Assoc. v. Semonite, 2018 WL 2363952 (D.D.C. 2018) (on motion for summary judgment in case challenging 404 permit for electrical infrastructure project, held that Corps properly considered comments before it regarding public interest review and independently weighted the costs and benefits of the project; Corps properly analyzed the least-damaging practical alternatives)

May 25, 2018

 

This DOJ brief came to my attention this week.      It involves alleged abuses of the citizen suit provisions of the CWA. It is, of course, one party’s side of the story, but it tells an interesting one. I’ve been watching CWA citizen suits for years, first as an EPA attorney who reviewed 60-day notices sent in by citizen groups, and now as a blogger and one who occasionally files under section 505 on behalf of my clients.

 

As I wrote in my 2017 NR&E article on citizen suits, citizens filed an average of 80 complaints a year between 2010 and 2016. The law firm at issue in the DOJ brief filed 158 60-day notices in the last two years. That’s an eye-popping number, and way out of line with anything I’ve seen in the past. The firm also negotiated settlements with penalty payments and “oversight fees” paid directly to the plaintiff. The case law is clear.  Penalties must be paid to the U.S. Treasury. DOJ alleges other improprieties. It will be interesting to see what comes of this. I suspect this firm - - if these allegations are true - - will be found to be unique in its abuse of the citizen suit provisions of the CWA. For the sake of those out there that file legitimate cases, let’s hope this kind of abuse doesn’t expand.

May 18, 2018

 

The WOTUS litigation continues to perk along. For those wanting to read the tea leaves, the case below out of S. Carolina offers a hint that the judge in that case might not be disposed toward the government’s position in the suspension of the 2015 WOTUS rule. Time will tell. 

 

Also, the Society of Wetlands Scientists recently filed this amicus brief in the WOTUS case pending in the S.D.N.Y.      The brief addresses the issue of EPA ignoring the science in repealing the 2015 rule. Because I worked on the development of the scientific record when I was at EPA, I’ve long wondered how EPA would explain away that substantial record as it re-adopts a rule based on the less-expansive Scalia test from Rapanos. It appears that EPA will be relying on the little-used CWA section 101(b) to argue that deference to state’s rights is as important as oft-cited section 101(a), which states that the objective of the Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” It will be interesting to see how the courts react to that argument.

 

S. Carolina Coastal Conserv. League v. EPA, 2018 WL 2184395 (D.S.C. 2018) (denying motion to transfer venue to S.D. Tex in challenge to WOTUS suspension rule; held that challenge to rule suspension was distinct from S.D. Tex. litigation regarding the rule itself and plaintiffs have no connection with Texas; court focused on distinct S.C. wetlands that would be affected by repeal of the 2015 WOTUS rule; held that 18 industry groups could intervene as a matter of right in the litigation where they have different interests than the government)

May 15, 2018

 

These three cases were issued in the last week. The most interesting of the bunch is the Folsom case, which appears to show the limits of the Supreme Court’s relatively recent Hawkes decision, and what constitutes a challengeable final agency action.

 

Gulf Restoration Network v. Oscar Renda Contracting, Inc., 2018 WL 2147505 (in construction stormwater case, held that plaintiff’s expert, who is not a geologist but an expert on coastal sciences may testify regarding a photo showing polluted runoff from the site; plaintiff’s expert report is not admissible where it makes only general conclusions regarding pollution and expert did not visit the site, take measurements, or perform any field analysis to tie the construction activities to harm to the receiving waters)

 

Folsom v. USACOE, 2018 WL 2049839 (D. Neb. 2018) (granting motion to dismiss, held that plaintiff cannot challenge EPA over dispute as to legality of bank stabilization work where EPA had sent him a “proposed compliance order,” which does not constitute final agency action; rejected argument that EPA had made a jurisdictional determination that is subject to challenge under Hawkes)

 

Schneider v. Donaldson Funeral Home, P.A., 2018 WL 2095192 (4th Cir. 2018) (unpublished) (affirming dismissal by District court, held that there were no continuing violations of construction stormwater regulations where defendant applied for received coverage under the general permit before the filing of the complaint)

April 30, 2018

 

These three new cases from the last two weeks highlight how active citizens are in CWA litigation. While citizen suits have long dominated the caselaw, they have become the predominate plaintiffs since the beginning of 2017. This year, there are only three reported CWA decisions listing the United States as plaintiff, and two of them are criminal cases. The one civil case is penalty case that was initiated under the prior administration. The more interesting question is how many cases has the United States filed since the beginning of 2017. Anecdotal evidence indicates that those numbers are down, but a definitive answer will require further research.

 

Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. USACOE, ___ F.3d ___, 2018 WL 1936356 (8th Cir. 2018) (affirming district court, held that the Corps’ letter to tribe indicating the challenged fill met the farm-road exemption was not a final agency action; claim that Corps’ determination that roadway was not recaptured under 404(f)(2) was nonjusticiable challenge to an enforcement action; tribe was not entitled to equitable tolling of SOL; Corps did not unlawfully stack permit and exemption verifications where the project was phased and each phase was a distinct project)

 

Clean Water Action v. EPA, ___ F. Supp. 3d ___, 2018 WL 1865919 (D.D.C. 2018) (in case involving challenge to EPA’s indefinite stay of effluent guidelines for coal fired powerplants, held that court had no jurisdiction under APA because review lies solely in court of appeals under 509(b)(1)(E); denied motion to amend to add new claims unrelated to original complaint; case is also moot where EPA had withdrawn the indefinite stay)

 

OVEC v. Fola Coal Co., LLC, 2018 WL 1833215 (S.D.W.V. 2018) (denying motion to dismiss, held that res judicata does not bar plaintiffs’ claims for unauthorized discharges from coal mine where new claims post-dated similar violations in prior litigation; “the Court finds that the occurrence of additional discharges in violation of permit conditions constitutes a ‘new wrong.’ . . . To find otherwise would effectively insulate polluters from any liability after one successful round of litigation.”; no issue preclusion where substantial changes to site have occurred since prior litigation)

April 16, 2018

 

Here are four new CWA cases from the past week, two of which are Circuit Court decisions. The ELPC case out of the district of Ohio is interesting in that it may be a weather vane for challenges to EPA actions under the Trump administration. The administration has made no secret of its desire to engage in what it calls “cooperative federalism,” whereby the EPA will defer whenever possible to the states. That appears to be what was playing out in ELPC, and the court clearly was not happy with EPA’s handling of the state WQS approval. This will be interesting to watch over the next couple of years as these cases wind their way through the courts.

 

Friends of the Santa Clara River v. USACOE, ___ F.3d ___, 2018 WL 1702746 (9th Cir. 2018) (affirming district court, held that plaintiffs had standing to challenge 404 permit where they showed that the challenged agency action will threaten their concrete interests and they showed a reasonable probability that the Corps’ decision could be influenced by the environmental consideration NEPA requires the Corps to study; plaintiffs’ challenges to Corps’ determination of least environmental practical alternatives had no merit; Corps did not rely on unduly narrow range of available alternatives and Corps did not err in considering financial impacts of further avoidance of impacts to WOTUS)

 

City of Kennett v. EPA, ___ F.3d ___, 2018 WL 1702739 (8th Cir. 2018) (reversing and remanding, held that in challenge to EPA approval of TMDL, city whose NPDES permit was subject to the TMDL had established injury in fact and redressability for standing; EPA’s approval of TMDL was ripe for judicial review where state was working on new NPDES permit and TMDL requiring dramatically lower effluent limits was in place; remanded for determination whether City had properly preserved certain arguments in the administrative process below)

 

United States v. Blankenship, 2018 WL 1733987 (S.D.W.V. 2018) (in case involving alleged discharges of sewage wastes from a pump truck into a creek, held that photos and testimony of discharges that were not included in the indictment, are not evidence of a prior bad act, but show a pattern of conduct, and are admissible under FRE 404(b))

 

Envt’l Law and Policy Ctr. v. EPA, 2018 WL 1740146 (N.D. OH 2018) (denying both party’s motions for summary judgment, held that plaintiffs could not prove a final agency action to challenge where EPA withdrew its approval of Ohio’s water quality standards; court gave EPA 30 days to approve or disapprove the standards, and retained jurisdiction over the case)

April 13, 2018

 

The Fourth Circuit yesterday issued another groundwater connection case in Upstate Forever v. Kinder Morgan Energy, holding that discharges from a pipeline leak that enter WOTUS via groundwater can be regulated under the CWA. This comes close on the heels of the recent Ninth Circuit decision in Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018), where the court held that POTW discharges to injection wells that connect to the ocean are covered by the CWA. One judge in Upstate Forever dissented, arguing that once a pipe leak has been repaired it cannot constitute a point source discharge. As I have noted in the past, there has been a lot of litigation on the issue of hydrologically-connected discharges in the last couple of years, and EPA is proposing a rule making on this. See my February 28, 2018 Blog post. We also have a split in the circuits (the Seventh Circuit has held that discharges of pollutants via groundwater are not point source discharges), so it will be interesting to see if the Supreme Court grants cert. on any of these new cases.

 

Upstate Forever v. Kinder Morgan Energy,  ___ F.3d ___, 2018 WL 1748154 (4th Cir. 2018) (reversing district court, held that discharges from a groundwater plume from a ruptured pipeline that traveled 1000 feet via groundwater into a stream are ongoing point source discharges even though the rupture had long been repaired, and the pipeline itself was no longer leaking; the definition of “discharge of pollutant” does not place temporal conditions on the discharge of a pollutant from a point source; the CWA is a strict liability statute; a pipeline is a point source; CWA does not bar plaintiff from seeking injunctive relief after the polluter has repaired the initial cause of the pollution; note dissent)

April 5, 2018

 

Here are seven new cases from the last two weeks, three of which are appellate court decisions (although two are unpublished). The Anacostia River TMDL case is interesting in that the court hewed closely to the statutory language in overturning EPA’s approval of a trash TMDL. The County of San Mateo case, which deals with liability for climate change, is one to watch as it returns to the state court system on remand. The list of defense counsel in that case included about every BigLaw firm in the country.

 

Benham v. Ozark Material River Rock, LLC, ___ F.3d ___, 2018 WL 1414897 (10th Cir. 2018) (affirming district court in case involving discharge of dredge or fill material by a gravel miner without a permit, held that plaintiffs had Article III standing; notice letter sufficiently provided notice of violations; court did not err in finding discharge of fill materials into more than one-half acre of wetlands without a permit [court imposed $35,000 fine and ordered restoration]; court acted within its discretion to not invoke primary jurisdiction doctrine to stay action)

 

Defenders of Wildlife v. USACOE, 2018 WL 1615962 (9th Cir. 2018) (unpublished) (vacating district court’s preliminary injunction on operation and maintenance of a weir, held that court erred in its finding on the alternatives analysis where record showed that Corps expressly found that there was no practicable alternative that would have less impact on the sturgeon population)

 

Marquette County Road Comm. v. EPA, 2018 WL 1388541 (6th Cir. 2018) (unpublished) (affirming district dismissal of action by Michigan county challenging EPA refusal to approve 404 permit; held that there was no final agency action subject to review where EPA had objected to permit, but had not vetoed it; transferring authority from EPA to Corps to review permit is not a final agency action by EPA where EPA and the Corps share responsibilities under 404; EPA’s objections to permit cannot be characterized as patent violations of its authority)

 

Sanitary Bd. of Charleston v. EPA, 2018 WL 1582730 (S.D.W.V. 2018) (on summary judgment, held that plaintiff’s challenge to EPA disapproval of state WQS for copper did not present a case or controversy because plaintiff’s NPDES permit did not contain a copper limit; court rejected numerous arguments justifying standing based on hypothetical future events)

 

S. Cal. Alliance of POTWs v. EPA, 2018 WL 1381887 (E.D. Ca. 2018) (granting motion to dismiss action challenging EPA’s use of TST analytical analysis for WET testing, held that plaintiffs claim was time barred because EPA promulgated underlying regulation in 2010; court lacked jurisdiction to consider inclusion of TST in NPDES permit because such challenges must first be brought before the EAB; no final agency action is present where NPDES permit was issued by state, not EPA)

 

NRDC v. EPA, ___ F. Supp. 3d ___, 2018 WL 1568882 (D.C.D.C. 2018) (vacating and remanding trash TMDL for Anacostia River, held that TMDL was invalid because it set minimum standards for trash removal rather than maximum levels of trash discharges; statute and EPA regs are clear that TMDLs must be expressed as maximum loads)

 

County of San Mateo v. Chevron, ___ F. Supp. 3d ___, 2018 WL 1414774 (N.D. Cal. 2018) (remanding case seeking recovery of injuries related to climate change to state court; held that removal was not warranted on grounds of federal preemption because the CWA contains a savings clause that preserves state causes of action)

March 13, 2018

 

The Second Circuit case below, New York State Dept. of Envt’l Conserv. v. FERC, is the culmination of a lot of lower court litigation. The state took two years to deny section 401 certification on a pipeline construction project, arguing that the company had failed to supply requested information, thereby drawing out the process. The court held that the one-year limit in the CWA was clear, and the state missed it. Look for more (timely) cert. denials in some states.

 

New York State Dept. of Envt’l Conserv. v. FERC, ___ F.3d ___, 2018 WL 1247016 (2nd Cir. 2018) (denying petition by state to vacate FERC ruling that state had waived its right to deny § 401 certification to gas pipeline; held that § 401 creates a bright-line one-year limit on the state’s right to certify compliance with the CWA; rejected argument that forcing state to act within one year will force decisions on incomplete records; state can deny certification without prejudice when record is incomplete; rejected giving deference to state or FERC in the interpretation of § 401)

 

California Envt’l Protection Assoc. v. Sonoma Soil Builders, LLC, 2018 WL 1242252 (N.D. Cal. 2018) (denying motion to amend the complaint to add third party, held that because violations at site had ceased, plaintiff could not show a continuing violation by the proposed third party; the lawsuit against the third party will not commence until the complaint is amended, which would be after the facility cease operations and all CWA violations have ended)

 

Finally, the Supreme Court recently denied cert. in the Second Circuit water transfer case. Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 846 F.3d 492 (2nd Cir. 2017), cert. denied, ___ U.S. ___, 2018 WL 1037580 (2018) (reversing lower court, held that EPA’s Water Transfer Rule is based on a reasonable interpretation of the CWA, and is therefore entitled to Chevron deference).

 

 

March 12, 2018

 

There are five new cases this week. The 9th Circuit’s ruling in Olympic Forest Coalition that a facility that does not qualify as a CAFO is still a point source if there is a pipe discharging pollutants will likely be controversial. I won’t be surprised by an en banc or cert. petition out of that one.

 

Gary Steinbauer wrote a nice summary of the recent 9th Circuit decision on hyrdrologically-connected groundwater in the ABA’s Trends newsletter.  Following is the link to his article, “The Clean Water Act goes underground: An analysis and implications of the Ninth Circuit’s decision in Hawai’I Wildlife v. County of Maui.” https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2017-2018/march-april-2018/the-clean-water-act-goes-underground.html.

 

Olympic Forest Coalition v. Coast Seafoods Co., ___ F.3d ___, 2018 WL 1220506 (9th Cir. 2018) (affirming district court on interlocutory appeal, held that discharges from oyster hatchery via pipes, ditches and channels were point source discharges requiring an NPDES permit; rejected argument that because oyster farm did not meet the 40 C.F.R. § 124.24 definition of a concentrated aquatic animal production facility (CAAPF), it was not a point source; the issue before the court was whether the discharges from pipes from a non CAAPF were point source discharges; court distinguished its prior holding in Assoc. to Protect Hammersley, Eld and Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007 (9th Cir. 2002) on grounds that no pipes were involved)

 

Northwest Environmental Advocates v. Dept. of Commerce, 2018 WL 1182245 (W.D. Was. 2018) (in lawsuit alleging EPA failed to consult under ESA when approving state’s nonpoint source program, held that Washington Cattlemen’s Assoc. and Washington Farm Bureau failed to establish grounds for intervention; intervenors’ interests are protected by state, which had already intervened; intervenors’ allegations that NWEA victory could adversely affect them fell short of the “direct, non-contingent, substantial and legally protectable’ interest required for invention as a matter of right)

 

Stone v. High Mountain Mining Co., LLC, 2018 WL 1175039 (D. Co. 2018) (on motion to dismiss, held that plaintiff’s 60-day notice letter did not adequately describe the sampling results allegedly showing discharges of pollutants from placer mine or where the culverts transporting pollutants to WOTUS are located; plaintiffs may not bring claims for discharges that ceased prior to the filing of the complaint; fine paid to state Division of Reclamation Mining does not preempt CWA claim)

 

Kleinman v. City of Austin, 2018 WL 1168859 (W.D. Tex. 2018) (after trial on merits, held that city was liable for discharges of silt from eroding channel on city property; rejected defense that discharge was covered by city’s MS4 permit where city guidelines for addressing such discharges were not met; fined city $25,000 and denied plaintiff’s injunctive relief request where city had already budgeted $12.5 million to install drop structures to prevent further head cutting in stream; court used bottom-up approach to calculating penalty and engaged in little analysis of economic benefit)

March 6, 2018

 

Let’s get into the weeds a bit on WOTUS. A brief recently filed by the Solicitor General raises some issues.

 

President Trump in his February 8, 2017, Executive Order, instructed EPA to reissue a WOTUS rule that “considers” adopting Justice Scalia’s plurality opinion in Rapanos v. United States. EPA is now in the middle of that rulemaking effort. But Rapanos was a split 4-1-4 opinion. And Justice Kennedy, who wrote his own opinion, rejected the rationale in Scalia’s opinion that was endorsed by three other justices, and instead found that the significant nexus test was the law. The four dissenting justices concluded that the EPA/Corps definition of WOTUS was an accectable interpretation of the CWA.

 

Rules of construction in this situation dictate that, to find a controlling precedent in Rapanos, one must refer to Marks v. United States, 430 U.S. 188 (1977). How one interprets Marks makes a difference. Since Rapanos, the United States has consistently argued in court that Marks allows the courts to use either the Scalia or the Kennedy test to find jurisdiction. All of the courts of appeals have agreed that it’s either both tests or just Kennedy. With just one exception, all of the district courts, applying Marks, have also rejected Scalia as the proper binding precedent from Rapanos.   

 

Here’s where it gets interesting. The Solicitor General recently filed a brief with the Supreme Court in Hughes v. United States.      Hughes is not a CWA case. It is a criminal case involving a Marks analysis. One of the issues on appeal is how to read Marks. In its brief, the SG stayed with its prior interpretations of Marks, i.e., the controlling opinion should be the one favored by the majority of the justices. Id. at 13. It is clear that neither Kennedy nor the four dissenting Justices in Rapanos agreed with the Scalia test, and the four dissenters expressly state they would find Kennedy’s significant nexus waters to be jurisdictional. Conservatives have been arguing unsuccessfully since Rapanos that Marks dictates that “the holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest grounds,” i.e., Scalia. The Trump administration SG has now arguably rejected that interpretation of Marks.

 

So how will EPA defend Scalia as a proper interpretation of Rapanos when the inevitable challenges are filed? Unless the Supreme Court reverses Marks, when the new Scalia-based rule is reviewed by the courts, they will be look to Marks to interpret the holding of Rapanos, and, as all have done so far, find Scalia is not the theoretical majority holding of the Court. If the WOTUS rule challenge goes to the Supreme Court, the SG will be forced to argue that Scalia would somehow command five votes? It is unlikely that the SG would change its position on Marks. Briefs filed by the United States in the Supreme Court are the position of the United States. This will be interesting to watch.

March 5, 2018

 

In a lengthy decision, the court in Atchafalaya Basinkeeper sided against the Corps and with the environmental groups challenging a 404 permit issued in connection with a pipeline construction project in Louisiana.  My analysis of 404 permit challenges over the last 20 years shows the Corps has prevailed in 74 percent of those challenges. Not only did this one succeed, but it resulted in a PI. The Trump administration has made it clear that it wants to cut through regulatory tape and issue permits for infrastructure projects. This makes me wonder whether the administration is moving too quickly to issue permits and, in the process, cutting corners. It will be interesting to see if this case is a one-off or part of a larger trend.

 

Atchafalaya Basinkeeper v. USACOE, 2018 WL 1089275 (M.D. La. 2018) (in case challenging 404 permit issued for construction of pipeline, court granted preliminary injunction, holding that the Corps failed to require proper compensatory mitigation for loss of forested wetlands and Corps did not consider pipeline owner’s prior history of noncompliance or provide any analysis of permit conditions that would address cumulative loss of wetlands; rejected plaintiffs’ arguments that Corps did not provide proper notice of proposed permit or that the Corps improperly relied on the RHA 408 EA to support 404 EA requirements)

 

March 1, 2018

 

The Trump Administration recently issued its infrastructure proposal, a copy of which is attached here:      .  Buried on pages 42-44 of the 53-page report are recommendations for accelerating infrastructure projects by changing some of the requirements of the CWA. The list includes:

  • Authorize federal agencies to obtain NWPs without Corps review.

  • Take away EPA’s oversight authority for 404 permits, including the 404(c) veto.

  • Allow use of one NEPA document for 404 and 408 actions.

  • Allow contractors to use the Corps’ environmental review documents instead of creating their own.

  • Shorten the period of time states have to issue 401 certifications.

  • Increase NPDES permit lifetimes from five to fifteen years.

 

These proposed changes are significant, and most would require Congress to amend the CWA. There may not be 60 votes in the Senate for such a dramatic rewrite of the wetlands regulations. Like many White House proposals (from any administration), this one may die on the vine, but it’s an interesting view into the Trump administration’s environmental priorities.

February 28, 2018

 

On February 20, 2018, EPA published in the Federal Register a notice entitled, “Clean Water Act Coverage of ‘Discharges of Pollutants’ via a Direct Hydrologic Connection to Surface Waters.” 83 Fed. Reg. 7126 (February 20, 2018). In the notice, EPA seeks comment on whether hydrologically-connected discharges should be covered by the CWA and whether other state or federal laws would better regulate such discharges. The comment period closes on May 21, 2018.

 

This is an important issue. I have long argued that EPA needs to clarify CWA jurisdiction over hydrologically-connected discharges. The courts have been all over the map for many years on direct hydrologic connections, using different methodologies to determine jurisdiction and coming up with different results. Meanwhile, EPA has remained mostly on the sidelines, opining only obliquely on whether it asserts jurisdiction over these discharges. Most of the case law in this area comes from citizen suits. With this proposed rulemaking, the Trump administration is attempting to resolve the question once and for all.

 

One issue that has long puzzled me is this: if discharges of pollutants via direct hydrologic connections are not prohibited by the CWA, what is to stop a discharger from constructing a pond next to a river, and discharging untreated wastes to the pond, where they will then seep into the river via groundwater? The pond is a waste treatment system, and therefore not a WOTUS. Unless the state classifies groundwater as a water of the state (and the state is authorized under section 402), the discharge shouldn’t need a permit. RCRA might apply if there are hazardous wastes, but conventional pollutants such as BOD, nutrients and TSS are not. I’m curious what others think.  Please send me an email at mr@ryankuehler.com.

This also has implications for the WOTUS rule. Adjacent wetlands are often hydrologically connected to neighboring rivers, streams and lakes. If hydrologically-connected groundwater cannot serve as a basis for asserting jurisdiction, many, if not most adjacent wetlands would lose protection under the CWA. In the Scalia test, which is the basis for EPA's upcoming rulemaking on WOTUS, jurisdiction is premised on a continuous surface connection between the wetland and the adjacent jurisdictional water body. It is safe to say that EPA will be leaning toward a groundwater rule that is consistent with the Scalia test.

 

Everyone who is interested in the CWA should comment on this proposal. I have litigated this question several times over the years, and I have tracked the case law. To assist you, here is a list of all of the cases and supplemental materials I have on the issue.  It’s more comprehensive than the authorities listed in the EPA notice. 

February 27, 2018

 

There are two new CWA cases from this last week. The first case below, Tressler, is a standard sovereign immunity case against the state. The second decision, Riverkeeper, is more interesting in that it appears to reflect the Trump administration’s cooperative federalism approach to working with the states. The court rejected EPA’s defense that it was working with the state, and therefore should be given more time to comply with the law. In cases were EPA has missed its statutory deadlines, it will be interesting to watch how the courts react to this kind of argument should EPA continue to raise it.

 

Tressler v. Summit Township, 2018 WL 948773 (W.D. Pa. 2018) (in case where property owner alleged that the state Department of Transportation damaged his property and neighboring WOTUS by mismanaging stormwater runoff, the court dismissed the case on sovereign immunity grounds, holding that plaintiff failed to name any state officials acting in their official capacities in order to seek injunctive relief under the Ex parte Young doctrine; the court granted leave to amend the complaint)

 

Riverkeeper, Inc. v. EPA, 2018 WL 987262 (S.D.N.Y. 2018) (in case alleging EPA had failed to approve state water quality standard revisions under § 303(c)(3), court denied motion to stay litigation, holding that plaintiffs would be harmed by delay to allow state to promulgate new standards, which could take over a year; plaintiffs were entitled to an adjudication of their claim that EPA had failed to meet its statutory duties under § 303; rejected EPA arguments that litigation will disrupt the “cooperative rulemaking process” with the state)

February 20, 2018

 

Two interesting new cases came down this past week. The unpublished Fifth Circuit decision in the Citgo Petroleum case is another affirmation of the use of the WACC rate to calculate economic benefit. It is EPA’s preferred method and industry has long disputed its use. It will be interesting to see if the Pruitt EPA continues to use this aggressive method of calculating economic benefit.

 

The second case, Central Sierra Environmental Resource Center, is interesting because it appears to open the door to allow citizen groups to sue the government for what is otherwise considered nonpoint source pollution from cattle grazing. The case is in its early stages, but it will be one to watch.

 

United States v. Citgo Petroleum Corp., 2018 WL 895335 (5th Cir. 2018) (unpublished) (affirming district court penalty of $81 million, held that court did not abuse its discretion in using the WACC rate of 10.04% or in choosing the least costly alternative to calculate economic benefit; rejected government’s argument that court may not award a penalty below economic benefit or that court did not adequately explain its downward adjustments in the penalty)

 

Central Sierra Environmental Resource Center v. Stanislaus National Forest, 2018 WL 746381 (E.D. Ca. 2018) (in suit by environmental group against Forest Service alleging violations of water quality standards as a result of grazing leases, held that CWA § 313 waives sovereign immunity for federal facilities when the facility is authorizing third-party acts; plaintiffs failed to show that the F.S. was required to apply for any permits under California state law; availability of state enforcement actions do not divest the court of authority to review the case under the APA; there is a causal link between the alleged violations of water quality standards (increased fecal contamination before and after the lease) and the approval of the leases by the F.S.)

February 16, 2018

 

As predicted, the WOTUS litigation has taken off. Here’s a brief recap of what’s been filed recently, by whom and where. I have provided links to some of the briefs below.

 

February 6, 2018                                EPA publishes final rule re WOTUS applicability date

 

February 6, 2018         D.S.C.             various enviro groups’ complaint challenging app. date

 

February 6, 2018         S.D.N.Y.         NRDC & NWF complaint challenging applicability date

 

February 6, 2018         S.D.N.Y.         States’ complaint challenging applicability date

 

February 14, 2018       S.D.N.Y.         EPA motion to transfer action to S.D. Tex

 

February 14, 2018       S.D. Tex.        NRDC opposition to Texas motion for PI

 

There are a lot of moving parts here. Ten separate cases are pending in District Courts around the country challenging the 2015 Rule, most of them filed in 2015, but were stayed by the Sixth Circuit. Three are in the S.D. of Texas. Plaintiffs in the S.D. of Texas filed a motion on February 1 to reopen the case, even before the 6th Cir. has formally lifted its nationwide stay of the proceedings. A PI hearing in that case is set for Feb. 22. Plaintiffs are requesting a nationwide stay of the rule. NRDC has intervened in that case and is opposing the PI. The N. Dakota court already declined to issue a nationwide ban, so it will be interesting to see what the Texas court does with the same request.

 

On February 6, EPA published in the Federal Register the final rule moving the “applicability date” of the WOTUS rule to 2020.  (See my Feb 6 Blog for more details.) That same day, environmental groups (Natural Resources Defense Council, National Wildlife Federation, South Carolina Coastal Conservation League, American Rivers, Chattahoochee Riverkeeper, Clean water Action, Defenders of Wildlife, Friends of the Rappahannock, North Carolina Coastal Federation and North Carolina Wildlife Federation) and certain states (New York, California, Connecticut, Maryland, New Jersey, Oregon, Rhode Island, Vermont, Washington, Massachusetts and D.C.) filed complaints in the S.D.N.Y and the Dist. of S. Carolina challenging the 2-year extension. DOJ has moved to transfer the S.D.N.Y. case to Texas and will likely do the same in the S. Carolina case. Given that the MDL Panel in 2015 declined to consolidate all of the district court rule challenges, it will be interesting to see what the N.Y. and S.C. courts do.

 

As I write this the Sixth Circuit has not lifted its nationwide stay, but likely will very soon. The N. Datoka District Court stay in 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming) is still in effect.

 

If the S.D.N.Y. or the D.S.C. rule against the EPA on the 2-year extension, then the 2015 rule may into effect in most of the country . . . . unless the S.D. Texas issues a nationwide ban. Having reviewed the EPA Feb 6 Federal Register and the complaints filed challenging the EPA 2-year extension, I think the EPA has some significant exposure on that issue.

February 7, 2018

 

The courts were very busy in the last two weeks. The 10th and 11th Circuits both acted quickly to remand their WOTUS cases after the Supreme Court’s ruling in National Assoc. of Manuf’s v. Dept. of Def., ___ U.S. ___, 2018 WL 491526 (2018) (see my January 22, 2018 Blog entry). See yesterday's Blog entry for an analysis of the WOTUS litigation.

Other new cases of interest include the First Circuit’s TMDL decision in Conservation Law Foundation v. EPA, and the Red River Coal case that brings up, once again, the issue of hydrologically-connected groundwater discharges.

 

Blue Water Baltimore, Inc. v. EPA, 2018 WL 704847 (D. Md. 2018) (dismissing case, held that EPA has no non-discretionary duty under 40 C.F.R. § 122.26(f)(2) to determine whether certain stormwater discharges contribute to violations of state water quality standards, and therefore require NPDES permits; jurisdiction is in federal district court, not the court of appeals)

 

Conservation Law Foundation v. EPA, ___ F.3d ___, 2018 WL 524758 (1st Cir. 2018) (affirming lower court dismissal of two related cases, held that EPA’s role in developing and approving TMDLs did not create a nondiscretionary duty for EPA to send section 124.52(b) notices requiring individual storm water permits for all dischargers within the watershed)

 

Chamber of Commerce v. EPA, 2018 WL 577011 (10th Cir. 2018) (remanding appeal of district court’s dismissal of WOTUS rule challenge to district court in light of National Assoc. of Manuf’s v. Dept. of Def., ___ U.S. ___, 2018 WL 491526 (2018))

 

Georgia v. EPA, ___ F.3d ___, 2018 WL 523333 (11th Cir. 2018) (remanding appeal of district court’s denial of preliminary injunction WOTUS rule challenge to district court in light of National Assoc. of Manuf’s v. Dept. of Def., ___ U.S. ___, 2018 WL 491526 (2018))

 

Suncoast Waterkeeper v. City of St. Petersburg, 2018 WL 502662 (M.D. Fla. 2018) (denying defendant’s motion for summary judgment arguing that plaintiff was preempted by prior state enforcement action, held that Florida’s public participation laws in administrative enforcement do not satisfy the requirements of the CWA, and therefore the state had not commenced and diligently prosecuted an action comparable to one under the CWA)

 

Suncoast Waterkeeper v. City of St. Petersburg, 2018 WL 549999 (M.D. Fla. 2018) (denying motion to strike, held that defendant’s affirmative defenses raising failure to state a claim, preemption, act of God, laches and acts of third parties are valid)

 

Red River Coal Co., Inc. v. Sierra Club, 2018 WL 491698 (W.D. Va. 2018) (held that plaintiffs alleged sufficient facts to overcome motion dismiss, where plaintiffs claimed that underdrains in coal mine valley fills that discharged pollutants to nearby streams were point sources; claims related to prior litigation on same discharges are not res judicata where the prior NPDES permits have been closed, and the current claims are for unauthorized discharges while the prior claims were for permit violations; court declined to dismiss claims on the Burford abstention doctrine where defendant argued that Congress intended to leave groundwater regulation to the states)

 

United States v. Whitehill, 2018 WL 459300 (W.D.N.Y. 2018) (dismissing defendants’ third party complaints against subcontractors in illegal wetlands fill case, held that New York contribution law does not allow defendants to seek contribution for relief sought by the United States; defendants may also not seek indemnification because it would not absolve defendants of their independent duty under the CWA to obtain and confirm the existence of a permit before allowing the third-party defendants to discharge fill material on defendants’ property)

 

United States v. Lucero, 2018 WL 466503 (N.D. Ca. 2018) (government’s proposed expert testimony regarding jurisdiction over illegal fill placed into wetlands does not invade the province of the jury, but aides the court and the jury in determining whether the waters at issue fall within the CWA; denied defendant’s Daubert motion on grounds that the government’s proffered testimony is both relevant and reliable, where the experts are experience and well-trained, and they relied on Corps Wetlands Delineation Manual, which has been peer reviewed)

 

Clean Water Action v. Searles Auto Recycling, Corp., ___ F. Supp. 3d ___, 2018 WL 457171 (D. Mass. 2018) (granting motion to dismiss counterclaim, held that fees and penalties are not a collateral advantage outside of the proceeding because there will be an award only if plaintiff has correctly employed the citizen suit provision in the CWA and prevails on the merits)

February 6, 2018

 

The hopelessly complex world of the WOTUS rule just got worse. On January 19, the Supreme Court reversed the Sixth Circuit, holding that the WOTUS rule challenges should be in the district courts, not the courts of appeal. The judgment from the Supreme Court does not issue for 25 days from the date of the decision, so the Sixth Circuit should not lift the nation-wide stay of the WOTUS rule until at least February 16.

 

Meanwhile, the 2015 rule is still stayed in 13 states by an injunction issued by the District of North Dakota in 2015.

 

Meanwhile, EPA and the Corps today published in the Federal Register the final rulemaking to change the “applicability date” of the 2015 rule to February 6, 2020. See 83 Fed. Reg. 5200 (February 6, 2018). The agencies were not allowed under the APA to change the effective date of the 2015 WOTUS rule, so they came up with the “applicability date” mechanism as a work around. They clearly suspected that the Supreme Court would reverse the Sixth Circuit, and they engaged in this last-minute rulemaking to prevent the 2015 rule from going into effect once the Sixth Circuit stay was lifted. I’ve never seen such a thing before, and I think it may get overturned if it is challenged. I suspect it will be challenged by one or more environmental groups or states.  (21 states sided with the Obama administration in 2015 when the rule was challenged.)

 

This applicability date trick leads to an interesting issue: if the 2015 Rule goes into effect, but does not apply for two years, is there a definition of WOTUS? Remember, the CWA does not define what is a water of the United States. The old rule goes away as soon as the 2015 rule goes into effect. The agencies in their Federal Register notice refer to this as a “regulatory gap.” 83 Fed. Reg. at 5204. The agencies’ explanation of why there is no regulatory gap avoids answering this tricky legal question, and it may not hold up under judicial scrutiny. It will be interesting to see what the courts conclude on this one.

 

Meanwhile, EPA and the Corps have proposed to rescind the 2015 WOTUS rule, and that effort is still underway. I understand that the agencies received about 700,000 comments, 15,000 of which were unique. That means they have a very heavy lift to review, summarize and respond to all of those comments. It will be interesting to watch how quickly they get that rulemaking out. It will be even more interesting to see how they justify the rescission. (Full disclosure, I was one of the EPA attorneys who helped develop the draft 2015 rule.) If EPA and the Corps are effective in rescinding the 2015 rule, the prior definition of WOTUS from the 1970’s will go back into effect. Expect lots of litigation over that one.

 

Meanwhile, the agencies are working on the new replacement rule based on the Scalia plurality opinion from Rapanos. They were trying to fast track that new rule, but they likely have run into snags. Given that none of the Appellate Courts and only one district court have opined that the Scalia test is a permissible interpretation of Rapanos, and since the agencies are bound by the Supreme Court precedent, it will be interesting to see how they fashion that new rule. It will also be interesting to see how the agencies justify limited jurisdiction in light of the extensive scientific record they assembled in support of the 2015 rule. Ditto above on expected litigation.

 

Meanwhile, industry and ag groups likely are preparing to rush into district courts outside of the 13 states where the WOTUS rule is stayed to obtain a preliminary injunction staying the 2015 rule. If the two-year extension doesn’t hold, they’ll need to seek a stay.

 

Stay tuned.

February 1, 2018

 

The Ninth Circuit today issued an important new ruling on hydrologically-connected groundwater. This case follows a series of similar groundwater connection cases in 2017, which came to differing conclusions regarding CWA jurisdiction over such discharges. Today’s case also affects related issues, such as adjacent wetlands in the WOTUS rule and other indirect discharge cases like land application of CAFO manure waste on farm fields. So, it’s a big and very important case. I would not be surprised if the Supreme Court took up this or a similar case in the next year.

 

After a dearth of new case law in January, the flood gates opened in the past week, and there are a lot of new CWA cases out. I’m reviewing them now, and I will post my summaries next week.

 

Hawai’i Wildlife Fund v. County of Maui, ___ F.3d ___ (9th Cir. 2018) (ground-injection wells used by POTW to dispose of treated wastewater are point sources where they are hydrologically connected to the ocean; the CWA does not require that the point source itself convey the pollutants directly into the navigable water; the wells are not nonpoint source pollution because they are discrete in number and capable of being regulated through individual permits)

January 22, 2017

 

In a 9-0 ruling, the Supreme Court today reversed the Sixth Circuit Court of Appeals in the WOTUS litigation, holding that section 509 of the CWA does not give the Sixth Circuit the authority to hear the challenges to the 2015 WOTUS rule. The challenges, the Court ruled, should be heard in the district courts. National Assoc. of Manuf’s v. Dept. of Def., ___ U.S. ___, 2018 WL 491526 (2018). This is not a surprising result. The underlying Sixth Circuit decision was fractured, and the court in that case was clearly working hard to shoehorn the review of the WOTUS rule into section 509 language that did not really fit.

Now it gets interesting. The Sixth Circuit issued a nationwide stay of the WOTUS rule in 2015, soon after EPA and the Corps promulgated the rule. The District of North Dakota also issued a stay for the 13 states that were plaintiffs in a parallel case filed in that court. Once the Supreme Court’s decision goes into effect, the Sixth Circuit’s stay will be lifted, arguably putting the Obama-era rule into effect in 37 of the States, Puerto Rico and Guam.

On November 22, 2017, EPA and the Corps published a Federal Register notice proposing to push back the implementation date of the 2015 WOTUS rule two years. There is a question as to whether the agencies have the authority to unilaterally change an implementation date after the fact. If they do not, the rule goes into effect in many states. The Trump administration has not issued a final rule and response to comments on the proposed two-year extension. Expect litigation on this when it is issued.

Today’s Supreme Court ruling may invite a whole new round of lawsuits around the country. There is a large number of states (21, I believe) that sided with the Obama administration in the defense of the WOTUS rule, so many of those states would be expected to defend the rule when it is challenged in the district courts.

The Trump administration certainly will not defend the WOTUS rule while it is actively attempting to withdraw the rule, which must still go through protracted public notice and comment under the APA. The end of the public comment period was September 27, 2017, and the final rule withdrawing the WOTUS rule has not yet been promulgated. And there will likely be legal challenges by the environmental groups to the withdrawal.

Where does all this leave us? For certain, there will be lots of litigation. Beyond that, it is hard to predict. We could end up with a splintered patchwork of jurisdictional systems across the country where the WOTUS rule applies in some states, but not in others. Assuming that the proposed withdrawal or the proposed two-year extension (two separate public notice and comment requirements) go final in the next few months, but then become mired in litigation, the WOTUS rule will be the law in 37 states, Puerto Rico and Guam. I suspect we’ll see a number of industry-led, but EPA/Corps-backed challenges filed soon seeking nationwide injunctions to avoid this outcome. Stay tuned.

Here is a list of the relevant WOTUS rule making Federal Register notices:

 

82 Fed. Reg. 55542 (Nov. 22, 2017) (proposal to extend WOTUS rule implementation date two years)

 

82 Fed. Reg. 39712 (August 22, 2017) (extension of time to comment on withdrawal of WTOUS rule)

 

82 Fed. Reg. 12532 (March 6, 2017) (notice of proposed rule making to withdraw and reissue Clean Water Rule)

 

80 Fed. Reg. 37054 (June 29, 2015) (final WOTUS rule)

 

80 Fed. Reg. 2100 (January 15, 2015) (EPA ORD “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence”)

 

79 Fed. Reg. 22188 (April 21, 2014) (draft WOTUS rule)

January 8, 2017

 

In the most recent issue of Natural Resources & Environment (Winter 2018), Christine LeBel has written an interesting article entitled “Does ‘to Act’ under CWA § 401 Mean ‘Final Action’?”  It deals with the issue of whether a state’s issuance of a 401 certification is timely if it is issued within one year of the issuance of the permit or within one year of the final agency action (including all of the appeals after the permit is issued). The answer is the former.

 

In addition, my article on CWA citizen suits recently published, also in NR&E. Mark A. Ryan, “Clean Water Act Citizen Suits: What the Numbers Tell Us,” 32 Natural Resources & Environment (ABA) (Fall 2017) at 20. In that article, I look at trends over time in the types and numbers of suits filed under various sections of the CWA and the APA. 

January 2, 2018

 

2017 was a big year for CWA in the federal courts. I summarized 98 opinions, which is a bit more than the 88 decisions I reviewed in 2016. The cases break down as follows: 71 of the plaintiffs were environmental groups or individuals suing to enforce the law, six of the plaintiffs were the United States and in 21 cases an industry group, individual or municipality was suing. This ratio is roughly consistent with years past.

 

The number of reported decisions with the United States as plaintiff shrank from 10 in 2016 to six in 2017. That decreased presence of the EPA in court likely reflects the new administration’s de-emphasis on enforcement, reluctance to push WOTUS issues and increased reliance on the states to bring enforcement actions. It will be interesting to see how those numbers change in 2018 as the Trump appointees further reset the direction of the EPA and the Corps.

 

The defendants’ side of the equation is a little more interesting. Who got sued in 2017 under the CWA?  Here’s how it breaks down:  

 

Corps of Engineers   12

EPA                             18

Other federal              8 (DOT, DOI, Commerce, BLM, TVA, FERC and USFWS)

Private                         47

Municipalities             6

States                          6

Enviros                        1

 

The feds made up 39% of the defendants in 2017. If you combine the states and municipalities, 51% of the defendants were government agencies. This is actually less than 2016, when the feds alone made up 52% of the defendants in reported federal court CWA opinions. Overall, the numbers are roughly consistent with past trends showing that the environmental groups are going after the government as often as private parties.

 

Looking at the substantive issues addressed by the courts in the 2017 opinions, the issues very roughly break down as follows (the numbers don’t add up because some opinions addressed multiple issues and I didn’t included some opinions that merely dealt with procedural claims): 404 (21); Stormwater (16); NPDES (11 - includes discharges without a permit; does not include stormwater cases); WOTUS (7); TMDL (6); 401 cert. (5); Groundwater (5); OPA (3); 402(k) (2); Ag runoff (2); FOIA/308 (2); Antideg (1); Water transfer rule (1); Nonpoint Source (1).

 

Finally, this 2017 case just slipped in today on Westlaw. It highlights an old issue in industrial stormwater regulation: the SIC codes.

 

Sierra Club v. Con-Strux, LLC, 2017 WL 6734184 (E.D.N.Y. 2017) (dismissing case, held that defendant’s construction material recycling business was properly classified as SIC code 5032, which is not covered by the EPA industrial stormwater regulations; state determination that defendant’s facility was not covered by state stormwater regulations was not dispositive on issue of compliance with CWA)

September 27, 2017

Port of Portland v. Monsanto Co., 2017 WL 4236561 (D. Or. 2017) (Port is not precluded under state or federal law from recovering its CWA compliance costs related to PCB cleanup if the Port can show that costs are a reasonably foreseeable result of Monsanto’s conduct)

September 25, 2017

 

Here are four new cases from the past week, covering a host of CWA issues. The most interesting case is Orchard Hill Building. Plaintiffs there raised some creative arguments on prior converted cropland, but ultimately failed to convince the judge. This is a recurring theme when developers attempt to convert PCC to housing developments. In that case, the judge also adopted the Kennedy standard of jurisdiction with little analysis. 

 

Southern Appalachian Mountain Stewards v. Zinke, 2017 WL 4171391 (W.D. Va. 2017) (Dept. of Interior was arbitrary and capricious under SMCRA in not taking appropriate action after state concluded that no selenium violations were occurring at coal mine despite evidence in record that mine was contributing to chronic in-stream exceedences; state improperly shifted burden of 402(k) defense to plaintiffs by requiring them to show state had not considered selenium discharges when it issued old permit with no limits)

 

Darwin v. Int’l Boundary and Water Comm., 2017 WL 4161273 (D. Ariz. 2017) (affirming rule of magistrate judge, held that the USIBWC is a part owner of the 8.8-mile pipeline running across the border to the Nogales WWTP; there is no evidence that untreated wastewater is released through cracks in the pipe and there is no evidence that Nogales is at fault for discharges from the pipeline)

 

Orchard Hill Building Co. v. USACOE, 2017 WL 4150728 (N.D. Ill. 2017) (on summary judgment, held that plaintiffs’ challenge to Corps JD fails where wetlands, “alone or in combination with similarly situated wetlands in the area” had a significant impact on the physical, chemical and biological integrity of downstream waters; prior converted cropland exemption does not apply were farmland at issue was taken out of production in 1996, and the area had reverted to wetlands; rejected argument that wetlands existed only because of broken tile drain, and therefore were artificial wetlands; NRCS Swampbuster provisions do not apply to Corps’ interpretations of jurisdiction)

 

Northwest Environmental Advocates v. Dept. of Commerce, 2017 WL 4168251 (W.D. Wa. 2017) (on motions to dismiss in challenge to EPA approval of Washington state nonpoint source assistance grants, held that plaintiffs properly pled the redressability element of standing where plaintiffs alleged EPA failure to follow necessary procedure in approving the grants; NEWA’s claim that EPA failed to disapprove state’s nonpoint source program does not survive because the CWA only requires EPA to approve a program, not disapprove it; EPA failed to meet its burden to properly review states’ nonpoint source program before approving grants; state’s 2015 program update did not meet the standards of 319 program review; EPA improperly approved 319 grants where it failed to ensure that the state was making progress in implementing its nonpoint source programs)

September 19, 2017

 

Here are two new CWA cases from the past week. The Atlanta Gold case is interesting. It has been kicking around for some time. Historic mine adit discharges occur all around the country, but few are prosecuted. The difference here is that an operating mining company owns the claim and ostensibly has control over the hole in the ground it did not create, but which discharges pollutants on a daily basis. The CWA imposes strict liability on dischargers, which generally are those who own or operate the point source.

 

Idaho Conservation League v. Atlanta Gold Corp., 2017 WL 4099815 (D. Id. 2017) (mine operator held in contempt for failure to comply with prior court order instructing it to cease NPDES permit violations for arsenic and iron discharges from an historic adit on mine property to a tributary of the Boise River; $251,000 contempt penalty put in abeyance pending compliance with new injunction; additional $221,000 penalty assessed for arsenic permit limit exceedances; despite arguments that it was in precarious financial condition, no reduction for ability to pay where company holds $48 million in assets; court rejected arguments that geographic and technical limitations prevented defendant from complying)

 

United States v. Third Coast Towing, LLC, 2017 WL 4051766 (S.D. Miss. 2017) (on motion for summary judgment, held that defendant is liable for the costs of an oil spill cleanup under OPA because it was an operator of the oil barge it was towing at the time of a navigational error that caused it to strike a bridge and spill; rejected argument that because the barge belonged to a third party the tug owner was not the operator of the barge)

September 12, 2017

 

WOTUS litigation will keep the legal community in the black for years. This latest iteration is a good example of the endless litigation spurred by the uncertainty over what waters are covered by the CWA. In Chico Scrap (summary below), the court has delayed trial pending the outcome of the Ninth Circuit appeal in United States v. Robertson, appeal no. 16-30178.

 

The Robertson case was argued August 29. The video of the argument is worth watching if you follow WOTUS issues. Appellant’s attorney got only one question from the panel, and the judges appeared uninterested in his evidentiary arguments. But Judge Gould lit up on the issue of fair notice when the government’s lawyer argued. Gould asked several times whether we can send a man to jail when the standard for what is a WOTUS is so confusing. If the courts struggle with the Marks analysis, the panel wanted to know, how is a person working in a creek supposed to know what test applies to determine what is covered by the CWA. Is Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007), cert. denied, 552 U.S. 1180 (2008), still good law in light of the Ninth Circuit's subsequent en banc ruling addressing Marks in United States v. Davis, 825 F.3d 1014 (2016)? In Healdsburg, the Court adopted the Kennedy significant nexus test from Rapanos with little Marks analysis. I suspect the Court will uphold the conviction, but it will be interesting to see what they do with Healdsburg. The Circuit Courts are divided over whether the Kennedy concurring decision in Rapanos alone applies or whether one can use either Kennedy or Scalia’s plurality opinion from Rapanos.

 

California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., 2017 WL 3868398 (E.D. Cal. 2017) (granting motion to continue trial, held that stay is warranted pending appeal in Ninth Circuit of United States v. Robertson because delay would be short and the appeal could conceivably overrule Healdsburg and clarify the definition of navigable waters, which is a central issue in Chico)

 

Here’s my summary of the underlying district court case in Robertson from 2015.

 

United States v. Robertson, 2015 WL 7720480 (D. Mt. 2015) (denying motion to dismiss for lack of jurisdiction, held that the government proffered sufficient evidence at trial to convict defendant of unlawfully discharging pollutants from his mining operation into waters of the United States; the tributary and its adjacent wetlands into which defendant discharged had a significant nexus to traditional navigable waters)

 

Here is a link to the Robertson oral argument video: https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012065.

Here is the government's response brief in Robertson

August 29, 2017

 

WOTUS. The EPA and the Corps have announced a series of ten listening sessions regarding the proposed new WOTUS rule. Nine of the ten will be largely for industry groups and municapilities, and one will be for the general public.  See https://www.epa.gov/wotus-rule/outreach-meetings.

 

Two of today’s new CWA cases deal with the pervasive issue of wetlands (Delaware Riverkeeper and Center for Biological Diversity v. BLM), and the third decision in Pitroff deals with the preemptive effect of the EPA consent decree on a subsequent citizen suit.

 

Delaware Riverkeeper Network v. USACOE, ___ F.3d ___, 2017 3611780 (3d Cir. 2017) (petitioner did not waive its right to challenge Corps permit for gas pipeline where it did not raise the underlying issues in the related FERC licensing proceedings, but did generally in the context of the Corps 404 permit; Corps properly considered alternatives when permitting fill related to pipeline construction and it did not adopt an irrationally narrow definition of the project purpose; Corps was not arbitrary and capricious in rejecting “compression” alternative because of negative environmental effects of that alternative)

 

Pitroff v. United States, 2017 WL 3614436 (D.N.H. 2017) (on motion to dismiss in case challenging adequacy of city’s WWTP upgrades, held that citizen suit is barred where EPA had entered into a consent decree with the city requiring it to upgrade its plant, and EPA was therefore diligently prosecuting the case; court deferred to EPA’s interpretation that upgrade was adequate; plaintiffs did not identify a nondiscretionary duty under § 505(a)(2) that EPA was allegedly not pursuing)

 

Center for Biological Diversity v. BLM, 2017 WL3667700 (in challenge to NEPA analysis by BLM on water transfer project, held that NEPA requires BLM to analyze whether the project will comply with the CWA, even before the Corps has received a 404 permit application; it was unreasonable for BLM to proceed without considering how the wetlands losses would be mitigated)

August 22, 2017

 

The EPA and the Corps today announced in the Federal Register that they are extending the deadline to file comments on the proposed withdrawal of the Clean Water Rule (aka the WOTUS rule) to September 27, 2017. See 82 Fed. Reg. 39712 (August 22, 2017). This is a somewhat surprising development given how quickly EPA and the Corps have been moving to repeal the existing, but stayed, rule. Among the 2,144 comments received to date, several commenters asked for an extension of time. Commenters requesting an extension included the expected environmental groups, as well as one submission by 80 members of Congress. Some of the requests for extension of time can be found here: https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&s=extension&dct=PS&D=EPA-HQ-OW-2017-0203

 

The Constitution Pipeline case below out of the Second Circuit is worth a read if you are a 401 cert. officionado or are involved in the pipeline business. Judging from the list of counsel in the case, there was a lot of serious fire power involved in the briefing on this case.

 

Constitution Pipeline Co., LLC v. N.Y. State DEC, ___ F.3d ___, 2017 WL 3568086 (denying pipeline owner’s petition challenging NYSDEC denial of 401 certification of pipeline project; held that D.C. Cir. was proper venue under the Natural Gas Act to challenge timeliness of state’s denial of 401 cert.; the state was not arbitrary and capricious in denying 401 cert. where pipeline owner refused to provide relevant information despite repeated requests from the state)

 

Kleinman v. City of Austin, 2017 WL 3585792 (W.D. Tex. 2017) (denying cross motions for summary judgment in case alleging unauthorized discharges of sediment from a construction site, held that plaintiff had standing where the debris in the river impacted his view from his house, that no injury is necessary in addition to aesthetic injury, that evidence supported allegation that runoff from construction site impacted the river, and that redressability argument does not fail because it is imperfect; defendant’s violations were ongoing where sediment continued to discharge after the termination of the CGP; no statute of limitations violation where project ended in 2012 but sediment continued to wash out until at least 2015; the 404(f) maintenance exemption does not apply to construction on a ditch where the fill material washing out of the site and depositing downstream is not “for the purpose” of maintenance; no 402(k) defense where CGP was expired and MS4 permit was not applicable; sand, dirt and gravel are pollutants; questions of fact preclude summary judgment for plaintiff where it was not clear whether city’s activities caused the discharge or merely failed to stop an inevitable and natural process)

August 16, 2017

 

The Foster case is worth a read if you’re interested in wetlands/jurisdiction issues or 309(a) orders. The court goes into the weeds on the facts of the case. The Crouse article, cited below, is a nice summary of the 402(k) issue in OVEC v. Fola Coal Co., 845 F.3d 133 (4th Cir. 2017), which I covered in my January 6, 2017 Blog. Finally, I recommend David McGimpsey’s The Water Values Podcast, http://thewatervalues.com/, for all things water-related. McGimpsey does a great job interviewing experts who are active in all aspects of water rights and water quality.

 

Foster v. EPA, 2017 WL 3485049 (S.D.W.V. 2017) (triable issues of fact preclude summary judgment where contradictory evidence was presented whether filled streams on plaintiffs’ property were an RPW or had a significant nexus to downstream waters; fill material is a pollutant; bulldozers, dump trucks and other earthmoving equipment are point sources; EPA was not arbitrary and capricious in issuing 309(a) order because the administrative record supported a finding of an RPW even though it did not support finding of significant nexus; EPA properly assumed lead agency status over Corps under the EPA/Corps MOU, which is not enforceable by third parties; evidence did not support plaintiffs’ claim of retaliation or of a violation of plaintiffs’ First Amendment rights; plaintiffs’ procedural due process rights argument fails because evidence does not show how EPA deprived plaintiffs of a substantial property interest by issuance of the 309(a) order) 

 

Duarte Nursery, Inc. v. USACOE, 2017 WL 3453206 (E.D. Ca. 2017) (on motion in limine, excluded plaintiff’s supplemental expert wetland reports that focused on new hydrology after normal and wet rain seasons (the original reports were prepared during a drought), because they were filed as new rather than supplemental reports after the close of discovery)

 

Pacific Coast Federation of Fisherman’s Associations v. Murillo, 2017 WL 3421910 (E.D. Ca. 2017) (denying motion for reconsideration, held that complaint did not adequately set out allegations to support argument in summary judgment motion that water seeping into the drain from adjacent non-irrigated lands accumulated in the drain as toxic sediment and was then released downstream)

 

Douglas J. Crouse, “A Dent in the Clean Water Act’s Permit Shield,” 32 Nat. Res. & Env’t (ABA), No. 1 at 54 (Summer 2017)

August 9, 2017

 

Following the bouncing ball. This past week generated yet another case addressing whether discharges to hydrologically connected groundwater are jurisdictional under the CWA. See TVA case below. There have already been five decisions on this question in 2017 alone (three affirming jurisdiction and two finding none). As I have written in the past, there needs to be more uniformity on this important issue. Not only do the courts frequently reach different results, they often use conflicting legal theories to reach those results. 

 

A tip of the hat to the lawyers defending Duke Energy for creatively attempting an end run on a citizen suit. And another tip to the plaintiff’s lawyers in that case for convincing the judge that Duke Energy was forum shopping.

 

Clean Water Action v. Searles Auto Recycling, Corp., 2017 WL 3388162 (D. Mass. 2017) (denying motion to dismiss, held that plaintiff’s allegations, if true, would establish that defendant’s violations of its stormwater permit were ongoing; plaintiffs have standing where evidence showed that members of the groups recreated in the receiving waters and that witnesses had observed pollution coming off of the site and entering the water)

 

Suncoast Waterkeeper v. City of Gulfport, 2017 WL 3328398 (M.D. Fla. 2017) (on motion to strike, held that there is no act of God defense under the CWA; defendant’s liability under CWA is strict, so whether other persons are partly responsible for the pollution is irrelevant; laches does not fail as a matter of law in the 11th Cir.; there is no right to indemnification or contribution under section 309(d))

 

Tennessee Clean Water Network v. TVA, 2017 WL 3476069 (M.D. Tenn. 2017) (after bench trial, held that discharges from TVA’s coal ash ponds via groundwater to adjacent river were unauthorized and therefore violated the CWA; TVA ordered to move the ash piles “to a lined site that offers reasonable assurances that it will not discharge waste into [WOTUS];” rejected 401(k) defense where record did not show that seeps were considered as part of the permitting process; discharges to surfaces waters via groundwater are actionable under the CWA; ash ponds are a point source; no evidence presented at trial supported dismissing claims on basis of diligent prosecution by state; no penalty assessed where harm to river was not quantified and TVA will be forced to spend large sums of money on remediation of the site)

 

Duke Energy Progress, LLC v. Roanoke River Basin Assoc., 2017 WL 3326970 (W.D. Va. 2017) (dismissing declaratory judgment action filed by Duke Energy two days before RRBA could file its complaint in the M.D.N.C. alleging CWA violations by Duke in that District; held that that proper venue is in M.D.N.C. where RRBA was required to file its complaint asserting violations of the CWA, and Duke Energy’s declaratory judgment action addressed the same violations; held that Duke was forum shopping, so court should exercise its discretion to decline to hear the declaratory judgment action)

August 4, 2017

 

With the exception of the NRDC v. EPA case, these new cases are from May 2017, as I dig into my backlog of CWA case digesting. If you enjoy reading judicial diatribes against EPA, you’ll like the OVEC v. Pruitt case. This case may be an outlier, but it may also signal the judiciary’s reception of the current administration’s deference to state’s rights. “Conflicting state law cannot dilute or nullify these federally imposed minimum requirements. The Court is bewildered by EPA’s peculiar commitment to the supremacy of a state law that arguably might not even preclude WVDEP from complying with the CWA.” It will be interesting to watch how the courts react over the next few years to the Pruitt EPA’s effort to give greater deference to the states.

 

NRDC v. EPA, 2017 WL 3215346 (N.D. Ca. 2017) (denying EPA motion to stay, held that doctrine of primary jurisdiction does not dictate stay of plaintiff’s challenge to EPA’s alleged nondiscretionary duty to review new state water quality standards pending EPA review of the standards)

 

OVEC v. Fola Coal Co., LLC, 2017 WL 2312478 (S.D.W.V. 2017) (after trial, held that plaintiffs proved by preponderance of evidence that coal company violated narrative water quality standards for ionic pollution in discharges from its coal mining operations, and those violations had a significant impact on the aquatic ecosystems)

 

Environmental Integrity Project v. EPA, ___ F.3d ___, 2017 WL 2324136 (D.C. 2017) (EPA under FOIA appropriately withheld records it collected from power plants under section 308 of the CWA because 308 does not expressly supersede FOIA exemption 4 for “commercial of financial information”)

 

Flint Riverkeeper, Inc. v. Southern Mills, Inc., 2017 WL 2059659 (M.D. Ga. 2017) (denying motion to dismiss, held that allegations in the complaint that defendant’s land application area for process wastewater was discharging on the surface and via groundwater to surface waters was sufficient to state a cause of action under the CWA; rejected argument that discharges to surface waters via groundwater are not covered by CWA; rejected argument that land app area is not a point source; rejected argument that defendant’s stormwater NPDES permit authorized contested discharges where permit specifically does not apply to discharges of process wastewater; rejected Burford abstention doctrine argument that state land app permit regulated discharges; compliance with a state land app permit “is no defense to a CWA suit.”)

 

Zdziebloski v. Town of East Greenbush, 2017 WL 1968672 (N.D.N.Y. 2017) (held that plaintiff’s pond, which had no outlet and for which evidence of overflowing into nearby river was scant, is not a WOTUS because it fails both the Scalia and the Kennedy standard set out in Rapanos; plaintiff’s expert theory that pond was hydrologically connected via groundwater did not meet evidentiary standards of admissibility where he had reliable evidence upon which to base his opinion)

 

Plump v. Graham, 2017 WL 1862140 (D. Ariz. 2017) (on motion for summary judgment, held that Corps was not arbitrary and capricious in issuing an NWP 3 for reconstruction of a levy in the Colorado River where new levy was approximately the same size and in approximately the same location as the prior levy; court rejected plaintiff’s arguments that new levy must exactly comply with old levy’s dimensions to qualify for an NWP 3)

 

Ohio v. USACOE, 2017 WL 1788646 (N.D. Oh. 2017) (on motion for summary judgment, held that Corps was arbitrary and capricious in its determination that PCB-contaminated sediment dredged from a river channel could be deposited in Lake Erie without violating 404(b)(1) guidelines; Corps could not independently ignore state’s water quality certification requirement that the dredged spoils be deposited in a confined disposal facility)

 

OVEC v. Pruitt, 2017 WL 1712527 (S.D.W.V. 2017) (denying motion for stay of ruling pending appeal, rejected numerous EPA arguments attacking underlying order that EPA had a duty to promulgate TMDLs in W. Virginia where state law prohibited it from producing TMDLs for biological impairment until new methodology was created; court found that EPA did not have “any chance of success on appeal”)

 

Center for Envt’l Law and Policy v. USFWS, 2017 WL 1731706 (E.D. Wash. 2017) (granting plaintiff’s motion for permanent injunction, held that where fish hatchery had been discharging without a permit for more than a decade, but could not stop discharging and still meet its congressionally-mandated duties, it must begin monitoring its effluent immediately and must comply with the nutrient limits of the TMDL within two years)

 

OVEC v. Fola Coal Company, LLC, 2017 WL 1712525 (S.D.W.V. 2017) (awarding full $525,485 in interim attorney fees requested by plaintiffs for claims they prevailed on; court disallowed some costs as not reasonable)

 

Suncoast Waterkeeper v. City of Gulport, 2017 WL 1632984 (M.D. Fla. 2017) (denying motion to dismiss, held that plaintiff had standing where they sufficiently pled causation between defendant’s SSOs and plaintiffs’ members’ impaired enjoyment of local water bodies)

 

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