August 26, 2009
In a move that signals increased enforcement efforts for stormwater violations, the Environmental Protection Agency (EPA) Region 2 recently issued an order requiring the Village of Port Chester, NY, to comply with the stormwater requirements of the Clean Water Act, due to elevated bacteria levels revealed by sampling. The order comes shortly after Region 2 issued fines for stormwater violations amounting totaling $100,000 to two companies involved in non-compliant construction activities. In addition, enforcement efforts in EPA’s Region 1 offices are ramping up; nine municipalities in Massachusetts and New Hampshire were recently issued violations by EPA’s New England offices for violating the Municipal Separate Storm Sewer System (MS4) requirements, with maximum potential fines ranging from $40,000 to $70,000.
Relatively new stormwater regulations—known as Phase II regulations for MS4s—required certain small regulated municipalities to develop and implement stormwater management plans by 2008. Generally enforcement of these requirements takes place at the state level, but EPA retains certain authority to undertake direct enforcement. Recently, EPA warned the states on lax Clean Water Act enforcement.
Under Phase II regulations, municipalities must implement “minimum control measures,” to demonstrate compliance, including: (1) public education and outreach, (2) public participation/involvement, (3) illicit discharge detection and elimination, (4) construction site runoff control, (5) post-construction runoff control, and (6) pollution prevention/good housekeeping. Failure to implement these measures effectively will create a risk of enforcement and penalties.
EPA’s willingness to impose penalties on municipalities in Massachusetts and New Hampshire, as well as the significant penalty imposed by Region 2 on noncompliant construction activities, signals that EPA is committed to serious enforcement against stormwater violations. Federal enforcement may in turn spark additional attention and enforcement from state-level authorities. Municipalities covered by the MS4 regulations and entities engaged in construction activities are on notice that they need to comply with all stormwater regulations, including Phase II MS4 requirements.
July 7, 2009
In recent weeks, EPA has increased pressure on states to improve their enforcement of the Clean Water Act’s permitting programs, potentially indicating a new environmental priority for the Obama Administration. Clean Water Act permitting is administered largely through programs undertaken pursuant to authority delegated by EPA to the states, including New York, with traditionally limited direct federal involvement.
In a July 2 memo, however, EPA Administration Lisa Jackson warned, “[t]he level of significant non-compliance with permitting requirements is unacceptably high and the level of enforcement activity is unacceptably low … We must make sure that strong and effective action is taken when serious violations of law threaten water quality, and we must boost EPA’s enforcement presence against serious violators.”
Following that memo, EPA has posted new data on the status of states’ Clean Water Act enforcement online, along with reports assessing the effectiveness of these delegated programs. New York had the second largest total number of non-compliant major facilities in 2008 (276), and its major facility non-compliance rate (82%) was higher than the national average (55%). Many of these violations were technical, however, and the rate of significant non-compliance for major New York facilities (19.5%) was lower than average (24.4%).
Under the Clean Water Act, EPA retains the authority to withdraw a state’s permitting authority “where the state’s enforcement program fails to comply with” federal requirements. 40 C.F.R. § 123.63. While federal revocation is a rare and extreme step, and Jackson’s memo recognized the critical state role in Clean Water Act permitting, EPA’s increased attention may spur some states to step up their own enforcement efforts.
June 24, 2009
On Monday, June 22, 2009, the Supreme Court, in Coeur Alaska Inc. v. Southeast Alaska Co., 2009 WL 1738643 (2009), held that the Army Corps of Engineers (the “Army Corps”) has authority to issue a permit for the discharge of mined rock slurry from a gold mine into an Alaskan lake as fill material under Section 404 of the Clean Water Act (“CWA”), and that the Environmental Protection Agency (“EPA”) is not required to regulate the mined rock as a pollutant under Section 402 of the CWA.
In 2005, the Army Corps. issued a permit to Coeur Alaska Inc. (“Coeur”) with respect to reopening the Kensington Gold Mine, north of Juneau, Alaska. Couer’s plans included use of a “froth flotation” technique that churns mined rock in tanks of water, causing gold-bearing materials to float to the surface. Once the gold is skimmed off the top, a mixture of crushed rock and water is left behind. This mixture, known as slurry, is typically disposed of in tailing ponds. Coeur proposed an alternative disposal method that would involve pumping 4.5 million tons of slurry into Lower Salt Lake and then discharging purified lake water into a downstream creek. The Army Corps approved of Coeur’s plan and issued a fill permit under Section 404 of the Clean Water Act.
Environmental groups challenged the permit by arguing that EPA, and not the Army Corps, had authority to issue the permit. The environmental groups claimed that the Army Corps permit violated the CWA’s new source performance standards (“NSPS”) which prohibit the “discharge of process wastewater to navigable waters from mills that use the froth-flotation process” for mining gold. 40 CFR §440.104(b)(1). The U.S. District Court of Alaska found for the Army Corp by holding that the permit was properly issued under the CWA. The Ninth Circuit Court of Appeals reversed and blocked the permit, holding that the discharge was “prohibited by clearly applicable and specific performance standards.” 486 F.3d 638 (9th Cir. 2007).
In a 6-3 decision, the Supreme Court found that the agencies’ permitting authority under the CWA was mutually exclusive, with the Army Corps’ authority extending over permits for the discharge of “dredged or fill material” and the EPA’s authority applying to permits for the discharge of “any pollutant,” except where the permit is for the disposal of fill material. Consequently, the Court established that the Army Corps had sole authority to issue permits to discharge slurry because slurry is a type of “fill material.” Both agencies define “fill material” as material changing the bottom elevation of water and “discharge of fill material” to include “placement of … slurry, or tailings or similar related materials.” 40 CFR § 232.2.
The dissent touted the CWA’s “text, structure, and purpose” as a mandate to adhere to EPA’s pollution-control requirements. It argued that the pollution-control mandate was intended to be read throughout the CWA and adherence to the mandate was one of the main reasons the EPA and not the Army Corps, should have jurisdiction over the permit process to dispose of slurry.
June 19, 2009
Yesterday, the Senate Environment and Public Works Committee passed legislation clarifying the scope of the Clean Water Act, restoring federal jurisdiction over wetlands regardless of their connection to navigable waterways. The bill would overturn two recent Supreme Court decisions, Solid Waste Agency of North Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”) and Rapanos v. United States, 547 U.S. 715 (2006) (“Rapanos”), which had limited federal wetlands protections and sown conflicts among lower federal courts.
Section 404 of the Clean Water Act regulates the discharge of dredged or fill material into “navigable waters,” defined as “the waters of the United States, including the territorial seas.” The Environmental Protection Agency and Army Corps of Engineers, which issues wetlands fill permits, had historically interpreted “navigable waters” to cover a broad range of lakes, rivers, streams, and wetlands that were not navigable in fact – limited by the constraints of the Constitution’s Commerce Clause. In SWANCC, however, the Supreme Court suggested that the Clean Water Act covers only those wetlands with a “significant nexus” to waters that were actually navigable, rejecting the Army Corps’ more expansive interpretation. A divided Supreme Court further muddied the waters in Rapanos, with the plurality opinion limiting Clean Water Act jurisdiction to wetlands with a surface connection to navigable waterways or seasonal tributaries, and a key concurrence by Justice Kennedy retaining SWANCC’s significant nexus test.
Appellate courts have struggled to reconcile Rapanos’s multiple standards, and earlier this year the Obama administration called on Congress to clarify the Clean Water Act’s scope. The Environment and Public Works Committee responded with a bill that replaces the phase “navigable waters” with “waters of the United States” and “reaffirms Federal Jurisdiction over all waters of the United States, as the [Clean Water Act] was applied and interpreted” prior to SWANCC and Rapanos.” An amendment by Sen. Max Baucus (D-MT) at yesterday’s mark-up excludes “prior converted cropland” and “waste treatment systems,” including agricultural waste ponds and lagoons.
While the bill passed out of the Senate Committee 12-7, Sens. Jim Inhofe (R-OK) and Mike Crapo (R-ID) have already announced their plans to put a hold on it, meaning 60 votes would be needed to bring the legislation to a floor vote.
May 26, 2009
This morning, President Barack Obama announced his decision to nominate Second Circuit Court of Appeals Judge Sonia Sotomayor to fill the seat on the Supreme Court being vacated by Justice David Souter, who has announced his retirement. If confirmed, Sotomayor will represent an important vote on a variety of legal issues, including the scope and application of our nation’s environmental laws.
In 2007, Sotomayor authored the Second Circuit opinion in Riverkeeper v. EPA, holding that the Environmental Protection Agency could not rely on cost-benefit analysis in determining the “best available technology” required to minimize nuclear power plants’ cooling towers’ impacts on aquatic life. 475 F.3d 83 (2007). Riverkeeper arose under the Clean Water Act, but it follows a diverse line of cases on whether agencies can base environmental decisions on cost-benefit analysis when the underlying statute is silent. Last year, the Supreme Court reversed this opinion, with Justice Souter in the three-member dissent.
In US v. Giordano, a non-environmental case, Sotomayor rejected an attempt to limit Congress’s regulatory power under the Commerce Clause, holding that a national telephone network was an instrumentality of interstate commerce even if the calls in question occurred within a single state. 442 F.3d 30 (2006). In recent years, a number of federal environmental laws, including the application of the Clean Water Act to “isolated” wetlands and the use of the Endangered Species Act to protect purely intrastate species, have been challenged as exceeding Congress’ commerce powers, leading to a 2007 Supreme Court opinion that set forth a new test for federal wetlands protections. The Obama administration recently expressed support for legislative clarification of the scope of CWA jurisdiction.
If her opinions in Riverkeeper and Giordano are any guide, it is likely that Sotomayor, if confirmed, will bring to the Supreme Court a deference to Congressional determinations requiring environmental protection, even in the face of potentially high economic costs. She also may hold a relatively broad view of Congress’ interstate commerce authority, which may stymie further attempts to challenge environmental statutes on those grounds.
May 22, 2009
The Bureau of National Affairs is reporting that President Obama is supporting Congressional efforts to clarify Federal Clean Water Act (CWA) jurisdiction. The Democratic Congress is seeking to clarify, and likely broaden, the scope of the CWA in the face to two relatively recent U.S. Supreme Court decisions, including the 2006 Rapanos decision, Rapanos v. United States, 547 U.S. 715 (2006), that narrowed the universe of waterways and wetlands that had previously been thought subject to federal jurisdiction.
One proposal is to replace the plainly confusing reference to “navigable waters” in the CWA with the term “waters of the United States,” though any statutory revision would still have to pass muster under the U.S. Constitution by having some relationship to interstate commerce. The change, however, would likely eliminate the need to link waterways and, especially wetlands, with other “navigable” water bodies.
The Obama Administration’s letter to the key Congressional committees urged Congress to consider a number of general principles, including a goal of broadly protecting the nation’s waters and making the definition of covered waters predictable. There can be no arguing with either goal, especially the second one, because the recent Supreme Court decisions have been inconsistently interpreted by federal courts of appeals and have essentially paralyzed the U.S. Army Corps of Engineers, the agency charged with regulation of activities in regulated wetlands, as it seeks to develop coherent regulations identifying regulations subject to CWA jurisdiction.
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