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 29, 2009
Mayor Michael Bloomberg has signed legislation creating a framework for the creation of a City-level “comprehensive wetlands protection strategy.” The efforts will focus on “gaps in existing State and federal wetlands protection laws,” and will commence with a satellite survey of existing wetlands in the City. According to the Mayor’s office, the measure, known as Introductory Number 506-A, will result in a wetlands strategy document by 2012, as part of the City’s PlaNYC efforts.
The measure defines wetlands generally as follows: “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.” 5 N.Y.C. Admin. C. § 24-528(2).
Notably, the City will be required to consider wetlands “smaller than 12.4 acres in size,” which may result in regulation extending beyond federal and state requirements. 5 N.Y.C. Admin. C. § 24-528(3)(c)(2). The final strategy is to include “appropriate legal requirements, management mechanisms, funding mechanisms, enforcement mechanisms and incentives to conserve, protect, enhance, restore, stabilize and expand wetlands and associated buffer areas in the city, whether publicly or privately owned.” 5 N.Y.C. Admin. C. § 24-528(3)(d)(3)(1).
In addition to Introductory Number 506-A, the Mayor also signed into law Local Law 83 of 2005, a measure seeking to protect city-owned wetlands (pdf).
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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