Monthly Archives: May 2016

Chesapeake Bay Total Maximum Daily Load

Total Maximum Daily Load upheld

In December 2010, the Environmental Protection Agency (“EPA”) established the Chesapeake Bay Total Maximum Daily Load.  The Chesapeake Bay Total Maximum Daily Load was established as a “pollution diet” of sorts, which imposed “rigorous accountability measures to initiate sweeping actions to restore clean water in the Chesapeake Bay and the region’s streams, creeks and rivers,” according to the EPA.

The Chesapeake Bay Total Maximum Daily Load

The EPA has said that “[d]espite extensive restoration efforts and significant pollution reductions during the past 25 years, the [Total Maximum Daily Load] was prompted by insufficient progress and continued poor water quality in the Chesapeake Bay and its tidal tributaries.”  The Total Maximum Daily Load is required by the Clean Water Act (“CWA”) and responds to consent decrees in Virginia and the District of Columbia from the late 1990s.  The Total Maximum Daily Load is also part of President Obama’s overarching plan to restore Chesapeake Bay.

The Total Maximum Daily Load identifies the necessary pollution reductions of nitrogen, phosphorous, and sediment across the states of Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia and sets limits on the amount of pollution in Chesapeake Bay that is acceptable under applicable water quality standards.  Specifically, the Total Daily Maximum Load sets the pollution limits for the aforementioned elements and sediments as follows: 1) nitrogen is limited to 185.9 million pounds per year (25% reduction in nitrogen); 2) phosphorous is limited to 12.5 million pounds per year (24% reduction in phosphorous); and 3) sediment is limited to 6.45 billion pounds per year (20% reduction in sediment).  “These pollution limits are further divided by jurisdiction and major river basin based on state-of-the-art modeling tools, extensive monitoring data, peer-reviewed science and close interaction with jurisdiction partners,” the EPA says.

The EPA says the Total Maximum Daily Load was:

[D]esigned to ensure that all pollution control measures needed to fully restore the Bay and its tidal rivers are in place by 2025, with at least 60 percent of the actions completed by 2017. The [Total Maximum Daily Load] is supported by rigorous accountability measures to ensure cleanup commitments are met, including short-and long-term benchmarks, a tracking and accountability system for jurisdiction activities, and federal contingency actions that can be employed if necessary to spur progress.

As part of devising the Total Maximum Daily Load, the six Chesapeake Bay States and the District of Columbia submitted Watershed Implementation Plans (WIPs), “which detail how and when the six Bay states and the District of Columbia will meet pollution allocations.”  After states submitted the draft WIPs, the EPA worked closely with each jurisdiction to revise and strengthen its WIP.  Because of this cooperative work and state leadership, the final WIPs were significantly improved.  As a result, the final Total Maximum Daily Load “is shaped in large part by the jurisdictions’ plans to reduce pollution.”

Trade Association Members Sue, Claiming Total Maximum Daily Load Exceeded EPA’s Scope of Authority

In the time after the Total Maximum Daily Load was established, several trade associations with members that would be affected by the implementation of the Total Daily Maximum Load, including the American Farm Bureau Federation, the National Association of Home Builders, and other organizations for agricultural industries that include fertilizer, corn, pork, and poultry operations, sued the EPA.  These groups claimed:

[A]ll aspects of the [Total Maximum Daily Load] that go beyond an allowable sum of pollutants (i.e., the most nitrogen, phosphorous, and sediment the Bay can safely absorb per day) exceeded the scope of the EPA’s authority to regulate, largely because the agency may intrude on states’ traditional role in regulating land use.

In Am. Farm Bureau Fed’n v. United States EPA, the plaintiffs sought to challenge the Total Maximum Daily Load on several grounds, including that the EPA overstepped its statutory authority in drafting the Chesapeake Bay Total Maximum Daily Load when the agency (1) included in the Total Maximum Daily Load allocations of permissible levels of nitrogen, phosphorous, and sediment among different kinds of sources of these pollutants, (2) promulgated target dates for reducing discharges to the level the Total Maximum Daily Load envisions, and (3) obtained assurance from the seven affected states that they would fulfill the Total Maximum Daily Load’s objectives.

Third Circuit’s Analysis Guided by Chevron (Step One and Step Two)

After determining that the plaintiffs had standing and their claims were ripe, the court addressed the merits of the parties’ dispute.  There, the court set forth that its consideration was guided by the holding in Chevron v. NRDC, which first requires (“Step One”) the court to inquire “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”  If, on the other hand, the statute is ambiguous, then the court moves to “Step Two,” which “does not ask whether it is the best possible interpretation of Congress’s ambiguous language. Instead, the court extends considerable deference to the agency and inquires only whether it made a reasonable policy choice in reaching its interpretation.”

Third Circuit Found CWA’s Total Maximum Daily Load Ambiguous

After analyzing several considerations regarding Step One, the Third Circuit concluded:

“Total” is susceptible to multiple meanings. Interpreting “total maximum daily load” as requiring one number and nothing more is in tight tension with the Clean Water Act’s goal of providing a cooperative framework for states and the federal Government to work together to eliminate water pollution. The Act’s structure supports that [Total Maximum Daily Loads] need to account for point and nonpoint sources, but the Act is silent on how to account for those sources. It is also silent on (1) whether the EPA in calculating a [Total Maximum Daily Load] may consider and express the time frames within which it and the states will strive to achieve water quality standards and (2) the extent to which the EPA may consider and express whether a state will meet the goals it sets (the “reasonable assurance” requirement). Last, the APA prefers overt rather than covert reasoning by agencies. For these reasons, we conclude that the phrase “total maximum daily load” is ambiguous enough to allow the EPA to include the elements of the [Total Maximum Daily Load] challenged here.

Even Though Ambiguous, Third Circuit Said EPA’s Interpretation Was “Reasonable”

Having found that the Total Maximum Daily Load portions of the CWA were ambiguous, the court turned to Step Two.  The Third Circuit found that the plaintiffs’ reading of the statute:

[W]ould stymie the EPA’s ability to coordinate among all the competing possible uses of the resources that affect the Bay. At best, it would shift the burden of meeting water quality standards to point source polluters, but regulating them alone would not result in a clean Bay.  As the Supreme Court has admonished in the water-pollution context, “We cannot, in these circumstances, conclude that Congress has given authority inadequate to achieve with reasonable effectiveness the purposes for which it has acted.”  Establishing a comprehensive, watershed-wide [Total Maximum Daily Load]—complete with allocations among different kinds of sources, a timetable, and reasonable assurance that it will actually be implemented—is reasonable and reflects a legitimate policy choice by the agency in administering a less-than-clear statute.  Therefore we uphold these decisions at Chevron Step Two.

Third Circuit Recognizes the Massive Undertaking of the Chesapeake Bay Total Maximum Daily Load

In conclusion, the Third Circuit admitted that “[w]ater pollution in the Chesapeake Bay is a complex problem currently affecting at least 17,000,000 people (with more to come).”  Furthermore, the court noted that their decision made winners out of “environmental groups, the states that border the Bay, tourists, fishermen, municipal waste water treatment works, and urban centers,” but made losers out of “rural counties with farming operations, nonpoint source polluters, the agricultural industry, and those states that would prefer a lighter touch from the EPA.”  However, the Third Circuit said that “Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution.”  Finally, the Third Circuit noted that the Chesapeake Bay Total Maximum Daily Load will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay—to make it once again a part of our “land of living,” Robert Frost, The Gift Outright line 10—a goal our elected representatives have repeatedly endorsed.”

Commitment to “Cooperative Federalism” Key to Third Circuit’s Decision

Key to the court’s decision was the Total Maximum Daily Load’s demonstrated commitment to cooperative federalism.  The Third Circuit dedicated nearly 20 pages of its 99-page opinion to reviewing the history of the Bay preservation efforts, which have spanned more than 30 years, been the subject of considerable litigation, and yielded numerous consent decrees, settlement agreements, and MOUs.  This history reveals consistent communication and cooperation between EPA and the states. Indeed, the Bay states asked EPA to set pollution levels for the entire watershed in 2007 and, as the court emphasized, “no state has filed suit challenging the [Total Maximum Daily Load].”  Because there was this cooperated effort to clean up the Bay, the court couldn’t see how the individual plaintiffs could complain.  Time will tell if the Total Maximum Daily Load will restore the Chesapeake Bay, but at least there will be the opportunity for restoring the Bay.

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Copyright 2016

"Pay-for-play" Peer Review Legislation

Peer review legislation at issue in EPA petition

In a previous posting, reported on concerns voiced by the Environmental Protection Agency (“EPA”) to the Utah Legislature over now-passed SB 110, titled “Water Quality Amendments,” which the EPA warned that SB 110’s peer review proposal violated the Clean Water Act (“CWA”).  In a letter to the Utah Legislature, the EPA noted that SB 110’s plan to subject Utah Division of Water Quality actions to an independent peer review did not comply with the CWA.  The letter further stated that if the law was passed without any changes, then the federal government might step in to manage water in Utah.

Peer Review Legislation Passes Despite EPA Warning

Despite a warning from the EPA, SB 110 was passed into law following the 2016 legislative session.  SB 110 “establishes an independent peer review process for challenges made to proposals from the Division of Water Quality; and establishes the requirements, including selecting the panel of independent experts,” among other things.

With the passage of SB 110, Utah became the third state – joining Minnesota and California – to pass legislation on scientific review of administrative rulemaking.  However, neither the legislation passed in Minnesota nor California, go nearly as far as SB 110.  Essentially, SB 110 allows challenges of “pretty much any activity, rule, standard or initiative” from the Division of Water Quality or the Water Quality Board, said Walt Baker, DWQ director.  “We’re breaking some ground here that has not been broken before,” he said.

Peer Review Legislation Allows “Pay-for-Play” Rulemaking

The primary impact of SB 110 is that it allows stakeholders to pay to challenge the science behind water regulations proposed by the Division of Water Quality.  Once a decision is challenged, a three-person panel made up of scientists selected by both the challenging party and the Division of Water Quality determines whether the action is scientifically defensible.  If the panel determines that the action is not scientifically defensible, then the Division of Water Quality may not be allowed to proceed on its rule.

Leland Myers, Central Davis Sewer District manager and the chief spokesman for the coalition of water managers who drafted the original bill, heralded the plan as one that would benefit citizens and make state regulators more thorough in their science.

“The biggest benefit is that it allows for a review and makes everyone a little more cautious to make sure they follow good science,” he said. “I think the bar is set high enough that it won’t be used frivolously.”

As noted, an especially important portion of SB 110 requires that those challenging the Division of Water Quality action to pay all expenses associated with the peer review, which is estimated to cost approximately $65,000 per year.  This “pay-for-play” type rulemaking has created the most controversy, and has prompted some environmental groups to petition the EPA to block the “Water Quality Amendments.”

Environmental Groups Petition EPA Over Peer Review Legislation

Earlier this month, more than half a dozen environmental groups filed a petition asking the EPA to revoke Utah’s authority to administer portions of the CWA.  In their letter, the groups, headed by Friends of the Great Salt Lake, told the EPA that the passage of SB 110 directly undermines the ability of the Division of Water Quality to enforce the CWA by way of the new peer review system.  The letter argues that the law is a covert attempt to legalize “pay-for-play” rule-making, which the groups say impermissibly allows only those with deep pockets to challenge water quality decisions.

Rob Dubuc, an attorney with Western Resource Advocates, which is representing Friends of the Great Salt Lake, called the peer review statute unprecedented and offensive.

According to the petition, the statute violates federal law by creating potential scenarios where the peer review panel could trump federal mandates by restricting the public’s access to water-quality decisions and circumventing the judicial system.

EPA Can Overtake CWA Enforcment if DWQ is Unwilling or Unable to Fulfill Duties

The EPA authorizes the Division of Water Quality to oversee and enforce provisions of the CWA under what is essentially a contractual partnership.  In the event the EPA determines that the Division of Water Quality is unwilling or unable to fulfill its responsibilities, the EPA may revoke the Division of Water Quality’s administrative authority and take over the management of CWA programs in Utah — including the authority to issue water quality permits.

There are currently only four states that have not delegated authority under the CWA, Baker said, and one of those — Idaho — is currently seeking delegation.

Utah Lawmakers Warned of “Gaps” in Peer Review Legislation

Baker said he warned lawmakers during the session that the statute had some “gaps relative to public participation” that had drawn scrutiny from the EPA.  Baker said he hopes that the Division of Water Quality will be able to craft administrative rules to fill in the “holes” and appease both the EPA and the environmentalists.

Baker said he began drafting such rules while the statute was still being discussed, and has already shared them with some stakeholders.  Baker expects to introduce the rules to the state Board of Water Quality next month.

But Duboc said he is skeptical that administrative rules will be able to go far enough to remedy the “fundamental flaws” of SB 110.  The environmental groups he represents are not unhappy with the Division of Water Quality, Duboc said, and don’t necessarily believe the EPA would be any better at preserving Utah’s waters.

“No one wants EPA to come in and take over this program,” Duboc said. “EPA doesn’t want that, the state doesn’t want that, and we don’t necessarily want that, but this legislation backs us into a corner. … One way or the other, this peer review panel has to go away.  If that takes the EPA coming in and running the program, so be it.”

Unclear Whether Environmental Groups Would Accept Legislation Without “Pay-for-Play” Provision

While it is unclear whether the environmental groups would support the Division of Water Quality action challenge process without the pay-for-play provision, it is clear that as it stands currently, the “Water Quality Amendments” are not amenable.  The environmental groups’ petition raises the question whether it is fair to allow only those that can afford it can challenge water quality decisions, or if the legislation was passed to allow rich companies or other potential polluters to pay for scientific peer review of water quality actions.  The EPA has said that is has received the petition and is in the process of reviewing the petition. will continue to follow this story as it unfolds.

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Copyright 2016

Lake Powell Pipeline Route

Lake Powell Pipeline Project applies for federal approval

Utah State officials have filed a licensing application with the Federal Energy Regulatory Commission (“FERC”) over the proposed Lake Powell Pipeline Project.  A copy of the licensing application materials (docket number P-12966) is or will be published shortly on FERC’s website.

Licensing Application Comes After Public Comment Period

The licensing application comes on the heels of a recent public comment period and review of the project proposal, which public comments were included in the licensing application documents.  The licensing application also contains thousands of pages of approximately two dozen studies detailing the pipeline and its potential impacts, including from how the fresh water supply might drive the local economy to whether the pipeline itself might affect the natural environment.

A preliminary licensing proposal (“PLP”) was filed with FERC in early December 2015. There was a 90 day public review of the PLP, followed by a 60 day window for revisions after the PLP was submitted.  The finalized PLP is now part of Exhibit E within the License Application.  The PLP and draft study reports were updated during this period based on new available information, feedback from federal, state and regional agencies and input from the public.

“We received a lot of feedback on the (preliminary proposal), and we recognize the time and effort a lot of people and organizations put into it,” said Eric Millis, director of the Division of Water Resources. “We feel the license application is stronger as a result.”

Lake Powell Pipeline Project Established by LPPDA

In 2006, the Utah State Legislature passed what is known as the Lake Powell Pipeline Development Act (“LPPDA”).  The LPPDA authorized the building of a pipeline from Lake Powell to southwestern Utah in order to meet growing water demands.  The Lake Powell Pipeline, when completed, would pump 86,000 acre feet of water some 140 miles through a 69-inch diameter pipe and then up 2,000 feet up an over the mountains into the Sand Hollow Reservoir, thirteen miles west of St. George, Utah.

Currently, water supplies from the Colorado River are divided between the “upper basin” states of Colorado, Wyoming, New Mexico and Utah and the “lower basin” of California, with Arizona and Nevada receiving portions of water from each basin.  Under the Lake Powell Pipeline proposal, some of the aforementioned states may have to concede certain portions of their water supplies.

Utah State and Local Officials Say Lake Powell Pipeline is Necessary

Utah state and local water managers have argued that the already limited supplies offered by the Virgin River and its tributaries are likely to only become more limited because of climate change, and when coupled with exploding population in Southern Utah, make the Lake Powell Pipeline necessary.

The state is already about 10 years and $28 million worth of studies in the Lake Powell Pipeline Project.  State officials say that the project will be paid for by the exploding population and economic growth in Southern Utah.  The Lake Powell Pipeline is estimated to cost between $1.5 billion and $3.2 billion.

FERC’s Decision on the Licensing Application Could Take More than Two Years

Now that the licensing application is in the hands of FERC it is anticipated that FERC will manage an Environmental Impact Statement (“EIS”) process according to regulations outlined in the National Environmental Policy Act (“NEPA”), which allows for public input.  Multiple alignment and route alternatives will be evaluated, which could have a significant impact on the size, scope and cost of the potential project.  The EIS is anticipated to take at least two years from the time it is initiated to complete.

In addition to the federal licensing application, the Lake Powell Pipeline Project got a much-needed shot in the arm via recently passed legislation in the Utah State Legislature.  The legislation, titled the “Infrastructure Funding Amendments,” diverted approximately $35 million from a State transportation fund to water development.  While not aimed specifically at the Lake Powell Pipeline Project, both proponents and opponents of the project believe a majority of the diverted funds will be spent on the project.

Follow for Updates

While there appears to be greater financial backing for the Lake Powell Pipeline Project as a result of the passage of the “Infrastructure Funding Amendments,” as noted, it may take more than two years to know if the federal government will approve the project.  That means it will likely be well past 2020 by the time any final designs are in place and construction can begin.  C&J’s water law team will continue to follow the Lake Powell Pipeline Project, and we will provide updates as they become available.

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Copyright 2016