Category Archives: EPA

CWR - WOTUS Decision Left to Sixth Circuit

11th Circuit: CWR decision belongs to 6th Circuit

The Eleventh Circuit Court of Appeals recently dealt a significant blow to opponents of the Obama administration’s controversial Clean Water Rule (CWR), which redefines the “waters of the United States” (WOTUS).  The three-judge panel sitting in Atlanta ordered that an appeal taken on behalf of a number of states, including Utah, would be put on hold pending a decision from the Sixth Circuit Court of Appeals in a case that made an identical challenge to the CWR.

Sixth Circuit Issues National Stay of CWR in Split Decision

The Sixth Circuit ordered a nationwide stay of the CWR last year in In re EPA, while it determined whether it had jurisdiction to hear the case.  In February, the Sixth Circuit decided that it, and not a lower federal district court, had jurisdiction over the case.  in a splintered decision, two of the three judges deciding the jurisdiction question concluded that the Sixth Circuit had jurisdiction to hear challenges to the CWR under either 33 U.S.C § 1369(b)(1)(E) or (F).  While acknowledging that the WOTUS rule does not fit neatly into the categories for which § 1369 provides for circuit court jurisdiction, Judge David McKeague concluded that these provisions have been given expansive interpretations by the courts, sufficient to provide for jurisdiction.

A Strange Concurrence

Judge Richard Allen Griffin concurred in the result, even though he concluded that neither provision of § 1369 supplied the Sixth Circuit with jurisdiction to hear challenges to the CWR.  Nonetheless, Judge Griffin set forth that the Sixth Circuit was obligated to conclude that the court had jurisdiction under § 1369(b)(1)(F) pursuant to the ruling in National Council of America v. U.S. EPA.  In National Council of America, the Sixth Circuit held that it had jurisdiction over any regulation “governing” permits.  According to Griffin, while there would be no jurisdiction under a “plain text reading” of the statute, he concluded he was “constrained by our court’s precedent holding that ‘issuing or denying any permit’ means more than just that.”

Senior Judge Damon J. Keith dissented from Judge McKeague’s majority opinion, claiming that the relevant portions of the CWA do not provide for jurisdiction to challenge the WOTUS rule in a circuit court, and that the National Cotton Council decision should not be read so broadly as to provide for jurisdiction here.

Georgia Federal Court Determines Jurisdiction Rests With Court of Appeals

While the Sixth Circuit has decided it can hear a challenge to the CWR, other opponents of the CWR filed a similar case against the CWR in federal court in the Southern District of Georgia on June 30, 2015.  In that case, the plaintiffs made much the same contentions as those in the Sixth Circuit case—namely that the CWR was invalid and that the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) should be enjoined from enforcing the rule.  On August 27, 2015, the Georgia federal court denied the plaintiffs’ motion to enjoin enforcement of the CWR, concluding that 33 U.S.C. § 1369(b)(1) gives courts of appeals exclusive original jurisdiction over challenges to the rule.  Plaintiffs appealed the court’s ruling to the Eleventh Circuit in Atlanta.

Eleventh Circuit Asks Parties to File Supplemental Briefing in Light of Sixth Circuit’s Decision

After the Sixth Circuit determined that it had jurisdiction over challenges to the CWA, the Eleventh Circuit asked the parties to brief:

1) whether this appeal is moot in light of the Sixth Circuit’s nationwide stay of enforcement of the Clean Water Rule in In re EPA I;

2) whether we should stay any further proceedings in this case while the In re EPA I stay order remains in effect;

3) whether we should hold this appeal in abeyance pending the Sixth Circuit’s decision concerning the validity of the rule;

4) whether we are bound by the Sixth Circuit’s determination in In re EPA II that courts of appeals have exclusive original jurisdiction over challenges to the rule;

5) whether the determination of jurisdiction in In re EPA II has preclusive effect on that issue in this appeal; and

6) if not, what persuasive weight we should give to In re EPA II.

Eleventh Circuit Leaves CWR Determination Up to Sixth Circuit

Following oral argument on the aforementioned issues, the Eleventh Circuit issued an opinion declining to hear the merits of the appellant’s case, instead deferring to any ruling on the merits from the Sixth Circuit.  According to the Eleventh Circuit, it would be a “colossal waste of judicial resources” for it to get involved in the ongoing legal challenge to the rule.  Citing the general rule against “duplicative litigation,” the Eleventh Circuit said:

If there were an exhibition hall for prudential restraint on the exercise of judicial authority, this case could be an exemplar in the duplicative litigation wing. The case before us and the case before the Sixth Circuit involve the same parties on each side, the same jurisdictional and merits issues, and the same requested relief … It would be a colossal waste of judicial resources for both this Court and the Sixth Circuit to undertake to decide the same issues about the same rule presented by the same parties.

All Eyes on the Sixth Circuit

Given the Eleventh Circuit’s decision to defer to the Sixth Circuit, all eyes are on the Sixth Circuit and its impending decision on the merits of the challenge to the CWR.  Petitioners’ initial substantive briefs on the merits are due September 30, 2016, respondent agencies’ brief is due November 30, 2016, and replies are due January 20, 2017 (Inauguration Day).   The court has ordered the parties to submit a joint appendix of documents from the administrative record for the court’s consideration by February 3, 2017.  The Sixth Circuit will then schedule oral argument.  The extended schedule reflects the complexity of the litigation and while the current Administration will file the respondents’ brief, the next Administration will argue the cause.

U.S. Chamber and Others Ask Tenth Circuit to Revive Challenge to CWR

In addition to the Sixth Circuit and Eleventh Circuit cases over the CWR, The U.S. Chamber, along with the National Federation of Independent Business, Portland Cement Association, State Chamber of Oklahoma, and Tulsa Regional Chamber, filed their own appeal at the Tenth Circuit Court of Appeals, asking the Tenth Circuit to reverse the U.S. District Court for the Northern District of Oklahoma’s decision to dismiss the case.

In their opening brief, the appellants argued to the Tenth Circuit that it has an independent obligation to determine its jurisdiction.  Additionally, to the extent the district court deferred to the Sixth Circuit, the appellants argued the district court erred because the CWA’s text and the established default rule under the Administrative Procedure Act (APA) clearly indicate that the district court has original jurisdiction over the WOTUS rule, as none of the CWA’s limited exceptions providing for original jurisdiction in the courts of appeals apply in this case.  Finally, appellants argued that the agencies’ policy-based reading of the CWA finds no support in Supreme Court or Tenth Circuit precedent, much less in the plain text of the CWA.  The Tenth Circuit has not yet ruled on the question of jurisdiction before it.

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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

U.S. Sixth Circuit Court of Appeals

Clean Water Rule Challenges to be heard by Sixth Circuit

Recently we reported on the stay issued by the Sixth Circuit Court of Appeals to the Clean Water Rule.  The Clean Water Rule was challenged by a number of plaintiffs in various federal district courts and circuit courts around the country.  The plaintiffs filed petitions in both the district and circuit courts based upon what they allege is uncertainty about whether the adoption of the Clean Water Rule is within those actions that must be challenged in a U.S. Circuit Court of Appeals.  After issuing a stay of the Clean Water Rule, the Sixth Circuit Court of Appeals ruled in late February that it would hear challenges to the Rule.

The Clean Water Rule and its Challengers

In June 2015, the Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“USACE”) proposed the Clean Water Rule, which redefined what bodies of water qualify as “waters of the United States” under the Clean Water Act (“CWA”).  The Clean Water Rule’s detractors say the Rule improperly gives the EPA and USACE broad new authority under the CWA, and that federal district courts should first hear the case, not the Sixth Circuit.

A central question before the Sixth Circuit has been whether the federal government was correct in asserting that the Clean Water Rule is an “other limitation,” meaning a limitation on the way the EPA regulates certain pollutant discharges, under section 509(b)(1)(E) of the CWA.

Sixth Circuit Holds it has Jurisdiction Over Challenges to Clean Water Rule

In a close 2-1 panel decision, the Sixth Circuit stated that it had jurisdiction to hear the case.  This is true despite the fact that Sixth Circuit Judges Richard Griffin and Damon J. Keith actually found the Clean Water Rule does not fit into that provision’s parameters, saying they would not review the case on that basis.  Even still, Judge Griffin agreed with Judge David W. McKeague that Section 509(b)(1)(F) of the act, which addresses the issuance or denial of permits, grants the Sixth Circuit jurisdiction.

The groups opposing the Sixth Circuit’s review said that section (F) did not justify jurisdiction in the Sixth Circuit because the Clean Water Rule is not an “action” of the EPA administrator “in issuing a permit.”  Judge McKeague disagreed, siding instead with the EPA’s argument that the effect of the Clean Water Rule is to impact permitting requirements, thereby affecting the granting and denying of permits, which the judge said is enough to bring the Clean Water Rule under subsection (F).

Sixth Circuit Relied on National Cotton Decision in Concluding it has Jurisdiction

Judge McKeague and Judge Griffin relied on the Sixth Circuit’s 2009 ruling in National Cotton Council v. EPA in coming to their conclusion.  In National Cotton, numerous groups challenged a rule that exempted from the CWA’s permitting requirements pesticides applied in accordance with federal law.  The environmental groups that challenged the rule argued that jurisdiction lied in federal court, where the groups had filed an action in the Northern District of California.  The Sixth Circuit disagreed, denying the groups’ motion to dismiss.

In denying the motion, the Sixth Circuit concluded that the rule at issue satisfied subsection 509(b)(1)(F).  In relying on two decisions from the Ninth Circuit, the Sixth Circuit found that a rule falls within the purview of subsection (F) if it regulates the underlying permitting procedures, even if it does not amount to the actual denial of the permit.

In his opinion Judge McKeague said, “The National Cotton court noted that this more expansive reading of subsection (F) encompassed even regulations that exempted certain discharges from permitting requirements.”  Judge Griffin said he disagreed with the National Cotton decision, but was nonetheless bound by it.  Judge Keith disagreed that the National Cotton case gave the Sixth Circuit jurisdiction to hear challenges to the Clean Water Rule.

Sixth Circuit’s Jurisdictional Ruling Comes on Heels of Previous Stay of the Clean Water Rule

As noted the Sixth Circuit’s decision regarding its jurisdiction to hear challenges to the Clean Water Rule was preceded by a stay of the Rule.  There, the Sixth Circuit said the petitioners who opposed the Rule had demonstrated “a substantial possibility of success” on the merits of their claims.  The stay order says the rule is stayed “pending further order of the court,” so it appears the stay will remain in effect even after the court’s jurisdictional ruling, which didn’t make any statement that it would be lifted.

The Sixth Circuit’s jurisdictional decision keeps the EPA from having to litigate approximately 20 different cases in federal district court, no doubt a big relief for the EPA.  This is true because the U.S. Panel on Multidistrict Litigation denied the EPA’s request to have the cases centralized in one court on the grounds that the disputes are based on administrative record and require very little discovery.

Similar Case in the Eleventh Circuit Waited to Hear What Sixth Circuit had to Say

While the Sixth Circuit has determined that it has jurisdiction over challenges to the Clean Water Rule, there is another similar case pending in the Eleventh Circuit in which Florida and 10 other states, including Utah, are seeking to overturn a Georgia district judge’s finding that an appeals court is the proper venue for their challenge to the Clean Water Rule.  In Georgia v. McCarthy, the states argued that federal district courts are the proper place to challenge the Clean Water Rule.  The Eleventh Circuit postponed oral arguments in the case pending a ruling from the Sixth Circuit.

Since the Sixth Circuit has ruled that they had jurisdiction, it is likely the Eleventh Circuit will rule it has jurisdiction as well.  However, this does not mean the end for the battle over the Clean Water Rule.  In fact, it would appear that the fight is just beginning.  Yet, if the Sixth Circuit’s hint in issuing its stay is correct, namely that the petitioners had shown a possibility of success on the merits, then the Clean Water Rule may be in jeopardy.

Contact C/J’s Water Law Team Today

We will continue to follow this case, and will provide any updates as they become available.  If you or someone you know may be impacted by the Clean Water Rule, its stay, any future litigation, or if you have other water law related issues, please contact our water law team for a consultation.

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National WQS updated under EPA final rule

In august 2015, the administrator of the Environmental Protection Agency (“EPA”) signed a final rule updating six significant areas of the federal water quality standards, or WQS for short, regulation, which assists the EPA in implementing the Clean Water Act (“CWA”).  According to the EPA:

The final revisions provide a better-defined pathway for state and authorized tribes to improve water quality, protect high quality waters, increase transparency and enhance opportunities for meaningful public engagement at the state, tribal and local levels.

EPA Final Rule Requires that Every State Adopt WQS

Under the CWA, every state must adopt WQS in order to protect, maintain and improve the quality of the nation’s surface waters.  WQS set forth the parameters for any body of water deemed to be “Waters of the United States” by designating the body of water’s uses, setting water quality criteria to protect those uses, and establishing antidegradation policies to protect high quality waters from degrading pollutants.  Additionally, WQS utilize a process of back calculation procedures known as total maximum daily loads, or wasteload allocations, to form the basis of water quality-based permit limitations that regulate the discharge of pollutants into US waters under the National Pollutant Discharge Elimination System (“NPDES”) permit program.

Prior to the new final rule, the previous WQS regulation had been in place since 1983.  The EPA added tribal provisions to the WQS regulation in 1991, the “Alaska rule” provisions in 2000, and the BEACH Act rule provisions in 2004.

EPA Final Rules Addresses Six Areas Regarding WQS

As initially proposed in 2013, the final rule addresses the following key program areas:

  • the EPA Administrator’s determinations that new or revised water quality standards are necessary
  • designated use for water bodies
  • triennial reviews of state and tribal WQS
  • antidegradation requirements
  • WQS variances
  • Provisions authorizing the use of schedules of compliance for water quality-based effluent limits (“WQBELS”) in NPDES permits

EPA Administrator’s Determinations

As it relates to the first program area, the EPA’s final rule amends the former regulation to add a requirement that an Administrator’s Determination must be signed by the Administrator (or duly authorized delegate) and include a statement that the document is an Administrator’s determination for purposes of section 303(c)(4)(B) of the CWA.  The EPA’s goal in addressing an Administrator’s determination is to allow the EPA and states/tribes to communicate directly and specifically on areas where WQS improvements should be considered and establish a more transparent process for the Administrator to announce determinations under section 303(c)(4)(B) of the CWA.

Desginated Use

The second program area addressed by the final rule relates to designated use for water bodies.  There, the EPA amended the former regulation to provide that where a state/tribe removes or revises a use specified in CWA section 102(a)(2) or a subcategory of such a use that is not attainable, the highest attainable use (“HAU”) shall be adopted in its place.  The final rule also amended the former regulation to clarify when a use attainability analysis (“UAA”) is and is not needed.  The final rules defines the term “non-101(a)(2) use” and amends the former regulation to clarify that for such uses while a UAA is not required, the state/tribe must submit documentation justifying how its consideration of the use and value of water for those uses listed appropriately supports the state/tribal action.  The EPA’s goal in including this amended language in the final rule is to provide clear requirements and ensure appropriate WQS are in place to help restore and maintain robust aquatic ecosystems and promote resilience to emerging water quality stressors.

Triennial Reviews

The third program area addressed by the final rule relates to triennial reviews.  Under that portion of the rule, the EPA amended the former regulation to clarify the “applicable water quality standards” that must be reviewed triennially.  The final rule also requires that if a state/tribe chooses not to adopt new or revised criteria for any parameters for which EPA has published new or updated criteria recommendations under the CWA, then they must explain their decision when reporting the results of their triennial review to the EPA.  The EPA’s goal in requiring states/tribes to explain their decision not to adopt new or revised criteria is to ensure public transparency and clarify existing requirements, so that states/tribes update WQS when necessary and consider the latest science as reflected in the CWA recommendations.


The fourth program area addressed in the EPA’s final rule relates to antidegradation.  The amended regulation now states that states/tribes:

  • may identify high quality waters on either a parameter-by-parameter approach, or on a waterbody-by-waterbody approach that does not exclude water bodies from Tier 2 protection solely because water quality does not exceed levels necessary to support all of the CWA section 101(a)(2) uses. When using the water body approach, states/tribes must involve the public in any decision pertaining to when to provide Tier 2 protection, and the factors considered in such decisions.
  • must evaluate a range of practicable alternatives that would prevent or lessen the degradation associated with the proposed activity. When the analysis of alternative identifies one or more practicable alternatives, the state/tribe must only find that the lowering is necessary if one of those alternatives is selected for implementation.
  • must provide an opportunity for public involvement during the development and any subsequent revisions of antidegradation implementation methods (whether or not those methods are adopted into rule), and to make the methods available to the public.

The EPA’s goal as it relates to the antidegradation amendments is to promote public transparency and enhance antidegradation implementation through clearer requirements and expectations.

WQS Variances

The second to last amendment made to the WQS regulations centers around WQS variances.  The EPA amended the former regulation to add a section that provides a comprehensive regulatory structure for and explicitly authorize the use of WQS variances.  The final rule clarifies:

  • that a WQS variance is a water quality standard subject to EPA review and approval or disapproval.
  • how WQS variances relate to other CWA programs and specifies the information that the state/tribe must adopt in any WQS variance, and/or the water body or waterbody segments to which the WQS variance applies, and a quantifiable expression of the highest attainable condition.
  • that states/tribes must submit to EPA supporting documentation that demonstrates why the WQS variance is needed and justifies the term and interim requirements.
  • that states/tribes must reevaluate WQS variances longer than five years on an established schedule with public involvement.

The goal of the WQS variance amendments is to promote the appropriate use of WQS variances when applicable WQS are not attainable in the near-term but may be attainable in the future, and provide regulatory certainty to states, tribes, the regulated community, stakeholders, and the public in making progress toward attaining designated uses and criteria that protect such uses.

Schedules of Compliance

Finally, the new rule includes provisions authorizing the use of permit-based compliance schedules.  There, the EPA’s final rule adds a section to the former regulation to clarify that a permitting authority may only issue compliance schedules for water quality-based effluent limitations in NPDES permits if the state/tribe has authorized the use of such compliance schedules in their WQS or implementing regulations.  The EPA’s goal in adding this language is to clearly articulate in regulation what must be done for states/tribes to be able to utilize permit compliance schedules, and ensure public transparency on state/tribal decisions to allow permit compliance schedules.

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Peer review legislation does not comply with Clean Water Act, EPA says

EPA-building-signThe Environmental Protection Agency (“EPA”) recently sent a letter to Utah’s Division of Water Quality, which noted that the proposed legislation to make the division’s actions subject to an independent peer review did not comply with the Clean Water Act (“CWA”).  The letter warned that, if the bill was passed without changes, then the federal government might step in to manage water in the state of Utah.

The bill at issue, SB 110, entitled Water Quality Amendments, seeks to establish an “independent peer review process for challenges made to proposals from the Division of Water Quality.”

Initiating the Peer Review Process

Specifically, the proposed legislation requires that the director of the Division of Water Quality “initiate an independent peer review” when: 1) a party “challenges in writing a study or the technical or scientific data upon which a proposal is based and requests an independent peer review”; 2) “if the independent peer review is related to examining a technology based nutrient effluent limit, the challenging party provides written notice to the division requesting an independent peer review before the technology based nutrient effluent limit is adopted into a permit issued by the division”; 3) if the independent peer review is not related to examining a technology based nutrient effluent limit, the challenging party provides written notice to the division requesting an independent peer review related to a proposal before the proposal has been adopted by the division or the board”; 4) the challenging party agrees to provide the funding to pay for the independent peer review; and 5) the challenging party would be substantially impacted by the adoption of the proposal.

Furthermore, under SB 110, the director of the Division of Water Quality must ensure that the peer review is completed within one year, and that the panel conducting the peer review must have a “minimum of three experts … who are mutually agreeable to both the division and the challenging party.”  The panel shall allow for public comment and govern its review process according to the EPA’s Peer Review Handbook.  Finally, an independent review panel must issue a final written report detailing the findings of each panel member, and which is supported by a majority of the panel.

EPA’s Concerns Over the CWA

While reluctant to get involved in state legislative proceedings, the EPA said in its letter that SB 110 raised concerns that the proposed peer review rule did not meet the CWA’s requirements for public participation.  The letter reminded Utah lawmakers that “[s]ection 303(c) of the CWA requires states to ‘hold public hearings for the purposes of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards.’”  The EPA has said that SB 110’s requirement of written report from the independent peer review panel does not go far enough because it does not appear under the proposed legislation that the report will be made available to the public.

The EPA’s letter also said that SB 110, as drafted, violates section 402(b)(3) of the CWA because it limits public input into subsequent permitting decisions, while allowing only Utah Pollutant Discharge Elimination System (“UPDES”) permittees to challenge such proposals.  The EPA says specifically that paragraphs 7 and 8 limit public participation, and that, “[i]f these statutory effects occur outside the State’s standard permit process, S.B. 110 effectively ensures that the public is excluded from significant permit decisions without an opportunity for public comment or a public hearing in direct contravention of [section] 402(b)(3).”

Apart from the public participation issue, the EPA also said the proposed legislation would improperly exempt UPDES permittees from compliance from applicable technology based effluent limitations (“TBELS”) limits that are mandatory under the CWA.  According to the EPA, “In sum, it appears that S.B. 110 is not consistent with certain requirements of the [CWA] relating to water quality and standards, and may undermine the basis for Utah’s authorized UPDES program.”

Utah Audubon Council Speaks Out

In an article reported by the Salt Lake Tribune, Steve Erickson, a policy advocate for the Utah Audubon Council, said:

The peer review process can’t be the back door to trump the public process.  It can’t be used to trump permitting.  …  Everyone wants good science to be used; that’s not really the crux of the matter.  It’s how the process plays.

SB 110 has gone through three iterations in the Utah State Legislature, and is currently in the Utah House of Representatives after receiving a favorable recommendation and vote from the Utah Senate.  The Utah House Natural Resources, Agriculture, and Environmental Committee has referred SB 110 to the House Rules Committee for prioritization.

Utah Division of WAter Quality Touts SB 110

Walt Baker, director of the Utah Division of Water Quality, has said that SB 110 is novel legislation, and that only two other states, Minnesota and California, have enacted peer review statutes, and Utah’s proposal “dwarfs” both states’ provisions. If the Legislature adopts the bill, he said, Utahns will have to wait and see just how its actual implementation works.  “This is landmark,” he said.  “In my [31 years of] experience … this will be the most foundational change in the water quality program.”

While it remains to be seen whether SB 110 will successfully navigate its way through the Utah House, and whether the EPA will be happy with its final iteration, one thing is clear: the EPA is not in favor of a peer review process that limits public participation and allows or certain exemptions in contravention of the WCA.  Compliance with the WCA is mandatory in the eyes of the EPA.

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Clean Water Act section 404(f) “interpretive rule” withdrawn after NMPF objects

National-Milk-Producers-Federation-logo-ApprovedIn response to objections raised by the National Milk Producers Federation, the Environmental Protection Agency (“EPA”) has withdrawn an interpretive rule regarding when farmers must seek Clean Water Act permits for a laundry list of farming activities taking place near wetlands.  The rule specifically stated that farmers were only exempt from needing to obtain Clean Water Act permits for certain farming practices if they complied with the National Resources Conservation Service (“NRCS”) technical conservation standards.

The EPA’s withdrawal of the rule came after the National Milk Producers Federation (“NMPF”) requested that the rule be withdrawn.  In a letter to the EPA, NMPF complained that “neither the proposed rule defining waters of the United States nor the interpretive rule explaining the availability of an exemption from dredge and fill permitting requirements for producers who install certain conservation practices according to NCRS standards meets the test of effectively protecting water quality.”

According to NMPF, under the interpretive rule, “producers may qualify for section 404 exemption by implementing one of 56 conservation practices included on a list published by the EPA in conformance with NCRS technical standards.”  Thus, the “[t]echnical standards produced by NCRS now form the foundation for the only [interpretive rule] published on how to gain a 404 exemption for normal farming practices,” NMPF said.  However, prior to the release of the interpretive rule, “404 exemptions were granted without reference to the NCRS technical standards.”

As an example of how the new interpretive rule would impact farmers, NMPF cited the practice of harvesting hay.  There, NMPF said that after the interpretive rule “a producer apparently can only gain a 404 exemption by following” a certain NCRS conservation practice standard.  The NCRS standard is approximately four pages long “contains criteria for timing of harvest (no compromising plant vigor and stand longevity); for mandatory recommendations for optimum moisture content and levels as well as methods and techniques to monitor and/or determine moisture content and levels; for length of cut as well as the converse for stubble height; for a bar on contaminants.”  As a result of the NCRS standards, farmers will be required to follow the NCRS standards or they run the major risk of failing to qualify for a 404 exemption.

In conclusion, NMPF stated:

NMPF and its members are committed to protecting U.S. waterways through voluntary efforts and regulatory compliance with the Clean Water Act, and we appreciate consideration of these important comments. We believe that our members will be adversely affected by the IR and that the IR will have the perverse impact of harming the longstanding trust and cooperative relationship between dairy producers and NRCS. Consequently, water quality improvements will be adversely impacted. For the reasons stated above, water quality will be better served if the IR is withdrawn and the agencies’ policy on establishing eligibility for the 404 exemption is reformulated with the benefit of more stakeholder engagement. NMPF and its members are very willing to work with the agencies and other stakeholders in this regard to ensure our mutual goal of attaining and maintaining water quality in our nation’s waters.

In a statement, a VP for NMPF said, “Our concern with the initial proposal from last year is that it could have altered the long-standing and productive relationship between farmers and the USDA’s Natural Resources Conservation Service in a way that would have made it harder for farmers to implement water conservation measures.”  Had the interpretive rule not been withdrawn, NMPF said that “the NRCS would have been thrust into the role of enforcer, rather than remaining a source from which farmers could seek conservation advice.”

2016 EPA Water Law

EPA issues final Clean Water Rule, but Sixth Circuit stays rule pending further determination

EPA Water Rule 2016In the spring of 2015, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“USACE”) released the final Clean Water Rule in order “to clearly protect from pollution and degredation the streams and wetlands that form the foundation of the nation’s water resources.”  According to the EPA’s news release:

The rule ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry. The rule is grounded in law and the latest science, and is shaped by public input. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.

Up and until the EPA and the USACE acted to pass the final Clean Water Rule, “[p]rotection for many of the nation’s streams and wetlands [had] been confusing, complex, and time consuming as the result of Supreme Court decisions in 2001 and 2006.”  Accordingly, the EPA and USACE took action to release the final Clean Water Rule “to provide clarity on protections under the Clean Water Act after receiving requests for over a decade from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists, and the public for a rulemaking.”

At the outset, it is very important to understand what the new Clean Water Rule does and does not do.  First, the rule clearly defines and protects tributaries that impact the health of downstream waters.  “The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection,” and “[t]he rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.”

Second, the rule provides certainty in how far safeguards extend to nearby waters.  “The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters,” and “[t]he rule sets boundaries on covering nearby waters for the first time that are physical and measurable.”

Third, the rule provides protection for the nation’s regional water treasures.  Specifically, “[t]he rule protects prairie potholes, Carolian and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.”

Fourth, the rule focuses on streams, not ditches.  “The rule limits protection to ditches that are constructed out of streams or function like streams an can carry pollution downstream.”  Thus, ditches that are not constructed in streams and only flow after a rainstorm are not protected under the rule.

Fifth, the rule maintains the status of waters within Municipal Separate Storm Sewer Systems and encourages the use of green infrastructure.  Finally, the rule reduces the use of case specific analysis of waters.  Before the release of the new rule, “almost any water could be put through a lengthy case-specific, even if it would not be subject to the Clean Water Act.”  Now, “[t]he rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.”

In terms of what the Clean Water Rule does not do, the EPA and the U.S. Army corps of Engineers has said the rule does not: 1) protect any types of waters that have not historically been covered by the Clean Water Act; 2) add any new requirements for agriculture; 3) interfere with or change private property rights; 4) regulate most ditches; 5) change policy on irrigation or water transfers; 6) address land use; 7) cover erosional features such as gullies, rills and non-wetland swales; and 8) include groundwater, shallow subsurface flow and tile drains.

As it relates specifically to agriculture, “[t]he final rules recognizes the vital role that U.S. agriculture serves in providing food, fuel, and fiber at home and around the world.”  As a result, “[a]ctivites like planting, harvesting, and moving livestock have long been exempt from Clean Water Act regulation, and the Clean Water Rule doesn’t change that.”  Instead, “[t]he Clean Water Rules provides greater clarity and certainty to farmer and does not add economic burden on agriculture.”

Following the release of the Clean Water Rule, the EPA Administrator Gina McCArthy and the Army (Civil Works) issued a joint memorandum to their respective staffs instructing the agencies to work together to improve implementation of the national Clean Water Act section 404 program.  The joint memorandum was issued to help “improve transparency, strengthen the coordination processes between the agencies, increase public participation, promote the use of the best available science and technical data for making case-specific significant nexus determinations, and promote public health and environmental protection for all Americans who depend on reliable and abundant sources of clean water.”

However, in October 2015, the Sixth Circuit Court of Appeals issued a stay of the Clean Water Rule nationwide, until federal courts could review the rule.  Eighteen states have challenged the validity of the Clean Water Rule.  These states contend that the rule expands the agencies’ regulatory jurisdiction and alters the balance of federal/state collaboration.  Furthermore, the states argue that the rule, which seeks to define “significant nexus to navigable waters,” is inconsistent with the law as defined by the United States Supreme Court. In response, the EPA contends that the states did not make a requisite showing to justify a stay.

The Sixth Circuit ultimately concluded that the states had demonstrated a substantial possibility of success on the merits of their claims.  The states took issue with the way the rule was promulgated administratively.  Initially, the proposed Clean Water Rule did not include distance limitations in its treatment of “adjacent waters,” and waters having a “significant nexus,” as was provided in the final rule.  Therefore, the proposed Clean Water Rule was not a logical outgrowth of the final rule, as required by 5 U.S.C. §553.  Second, the Sixth Circuit concluded that the irreparable harm factor was not determinative for each side.  Neither the states would be harmed by the rules continued application, nor was there any indication that the nation’s waters would be harmed without it.  Finally, and more importantly, the Sixth Circuit noted the nationwide burden on private parties and government bodies—state and federal—implicated by the Clean Water Rule’s effective redrawing of jurisdictional lines.

Then, in January 2016, President Obama vetoed Joint Resolution 22, a congressional resolution that would have overturned the EPA’s Clean Water Rule.  Thus, for now, the Sixth Circuit’s stay remains in force pending a determination regarding the Sixth Circuit’s jurisdiction over challenges to the rule.   Currently, the U.S. Supreme Court in, United States Army Corps of Engineers v. Hawkes Co., Inc., is set to determine whether the United States Army Corps of Engineers’ determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, constitutes “final agency action for which there is no other adequate remedy in a court,” and is therefore subject to judicial review under the Administrative Procedure Act.