USACE jurisdictional determination reviewable

USACE Jurisdictional Determination Immediately Reviewable

USACE jurisdictional determination reviewable

In an 8-0 decision, the U.S. Supreme Court has ruled that landowners can challenge U.S. Army Corps of Engineers’ (“USACE”) jurisdictional determinations under the Clean Water Act (“CWA”).  In United States Army Corps of Engineers v. Hawkes, the eight-Justice Supreme Court concluded that a jurisdictional determination issued by the USACE under the CWA constitute “final agency action” under the Administrative Procedure Act (“APA”), which means those decisions can be immediately reviewed in court.

USACE Jurisdictional Determination Under the CWA

Hawkes involved a provision of the CWA that requires property owners to obtain a permit from the USACE before discharging dredged or fill material into waters covered by the CWA.  In some instances it is difficult to tell if a certain body of water falls within the CWA’s definition of “waters of the United States.”  As a result, the USACE offers landowners the opportunity to seek “jurisdictional determinations” under the CWA prior to undertaking the arduous permitting process.  According to the USACE, each jurisdictional determination is valid for five years, unless new information surfaces during that timeframe.

Lower District Court Dismisses Landowners’ Case

The plaintiffs/respondents in Hawkes were landowners who mine peat, a substance used to make putting greens flat.  These landowners sought a permit from the USACE to discharge material onto wetlands located on property that the landowners owned and hoped to mine.  In connection with the permitting process, the landowners obtained an approved jurisdictional determination from the USACE, which stated that the property contained “waters of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located approximately 120 miles away.  After exhausting their administrative remedies, the landowners sought review of the approved jurisdictional determination in federal court under the APA.  However, the federal district court dismissed the landowners’ case for want of jurisdiction, holding that the revised jurisdictional determination was not a “final agency action for which there is no other adequate remedy in a court.”

Eighth Circuit Reverses Lower District Court

On appeal at the Eighth Circuit Court of Appeals, the Eighth Circuit reversed the lower court’s decision, holding that the lower court had misapplied the U.S. Supreme Court’s decision in Sackett v. EPA.  In Sackett, the Supreme Court unanimously held that a “compliance order” issued under the act – an order reflecting a determination that a party is violating the act and requiring them to come into compliance – constituted final agency action, even though such orders are only enforced through a subsequent judicial proceeding.

While similar, the case in Hawkes differed from that in Sackett because it involved a different step in the administrative process.  Even still, the two cases centered on the same legal issue: whether the agency determination at issue constituted “final agency action” for purposes of the APA.

U.S. Supreme Court Holds that USACE Jurisdictional Determination is “Final Agency Action” for Purposes of APA

Against the above legal backdrop, the Supreme Court determined that USACE jurisdictional determinations constitute “final agency actions” for purposes of the APA, which means landowners are free to challenge such determinations immediately in court.  The Supreme Court followed a two-prong test for determining APA finality.  Both parties admitted that the first prong was met because a jurisdictional determination marks the consummation of the USACE’s decision-making process.  Thus, the remaining issue before the court was whether the USACE’s jurisdictional determination is an action “by which rights or obligations have been determined, or from which legal consequences will flow.”

In its briefing, the USACE characterized the jurisdictional determination as a form of non-binding advice that carries no legal consequences of its own.  Instead, the USACE argued that a jurisdictional determination only helps the parties understand the existing law.  Conversely, the landowners focused on the practical burdens imposed by the jurisdictional determination, which require that a party receiving an affirmative jurisdictional determination to stop using the property, seek a costly permit, or risk an enforcement action, in their opposition.  Additionally, both parties invited a broader consideration of the holding in Bennett v. Spear, arguing about whether the test described above really requires a two-prong analysis, and about the relevance of pragmatism to the Bennett analysis.

The Supreme Court ultimately concluded that the jurisdictional determination meets both of the Bennett analysis requirement.  In concluding that the jurisdictional requirement had legal consequence, the Supreme Court relied primarily on a Memorandum of Agreement (“MOA”) between the USACE and the Environmental Protection Agency (“EPA”).  While the MOA did not feature prominently in the parties opposing briefs, the Supreme Court took full aim at the MOA during oral argument.  The MOA states that “[f]inal determinations” made pursuant to the MOA “will be binding on the Government and represent the Government’s position in any subsequent Federal action or litigation concerning that final determination.”  By its language, the MOA seems to  establish a liability limit, or safe harbor, for the five-year validity period of a negative JD.  As a result, the MOA likely provides a concrete legal consequence that the case otherwise appears to lack.

However, the USACE argued that the MOA only applies to certain “special cases” defined in the MOA, and not to ordinary cases like the instant case.  During oral argument, Chief Justice Roberts resisted the USACE’s interpretation of the MOA under the MOA’s plain text.  The government’s position was further rejected in the Court’s final opinion.  The concurring opinions also discussed the MOA at length, given the fact that it is quite unusual to hinge a decision on a contested memorandum with little briefing.

Significance of Supreme Court’s Reliance on MOA

The Supreme Court’s reliance on the contested MOA is significant for two reasons.  First, the Court never addressed the possibility of deferring to the USACE’s interpretation of its own MOA.  Some might take the Court’s lack of discussion regarding deference to the USACE as another example of what has been perceived as anti-deference mood in recent Roberts Court opinions.

Second, if the Court’s determination turned solely on the MOA, then the landowners’ victory may be potentially short-lived.  During oral argument, the USACE stated that if it in fact had to lose the case, it preferred that it be via the MOA.  As the USACE’s lawyer explained, ““if the agencies wanted to fix it, they easily could, simply by issuing a new MOA clarifying their view of the – the [jurisdictional determination’s] effect.”

Questions Remain

The question left hanging by the Court’s decision is whether the opinion identifies any legal consequences of the jurisdictional determination beyond the MOA.  The best example that the opinion identifies legal consequences independent of the MOA is the Court’s discussion of the jurisdictional determination’s practical consequences.  There, the Court stated that the jurisdictional determination effectively “warns that if [property owners] discharge pollutants…without obtaining a permit…, they do so at the risk of significant criminal and civil penalties.”  However, does this sort of warning, alone, satisfy Burnett?  The Court’s opinion is unclear on this point.  Furthermore, to the extent the jurisdictional determination’s practical consequences constitute an independently cognizable legal effect, it has made the waters of the finality doctrine much murkier.

Hawkes Decision Already Impacting Other Cases

While the ink was still drying on the Supreme Court’s decision in Hawkes, the U.S. Supreme Court dealt another blow to the CWA.  Less than seven days after the Hawkes decision, the Court granted a Kent Recycling’s petition for rehearing in light of the Court’s ruling in Hawkes. A lower federal court will now have to review Kent Recycling’s case against the backdrop of Hawkes.

In Kent Recycling’s case, Kent Recycling planned on buying wetlands that were exempt from federal control since they were converted into croplands before 1985.  The company planned on turning the land into a waste disposal site, but the Army Corps of Engineers said it couldn’t, citing a recent policy getting rid of the old croplands exemption.  Kent Recycling sued the Corps, but lost in two lower courts, which held the Clean Water Act did not allow people to challenge a federal takeover of privately-owned wetlands until after a lengthy permitting process had been completed.

Hawkes May Open Litigation Floodgate, but USACE Might Have Something to Say About It

The Court’s decision in Hawkes represents a significant victory for landowners and other project proponents, who will now be able to immediately challenge an USACE jurisdictional determination.  Before both the Supreme Court’s and Eighth Circuit’s decisions in Hawkes, the prevailing precedent, Belle Co. v. U.S. Army Corps of Engineers, a Fifth Circuit opinion, reinforced the Army Corps’ view that jurisdictional determinations are not reviewable.

While challenging a USACE jurisdictional determination in court will not be without cost, it is likely that landowners will prefer the cost of litigation to the prohibitive costs associated with obtaining a USACE permit.  As the Supreme Court noted, the average applicant for an individual permit in 2002 spent 788 days and $271,596 to complete the application process.  That cost has likely increased in the intervening years and does not account for the cost of mitigation projects or design changes required as part of the permit.  Discharging without a permit may be an even less attractive option, as the CWA authorizes civil penalties of $37,500 per day and potential additional criminal penalties.

Finally, and perhaps most importantly, the Court’s decision in Hawkes will not doubt result in increased litigation over USACE jurisdictional determinations, whether those challenges come from landowners or the government.  Such challenges could, in turn, lead to further judicial definition of the CWA’s reach. The Supreme Court’s opinion in Hawkes suggests that at least several justices would be willing to revisit the Court’s previous opinions on CWA jurisdiction.

How the USACE will react to the decision is anybody’s guess, but as the USACE argued to the Supreme Court, the CWA does not require the USACE to issue standalone jurisdictional determinations. Thus, the Army Corps could potentially modify the timing of its jurisdictional determinations or even choose to not make them independent of permitting decisions. The Government also noted that it could modify or revoke the memorandum of understanding between the Army Corps and EPA that makes jurisdictional determinations binding on both agencies. If litigation of jurisdictional determinations proves burdensome for the agencies, they may choose to change how the jurisdictional determination process works in some way.

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Copyright 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

Resurrection Bay, Seward, Alaska

SCOTUS won’t hear 9th Cir. NPDES permit case

In June, 2015, the United States Supreme Court declined to review the Ninth Circuit Court of Appeals holding in Alaska Comm. Action on Toxics, et al. v. Aurora Energy Services.  The Supreme Court’s denial came after Aurora and the Alaska Railroad Corp. petitioned the Court for review, asking the Court to reverse the Ninth Circuit’s holding that they said improperly narrowed the Clean Water Act’s (“CWA”) permit shield to allow citizen suits over discharges of pollutants not specified in a NPDES permit.

NPDES Permits Under the CWA

By way of background, Section 301(a) of the CWA prohibits the “discharge of any pollutant” from “any point source” into “navigable waters” unless the discharge complies with certain other sections of the CWA.  One of those applicable sections is section 402, which provides for the issuance of National Pollutant Discharge Elimination System (“NPDES”) permits.  In nearly every case, an NPDES permit is required before anyone may lawfully discharge a pollutant from a point source into navigable waters.

If a pollutant discharger has obtained and complied with a NPDES permit, then they are protected by what is known as the permit shield.  The permit shield protects pollutant dischargers from liability under the CWA, even if the Environmental Protection Agency (“EPA”) promulgates more stringent limitations over the life of the NPDES permit.  However, any violation of the permit’s terms constitutes a violation of the CWA.

Pursuant to section 402, there are two types of NPDES permits: individual and general.  An individual NPDES permit authorizes a specific entity to discharge a pollutant in a specific place and is issued after an informal agency adjudication process.  By contrast, a general NPDES permit is issued for an entire class of hypothetical dischargers in a given geographical region and is issued pursuant to administrative rulemaking procedures.

Once a general NPDES permit has been issued, an entity seeking coverage must submit a “notice of intent” to discharge pursuant to the permit.  The date on which coverage commences depends on the terms of the particular general NPDES permit, and, in some cases, the permit issuer may require a potential discharger to apply for an individual permit.

Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity

As it relates to the Alaska Comm. Action case, a NPDES permit is required for stormwater discharges associated with industrial activity.  Under current EPA regulations, “stormwater” is defined as “storm water runoff, snow melt runoff, and surface runoff and drainage.”  “Storm water discharge associated with industrial activity” is defined as “the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.”

At issue in the Alaska Comm. Action case was the Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity, first issued in 1995 and since reissued in 2000 and 2008.  Specifically, the Ninth Circuit was asked to decide whether defendants’ alleged non-stormwater discharge of coal from the Steward Facility’s conveyor system and ship loading area into Resurrection Bay is covered by a general permit.

The Seward Coal Loading Facility is located on the northwest shore of Resurrection Bay in Seward, Alaska.  Defendant Alaska Railroad Corp. purchased the Seward Facility in 2003.  The facility has been operated by Defendant Aurora Energy Services since 2007.  The facility’s purpose is to receive coal by railcar from the Usibelli Coal mine located in close proximity to Healy, Alaska, and to then transfer that coal onto ships for delivery to out-of-state markets.

Plaintiffs’ Three Claims

The plaintiffs in this case claimed that defendants’ improperly discharged coal into the bay in three different ways: (1) coal falls into the Bay, either directly or as coal dust, during the over-water transfer of coal from the stockpiles to the ship holds; (2) coal dust generated at the stockpiles, and other land-based areas of the Facility, migrate to the Bay as airborne dust; and (3) coal-contaminated snow is intentionally plowed into the Bay and into a pond and wetlands north of the facility.

History of the Seward Facility General Permit

In 1984, the EPA issued the facility its original NPDES permit. In 1999, when it came time to renew their NPDES permit, the EPA advised the facility that its discharges could be regulated under either an individual permit or under the NPDES Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activities.  In 2001, the facility switched from its individual NPDES permit to the general permit.

In 2009, the facility renewed its general permit.  As a precondition to coverage under the general permit, the facility was required to have developed and implemented a Storm Water Pollution Prevention Plan.

In early February 2010, the EPA and the Alaska Department of Environmental Conservation (“DEC”) conducted a site inspection of the Seward Facility.  The purpose of the inspection was to “ensure that water quality standards and permit requirements [were] being met.”  A significant portion of the inspection report focuses on the coal that enters the Bay from the ship loader area and conveyer belt, and the coal dust the Facility generates.  No violations of the General Permit, the Prevention Plan, or water quality standards generally, were reported.  In August 2011, the Facility was inspected again. Again, no violations were reported.

Ninth Circuit Disagrees that Seward Facility Was Not in Violation of NPDES Permitting Requirements

However, in its opinion, the Ninth Circuit disagreed that the facility had not violated the parameters of the general permit, determining that: 1) the plain terms of the general permit prohibited defendants’ non-stormwater discharge of coal; 2) the court’s analysis was controlled by Part of the general permit, which prohibited the discharges; 3) the court would have reached the same conclusion had it employed the permit shield analysis that has been applied to individual permits; and 4) the district court erred in concluding that the general permit shielded defendants from liability for their non-stormwater coal discharges.

According to the Ninth Circuit:

The plain terms of the General Permit prohibit defendants’ non-stormwater discharge of coal. In Part, the General Permit states: “You must eliminate non-stormwater discharges not authorized by an NPDES permit. See Part 1.2.3 for a list of non-stormwater discharges authorized by this permit.” The referenced section (which is actually Part 1.1.3) lists eleven categories of non-stormwater discharge which are “the non-stormwater discharges authorized under this permit.” None of these categories cover defendants’ coal discharge.

The Ninth Circuit rejected the defendants’ arguments that the list contained in Part 1.1.3 was not meant “to circumscribe the universe of authorized non-stormwater discharges.”  There, the court said:

The section cited by defendants, for instance, governs Sector A, pertaining to timber products facilities. The Seward Facility is classified under Sector AD. This sector does not pertain to any particular industry, but rather is a catchall category for “facilities designated by the Director as needing a stormwater permit, and any discharges of stormwater associated with industrial activity that do not meet the description of an industrial activity covered by Sectors A-AC.” Unlike sections governing other sectors, the section governing Sector AD does not specify additional categories of non-stormwater discharge that are authorized or prohibited. With the possible exception of additional monitoring or reporting requirements that may be imposed, Sector AD facilities are governed only by the permit’s general provisions.

In sum, the court concluded, “Defendants’ non-stormwater coal discharges are not on this list, thus they are plainly prohibited.”

Ninth Circuit Would Have Reached Same Conclusion Under “Permit Shield” Analysis

Having determined that the general NPDES permit did not allow defendants’ coal discharges, the court stated that it would have reached the same result as if the court had employed the permit shield analysis used in the context of individual permits.  In the court’s view:

Under that analysis, a permittee is shielded from liability under the CWA if it (1) complies with the permit’s express terms, and (2) discharges pollutants that were disclosed to and within the reasonable contemplation of the permitting authority during the permitting process. Here, the express terms of the General Permit prohibit defendants’ non-stormwater coal discharges, thus defendants would not be shielded from liability. As our outcome would be the same regardless of whether Piney Run’s analysis applies to general permits, we need not decide whether it does.

Following the Ninth Circuit’s decision, the defendants appealed the decision to the United States Supreme Court.  However, as noted at the outset, the Supreme Court declined to hear their case.  The case will now proceed back to the lower district court for further proceedings.

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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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USACE Section 404 Permit

Section 404 violation undisclosed in Favero

Section 404 of the Clean Water Act (“CWA”) sets forth a program to regulate the discharge of dredged or fill material into the waters of the United States (“WOTUS”), including wetlands.  Section 404 regulates a number of activities in the WOTUS, including fill development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports) and mining projects.  Before dredged or fill material may be discharged into the WOTUS a permit must be obtained, unless the activity is exempt from Section 404 regulation.

Premise of the Section 404 Program

The Environmental Protection Agency (“EPA”) has said, “The basic premise of the program is that no discharge of dredged or fill material may be permitted if: (1) a practicable alternative exists that is less damaging to the aquatic environment or (2) the nation’s waters would be significantly degraded.”  This means that when a permit is applied for, the applicant “must first show that steps have been taken to avoid impact to wetlands, streams and other aquatic resources; that potential impacts have been minimized; and that compensation will be provided for all remaining unavoidable impacts,” the EPA has said.

Any proposed activities are regulated through a permit review process.  The EPA sets forth that “[a]n individual permit is required for significant impacts,” and that “[i]ndividual permits are reviewed by the U.S. Army Corps of Engineers [“USACE”], which evaluates applications under a public interest review, as well as the environmental criteria set forth in the CWA Section 404(b)(1) Guidelines.”

General Permit Process

The EPA has iterated that for most discharges of dredged or fill material that will only have “minimal adverse effects,” a “general permit” may suffice.  Those general permits are “issued on a nationwide, regional, or state basis for particular categories of activities.”  By way of the general permit process, individual review is limited while at the same time certain activities are allowed to proceed with little to no delay, so long as “the general or specific conditions for the general permit are met.”  For example, minor road activities, utility line backfill, and bedding are activities that can be considered for a general permit. States also have a role in Section 404 decisions, through State program general permitswater quality certification, or program assumption.”

Favero Farms, LC v. Baugh

A recent case from the Utah Court of Appeals underscores the importance of the Section 404 permit process and what can happen to a seller or land that fails to obtain such a permit and/or fails to disclose a Section 404 violation to a buyer.  In Favero Farms, LC v. Baugh, the Utah Court of Appeals affirmed the lower district’s determination that the sellers had breached their contract with the buyer, as well as breached the covenant against encumbrances and the implied covenant of good faith and fair dealing.

The property at issue in Favero was approximately 20 acres of land in Weber County, Utah.  The sellers met with a wetlands consultant in 2004 who told the sellers that their property contained wetlands, and, as a result, the sellers needed to obtain a permit from the USACE before they could use fill dirt on their property.  However, even though the sellers had already placed some fill dirt on the property prior to that time, and placed additional fill dirt on the property after they met with the wetlands consultant, they never obtained a Section 404 permit for any of the fill dirt.

In 2005, a representative from the USACE inspected the sellers’ property and advised them that the fill dirt on their property constituted a Section 404 violation.  The USACE representative instructed the sellers to remove the fill dirt from their property and to install a silt fence up against the wetlands.  Again, the sellers failed to comply.

In August 2009, the sellers sold the property.  The real estate purchase contract (“REPC”) between the parties required the sellers to disclose “conditions known to [the sellers] relating to environmental problems and building or zoning code violations.”  Pursuant to the REPC, the buyer had a right to object to the disclosures or cancel the contract if it did not acquiesce to what was revealed by the disclosures.  Even still, the sellers never delivered any disclosures to the buyer and never informed the buyer of the existence of the wetlands or the wetlands violation.

After the sale of the property closed, the buyer became aware of the Section 404 violation and learned that it could not use the property for agricultural purposes “without extensive work and repairs” and that it would need to restore or relocate the wetlands in order to comply with federal requirements.  Accordingly, the buyer sued the sellers alleging  breach of contract, breach of the covenants in the warranty deed, breach of the covenant of good faith and fair dealing, negligence, and fraudulent misrepresentation.  Following a bench trial, the trial court dismissed the buyer’s negligence and fraudulent misrepresentation claims but granted judgment in favor of the buyer on its other three claims.  The lower district court awarded the buyer  awarded damages in the amount of $200,000 based on testimony that it would “cost between $197,850 and $287,850 to restore or mitigate the damages to the wetland property.”  The court also ordered that the sellers pay the buyer’s attorney fees in the amount of $32,853.63, based on the provisions of the REPC.  The sellers subsequently appealed.

Warranties Made by Sellers in REPC Survived Closing

On appeal, the sellers made several arguments, which the Utah Court of Appeals roundly rejected.  First, the sellers argued that the buyer’s representation in the Escrow Instructions that it accepted the property “in its present condition” amounted to an as-is acceptance that the property would be delivered in “generally accepted agricultural condition.”  The Court of Appeals disagreed.

There, the Court of Appeals concluded:

Because the Escrow Instructions indicated that warrants made in the REPC would survive closing if not specifically deleted, the “generally accepted agricultural condition” promised by the [the sellers] was part of the “present condition” in which [the buyer] believed it was accepting the property.  Thus, the trial court did not err in concluding that the [sellers] breached the REPC and the Escrow Instructions by failing to deliver the property in generally accepted agricultural condition.

Sellers Violated Covenant Against Encumbrances by Failing to Disclose Section 404 Violation

Second, the sellers argued that the trial court erred in determining that their failure to disclose the wetlands violation constituted a breach of the warranty deed’s covenant against encumbrances.  Again, the Court of Appeals rejected the sellers’ arguments, concluding:

The [sellers] were aware of the wetlands violation and, in fact, committed it themselves. Furthermore, the Army Corps of Engineers had informed the [sellers] that their improvements violated the wetlands restrictions and had ordered them to remove the fill dirt and construct a silt fence.  Because the [sellers] were aware of the wetlands violation and the Army Corps of Engineers had taken action to compel compliance with the wetlands regulations prior to the time the warranty deed was conveyed, the violation is an “interest in a third person” that “constitutes a burden or limitation upon the rights of the fee title holder.”  Accordingly, the trial court did not err in concluding that the [sellers] had breached the covenant against encumbrances by conveying the property without disclosing the existence of the wetlands violation.

Sellers Violated Implied Covenant of Good Faith and Fair Dealing by Failing to Disclose Section 404 Violation

Finally, the sellers challenged the trial court’s determination that they breached the implied covenant of good faith and fair dealing by failing to disclose the wetlands violation.  The Court of Appeals determined:

The trial court’s findings support its determination that the [sellers] breached the covenant of good faith and fair dealing.  By failing to make the disclosures, the [sellers] misled [the buyer] concerning the existence of environmental problems on the property and thereby deprived it of the opportunity to object or cancel the contract in accordance with its rights under the REPC.  Thus, the trial court did not clearly err in concluding that the [sellers] breached the covenant of good faith and fair dealing by failing to disclose the existence of the wetlands violation.

Buyers Entitled to Attorney Fees Under REPC

Having determined the substantive issues on appeal, the Court of Appeals turned to the issue of attorney fees.  There, the Court of Appeals upheld the district court’s attorney fee award, which was made pursuant to the explicit language of the REPC that provided that  “[i]n the event of litigation . . . to enforce [the REPC], the prevailing party shall be entitled to costs and reasonable attorney fees.”

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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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