American Bar Association
 
Water Quality and Wetlands
American Bar Association Energy and Resources Committees

Water Quality and Wetlands


Message from the Chair



Thank you for your interest in the Water Quality and Wetlands Committee. The Committee's goals include keeping our members up-to-date on issues related to water quality, water pollution, and wetlands and providing a forum on these issues. While our primary focus is the Clean Water Act, we address other statutory and regulatory programs that involve water quality and wetlands.


Once you join the Committee you will automatically be included in the Committee's email listserv. Also be sure that you join our LinkedIn discussion group. Consult this website often for updates and developments.


Consider contributing an article for our newsletter. If you have an idea please contact the Newsletter Vice Chair and Editor, Winston Borkowski.


On behalf of all of the Committee leadership, we welcome your participation and feedback and we look forward to working with you on a regular basis. Please contact any one of us with your suggestions and ideas.


Blaine Early
Stites & Harbison, PLLC
bearly@stites.com





Water Quality News and Recent Cases

Committee Conference Call on Antidegradation
Recorded on Wednesday, August 6, 2014

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This Committee Conference Call introduced the sometimes confusing concept of antidegradation and will discuss recent developments, including groundbreaking litigation in Florida. Presenters were Winston Borkowski of Hopping Green & Sams, Tallahassee, Florida, and Brooks Smith of Troutman Sanders, Washington, D.C. The Call was moderated by Steven Hoch of Morris Polich & Purdy, Los Angeles, California.

The Clean Water Act left much unsaid when, in Section 303(d)(4)(B), it required the states to develop effluent limitations, water quality standards, and other means to protect water quality in ways “consistent with the antidegradation policy established under this section.” Implementing this simple statement has spawned continuing litigation and regulatory changes. Questions include the appropriate levels of protection, whether waters must be protected for all parameters, and whether antidegradation applies only to Section 402 permitting decisions or to the entire Section 303 processes relating to designated uses and water quality standards.

The links below are to EPA’s antidegradation resources

http://water.epa.gov/scitech/swguidance/standards/handbook/chapter04.cfm

http://water.epa.gov/scitech/swguidance/standards/adeg.cfm

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Comment Period Extended on Waters of the US

EPA and the Corps have extended until October 20, 2014, the comment period for the proposed rule on Waters of the United States. An informal notice was sent to stakeholders on June 10. See the "waters" webpage: http://www2.epa.gov/uswaters

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Clean Water Liability for Conductivity

The U.S. District Court for the Southern District of West Virginia, in Ohio Valley Envt'l Coal v. Elk Run Coal Co., Case No. 12-cv-0785, found liability for discharge to surface waters of ionic pollutants (measured by conductivity) that adversely affect stream macroinvertebrate communities. The rationale expressed in this decision may have ramifications for the regulated community regarding which types of alleged permit violations may be subject to action by citizens suits and to what extent the courts may act as “super regulators” to impose obligations different from those imposed by the state agencies authorized to oversee the regulated activities. Although the case orignates in Appalachian coal mining, the court’s evaluation of expert testimony relevant to general and specific causation of harm, as determined by levels of conductivity and biotic index scores, may affect interpretations of alleged harm caused by pollutants in stormwater and other surface discharges.

Plaintiffs alleged violations of permits issued to the mining company defendants under the Clean Water Act and the Surface Mining Control and Reclamation Act. The court found that plaintiffs had proved that defendants had each committed at least one violation of their permits by "discharging . . . high levels of ionic pollution, which have caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable stream’s aquatic ecosystem, in violation of the narrative water quality standards that are incorporated into those permits.”

The court distinguished this case from that of Nat’l Mining Ass’n v. Jackson, 880 F. Supp. 2d 119 (D. D.C. 2012), in which the D.C. District Court invalidated conductivity limits that the US EPA sought to impose by guidance document. In contrast, the court held in Elk Run Coal that EPA’s findings contained in “A Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams” were scientific findings and, as such, the study was a scientific study within the agency’s area of expertise.

In its detailed, 67-page discussion the court (1) relied on plaintiffs’ expert testimony about the relationship of measures of conductivity and the West Virginia Stream Condition Index (WVSCI) scores; (2) rejected language in a guidance document from the WVDEP that concluded, among other findings, that there was no causative effect between high conductivity and low WVSCI scores; and (3) rejected application of West Virginia legislative actions concerning the relationship between narrative water quality criteria and the makeup of aquatic communities.

Contributed by
Blaine Early
Stites & Harbison
bearly@stites.com

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Court Enters Windy City Combined Sewer Overflow Consent Decree Over Objections

Over the objections of several intervening environmental organizations, the U.S. District Court for the Northern District of Illinois granted a motion for entry of a consent decree between the United States and Illinois and the Metropolitan Water Reclamation District of Greater Chicago (MWRD) that resolves alleged violations relating to MWRD’s combined sewer overflows (CSOs). United States v. Metro. Water Reclamation Dist. of Greater Chi., No. 11 C 8859, 2014 U.S. Dist. LEXIS 2049 (N.D. Ill. Jan. 6, 2014).

MWRD operates several wastewater treatment plants and their associated sewer system under state-issued permits. Like the sewer systems in many older cities, Chicago’s is a combined sewer system that conveys wastewater and stormwater through the same pipes. The United States and Illinois filed a complaint alleging that MWRD violated several of the terms and conditions of its discharge permits and, on the same day, filed a proposed consent decree to resolve the alleged violations.

The proposed consent decree set forth obligations and projects that MWRD had agreed to undertake. A key feature established deadlines to complete construction of a major system of tunnels and reservoirs, known as TARP, designed to prevent CSOs by capturing and storing flows during and after large precipitation events until the flows can be pumped back into the system once its capacity is restored. The consent decree also established post-construction operating standards and required MWRD to develop a post-construction monitoring plan. Finally, in addition to imposing civil penalties, the consent decree required MWRD to implement “green infrastructure.” Unlike tunnels and reservoirs and other “gray infrastructure,” which address the stormwater that enters the sewer system, “green infrastructure” is designed to prevent the stormwater from entering the sewer system in the first place.

The intervening environmental organizations objected to the proposed consent decree on several grounds, including that it gives MWRD too much time to complete TARP; that it should require individual plants at outfalls to treat CSOs until TARP comes online; that it may not eliminate CSOs; that it should establish a monitoring plan instead of just a schedule to submit one; and that its green infrastructure component is inadequate.

The court applied a reasonableness standard, considered whether the consent decree is in the best interests of the public (which includes more than just the recreational interests of the intervening parties), and dismissed each of the objections in turn. By way of example, noting that green infrastructure projects are not required by any law, the court, while acknowledging that it “is small,” did not find the green infrastructure program to be “unreasonable.” Concluding that the consent decree is “reasonable, fair and adequate,” the court granted the motion for its entry.

Contributed by
Brian Glass
Warren Glass LLP
Bryn Mawr, PA 19010
http://warrenglasslaw.com/

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Court Approves Amended Consent Decree and so Allows Florida to Establish, or Chose Not to Establish, Certain Numeric Criteria for Nutrients

On January 7, 2014 the U. S. District Court for the Northern District of Florida granted a motion filed by EPA to amend a consent decree between EPA and environmental interests who sued to force EPA to develop numeric nutrient criteria for Florida waters. Florida Wildlife Fed’n v. McCarthy, No. 08-cv-324, 2014 U.S. Dist. LEXIS 1343 (N.D. Fla. Jan 7, 2014). Several environmental organizations, represented by Earthjustice, had filed a motion to enforce the original consent decree that would have required EPA, rather than Florida, to develop the numeric criteria; the court denied that motion.

This decision is the latest development in a long-running dispute over nutrient pollution. In 2008 the environmental groups filed suit claiming that EPA’s 1998 guidance, encouraging the states to develop numeric nutrient criteria, was a formal determination that numeric criteria were necessary for the states to remain in compliance with the Clean Water Act. EPA defended the suit at first then issued a formal determination that numeric nutrient criteria were necessary for Florida waters under § 303(c)(4)(B) of the Act. The terms of the necessity determination were incorporated into a consent decree that was approved by the court.

EPA initiated notice and comment rulemaking to promulgate numeric nutrient criteria for Florida waters. The Florida Department of Environmental Protection accelerated its ongoing efforts to develop criteria and eventually promulgated a suite of nutrient standards approved by EPA on November 30, 2012. EPA amended the Florida necessity determination in light of its approving the state criteria and moved to amend the consent decree, which required EPA to develop criteria for Florida waters, based upon the changed circumstances.

The environmental organizations argued that EPA could not justify a modification of the consent decree based upon the federal agency’s unilateral amendment of the Florida necessity determination. The court disagreed stating that Florida’s development, and EPA’s approval, of state numeric nutrient criteria justified the requested modification of the consent decree and is consistent with the Clean Water Act mandate that the states retain primary responsibility for establishing water quality standards.

Contributed by
Winston Borkowski
Hopping Green & Sams
Tallahassee, FL 32301
http://hgslaw.com/

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When Is a Rail Car a Point Source?

BNSF Railway Company (“BNSF”) operates a common carrier railroad throughout much of the United States and Canada. BNSF’s trains carry coal from Montana and Wyoming through Washington state. The Sierra Club and other environmental advocacy groups sued BNSF for alleged discharge of coal pollutants into waters of the United States. BNSF moved to dismiss the complaint and argued that its rail cars and trains do not constitute point sources within the meaning of the Clean Water Act (“CWA”) and the facts alleged in the complaint. The U.S. District Court for the Eastern District of Washington has denied BNSF’s motion. Sierra Club v. BNSF Ry. Co., No. 13-cv-272, 2014 U.S. Dist. LEXIS 1035 (E.D. Wash., Jan. 2, 2014).

Plaintiffs alleged that BNSF violates the Clean Water Act when coal escapes from rail cars during transport, loading, and unloading and is then discharged into waters of the United States. Arguments before the court addressed whether the coal-based pollutants fell from the rail cars onto land and then were washed by precipitation into waterways or whether the pollutants were discharged directly into water.

The court reviewed case precedent concerning the scope of sources that may be considered point sources under the CWA and denied the motion to dismiss, stating that Plaintiffs have the opportunity to develop facts regarding their allegations and that, “Plaintiffs will need to show that BNSF’s railway illegally introduced pollutants into navigable waters without a permit.”

Contributed by
W. Blaine Early, III
Stites & Harbison, PLLC
Lexington, Kentucky
www.stites.com

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U.S. District Court Dismisses Challenge to Chesapeake Bay TMDL

On December 13, 2013, the U.S. District Court for the District of Columbia dismissed a challenge to EPA’s so-called “authorization” of water quality trading and offsets (to accommodate new or increased loadings of nitrogen, phosphorus, and sediment that do not have a specific pollutant allocation) in the Chesapeake Bay Total Maximum Daily Load (“Bay TMDL”). See Food and Water Watch v. EPA, No. 12-cv-01639, 2013 U.S. Dist. LEXIS 174430 (D. D.C. Dec. 13, 2013). Follow this link to the court's PACER website: https://ecf.dcd.uscourts.gov/cgi-bin/ShowIndex.pl

Plaintiffs, Food and Water Watch and Friends of the Earth, alleged in their complaint that the “authorization” violates the Clean Water Act, is arbitrary and capricious, and violates the APA’s notice and comment requirements. EPA moved to dismiss all of these claims for lack of standing. EPA further argued that the plaintiffs’ claims were not ripe for review and that the plaintiffs failed to challenge a final agency action. Two intervenors, American Farm Bureau Federation and National Association of Home Builders, also moved for dismissal for lack of standing and failure to challenge a final agency action.

The court granted the motions to dismiss and dismissed the plaintiffs’ complaint in its entirety. First, the court held that the plaintiffs failed to satisfy any of the three prongs for Article III standing because: (i) they did not demonstrate an actual or imminent injury; (ii) any purported injury is not caused by the Bay TMDL; and (iii) a decision in the plaintiffs’ favor would not redress their asserted injuries. Second, the court held that the plaintiffs’ claims were unripe because, among other reasons, they would benefit from further factual development and the plaintiffs would not suffer hardship from withholding judicial review at this time. Finally, the court agreed that the plaintiffs failed to challenge a final agency action.

Integral to the court’s analysis of all three grounds for dismissal was its finding that the statements concerning trading and offsets in the Bay TMDL did not impose any new legal obligations or alter the legal landscape. The court repeatedly mentioned that states, who are not parties to this case, are the entities with authority to implement offset and trading programs. The court also emphasized that states were engaging in trades and offsets before the Bay TMDL came into existence and can do so even without the statements or “authorization” in the Bay TMDL.

Contributed by
David Y. Chung
Crowell & Moring LLP
Washington, D.C.
www.crowell.com

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Wetland Study Finds Accelerated Losses of Coastal Wetlands,
Despite Restoration Efforts

A joint study by NOAA and the U.S. Fish & Wildlife Service found that the United States lost over 360,000 acres of wetlands in the four-year period between 2004 and 2009. The study calculated the average wetland loss rate at 80,000 acres a year. This is a 25% increase in the loss rate over a prior study covering the period between 1998 and 2004. The increase comes despite efforts to restore wetlands, and to offset wetland losses. The study expressed concern over the losses because wetlands provide important wildlife habitat, and crucial ecosystem services such as water filtration and storm protection.

The greatest loss of wetlands occurred in the Gulf of Mexico. The study cited both human and natural factors as causes for the continued decline. Hurricanes Katrina, Rita, and Ike battered saltwater wetlands along the Gulf of Mexico. The cumulative impacts of oil and gas development also influenced the vulnerability of these wetlands to intense storms and sea level rise. Freshwater forested wetlands represented the most sizeable freshwater wetland loss. The study attributed those losses primarily to silviculture and increased coastal development in southeastern states.

The study is titled “Status and Trends of Wetlands in the Coastal Watersheds of the Conterminous United States 2004-2009,” and is available at:

http://www.fws.gov/wetlands/Documents/Status-and-Trends-of-Wetlands-In-the-Coastal-Watersheds-of-the-Conterminous-US-2004-to-2009.pdf

Fact sheets relative to the report, as well as the prior 1998-2004 study, are available at: http://www.habitat.noaa.gov/highlights/coastalwetlandsreport.html

Contributed by
Lauren M.Williams
Curtin & Heefner, LLP
Doylestown, PA
http://www.curtinheefner.com/

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Eleventh Circuit Clarifies Notice Requirement for CWA Citizen Suit

The 11th Circuit Court of Appeals has decided a matter of first impression in the Circuit regarding the notice requirements of the Citizen Suits provision of the Clean Water Act, 33 U.S.C. §1365. Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Case No, 12-15409, (11th Cir. Nov. 13, 2013). http://www.ca11.uscourts.gov/opinions/yestops.php

Plaintiffs sued an Alabama mining company for alleged violations of new source performance standards. Section 1365(b) provides that the usual 60-day notice period for a citizen suit is not required for actions concerning new source performance standards. Both the District Court and the Eleventh Circuit Court of Appeals sided with the defendant and held that the notice period was required because the defendant’s NPDES permit incorporated the performance standards and, therefore, the permit was integral to the suit.

The 11th Circuit stated: “To allow a citizen to evade the 60-day waiting period by suing a permit holder for alleged violations of the new source performance standards without regard to the conditions of the discharger’s permit would both undermine the overarching permitting scheme and nullify the statutory preference for governmental enforcement.” Opinion at 14.

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Proposed Rule on Waters of the United States

A new proposed rule that concerns waters of the United States and clarifies jurisdiction of the Clean Water Act appears to be close to release for public comment. Bloomberg BNA released an early description of the rule. Use this link to find the BNA article. http://www.bna.com/epa-corps-propose-n17179879956/ A link in the first paragraph takes you to a draft copy of the rule, which has not yet been officially released for comment.

The related technical report document on connectivity of streams and wetlands to downstream waters can be found at http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345. The Scientific Advisory Board is scheduled to meet December 16 - 18, 2013, to review comments on the connectivity report. According to Bloomberg BNA, EPA does not plan on releasing the proposed rule until the board completes peer review of the study.

SEER and your WQ&W Committee are preparing a webinar to discuss the rule soon after its release.

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Agricultural Stormwater Discharge Decision

Addressing a disputed CWA violation concerning an 8-house poultry operation (a concentrated animal feeding operation or CAFO), the U.S. District Court for the Northern District of West Virginia issued an order holding that “litter and manure which is washed from [a] farmyard to navigable waters by a precipitation event is an agricultural stormwater discharge and therefore not a point source discharge, thereby rendering it exempt from the NPDES permit requirements of the Clean Water Act.” Alt v. EPA, Case No. 2:12-cv-00042 (N.D. W.V. Oct. 23, 2013). Challenging a violation and order, the plaintiff introduced evidence that the entire poultry operation was under cover so that manure, feed, and other materials associated with the operation were not exposed to precipitation. Access the entire docket at the court’s PACER website at https://ecf.wvnd.uscourts.gov/cgi-bin/ShowIndex.pl


Waters of the United States




On March 25, the U.S. EPA and the Army Corps of Engineers issued a press release announcing a proposed rule to govern protection of streams and wetlands under the Clean Water Act.

Read the press release.

The press release stressed that 60% of stream miles in the United States flow only intermittently, but nevertheless have a significant impact on downstream sources that supply drinking water for approximately one-third of the people in this country. The proposed rule will protect most seasonal and rain-dependent streams and most wetlands near rivers. It will retain or expand exemption and exclusions for many agricultural practices.

Public comment will be open for the next 90 days. Public hearings will also be held during this time. To access a pre-publication copy of the proposed rule and for other information see www.epa.gov/uswaters . Pages 42 – 123 of the proposed rule address the definition of Waters of the United States; pages 133-370 are appendices of supporting materials.


Watch Administrator McCarthy’s overview: http://youtu.be/ow-n8zZuDYc

Watch Deputy Chief of Staff Arvin Ganesan’s explanation: http://youtu.be/fOUESH_JmA0

The Interpretive Rule Regarding the Applicability of CWA Section 404 (and exemptions from permitting) can be found here:

http://www2.epa.gov/uswaters/interpretive-rule-regarding-applicability-clean-water-act-section-404

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In November, 2013, our Committee held a teleconference on development of a proposed rule concerning Waters of the United States and the jurisdiction of the Clean Water Act. It was a great success with approximately 70 participants. Access the program materials below.

Program Materials:
EPA's Proposed Rule on Waters of the United States - Powerpoint Presentation

We extend a sincere Thank You to our presenters, Deidre Duncan of Hunton & Williams and Jon Devine of Natural Resources Defense Council. http://www.hunton.com/Deidre_Duncan/ http://www.nrdc.org/about/staff/jon-devine

Bloomberg BNA released an early, unofficial version of the rule. http://www.bna.com/epa-corps-propose-n17179879956/

For a brief discussion see Water Quality News.



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