U.S. Army Corps of Engineers and EPA Rule Proposal Attempts to Broaden Federal Water Jurisdiction

On March 25, 2014, the U.S. Environmental Protection Agency and the Army Corps of Engineers jointly released a proposed rule to define the waters that fall under the jurisdiction of the Clean Water Act. While the agencies claim that the proposed rule is intended to clarify the CWA’s reach, the proposed rule would significantly expand the definition of “waters of the United States.” In doing so, the proposed rule would have a major impact on businesses that develop or change land, including oil and gas companies, pipeline operators, developers, and many others. Moreover, projects that already require a permit would likely have to purchase additional mitigation credits, and projects that do not currently require a permit would require one.

Under the proposed rule, all tributaries, ephemeral and intermittent streams, adjacent waters, and adjacent wetlands would be categorically subject to federal oversight, with no additional analysis required. To establish this broad jurisdictional delineation, the proposed rule relies upon general scientific evidence of the connectivity between streams and wetlands with downstream waters and certain parts of Supreme Court jurisprudence.

For more information, please read the full client alert on reedsmith.com

Federal Court Finds Cooperative Federalism Behind USEPA's TMDL for the Chesapeake Bay Watershed

This post was written by David Wagner

On September 13, 2013, the United States District Court for the Middle District of Pennsylvania upheld the U.S. Environmental Protection Agency’s (USEPA) authority to establish a final total maximum daily load (TMDL) for the 64,000 square foot Chesapeake Bay Watershed. A TMDL is an informational tool utilized by USEPA and states to coordinate responses to excessive pollution in order to meet applicable water quality standards. The final Chesapeake Bay Watershed TMDL allocates pollution loads among various sectors including point and non-point sources from agriculture, wastewater, storm water, forests and other runoff in Maryland, Virginia, Delaware, the District of Columbia, New York, Pennsylvania and West Virginia.

In a 99-page decision, the court granted summary judgment to Defendant USEPA and several intervening environmental and public interest groups. The court summarized the three-decade history of efforts to improve the ecological health of the Chesapeake Bay and the public process used by USEPA to determine the TMDL allocations. Despite challenges facing USEPA and the states, the court described the TMDL process as "collaborative, cooperative federalism". It rejected arguments from Plaintiff American Farm Bureau Federation and others that USEPA had surpassed its authority and acted unreasonably to coerce state participation in the TMDL planning process.

New Reporting Requirements under the Clean Water Act

This post was written by Christopher L. Rissetto, Mark A. Mustian

Clean Water Act Discharge Permits to go Electronic

Since the National Pollution Discharge Elimination System (NPDES) permit requirements were first adopted by EPA back in 1972, the program has undergone significant changes. Categorical limitations, storm water permitting, toxics control, and biotoxicity testing are just a few of the many issues that have been implemented or significantly changed over the past 40 years. However, one aspect of the NPDES program has remained remarkably unchanged over this period. For a significant portion of the regulated community, permit compliance is still demonstrated in the same manner as always. The permittee will collect samples of his discharge, analyze the samples for the pollutants of concern, fill out a paper copy of his Discharge Monitoring Report (DMR) - often by hand - and then mail a copy of the report to the permitting authority. As proposed by EPA July 30, this approach will go the way of the typewriter. EPA is proposing to require most of the regulated community to submit monitoring data and other reports electronically to be compiled into a nationwide database.

To read the full entry, please click here.

USEPA Delays Utility Cooling Rule Until 2013

This post was written by Douglas Everette and John Downing (Senior Scientist at Shaw Environmental and Infrastructure Group)

This week, the U.S. Environmental Protection Agency (USEPA) announced that it will defer until next year acting on a proposed Clean Water Act section 316(b) rule that could require expensive new construction at power plants to lower fish deaths. Under the proposed 316(b) rule, USEPA is planning to regulate man-made cooling reservoirs that are adjacent to power plants as if they were natural lakes needing protections for fish populations. It appears the delay was due in part to the confusion created by the public comment process and the volume of comments as well as election-year politics. In the attached joint client alert from Reed Smith and Shaw Environmental and Infrastructure Group, we discuss common issues raised by industry groups and what to look for next.


Sailing across the Yard - Supreme Court Corrects EPA Compliance Reviewability

This post was written by Christopher Rissetto and Jennifer Smokelin

A unanimous U.S. Supreme Court recently held that the U.S. Environmental Protection Agency’s order directing a homeowner to remove fill material from an area that EPA alleged included regulated wetlands was final, ripe, and immediately reviewable under the Administrative Procedure Act (APA). In this blog post, we provide some background, discuss the issue of finality under the APA, and consider some implications of this decision, especially with respect to the Safe Drinking Water Act. 

Mike and Santell Sackett were surprised when the U.S. Environmental Protection Agency (USEPA) and the Army Corps of Engineers interrupted their initial efforts to build a home near an Idaho lake. The Sacketts had begun to place dirt and gravel fill on their newly purchased property, when USEPA issued a Compliance Order. The Order directed the couple to stop construction and restore “wetlands” that were determined to exist on the property, and claimed that their actions in placing fill in a wetland was a violation of the Clean Water Act (CWA), with the possibility of up to $75,000 per day in potential liability. 

The Sacketts unsuccessfully sought review of the USEPA compliance order on the basis that they were not subject to the jurisdiction of the Agency, as the property did not contain regulated wetlands.  However, USEPA argued that the Sacketts had no right to any review of the issue until EPA brought an enforcement proceeding against them. The U.S. District Court agreed and this decision was affirmed by the Ninth Circuit Court of Appeals, which held that there could be no CWA pre-enforcement review. On March 21, 2012, the U.S. Supreme Court ruled 9-0  against USEPA, reversing the lower courts and holding that USEPA’s Compliance Order was a final agency action and therefore could be reviewed under the Administrative Procedure Act (APA), even if the CWA did not expressly provide such a right of appeal. See Sackett v. United States Environmental Protection Agency, et al., Case 10-1062 (Sackett). The holding in Sackett was direct and unequivocal. Yet the concurring opinion by Justice Alito perhaps best expressed the Court’s true concerns, as Judge Alito observed that: “The position taken  . . . by the Federal Government – a position that the Court now squarely rejects – would have put the property rights of ordinary Americans entirely at the mercy of [USEPA] employees.”

Now, parties adversely affected by USEPA compliance orders (and perhaps orders from other federal agencies) may have an alternative path to judicial review under the APA. Federal agencies will likely consider their Compliance Order authority in a new light, as it no longer can be used to advance agency interests without the possibility of further scrutiny.

Language similar to the CWA enforcement order language can be found in several other federal environmental statutes, including the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA), the Clean Air Act, the Resource Conservation and Recovery Act (RCRA) and the Safe Drinking Water Act (SDWA). It should be noted there are differences between the CWA and these other laws, which could distinguish them from Sackett. For example, unlike the CWA, CERCLA contains an explicit provision barring pre-enforcement review of a USEPA cleanup order. This provision was challenged last year and the Supreme Court refused to take the case. Look for another challenge of a USEPA cleanup order under CERCLA to test whether the APA’s presumption of reviewability trumps CERCLA’s non-enforcement provision.

In a federal district court suit in the Fifth Circuit where USEPA is seeking an injunction to force a gas drilling company, Range Resources, to comply with a Safe Drinking Water Act (SDWA) emergency order, Range Resources is arguing to the Fifth Circuit that it was entitled to pre-enforcement review and that USEPA is obligated to show facts supporting the underlying elements of the violation in court to secure injunctive relief and impose civil penalties. USEPA will likely deny that Sackett will have any effect on the Range Resources case, citing differences between the CWA and the SDWA.

However, the language in Sackett can arguably be read very broadly and is not limited just to the CWA. There is some broad language on the issue of whether a compliance order is a “final agency action” subject to judicial review. Writing for the majority, Justice Scalia states“[t]here is no doubt [the compliance order] is agency action” and further, “[i]t has all the hallmarks of APA finality that our opinions establish.” Admittedly, Justice Scalia held that the key to the case was the fact that the Clean Water Act does not, as the government claimed, preclude judicial review under the Administrative Procedure Act. However, assuming other environmental statutes similarly do not preclude review under the APA, the opinion leaves open the argument that if the core hallmarks of “final agency action” can be established with regard to an enforcement order under another statute, so too would agency action under that other statute be subject to pre-enforcement review.

Time will tell whether the Fifth Circuit will broadly read Sackett to apply to pre-enforcement review under the SDWA - or indeed whether other courts will apply Sackett to statutes other than the CWA, or other federal agencies besides USEPA. For now, parties adversely affected by federal agency compliance orders should seek legal counsel to determine if there may be an alternative avenue to obtain pre-enforcement review of that order.

USEPA Announces Schedule to Develop Natural Gas Wastewater Standards for Shale Gas and Coal Bed Methane under Clean Water Act

This post was written by Jennifer Smokelin.

The U.S. Environmental Protection Agency (USEPA) announced today that it will propose a rule for wastewater from coal bed methane in 2013 and a proposed rule for shale gas wastewater in 2014. The announcement is part of the effluent guidelines program (Clean Water Act § 304(m)), which sets national standards for industrial wastewater discharges based on best available technologies that are economically achievable.

To ensure that these wastewaters receive proper treatment and can be properly handled by treatment plants, USEPA will gather data, consult with stakeholders, including ongoing consultation with industry, and solicit public comment on a proposed rule for coal bed methane and for shale gas. The time frame for coal bed methane is shorter because USEPA feels it already has a leg up on data necessary for the coal bed rule whereas there is more information to gather with regard to shale gas wastewater.

A Few More Details

Hydraulic fracturing is a method of releasing natural gas from highly impermeable rock formations by injecting large amounts of fracturing fluids at high pressures to create a network of fissures in the rock formations and provide the natural gas a pathway to travel to the well for extraction. Geologic pressure within the shale formation forces these fracturing fluids back to the surface, where they are referred to as “produced water” or shale gas wastewater. Based on a review of available data, USEPA is initiating a rulemaking to control wastewater produced by natural gas extraction from underground shale formations. Under this proposed rulemaking, EPA will consider standards based on demonstrated, economically achievable technologies, for shale gas wastewater that must be met before going to a treatment facility.

USEPA Finalizes Guidance on Mountain-top Mining

This post was written by Mark Mustian.

Last year we discussed the U.S. Environmental Protection Agency's (USEPA) interim guidance for permitting of mountain-top mining and surface mining projects and the likelihood of revisions based on comments USEPA would receive. More than 60,000 comments later, USEPA revised and issued the Final Appalachian Mining guidance. While not legally binding, the guidance document published yesterday is intended to provide guidance to states in the Appalachian region on permitting issues related to mountain-top mining and surface mining projects. The guidance addresses the current best available science, identifies permitting strategies that comply with the requirements of the Clean Water Act (CWA) and provides assistance to USEPA staff in reviewing and approving permits issued by both the states and by the U.S. Army Corps of Engineers (USACE).

Mining and the NPDES Program

In particular, the guidance document seeks to ensure that mining projects are properly permitted under the requirements of the CWA's National Pollutant Discharge Elimination System (NPDES). (A quick aside: all of the states in the Appalachian coal mining region are currently authorized by USEPA to administer the NPDES program.) The CWA and USEPA’s implementing regulations require that NPDES permits contain (1) technology-based effluent limitations, which represent the degree of control that can be achieved by point sources using various specified levels of pollution control technology; and (2) more stringent limitations, commonly known as water quality-based effluent limits, when necessary to ensure that the receiving waters meet applicable water quality standards. During reviews of the NPDES permits issued over the last few years for surface-mining projects in the Appalachian region, USEPA identified concerns about how effectively states were achieving the necessary protection of the receiving streams, and concluded that states could be more effective in gathering water quality data and documenting their permitting processes. As a result, the new guidance identifies key elements which should be evaluated by states to ensure compliance with CWA requirements. USEPA identified the following elements that should be evaluated and documented as part of the permitting process:

  • Effluent and Receiving Water Characterization - USEPA recommends that states utilize their broad authority granted under the CWA to require permittees to provide sufficient data to fully characterize their proposed discharges, and to utilize all available ambient water quality and biological data on receiving streams in permit development.
  • Reasonable Potential Evaluation - The CWA and USEPA regulations require regulation of all pollutants which have the reasonable potential to cause or contribute to an excursion above any applicable water quality standard. USEPA notes that permitting authorities should use all available guidance and resources to develop appropriate limitations to protect water quality standards.
  • Develop Appropriate Permit Limitations - Appropriate limitations may include chemical specific limitations, limitations based upon whole effluent toxicity, limitations based upon bioassessment procedures, and/or best management practices.

Future Mining Activities and Total Dissolved Solids

The issue which could potentially have the largest impact on future mining activities is the issue of Total Dissolved Solids (TDS). TDS consists of dissolved minerals such as chlorides and sulfates, and at high concentrations, TDS constitutants are toxic to aquatic organisms. In the guidance document, USEPA notes that of the Appalachian states, only Pennsylvania and Ohio have numeric criteria which specifically regulate the discharge of dissolved solids. USEPA identifies a TDS level (as measured by conductivity) of 300 μS/cm as an appropriate protective level for instream concentrations. If states properly implement regulations limiting the discharge of dissolved solids, it will likely have a dramatic impact on the ability of mining companies to obtain a discharge permit. Removal of dissolved solids from water entails significant investment, both in capital and operating costs.

Strategies for Reviewing Section 404 Permits

Surface mining activities are also regulated under Section 404 of the CWA for the discharge of dredge or fill material into the waters of the United States. Permits are issued by the USACE, with review and approval by USEPA. The guidance document provides detailed strategies for regulators in USEPA Regions 3, 4 and 5 to use in reviewing Section 404 permits and ensuring that proposed permits are in compliance with the requirements of the CWA and state requirements on water quality. Of particular interest is the discussion regarding control of dissolved solids under a Section 404 permit, where the NPDES permit issued by the State may not be sufficiently protective. This creates the possibility that future control of dissolved solids could incorporated at the federal level, as opposed to the state level.

USEPA Proposal Would Require a Clean Water Act Permit for Certain Pesticide Applications

This post was written by David Wagner.

For the application of pesticides, the U.S. Environmental Protection Agency (USEPA) is taking a new position – it now aims to bring pesticide applicators under the Clean Water Act’s (CWA) permitting program. Earlier this month, USEPA released a draft CWA National Pollutant Discharge Elimination System (NPDES) pesticide general permit for point source discharges from the application of pesticides to waters of the United States. Under the Bush Administration, USEPA had issued a rule stating that these Clean Water Act permits were not required for applications of pesticides to U.S. waters. An appeals court decision vacated the rule in April 2009 and triggered the development of this proposal.

USEPA estimates that the court’s decision will require approximately 365,000 pesticide applicators nationwide, including farmers, land managers and other entities, to obtain NPDES permits by April 2011. The draft pesticide general permit covers applicators of biological pesticides and chemical pesticides that leave a residue in four categories of pesticide uses:

  • Mosquito and other flying insect pest control
  • Aquatic weed and algae control
  • Aquatic nuisance animal control
  • Forest canopy pest control

Sixth Circuit Decision in National Cotton

In 2006, EPA had issued a final rule which gave legal effect to its long-standing policy of not requiring permits under the NPDES program for many applications of pesticides to, over, or near waters of the United States.  Under the rule, pesticide applications made in compliance with the Federal Insecticide, Fungicide, and Rodenticide Act did not require NPDES permits even if the pesticide entered waters of the United States.  Following a challenge of the legal validity of the rule, the United States Court of Appeals for the Sixth Circuit vacated the rule as contrary to the plain meaning of the Clean Water Act.  As a result of the vacatur, “dischargers of pesticide pollutants are subject to the NPDES permitting program” under the Clean Water Act.  See National Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009).

The Impact on State Permitting

When finalized, USEPA’s pesticide general permit will only directly apply to pesticide activities where USEPA is the permitting authority, an estimated 10% of activities. However, it will provide a baseline for most states to follow in developing their own permitting programs for pesticide applications. In addition to the development of USEPA’s pesticide general permit, potentially regulated entities should also follow corresponding state permit rules.

Next Steps

USEPA is seeking comment for 45 days (through July 19, 2010) on the draft pesticide general permit and plans to issue the final pesticide general permit in December 2010. During the public comment period EPA will hold three public meetings (Albuquerque, Boise, and Boston), a public hearing (Washington, D.C.), and a webcast to provide an overview of the proposed requirements and the basis for those requirements, and to answer questions.

USEPA Increases Permitting Requirements for Surface Coal Mining Projects

This post was written by Mark Mustian.

On April 1, 2010, the U.S. Environmental Protection Agency (USEPA) published on their website a new guidance document on improving USEPA reviews of Appalachian surface coal mining operations. As we noted in our blog over a year ago, changes were likely coming to the practice of mountain-top mining. The guidance documents sets forth the standards which will be followed when evaluating the issuance of permits under Section 404 of the Clean Water Act for the discharge of dredged or fill material during surface mining operations. USEPA has identified the following standards which must be met for any future mining activities.

  • Water quality and environmental integrity must be protected
  • Mining projects must avoid and minimize environmental impacts
  • Mining impacts must be effectively mitigated
  • Water quality and biological parameters must be monitored

The standard which will likely have the most significant impact is the protection of water quality. USEPA is proposing to evaluate the impact of a project based upon an increase in conductivity in the stream. They are setting general standards which must be met for any future projects. USEPA has found that mountain-top mining causes significant and persistent increases in dissolved chemical ion levels downstream from the mining, and these increases reach levels which are acutely toxic to aquatic organisms. In conjunction with the release of the guidance document, USEPA has released a report which assesses the state of the science on the environmental impacts of mountain-top mines and valley fills on streams in the Central Appalachian Coalfields.

The guidance is intended to become effective immediately on an interim basis. However, USEPA will be publishing the guidance in the Federal Register for comment. Based upon the comments its receives, USEPA will decide whether to modify the guidance document.

The guidance document, the report on environmental impacts of mountain-top mining, and other associated documents are available here.

In the US, the End of Mountaintop Mining?

This post was written by Mark Mustian. 

Mountain-top mining has probably generated more controversy in the United States than any other current resource extraction process, and recent USEPA activities have significantly increased attention to the process. Before discussing the regulatory developments, some background information may be helpful. Mountain-top mining is utilized to remove low-sulfur coal from the tops of mountains in the Appalachian region. The mining company timbers the mountain-top and removes the topsoil. The company then uses explosives to remove the overburden rock to expose the coal seams. The overburden is typically pushed into a nearby valley, creating a valley fill. The coal is excavated and washed (creating a significant amount of coal slurry waste), and the top of the mountain is reclaimed and revegetated. The process results in permanent changes to the topography and permanent impacts to the regions streams and water quality.

Mountain-top mining is allowed under section 515(c)(1) of the Surface Mining Control and Reclamation Act (SMCRA). However, in order to deposit the overburden into the valley, and the valley watershed, the mining company must obtain a permit from the U.S. Army Corps of Engineers (USACE). A permit is required under section 404 of the Clean Water Act (CWA) in order to discharge dredged or fill material into the waters of the United States. The permit is issued by the USACE using the guidelines developed by the Environmental Protection Agency (EPA). Under Section 404(c) of the CWA, the EPA has the authority to deny a permit for the discharge of dredged or fill material if it determines that "that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas."

Until recently, EPA has not invoked its authority under section 404(c) to limit or stop mountain-top mining. However, two recent decisions on proposed mining projects indicates that this situation may change. EPA issued letters to the USACE regarding two proposed mining projects, one in Kentucky, and one in West Virginia. For the Kentucky project, the EPA indicated that it believed the proposed project did not adequately avoid and minimize the impacts on the watershed, and that the proposed mitigation will not adequately offset the persistent and permanent impacts to the aquatic ecosystems' communities and functions. EPA was even more direct in the letter regarding the project in West Virginia. EPA stated that it believed the project required an environmental impact statement pursuant to section 102 of the National Environmental Policy Act (NEPA). Under NEPA, any project which requires federal agency action must be evaluated by the agency to determine if the environmental impacts of the project are significant. If the agency determines that there is no impact, it issues a Finding of No Significant Impact (FONSI). If there is an impact, it becomes necessary to prepare an environmental impact statement (EIS).

Even more significant, the letter indicates that because of the cumulative and other impacts of the proposed projects, there is a high potential that EPA would use its authority under section 404(c) of the CWA to prohibit the issuance of a 404 permit for the discharge of fill from the project. If followed through, it would effectively end the project, as the mining company would be unable to dispose of the overburden created during mining.

The letters created such a controversy that EPA had to issue a press release stating that it were not "halting, holding or placing a moratorium" on mining permit applications. While this may be true, the effect of requiring the preparation of a full EIS in the case of mountain-top mining may have the same effect as a moratorium. The preparation of an EIS can be complex, time consuming and subjects the project to public review and scrutiny. Furthermore, an objective evaluation may show that the environmental costs do not outweigh the project benefits, and the decision may be to not issue a permit.