As mentioned in a prior blog post, the Menominee Indian Tribe of Wisconsin (“Tribe”) sued the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) over the proposed Aquila Resources Back Forty Mine (“Mine”) located in Michigan, arguing that EPA and Corps have failed to take responsibility under the Clean Water Act (“CWA”) for reviewing wetland permits for the project. Michigan is responsible for issuing the Section 404 wetland fill permits for the Mine because EPA delegated such permitting authority to Michigan in 1984 as allowed under the CWA.

A federal judge in Wisconsin recently ruled against the Tribe and dismissed the lawsuit, generally because the EPA and Corps did not violate any mandatory duties or make any final agency actions related to the Mine. More specifically, the judge addressed four claims made by the Tribe.

The court considered two claims made by the Tribe in its original complaint:

  1. The Tribe claimed the EPA and Corps had a mandatory duty under the CWA to assume jurisdiction over the Section 404 permit process, and the Tribe could enforce this under the CWA’s citizen suit provision. The court first held the CWA does not authorize citizen suits against the Corps, so the court lacked subject matter jurisdiction over this claim as it pertained to the Corps. The court further held this claim must be dismissed as to the EPA because the Tribe failed to identify a nondiscretionary duty which the EPA had not performed. If the Tribe wished to challenge the EPA’s decision to allow Michigan to assume authority of the Section 404 permitting process, it would have to challenge this under the Administrative Procedures Act (“APA”), and not a citizen suit.
  2. The Tribe claimed the EPA’s and Corps’ refusal to assert jurisdiction over the Section 404 permitting was arbitrary and capricious and in violation of the APA. The court held that this “as-applied” challenge to the APA must rest on final agency action, and that the final agency action was EPA’s 1984 decision to allow Michigan to assume permitting authority for Section 404 permits, not any recent letters sent by EPA to the Tribe about the permitting process.

In addition, the Tribe filed a motion to amend its complaint and to add two new claims, and the court discussed these proposed claims as follows:

  1. The Tribe claimed the EPA’s withdrawal of its objections to Michigan’s wetland permit was arbitrary and capricious and in violation of the APA. The court held the EPA’s decision to withdraw its objections was discretionary, not mandatory, and therefore is not reviewable under the APA.
  2. The Tribe claimed the EPA’s failure to consult with the Tribe pursuant to the National Historic Preservation Act (“NHPA”) before Michigan issued its permit for the mine was arbitrary and capricious and in violation of the APA. The court held the EPA was not required to consult with the Tribe about the mining project because the NHPA only requires consultation when a project is federally funded or federally licensed. The Back Forty Mine is not federally funded, and the permits are being issued by Michigan, not the federal government.

Therefore, the court denied the Tribe’s motion to amend the complaint and held that the Tribe failed to state a claim upon which relief can be granted and dismissed the Tribe’s case.

The Tribe appealed the decision to the Seventh Circuit Court of Appeals on January 17, 2019, arguing that the Clean Water Act requires the federal government to retain jurisdiction and apply federal safeguards for the benefit of everyone who has access to interstate and commercially used waters such as the Menominee River. We will continue to provide substantive updates on this case as they develop.

Husch Blackwell’s Daniel Fanning and Coty Hopinks-Baul provide interesting insights in the latest post from the CWA Series on whether or not a permit is required for discharges to groundwater under the Clean Water Act.
Read more here.

 

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For more information about how these decisions may affect your organization, please contact Coty Hopinks-Baul or Daniel Fanning of Husch Blackwell’s Environmental team.

On August 21, 2018, the Environmental Protection Agency (EPA) released a prepublication copy of its proposed Affordable Clean Energy (ACE) rule. If adopted, the rule would (1) establish emission guidelines for greenhouse gas emissions from existing electric utility generating units (EGUs); (2) revise the regulations governing how states implement the emission guidelines; and (3) revise the New Source Review (NSR) program to allow modification to existing EGUs without triggering permitting requirements.

The Clean Power Plan regulations adopted by the Obama administration would have limited GHG emissions by directing states to reduce emissions by applying a combination of three “building blocks” as the best system of emission reduction (BSER), which consisted of:

1)    Improving heat rate at affected coal-fired steam generating units;

2)    Substituting increased generation from lower-emitting natural gas combined cycle units for decreased generation from higher-emitting affected steam generating units; and

3)    Substituting increased generation from new zero-emitting renewable energy generating capacity for decreased generation from affected fossil fuel-fired generating units.

Continue Reading EPA’s Affordable Clean Energy Rule Would Limit Emissions Through Heat Rate Improvements at Existing Power Plants

U.S. Environmental Protection Agency’s January 25 change to its “once in always in” policy will allow facilities that have historically been regulated as “major sources” of hazardous air pollutants to be reclassified as “area” sources if they have reduced their potential to emit to below major source thresholds. This is important because companies that are no longer regulated as major sources could see significant cost savings. Husch Blackwell has prepared a list of questions to help facilities evaluate possible benefits from this policy change, as well as other resources including a summary of affected emission standards and a look back at the regulatory language EPA previously proposed to implement a similar change in policy. Review the complete materials on Husch Blackwell’s website.

On January 22, 2018, the U.S. Supreme Court unanimously held that challenges to the 2015 Waters of the United States Rule (the “WOTUS Rule” or “Rule”) belong in district court rather than the appellate court. The WOTUS Rule was developed by the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) to clarify which waters and wetlands fall under federal jurisdiction. Numerous parties challenged the Rule in both federal district courts and circuit courts of appeals. The circuit court actions were consolidated in the Court of Appeals for the Sixth Circuit. In 2016, the Sixth Circuit held that it had jurisdiction to hear petitions related to the legality of the Rule and issued a nationwide stay. This decision was appealed to the Supreme Court by industry groups who argued that, under the plain text of the Clean Water Act, the district courts were the proper jurisdiction.

In an opinion authored by Justice Sonia Sotomayor, the Court noted that the Clean Water Act lists seven specific categories of EPA actions that federal courts of appeals have the exclusive power to review and the Rule did not fall into a category on the list. The Court determined that it had “no basis to depart from the [Clean Water Act]’s plain language” despite arguments by the U.S. government (forwarded by both the Obama and Trump Administrations) that the Rule was “functionally related” to categories on the list and that efficiency, national uniformity, and other policy arguments weighed in favor of making the circuit courts of appeals the appropriate jurisdiction. The Court reversed and remanded the case to the Sixth Circuit, directing the court to dismiss the petitions for review that had been filed.

Because the Supreme Court’s decision was related to jurisdiction and not the merits of the Rule, what does this mean for the Rule’s future? Continue Reading U.S. Supreme Court Sends Waters of the US Rule to District Courts; Nationwide Stay in Question

The Menominee Indian Tribe of Wisconsin has sued the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) over the proposed Aquila Resources Back Forty Mine, arguing that EPA and Corps have failed to take responsibility for reviewing wetland permits for the project. The lawsuit was expected since the Tribe filed a notice of intent to sue in November 2017.

Aquila Resources has proposed an open pit mine, deemed the “Back Forty Mine,” to extract gold, zinc, and other metals. The mine would be located in Michigan’s Upper Peninsula and adjacent to the Menominee River, which forms the boundary between Wisconsin and Michigan. The river flows into Lake Michigan. The Michigan Department of Environmental Quality (“MDEQ”) is the permitting authority and has issued three of the four permits required for the project, including a Nonferrous Metallic Mineral Mining Permit, a Michigan Air Use Permit to Install, and a National Pollutant Discharge Elimination System (NPDES) permit. A permit for wetland impacts is still required and is under review by MDEQ. Given the location of the wetlands near a commercially navigable interstate waterway, normally the Corps and EPA would have wetland permitting authority and permitting would also trigger an obligation for the federal agencies to consult with the Tribe under the National Historic Preservation Act. However, MDEQ is one of two state agencies which has been delegated additional permitting authority under the Clean Water Act by EPA for permitting of wetlands under federal jurisdiction, and MDEQ is not required to consult with the Tribe.

The Tribe is alleging that the federal government has deprived it of treaty rights that are supposed to protect its cultural and historical sites. The Tribe’s sacred place of origin is within its 1836 treaty territory at the mouth of the Menominee River and there are numerous sacred sites and burial mounds located along the river, including in the area of the proposed mine. The Tribe is also concerned about the potential impact of acid mine drainage from the mine on the water and fishery resources in the area and Great Lakes ecosystem. According to the Tribe, it has been trying to meet and consult with the Corps and EPA for months, but the agencies have not responded in a meaningful way. The Tribe has asked the court to order EPA and the Corps to take over the wetland permitting process.

Watch this blog for additional updates.

On December 18, 2017, EPA Administrator Scott Pruitt signed an advanced notice of proposed rulemaking (“ANPRM”) to solicit input regarding the emissions guidelines limiting greenhouse gas (“GHG”) emissions from existing electric utility generating units (“EGUs”) that the U.S. Environmental Protection Agency (“USEPA”) is considering proposing.

The Clean Power Plan regulations adopted by the Obama administration would have limited GHG emissions by substituting generation from lower-emitting existing natural gas combined cycle units and zero-emitting renewable energy generating capacity. Continue Reading EPA Solicits Input on Greenhouse Gas Emissions Limits for Existing Electric Utility Generating Units

Since 2001, Wisconsin law has required a permit to discharge fill into wetlands that do not fall under federal jurisdiction (“nonfederal wetlands”). Of the approximately five million acres of wetlands in Wisconsin, an estimated 10 to 30 percent are nonfederal wetlands.

State lawmakers held hearings on December 21 on proposed legislation, AB547/SB600, which would exempt nonfederal and artificial wetlands from the state wetland permitting requirements administered by the Department of Natural Resources (“DNR”). The bill would still require a developer to mitigate the nonfederal wetland loss by creating a minimum of 1.2 acres of wetlands for every acre filled, but a permit would no longer be required.

The proposed bill also authorizes the DNR to apply to the U.S. Environmental Protection Agency (EPA) for delegation of permitting authority for federal wetlands within Wisconsin. If EPA approves the application, the DNR become the permitting authority for fill in federal wetlands instead of the U.S. Army Corps of Engineers.

Proponents of the legislation argue that the existing nonfederal wetland permit program often protects low-value wetlands and stands in the way of development projects. Opponents argue that the existing program is necessary given the uncertainty of the definition of federal wetlands; that nonfederal and artificial wetlands provide valuable ecosystem services such as flood control and water quality protection; and that mitigation attempts often fail or do not create the same benefits as the fill wetland.

Legislative action on the bill is expected when the legislature returns to session in January 2018.

The U.S. EPA and U.S. Army Corps of Engineers have proposed to delay the effective date of the 2015 Waters of the United States (WOTUS) rule which clarifies which waters and wetlands fall under federal jurisdiction. According to the agencies, the delay is necessary to help avoid confusion among home builders, contractors, and miners.

The 2015 WOTUS rule has an effective date of August 28, 2015, but Continue Reading EPA and Army Corp Propose to Delay Effective Date of WOTUS Rule