U.S. Environmental Protection Agency

On February 20, 2018, the U.S. Environmental Protection Agency (EPA) requested comments on whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow with a direct hydrologic connection to the jurisdictional surface water may be subject to regulation under the Clean Water Act (CWA).

The answer to this question will have far reaching implications because the scope of the agency’s powers under the CWA determines the scope of:

  • National Pollutant Discharge Elimination System (NPDES) permitting programs;
  • Section 404 wetlands permitting programs;
  • Section 311 oil/hazardous substance release requirements; and
  • Spill Prevention Control and Countermeasure (SPCC) requirements.

As a result, the extent to which a discharge to groundwater that reaches jurisdictional surface waters is subject to regulation under the CWA is a significant issue for farmers, manufacturers, and anyone who discharges to groundwater.

Background

The CWA regulates the discharge of pollutants and placement of fill into “navigable waters,” and defines navigable waters as “the waters of the United States.” Since the CWA was passed in 1972, there has been much debate over the extent to which waters that are not considered navigable in fact and wetlands may be regulated as waters of the United States. This uncertainty has given rise to a variety of CWA citizen suits alleging that discharges from point sources that migrate via groundwater to waters of the United States require NPDES permits.

Over the years, various federal courts have reached differing conclusions on the question of whether discharges to groundwater can be considered discharges to waters of the United States. Most recently, the Ninth Circuit addressed this issue in Hawaii Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018). In that case, the County of Maui (the “County”) discharged treated effluent from its wastewater reclamation facility into injection wells. Tracer dye studies confirmed that this effluent migrated through the groundwater to the Pacific Ocean. A three-judge panel for the Ninth Circuit Court of Appeals ruled that the County’s discharge triggered Clean Water Act jurisdiction and the need for an NPDES permit because the groundwater was hydrologically connected to the Pacific Ocean, a water of the United States. Under the court’s ruling, an indirect discharge of contaminants from point sources that travels through groundwater and ultimately reaches navigable waters will now be subject to federal permitting requirements. Continue Reading EPA Considers Whether a Discharge of Pollutants to Groundwater that is Connected to Navigable Waters Requires a Federal Permit

The U.S. Environmental Protection Agency (“EPA”) and the U.S. Department of Justice (“DOJ”) have recently issued memoranda concerning civil enforcement of violations, including violations of environmental laws.

The January 22, 2018 EPA memorandum, entitled “Interim [Office of Enforcement and Compliance Assurance] Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States,” provides interim guidance on a collaborative partnership between EPA and authorized States in their compliance assurance activities. The document lays out plans for collaboration by EPA and States to meet and share information on environmental compliance issues. Further, the memorandum specifies that, with respect to inspections and enforcement, EPA will generally defer to authorized States to handle the primary day-to-day implementation of their programs.

The January 25, 2018 DOJ memorandum, entitled “Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases,” provides that DOJ may not use its enforcement authority to convert agency documents into binding rules, and DOJ litigators may not use non-compliance with agency guidance documents as a basis for proving violations of law or treat lack of compliance as a presumption of a violation. DOJ may continue to use agency guidance documents for other purposes. This will reduce the environmental compliance burden on companies who previously sought to comply not only with clearly mandatory laws and regulations but also with advisory guidance documents, and keep the Department in check when seeking to use those guidance documents in negotiating penalties for violations.

The policies announced by this memoranda are unsurprising given the current political climate in which EPA Administrator Scott Pruitt and President Trump seek to reduce EPA responsibilities and shift environmental duties to the States and to minimize the burdens facing companies.

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.

Power plant silhouetteEarlier today, the U.S. Court of Appeals for the D.C. Circuit issued an order granted EPA’s motion to hold the Clean Power Plan litigation in abeyance while EPA reviews the carbon pollution emission guidelines for existing power plants and the standards of performance of new, modified, and reconstructed power plants and, if appropriate, publishes proposed rules suspending, revising, or rescinding those rules. Review of the rules is required by President Trump’s Executive Order targeting climate change regulation (discussed further here).

The motion for abeyance was opposed by numerous parties, including cities and states; Calpine Corporation and municipal power companies; the American Wind Energy Association and Solar Energy Industries Association; and environmental organizations. They argued that Continue Reading Court’s 60-Day Abeyance of Clean Power Plan Litigation May Help Efforts to Suspend, Revise, or Rescind Rules

president_of_us_seal

Fulfilling repeated campaign pledges to roll back the Obama administration’s climate change initiatives, President Trump signed a sweeping executive order yesterday targeting key Obama-era regulations, including the Clean Power Plan and emission standards for the oil and gas industry. The executive order states that it is in the interest of the nation to promote development of energy resources “while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.” The multi-faceted approach taken by the order makes it clear that this Administration views any regulation of climate change or carbon pollution as “unnecessary.”  Continue Reading Trump’s Executive Order Takes a Multi-Faceted Approach to Eliminating Climate Change Regulation

Chemical factory at nightUnder EPA’s revised Regional Consistency regulations (codified in 40 C.F.R. Part 56) , sources located in different parts of the country may be subject to a different “single source” aggregation test or other Clean Air Act policies based on decisions of the federal courts with local jurisdiction. Continue Reading EPA Addresses Aggregation Concerns with Clean Air Act Exemption