Half the States, Environmental and Industrial Groups Call US EPA “All Wet” Over New Rule Redefining US Jurisdictional Waters Under Clean Water Act

navagableOn May 27, 2015, the United States Environmental Protection Agency and the United States Army Corps of Engineers jointly announced a new final rule defining the scope of jurisdictional waters protected under the authority of the Clean Water Act (“Act”).  Immediately following the announcement of the new rule, various entities including industrial and agricultural groups, more than half the states, and numerous environmental groups filed legal challenges in multiple federal jurisdictions.  On October 9, 2015, in In re EPA and Dept. of Defense Final Rule, 803 F.3d 804 (6th Cir. 2015), the Sixth Circuit issued a nationwide stay on enforcement of the new rule pending further developments, including the Court’s own need to determine its jurisdictional authority to hear Plaintiffs’ legal challenges.  Most recently, on February 22, 2016, the Sixth Circuit held that it may exercise subject matter jurisdiction over legal challenges to the new rule.

The Rule

The EPA and the Army Corps assert that the new rule addresses a number of questions raised by decisions of the United States Supreme Court in U.S. v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANNC”), and Rapanos v. United States (“Rapanos”).  Specifically, “[t]he [new] rule will ensure protection for the nation’s public health and aquatic resources, and increase [Clean Water Act] program predictability and consistency by clarifying the scope of the “waters of the United States” protected under the Act.”  According to the agencies, the new rule will also provide “greater clarity regarding which waters are subject to [Clean Water Act] jurisdiction, reducing the instances in which permitting authorities, including the state and tribes authorized with section 402 and 404 [Clean Water Act] permitting programs, would need to make jurisdictional determinations on a case-specific basis.”

In substance, the new rule divides water features into three general categories: those waters that are jurisdictional by rule in all cases; those waters that are subject to a case-specific jurisdictional analysis; and those waters that are excluded from jurisdiction by rule in all cases.

“Categorical” jurisdictional waters are jurisdictional by rule without the need for additional or case-specific analysis.  The categorical jurisdictional waters recognized by the new rule include: (1) traditional navigable waters which are subject to interstate commerce; (2) all interstate waters, including wetlands; and (3) the territorial seas.  Categorically jurisdictional waters under the new rule also include all tributaries, impoundments, and waters adjacent to the jurisdictional waters listed above.

Along with waters that are considered categorically jurisdictional, the new rule contemplates waters that are subject to a case-specific analysis.  In the new rule, the agencies have identified five specific types of waters located in specific regions which are subject to a case-specific analysis.  In addition, the new rule provides that waters located in whole or in part within the 100-year floodplain of traditional navigable water, interstate water, or the territorial seas, and those waters located within 4,000 feet of the high tide line or ordinary high water mark, are subject to case-specific jurisdictional analysis.  The new rule refers to the waters subject to case-specific analysis as “similarly situated.”

Finally, the new rule also excludes a variety of waters from the definition of “waters of the United States.”  While it retains all pre-existing exclusions from jurisdiction, the new rule provides for several new exclusions which reflect “longstanding agency practice.”  Under the new rule, waters excluded from the definition of “waters of the United States” include: (1) prior converted cropland; (2) waste treatment systems; (3) groundwater; (4) stormwater control features; (5) artificial retention and detention basins used for wastewater recycling, groundwater recharge basins, and percolation ponds; and (6) three types of ditches.  In addition, the new rule carves out exclusions from jurisdiction for a number of specific water features, including, but not limited to, artificial lakes or ponds, artificial reflecting pools or swimming pools, and erosional features, including gullies, rills, and other ephemeral features that are not tributary to other “waters of the United States.”

Implications of the New Rule

The nationwide stay issued by the Sixth Circuit currently precludes the enforcement of the new rule in any jurisdiction.  Accordingly, although its impact remains uncertain, it is anticipated that the new rule will affect a variety of regulated industries, entities, and individuals.  While the new rule may authorize the exercise of federal jurisdiction over previously unregulated waters, the addition of bright line exclusions may exempt some features that would have otherwise been deemed jurisdictional.  It therefore seems that despite the agencies’ efforts to provide certainty and clarity regarding the scope of Clean Water Act jurisdiction, the new rule may raise as many questions as it answers.

 

The Big Chill

Last month, the Environmental Protection Agency (EPA) issued final rules under the Clean Water Act Section 316(b).  The new rules impact existing[1] facilities that: (1) use cooling water intake structures designed to withdraw at least two million gallons of water per day from U.S. waters; (2) have or are required to have a National Pollutant Discharge Elimination System (NPDES) permit; and (3) use at least 25 percent of the water they withdraw exclusively for cooling purposes. Additionally, they showcase the EPA’s efforts to prevent aquatic life from being drawn or trapped by plant and factory equipment. According to EPA, the rules will likely apply to more than 1,000 facilities in sectors including electric generation plants, pulp and paper mills, chemical manufacturing plants, iron and steel manufacturing facilities, petroleum refineries, food processing plants, and aluminum manufacturing facilities. According to Nancy Stoner, EPA’s acting assistance administrator for water, “EPA is making it clear that if you have cooling water intakes you have to look at the impact on aquatic life in local waterways and take steps to minimize that impact.”

The requirements offer facilities a choice of seven technologies to prevent both fish entrainment (aquatic organisms being drawn into the facility) and impingement (aquatic organisms becoming trapped against an intake structure), which have all been in use for decades and are currently in place at more than 40 percent of the affected plants. Republicans and the power-generating sector believe the new rules will increase costs, raise electricity prices, and kill jobs. Sen. Jim Inhofe (R-Okla.) immediately criticized the rules and stated he would seek congressional action to overturn them. “The EPA has released another rule that threatens the affordability and reliability of America’s electricity,” Inhofe said.

The regulation disproportionately impacts power generation plants—of the approximately 1,065 facilities impacted, 544 of them are power generating plants. America’s nuclear infrastructure, consisting of 104 facilities and generating 20 percent of U.S. electricity, is particularly affected with its copious use of cooling water. The average commercial reactor in the U.S. is aged 33 years with the two oldest in service since 1969 and the last newly built reactor entering service in 1996. Although the rule allows facility owners or operators flexibility in fulfilling its “best technology available requirements,” there is an added requirement for biological studies and federal consultations as part of the permitting process—an aspect that will undoubtedly be costly, potentially unfeasible, and enough to give any energy provider an unwelcomed chill.

The new rule, effective sixty days after its publication in the Federal Register, will be implemented through the NPDES permit program. Environmental groups were hoping for more stringent requirements and will undoubtedly challenge the final rule.


[1] Previous Phase I rules, found at 40 C.F.R Subpart I, apply to new facilities. 66 Fed. Reg. 65256 (Dec. 18, 2001).

Court Rejects Toxic Telephone Pole Lawsuit

On November 6, 2009, we reported here concernining a case of first impression brought by the Ecological Rights Foundation ("ERF") in federal court in California.  In her decision, dated March 31, 2011, the Hon. Saundra Brown Armstrong, sitting in the United States District Court for the Northern District of California (Oakland Division), dismissed ERF’s  environmental claims brought  against Pacific Gas & Electric (“PG&E”) and Pacific Bell Telephone (“Pacific Bell”).  The Ecological Rights Foundation alleged that the Defendants’ wooden utility and telephone poles were pressure treated with an oil-based pentachlorophenol preservative which was “oozing” to the surface and being washed off of the Poles, thereby contaminating San Francisco Bay and adjacent waterways.  As a result of the migration of this material over time from the Poles into the soils, ERF alleged that “dioxin-like” compounds were released into the environment placing surrounding homeowners, commercial fisherman and the general public at significant risk.  As a practical matter, if ERF had prevailed, PG&E and Pacific Bell may have had to replace tens of thousands of Poles throughout California. 

 

In dismissing the case, which was brought pursuant to the Clean Water Act (“CWA”) and the Resource Conservation and Recovery Act (“RCRA”), the Court examined the required showings under each statute.  The CWA distinguishes between point and nonpoint sources.  A point source is defined in the statute as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  All other sources of pollution are characterized as “nonpoint sources.”  To succeed, ERF had to demonstrate that the Defendants’ discharges were point source discharges. 

In dismissing the CWA claim, the Court held that “point and nonpoint sources are not distinguished by the kind of pollution they create or by activity causing the pollution, but rather by whether the pollution reaches the water through a confined, discrete conveyance.”

The key issue in the analysis of ERF’s RCRA claim was whether the chemical preservatives used on the Poles qualified as a “solid waste” within the meaning of RCRA.  The term “solid waste” is statutorily defined as “discarded material.”  Although not defined by statute, EPA regulations specify that “discarded material” includes any material that is “abandoned.”  ERF alleged that solid waste was disposed of into the environment when the chemical preservative leaked, spilled or dripped from the Poles due to rain, and when dust impregnated with the chemical is blown into the air during dry seasons.  In dismissing the RCRA claim, the Court held that the “flaw in plaintiff’s theory of disposal is that in this case, there is no allegation that Defendants engaged in any conduct that resulted in the discharge of the chemical preservative. To the contrary, Plaintiff merely alleges that the purported contamination is the result of natural forces – mainly, rain and wind… Such allegations, on their face, are insufficient to establish that Defendants engaged in the ‘disposal’ of hazardous waste under § 6972(a)(1)(B).”  The Court rejected Plaintiff’s theory that the “passive” spilling or leaking of materials from a place of containment into the environment constitutes “disposal” of solid waste.  In so holding, the Court distinguished prior cases that found that leakage fromgasoline USTs may be actionable under RCRA.  The UST holdings are only applicable to situations where the discharge of hazardous waste leaked or spilled from a container intended to hold the waste.  In contrast, the Court found that “the Poles are not containers; but rather, they were used to suspend wires for the transmission of electricity for PG&E and data for Pacific Bell.”  Thus, liability under RCRA ¶ 7002 did not attach based on the “discharge” of chemical preservatives from the Poles attributable to natural forces, such as rain and wind.