water case law update that makes (some) sense by aimee davenport, evans & dixon, david shanks,...
TRANSCRIPT
Welcome to:
Water Case Law Update
That Makes (Some) Sense
Adrienne Nemura, P.E.
Eighth Annual Missouri Water Seminar
Columbia, MO
September 5, 2013
David Shanks, The Boeing Company
Aimee Davenport, Evans & Dixon LLC
Overview
• Los Angeles County Flood Control District v.
Natural Resources Defense Council (NRDC)
• Iowa League of Cities v. EPA
• Mingo Logan Coal Company v. US EPA
• Upcoming opportunities
Los Angeles County Flood Control
District v. NRDC (U.S. Jan. 2013)
• Case involving liability of a permit holder
for storm water discharges that flow
through from one part of a water body
through a concrete channel, into a lower
portion of the same water body
Los Angeles County Flood Control
District v. NRDC
• Los Angeles County and District operate
MS4 system
• Portions of rivers within system include
concrete channels constructed for flood
control
• Monitoring detected exceedances in water
quality standards
• NRDC sued
Los Angeles County Flood Control
District v. NRDC
• Whether the flow of water from one portion
of a water body through a concrete
channel into a lower portion of the same
water body is a “discharge of a pollutant”
under the Clean Water Act (CWA).
Los Angeles County Flood Control
District v. NRDC
• CWA defines “discharge of a pollutant” as
“any addition of any pollutant to navigable
waters from any point source.”
Los Angeles County Flood Control
District v. NRDC
• The CWA does not regulate movement of
water from one part of a river, through a
concrete channel, into a lower portion of
the same river
Los Angeles County Flood Control
District v. NRDC
• “If you take a spoon of soup from a pot
and pour it back in, you haven’t ‘added’
anything.”
– South Fla. Water Mgmt. v. Miccosukee Tribe
(2004)
http://www.waterboards.ca.gov/losangeles/water_issues/programs
/stormwater/municipal/ (Order No. R4-2012-0175, Attachment C)
Mass Emission Station
in the Los Angeles River
http://dpw.lacounty.gov/wmd/NPDES/2011-12tc.cfm
Monitoring Goals
• Estimate mass emissions from
the MS4
• Assess mass emission trends
• Determine whether the MS4 is
contributing to exceedances
of water quality standards
Los Angeles County Takeaways
• Be careful about what language appears
in stormwater (SW) permits
• Individual SW sources may need to be
concerned about MS4s deeming them to
be “liable”
Iowa League of Cities v. EPA
• Are swimmers in the Missouri, Mississippi, Des Moines,
and Cedar Rivers at risk if they happen to choose to
swim in the regulatory mixing zones?
Mixing zone showing zone of initial dilution (ZID)
Effluent limit will be
higher than WQ
standard Effluent limit will be
higher than WQ
standard
• Should a WWTP be allowed to blend to treat excess wet
weather flows during storms?
Iowa League of Cities v. EPA
(8th Circuit Mar. 2013)
• Case limiting EPA’s use of guidance to
regulate wastewater treatment processes
(“blending”) and to prohibit the use of
mixing zones in primary contact recreation
waters
Iowa League of Cities v. EPA
• EPA sanctioned the use of blending and mixing zones in primary contact waters as late as 2003
• EPA developed draft guidance document prohibiting the use of blending unless “no feasible alternatives” in 2005
• Senator Chuck Grassley sought clarification on behalf of cities, receiving 2 response letters
Iowa League of Cities v. EPA
• Issues Included:
– Whether EPA violated the federal
Administrative Procedure Act (APA) by
promulgating legislative rules without notice
and comment, and
– Whether EPA exceeded its authority under
CWA by prohibiting mixing zones and
blending
Iowa League of Cities v. EPA
• Mixing zones and blending
– EPA violated APA because letters prescribed new legal norms and were not citations or repetitions of a preexisting effluent limitation
• Blending
– EPA exceeded its authority under the CWA by applying effluent limitations to internal processes rather than end of pipe – flows from internal unit to another are not “discharges”
Iowa League of Cities v. EPA
• No flip-flopping without going through
rulemaking
• No flip-flopping at all if inconsistent to
statute
Mingo Logan Coal Company v. EPA
(D.C. Cir. 2013)
• Case involving
years of effort and
resources to obtain
a 404 permit,
seemingly resulting
in a permit, but NOT
Mingo Logan Coal Company v. EPA
• Over a decade of back and forth to obtain
a 404 permit to conduct mining operations
for Spruce No. 1 Coal Mine
• Process included: environmental groups,
Corps, EPA, EIS, change of administration
• Resulting in EPA veto in 2011
Mingo Logan Coal Company v. EPA
• Issues include:
– Whether EPA lacks authority under CWA to
withdraw a 404 permit after it has been
issued, and
– Whether EPA's decision to do so violated the
APA
Mingo Logan Coal Company v. EPA
• Court held that EPA has “broad
environmental backstop authority” and “final
say” over disposal sites
• Section 404(c) places no time limits on this
authority
– EPA can prohibit specification of disposal site
“…whenever it determines…that the discharge
will have an unacceptable adverse impact.”
Mingo Logan Coal Company v. EPA
• “Whenever” means at “whatever time; on
whatever occasion.”
– Oxford English Dictionary
Mingo Logan Coal 404 Permit Timeline
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
Mining Company
Corps of Engineers
EPA
Courts
Sought Nationwide Permit Coverage
Nationwide Permit Enjoined
Applied for Individual 404 Permit
Draft mountaintop mining EIS
EPA comments on draft EIS, no intent to take formal 404 action
Final EIS
Individual permit issued
Environ groups challenge permit
Obama administration Bush administration Clinton administration
EPA asks Corps to suspend or revoke permit
Corps refuses
EPA issues notice of intent to veto permit
EPA vetoes permit
Company sues to reinstate permit
Coal co. wins in District court
Circuit court upholds veto
EPA Guidance: Review of Appalachian
Surface Coal Mining 404 Permits
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
Mining Company
Corps of Engineers
EPA
Courts
Obama administration Bush administration Clinton administration
EPA issues guidance
Natl. Mining Assoc. sues to challenge EPA guidance
District court vacates guidance on APA grounds
EPA and COE appeal to DC Circuit
Upcoming Opportunities
• Water Quality Standards Rule update (just
announced, 30-day comment period)
• Numeric nutrient criteria
• Anti-degradation
• Greenhouse gas emissions
• …
Questions?
Aimee Davenport Evans & Dixon LLC
(573) 289-3979
David Shanks The Boeing Company
(314) 777-9227
Adrienne Nemura, P.E. Geosyntec Consultants
(734) 476-0357