Great Lakes Law

Michigan Supreme Court will decide if townships are responsible for building sewer systems to control water pollution

The following guest post is by Nick Schroeck, Executive Director of the Great Lakes Environmental Law Center and director of Wayne Law’s Transnational Environmental Law Clinic.

On Wednesday November 9, 2011 the Michigan Supreme Court will hear oral argument in the case Michigan Department of Environmental Quality v. Township of Worth (S. Ct. Docket No. 141810).  Worth Township is located in a picturesque region of Michigan on the shore of Lake Huron. A popular vacation destination, it is home to many small plots of land with cottages and homes along the Lake. The township developed without its own public sewerage system and residents installed their own private septic tanks. The existing system of private, individual septic tanks on small, dense plots of land is not sustainable, and many of the septic tanks are failing, contaminating Lake Huron with raw sewage discharges.

The Michigan Department of Environmental Quality (DEQ), in an attempt to resolve the issue, has been working with Worth Township for several years. In 2004, the township signed a district compliance agreement with the DEQ in which it agreed to construct a public sewerage system. After the township failed to uphold this agreement, DEQ sued the township in Circuit Court, requesting injunctive relief to force the township to construct the sewerage system. The Circuit Court held in favor of the DEQ, the township appealed and the Court of Appeals held in favor of the township, and the DEQ was granted leave to the Michigan Supreme Court.

The Great Lakes Environmental Law Center has filed an amicus curiae brief in support of the DEQ’s position. We argue that, under the Natural Resources and Environmental Protection Act (NREPA), (1) Worth Township is responsible for the widespread failure of the private septic systems within its borders; (2) the DEQ has authority to order Worth Township to install a sewer system; and (3) the Circuit Court has authority to enforce the order.

Part 31 of NREPA prohibits the discharge of injurious substances into state waters.  Discharge of raw human sewage is prima facie evidence of a Part 31 violation by the municipality where the discharge originated. The septic systems within Worth Township’s borders are failing, causing sewage to discharge into Lake Huron. Therefore, the township is responsible for the discharge under NREPA. MCL 324.3109(2) creates a presumption that a municipality violates NREPA if raw sewage is discharged into state waters within municipal boundaries, even if the municipality does not directly own or operate the sewerage system. The Court of Appeals incorrectly applied this presumption as to whether the municipality owns or operates the source of the discharge.

Part 31 also grants the DEQ broad authority to “take all appropriate steps to prevent any pollution [it] considers to be unreasonable and against public interest in…any…waters of the state.” This authority includes the power to issue orders. The 2004 agreement between DEQ and Worth Township constitutes such an order.

Furthermore, the Circuit Court has injunctive authority to enforce the DEQ’s order. NREPA explicitly grants that authority. MCL 324.3115 states that the DEQ “may request the attorney general to commence a civil action for appropriate relief, including a permanent or temporary injunction, for a violation… or order issued[.]” Independently of NREPA, Michigan courts also have the power to force local governments to construct a public sewerage system. In People ex rel Stream Control Comm’n v. Port Huron, 9 N.W.2d 41 (1943), the Michigan Supreme Court held that it had common law injunctive authority to force the City of Port Huron to comply with a Department of Health order construct a public sewerage system.

As our amicus curiae brief demonstrates, Worth Township is responsible for the sewage discharge under NREPA, the DEQ has authority to order the township to construct a public sewerage system, and the Circuit Court has authority to compel enforcement with such an order. Special thanks to Wayne Law student Matthew Clark who worked on this project through the Transnational Environmental Law Clinic.

Great Lakes Week in Detroit – IJC Biennial Meeting and more

The International Joint Commission’s Great Lakes Water Quality Biennial Meeting on October 12-14 is anchoring Great Lakes Week Detroit 2011. The Great Lakes Commission and the Healing Our Waters Coalition will also be holding their annual meetings as part of the event, which should draw hundreds of Great Lakes advocates and policy makers to Detroit and the Wayne State University campus.

Pursuant to the Canada-US Great Lakes Water Quality Agreement, the IJC convenes the Biennial Meeting to report on progress toward restoration of the physical, chemical, and biological quality of the waters of the Great Lakes basin ecosystem. Biennial Meeting workshops will focus on key challenges to water quality, including harmful and nuisance algae, aquatic invasive species, beach health, fish consumption, and chemicals of emerging concern. A special plenary session will focus on priorities for 2011-2013, providing the public with an opportunity to comment on IJC plans for future study. As the U.S. and Canada reach the final stage of negotiations regarding an updated Great Lakes Water Quality Agreement, the Biennial Meeting will be a critical opportunity for public participation in Great Lakes governance. 

Registration for the IJC Biennial Meeting is free and open to the public, but you should register in advance, especially if you want to save a seat for the keynote session with former Vice-President Al Gore on Thursday afternoon. For more details on all events, see the IJC’s schedule and the Great Lakes Week detailed agenda.

Book review - Burning Rivers: Revival of Four Urban-Industrial Rivers that Caught on Fire, by Dr. John Hartig

Remember when rivers catching fire symbolized environmental degradation? I don’t - I was born in 1974, and my generation saw environmental values debated through Styrofoam cups and the spotted owl (rather lame symbols in comparison to a burning river). But the stories of rivers burning became a legendary chapter in the making of environmental law and the growth of political environmentalism. Yet I never understood the complexity of the problem, and the tremendous success in restoring these rivers, until I read Dr. John Hartig’s superb book, Burning Rivers: Revival of Four Urban-Industrial Rivers that Caught on Fire.

As the title implies, Burning Rivers tells the stories four rivers in the Great Lakes basin that caught on fire because of oil pollution – most famously the Cuyahoga River in Cleveland, as well as the Buffalo River in New York, the Rouge River in southeast Michigan, and the Chicago River in Illinois. Dr. Hartig’s research goes beyond oil pollution and resulting river fires, and provides a fascinating historical lesson on the relationship between the growth of the industrial Midwest and the degradation of our urban rivers. He details how these urban rivers were critical natural and national resources that helped the United States industrialize and prosper, even playing a role in the massive effort to win the Second World War. Urban rivers paid a price for all this, and were all but dead from oil and chemical pollution by the late 1960s.

But the story does not end with dead waterways. Instead, the book details the tremendous community and political efforts to restore the rivers. Taken together, the stories of each river’s restoration paint an inspiring picture of our capacity to work together and solve environmental problems. The successes are amazing. Rivers once left for dead now teem with nesting bald eagles, trophy northern pike and other sport fish, and community parks for swimming. The ecological restoration has often come in partnership with economic progress, such as Ford’s modern Rouge Complex, which provides a model of sustainable manufacturing and water protection. Reading Burning Rivers gives me a new sense of optimism and hope that we can overcome our modern water pollution problems and finally achieve the Clean Water Act’s goal of fishable, swimmable, and drinkable water in our urban rivers.

Dr. John Hartig is the ideal person to bring the stories of urban rivers to press.  He was trained as a limnologist and has over 30 years of experience in environmental science and natural resource management. He currently serves as Refuge Manager for the Detroit River International Wildlife Refuge and previously served as River Navigator for the Greater Detroit American Heritage River Initiative and spent twelve years working for the International Joint Commission on the Canada-U.S. Great Lakes Water Quality Agreement.  Dr. Hartig has been an Adjunct Professor at Wayne State University where he taught Environmental Management and Sustainable Development, and has served as President of the International Association for Great Lakes Research.  He has authored or co-authored over 100 publications on the Great Lakes. Most recently, Burning Rivers won the 2011 Green Book Festival award for scientific writing.

Burning Rivers: Revival of Four Urban-Industrial Rivers that Caught on Fire can be purchased through the publisher Multi-Science Publishing Co., online from Michigan Sea Grant, and from Amazon. Proceeds go to the Aquatic Ecosystem Health and Management Society for dissemination of science.

Alternative Strategies for managing pharmaceutical and personal care products in water resources – Guest Post by Gabriel Eckstein

The following guest post is by Gabriel Eckstein, a professor of law at Texas Wesleyan University. Prof. Eckstein is also the Director of the International Water Law Project and a Senior Fellow with the Texas Tech Center for Water Law & Policy. He and George William Sherk recently published an EPA-funded study entitled “Alternative Strategies for Managing Pharmaceutical and Personal Care Products in Water Resources.” The study is available on the Micropollutants Clearinghouse website, a great resource for data, articles, and reports about PPCPs in drinking water systems across the country.

What’s in your water? Researchers have known for more than 40 years that pharmaceuticals and personal care products (PPCPs) – such as antibiotics, prescription and over the counter drugs, steroids, reproductive hormones, fragrances, soaps, and thousands of other products – can end up in our drinking waters (see the Micropollutants Clearinghouse to view thousands of studies, articles, and reports about PPCPs in drinking water). Studies done over the past several decades have indicated that these contaminants can be found in both surface and ground waters throughout the United States (as well as most other countries). This has raised serious concerns stemming from the possibility that the presence of these PPCPs may pose a threat both to human and environmental health, either through direct exposure (e.g., contact with endocrine disrupting compounds) or indirect consequences (e.g., emergence of antibiotic resistant bacteria). The water treatment and wastewater treatment communities have been especially concerned over PPCPs because of their ubiquitous nature and ability to persist or only partially degrade in water or during the wastewater treatment process.

Sources of PPCPs include human & animal feces and urine, hospital/medical wastes, wastes from industrial and agricultural processes, pharmaceuticals and personal care products that are disposed of inappropriately, urban runoff, and leachate from landfills. These contaminants are rarely treated or removed in the wastewater treatment process and typically remain in waters discharged from wastewater treatment plants into receiving streams and lakes, as well as in solid and liquid wastes applied to lands designated as application sites.

What have we done about PPCPs in our water? Not much, though not because of a lack of effort. The legal system (at least in the United States) was never meant to deal with micropollutants on this scale. For example, while common law remedies like trespass, nuisance, negligence, and strict liability may be applicable to concerns over PPCPs in water supplies, they rely on litigation, an all-to-often expensive, time consuming, and very case-specific process. Moreover, success in litigation requires plaintiffs to prove causation – which manufacturer produced the PPCP involved in the suit, and which PPCPs resulted in the harm alleged in the suit – hurdles that may be difficult to overcome.

An alternative to common law remedies might be found under federal statutory regimes including the Clean Water Act, Safe Drinking Water Act, Resource Conservation and Recovery Act, Toxic Substance Control Act, and Endangered Species Act. While these strategies may be relevant and important, their implementation also can be expensive and politically complicated. Moreover, none of these schemes specifically address PPCPs and none are singularly applicable to (let alone capable of managing) the thousands of different pharmaceuticals and personal care products introduced into our water systems every year.

A more effective route for responding to PPCPs in drinking water supplies may be to focus on alternative strategies that focus on removing (or limiting the presence of) PPCPs at the source. In the case of pharmaceuticals, alternative strategies might include:

• Designing drugs and personal care products that minimize the human and animal excretion of wastes, which would then minimize the volume of PPCPs that enter the water system;
• Changing the delivery mechanisms by better informing doctors and patients about the effects of PPCPs on the environment, and educating doctors and other professionals on how to individualize or tailor doses to the individual user rather than prescribing the manufacturers’ recommended dose;
• Informing users on how to dispose of unused drugs and personal care products and producing a variety of package sizes to reduce the amount of unused drugs;
• Developing more disciplined dispensing and inventory control protocols to reduce disposal of unused drugs, such as through limits on Internet sales and tying drug dispensing of the necessary quantity to the drug’s expiration date (i.e., minimize drug expiration before the course of treatment is completed);
• Encouraging states or manufacturers of PPCPs to develop take-back arrangements and appropriate disposal/recycling programs; and
• Developing nutrition and health maintenance programs that reduce illness and the need for PPCPs, as well as the use of alternative products that do not contain PPCPs, such as probiotics.

The issue of PPCPs in water supplies is a complex problem that will require more than one simple solution. Yes, it will require monitoring and regulating the PPCPs that do enter the water supply, new monitoring, detection, and analysis methods, and new drinking water treatment processes. Yet, to successfully limit the presence of these contaminants in our drinking water, it will also require a reduction in the sources of PPCPs. This reduction will be achieved only through a combination of technological and industry fixes as well as regulatory and statutory mechanisms.

(Note: Another complimentary strategy to address this problem is being pursued by the Great Lakes Environmental Law Center. Working with NRDC, GLELC filed a petition last year with the Food and Drug Administration to close a regulatory loophole that allows pharmaceutical drugs to be approved without considering their impacts on drinking water. For more info, see this previous post.) 

International Joint Commission releases Report on Great Lakes Water Quality, announces next Great Lakes Biennial Meeting at Wayne State University

At a public event yesterday at Wayne State University, the International Joint Commission released its 15th Biennial Report on Great Lakes Water Quality. In its report, the IJC detailed 32 recommendations for action at the federal, state, provincial and local levels of government. (The full report and executive summary are available online.) Most notably, the recommendations focus on the need for the U.S. and Canada to approve a revised Great Lakes Water Quality Agreement to protect drinking water and human health from threats including inadequate wastewater treatment, agricultural run-off, industrial livestock operations, and pharmaceuticals. The report also recommends binational governance improvements to provide a rapid response to stop the spread of invasive species and basin-wide consistency in fish consumption advisories. The release of the report is just part of the ongoing public process under the Great Lakes Water Quality Agreement. The process culminates with the Great Lakes Biennial Meeting, which will be held October 12-14 at Wayne State University in Detroit.

Update: More IJC news – President Obama announced that he intends to nominate the final two US members of the IJC: (1) Dereth Glance, currently the Executive Program Director for Citizens Campaign for the Environment, a non-profit citizens environmental and public health advocacy organization in New York and Connecticut; and (2) Rich Moy, a Senior Fellow at the Center of Natural Resources and Environmental Policy at the University of Montana and former Water Management Bureau Chief for the Montana Department of Natural Resources and Conservation. See the White House announcement for more info. 

Enforcing the federal Clean Water Act in state proceedings – guest post by Melissa Scanlan

The following guest post is by Melissa Scanlan, one of the leading public interest environmental attorneys in the Midwest. After graduating from the University of California-Berkeley in 1999, Melissa returned to her native Wisconsin and founded Midwest Environmental Advocates, which she led as Executive Director for almost a decade. In June of this year Melissa started a new environmental consulting firm where she is teaching, writing, and promoting social enterprises engaged in water policy, sustainability, and environmental justice. Melissa continues to serve of the board of Midwest Environmental Advocates, and she is also writing a blog, Dreamers and Doers. On a personal level, I have tremendous respect for Melissa and what she accomplished in launching and running Midwest Environmental Advocates, filling a much needed role in Wisconsin. Melissa has a long list of litigation, public advocacy, and legal scholarship accomplishments, and she is scheduled to teach a course about the Clean Water Act at Marquette University Law School in the spring 2011 semester.

Last week I attended oral arguments in the Curt Andersen, et al v. DNR case before the Wisconsin Supreme Court.  While an observer in this final round of the litigation, I had previously worked on the initial challenge to the water pollution permit that has, over the past five years, made its long journey towards a final disposition on a deceptively simple legal issue involving the system of cooperative federalism established by the Clean Water Act:  In a state administrative law forum, can one challenge terms of a Wisconsin Pollution Discharge Elimination System (WPDES) permit, in a state in which the EPA has delegated authority to the state DNR to carry out the Clean Water Act, on the basis that the terms fail to comply with the federal Clean Water Act?

While the Wisconsin Supreme Court has lots of experience with the statutory interpretation and agency deference issues this case raises, it was in unfamiliar territory addressing the federal Clean Water Act.  However, the questions the justices asked, struck at the heart of the Clean Water Act’s system of cooperative federalism and access to justice by challengers of water pollution permits. 

To get some background on the case, you can watch one of the conservationists who has litigated this case in an effort to reduce toxic mercury and excessive phosphorus pollution into the Fox River, Bay of Green Bay, and ultimately Lake Michigan. (Link to video on YouTube.)

Under Wisconsin statutes, section 283.31(3)(d), the DNR must issue WPDES permits with conditions needed to meet state and federal standards. Conservationists challenged Ft. James paper company’s WPDES permit terms in an effort to reduce mercury and phosphorus water pollution.  The conservationists did not challenge the state law on its face, but as applied to this particular permit in which the DNR did not undertake a reasonable potential or an antidegradation analysis, as required by the Clean Water Act.  The conservationists believe that had the DNR undertaken those analyses, it would have allowed less pollution to be sent into the Fox River.

The DNR argued that the only basis by which to judge the adequacy of a WPDES permit is state law, and that further, the DNR did not have the authority to determine the meaning of the Clean Water Act. Siding with the conservationists, the Wisconsin Court of Appeals held that "the DNR has authority to determine whether discharge permit provisions authorized by state regulations comply with federal law." Curt Andersen, et. al. v. DNR, 2010 WI APP at 20.

Citing potential chaos at the agency, the DNR appealed to the Wisconsin Supreme Court, claiming the outcome could impact over 1,000 companies and municipalities that send polluted wastewater into Wisconsin’s waterways. DNR Petition for Review Brief, at 3. 

In essence, the DNR argued before the Supreme Court that because state rules are required to comply with federal law and the EPA approved the state rules, any permit issued in accordance with the state rules automatically complies with federal law. DNR Petition for Review Brief, at 6. (I should note that approval of the rules by EPA is in dispute.) The DNR further argued that a challenge to a permit term is automatically a challenge to the state rule, and the proper forum for challenging a state rule is to either go through a new rulemaking or ask the EPA to declare the rule violates federal law. Several justices took issue with this logic and expressed discomfort with the automatic pass the DNR wanted to give to its application of rules as being consistent with federal law, which would deny any challenger the ability to have a judge review the veracity of the claim. Some justices also expressed concern that the DNR was equating rules with permit terms. 

The conservationists focused their oral arguments on clarifying that they have no problem with the state rules and are not challenging them on their face, but only as applied to the terms of Ft. James’ particular permit.  The conservationists also showed the fool’s errand the DNR was trying to send them on by directing them to the EPA to resolve the matter; the 7th Circuit in American Paper v. EPA foreclosed that option in 1989 when it determined that if the EPA fails to object to a state-issued permit, the conservationists would have no recourse to challenge the decision in federal court (see the Conservationists' Petition for Review Brief). 

The case raises interesting issues of the relationship between the federal and state governments in administering a delegated program like the Clean Water Act.  Although EPA retains an oversight role and may withdraw approval of Wisconsin's WPDES program, that oversight role does not absolve DNR of its state statutory obligation to ensure compliance with the federal law – or does it?   Is the EPA the exclusive arbiter of whether a state law or state issued permit complies with the federal Clean Water Act such that it deprives an administrative law judge or state court of authority to find that a permit fails to comply with applicable federal laws?

The DNR’s position, of course, would cut both ways:  impacting permit holders who claim the state is regulating beyond that required by the federal law as much as it would impact the immediate litigants who resort to federal law to claim lack of protection of the state’s waters.

You can watch the oral arguments on Wisconsin Eye. We expect a decision from the Court some time within the next six months.  I’m hopeful that the Court will not interpret the facts and law in a way that nullifies a fundamental Clean Water Act right: the right to challenge through state proceedings a state's issuance of a permit that fails to comply with applicable federal law and regulations.

Update: See Melissa's op-ed in the Milwaukee Journal Sentinel for more on the case.

Update March 23, 2011: The Wisconsin Supreme Court has released its opinion. Bottom line: The DNR won.

Wisconsin develops innovative rules to control phosphorous pollution

The state of Wisconsin, with significant contributions by stakeholders, has developed a package of innovate new rules to control phosphorous pollution from point and nonpoint (runoff) sources. Attorney Bill Davis of the Environmental Law and Policy Center played a key role in developing and advancing these rules through the administrative process. Bill is ELPC’s Clean Water Program Manager, working out of their Madison, Wisconsin office. I’ve known Bill for over ten years, as he previously served as the Executive Director of the State Environmental Leadership Program and the Executive Director of Wisconsin’s Environmental Decade (now Clean Wisconsin), and I asked him to write a guest post on this significant policy victory to address a widespread water quality problem.

Across the Great Lakes region – and the country – nutrient pollution in our water is a major problem. Nutrient pollution causes a range of impacts, including toxic algae blooms that have killed pets and the “Dead Zone” in the Gulf of Mexico from the polluted Mississippi River and tributaries. Unfortunately, current law offers few tools to address much of this pollution because the Clean Water Act does not reach nonpoint pollution. However, given the severity of the issue, the US EPA has encouraged states to adopt numeric water quality criteria for nutrients and has recently promulgated such standards for Florida. As a result, more states are beginning to address this problem.

Wisconsin has recently taken action to control phosphorous pollution by adopting two rules – one that sets water quality criteria for Wisconsin waters (NR 102) and an implementation rule (NR 217) that translates the criteria to permit limits. (The final rules have not yet been published – see this document from the Wisconsin Natural Resources Board with the draft rules, comments, and additional info.) The implementation rule has tremendous potential as a useful tool to address both point source pollution and nonpoint (runoff) pollution, which is not directly regulated under the Clean Water Act. Both rules have advanced through Wisconsin’s administrative process and await publication and approval by the US EPA, which we expect by the end of this year.

To give a sense of the novelty of the Wisconsin approach, the Wisconsin Farm Bureau, municipal wastewater treatment plants, and the major environmental organizations (including ELPC) all testified in favor of these rules. Why? I believe the primary reason is the Adaptive Management section of the implementation rules (NR 217). This provision allows point sources in watersheds impaired by nonpoint phosphorous pollution to meet their permit limits by contracting with nonpoint sources in the watershed to reduce their phosphorous loads. This option [essentially a market/trading program to allow more cost efficient ways to reduce pollution] is very attractive to regulated point sources. For point sources, contracting with nonpoint sources to reduce their pollution is significantly less expensive than adding end-of-pipe treatment technology like filtration. Further, regulated point sources are no longer being singled out to solve the nutrient pollution problem, and the agriculture community gets a potential new source of revenue for pollution reduction. For the public, environmental groups, and state DNR, the new rules create an enforceable mechanism to address nonpoint sources which are the dominate source of nutrient pollution in many of watersheds. Given the political realities across the region, solutions that engender this kind of broad support have the best chance of long-term success.

Wisconsin is now working on guidance for NR 217 and as always, the devil is in the details.  There are many issues that need to be resolved, such as the necessary proximity between the point sources and nonpoint sources, the specifics of the pollution reduction plans and contracts the points sources must prepare, and the monitoring requirements and margins of safety. We know other states are interested in this approach, and will continue our hard work to make sure the Wisconsin package is a good example and model for other states.

Scenes from the Enbridge Kalamazoo River oil spill clean up

I just got back from visiting the oil spill site in Marshall, Michigan.  Even after several hard rains, the Kalamazoo River’s banks are still covered in oil, and the smell hangs in the air.  I’m not much of a photographer, and I’m sorry that the pictures I took don’t really show the full extent of the disaster, but take a look: http://www.greatlakeslaw.org/photos/enbridge_spill_8_4_2010/.

As I was photographing the condition of the Kalamazoo River, I met a local amateur outdoor filmmaker who goes by “Nomadic Dog.”  He’s just one of the thousands of Michigan citizens who loves the outdoors and is heartbroken over the spill.  He made a short video a few days after the spill that conveys both the impact of the pollution and the emotion of this disaster.  In the middle of the video, while surveying the Kalamazoo River covered in oil, he says: “The aftermath of human error.  And what suffers?  Everything downstream.”

Great Lakes Environmental Law Center sends notice of intent to sue Enbridge over pipeline oil spill

The Great Lakes Environmental Law Center has sent a notice of intent to sue Enbridge, Inc. for violations of the Clean Water Act resulting from the burst pipeline that has spilled approximately one million gallons of oil into Talmadge Creek and the Kalamazoo River.  The Clean Water Act requires this formal 60-day notice prior to commencing a citizen suit to enforce violations of the law.  As detailed in the 60-day notice letter, based on the estimated size of the spill, Enbridge could face fines of over $26 million.  And if Enbridge is found to be grossly negligent in its maintenance and operation of the pipeline (especially in light of the numerous warnings issued by federal regulators regarding corrosion of the pipeline), the company could face $100 million in fines.  While enforcement and fines alone won’t clean up the Kalamazoo River, this legal action by the Great Lakes Environmental Law Center will help insure that Enbridge is held accountable for their violations of the Clean Water Act.

Update: See coverage of GLELC's notice of intent to sue by Todd Spangler of the Detroit Free Press, John Flesher of the Associated Press (in the Kalamazoo Gazette) and Eartha Jane Melzer in the Michigan Messenger.

Enbridge pipeline spills over a million gallons of crude oil into Talmadge Creek and the Kalamazoo River

Here are the facts: On Monday July 26, a 30-inch pipeline in Marshall, Michigan belonging to Enbridge Inc. burst.  The U.S. EPA estimates over 1 million gallons (over 23,000 barrels) of crude oil spilled into Talmadge Creek, a waterway which feeds into the Kalamazoo River.  On July 28, the U.S. EPA assumed the role of Federal On-Scene Coordinator pursuant to the Oil Pollution Act of 1990, which gives EPA responsibility for inland (rather than offshore) oil spills.  The EPA is now coordinating and directing the response activities carried out by Enbridge and government agencies, and has issued a removal order to Enbridge.

The spill site currently includes a 30-mile stretch of the Kalamazoo River between Marshall and Battle Creek and nearby marshlands, residential areas, farmland, and businesses.  As a result of air quality monitoring showing unsafe levels of benzene, local officials are evacuating 30-50 households in the area.  Local health officials have also issued a water advisory for any residents that rely on well water near Talmadge Creek and the Kalamazoo River.

In addition to protecting the health of nearby residents, the most immediate concern is preventing the spill from moving down the Kalamazoo River into Lake Michigan.  Heavy rains and resulting high water levels make this task even more challenging. 

We’ll be dealing with this spill, and the legal and policy implications, for months to come.  For now, here are three points to consider when you see the images of oil covering the Kalamazoo River:

1. The Enbridge pipeline that burst is a section of one of the largest pipeline systems in the world, connecting the tar sands oil fields in Canada with refineries throughout the industrial cities of the Midwest.  With this burst pipeline and resulting spill, it’s clear that every step of the tar sands oil production, transportation, and refinery process poses significant threats to freshwater quality and public health. 

Tar sand strip mining has wreaked environmental havoc on the landscape and freshwater in Canada.  The pollution from refining tar sands crude directly impacts Great Lakes water and regional air quality, as demonstrated by BP’s Whiting, Indiana Refinery, which connects to the burst pipeline and is located on the shores of Lake Michigan.   A few years ago, a regional fight broke out between Indiana and Chicago officials over water pollution from the BP Whiting refinery - the Chicago Park Superintendent famously complained that “they can keep their pollution on their side of the lake” when Indiana officials would not let him testify at a hearing involving a water pollution permit for the refinery expansion. 

While environmental groups had a recent success to control air pollution from the refinery, the spill shows that the environmental impacts of tar sands oil production are not limited to the refineries in cities and tar sands fields in Canada.

2. The proposed state Constitutional amendment to ban oil drilling in Michigan’s Great Lakes that has been championed by House Democrats such as my state representative, Rebekah Warren of Ann Arbor, would do absolutely nothing about this pipeline spill. 

I’d probably vote for the proposed Constitutional ban, although it seems to be motivated by politics in advance of the 2010 election far more than any genuine policy concern, as oil drilling is already effectively banned by Michigan in the Great Lakes.  But if Rep. Warren and other state leaders are really concerned about protecting Michigan’s environment and people from oil spills, they should focus their attention on meaningful and substantive reforms – such as better regulation of pipeline siting and safety, increased resources for inspection, and vigorous enforcement of the law.  Constitutional amendments and political grandstanding on non-issues is no substitute for real governance and problem solving, and is a disservice to Michigan’s citizens that deserve more from their elected leaders. 

3. Political leaders, most notably President Obama and Governor Granholm, have jumped all over the spill with the tough talk and blame game rhetoric typical of politicians, especially in an election year.  Do you want to know if the government is really serious about holding Enbridge accountable?  Let’s see how aggressively the government pursues fines for this spill.  Based on the estimated size of the spill, Enbridge could face over $25 million in fines under the Clean Water Act.  And the fines could go up to almost $100 million if the spills resulted from Enbridge’s “gross negligence or willful misconduct” – a good possibility given Enbridge’s history of insufficient monitoring of corrosion on the pipeline.  Let’s hope the government’s law enforcement and policy solutions live up to the politicians’ rhetoric, so that perhaps future spills can be prevented.

Great Lakes Environmental Law Center and NRDC file petition to close loophole on pharmaceutical drugs in drinking water

Pharmaceutical drugs in drinking water are a growing concern for both aquatic and human health.  Water samples from the Great Lakes and other waterbodies often reveal potentially harmful levels of many drugs, including antibiotics, steroids and other hormones, cancer therapies, lipid regulators and anti-inflammatory drugs.  These drugs may get into our water supply from direct disposal or through human waste, since the body does not fully break down all drugs taken in. 

Unfortunately, our wastewater treatment plants don’t have the technology to filter the drugs out – one study showed that up to 93% of active drug compounds leave the wastewater treatment plant at a concentration that is just as active as when the waste entered the sewers.  As a result, the drugs enter the environment and wreak havoc on wildlife and human health.  For example, many pharmaceuticals contain endocrine disrupting chemicals which can harm sexual reproduction organs in both fish and humans.  For more background on this issue, see Elizabeth Royte’s article Drugging Our Waters from NRDC’s OnEarth magazine.  Or for something a bit lighter, check out Stephen Colbert’s segment on the subject – funny and scary at the same time.

The federal Food and Drug Administration (FDA) is supposed to review new drugs to be sure they are safe when they enter the environment.  However, the FDA has adopted a loophole (a “categorical exclusion” codified at 21 CFR § 25.31) in which it exempts new drugs from environmental review if the estimated concentration of the new drug in the water supply will be below 1 part per billion.  This may sound miniscule, but with many drugs entering our water supply, the science is clear that the exemption threshold is just not adequate to protect our health and should be repealed. 

To close this loophole, the Great Lakes Environmental Law Center and the Natural Resources Defense Council recently submitted a petition to the FDA to revoke the exemption and conduct a full environmental review of new drugs that enter the environment.  (The petition is the result of great work on this issue by Wayne Environmental Law Clinic student Kaitlyn Sundt.)  The environmental review sought by the Great Lakes Environmental Law Center and NRDC would not prohibit new drugs, even if they are found to cause public health and environmental harm, but it would require the FDA to study the potential harm and acknowledge environmental risks. 

If the FDA does not address the petition within a reasonable time or denies the petition without explanation, then legal action may be necessary to compel the FDA to act.  Regardless of the FDA’s ultimate decision, the petition brings a critical topic to the forefront and has the potential to start a productive policy discussion about how to address the issue of controlling pharmaceuticals in the environment. 

The BP Gulf blowout - environmental law and political posturing

I’ll be on FOX Business Network today discussing the likely legal actions in the BP Gulf oil blowout and providing some commentary on the political response from Washington (to view video, cleck here).  Earlier this week, U.S. Attorney General Eric Holder announced that the federal government has launched civil and criminal investigations (see this coverage from the Wall Street Journal with my reaction), but the Attorney General was frustratingly vague on specifics.  Here’s my short summary of what we can expect from the lawyers in the months to come:

• The U.S. Department of Justice, working with other federal agencies and state governments, may pursue civil and criminal charges against BP, Transocean Ltd. (the BP contractor that owned the rig), and other involved companies and individuals. Government attorneys have many laws to use in this case, and would likely pursue violations for discharge of pollution under the Clean Water Act (section 309). Criminal charges could be brought under the Refuse Act and the Migratory Bird Treaty Act, both of which use strict liability, so the government would not need to show that BP intended to violate the law or was even negligent in its operation and response. Fines are the most likely outcome - Exxon was nailed for $150 million after the 1989 Valdez spill in Alaska, although the court forgave $125 million of the fine in recognition of Exxon’s cooperation in cleaning up the spill and paying certain private claims. The money would likely go to some combination of special funds, the federal government, and state governments.

• Federal and state governments will also likely bring claims under the Clean Water Act (section 311) and the Comprehensive Environmental Response Compensation and Liability Act (section 107) to recover damages to natural resources for which the governments are trustees.  Governments recovered about $1 billion from Exxon for the Valdez spill, but the damages to natural resources in the Gulf are far greater.

• The thousands of businesses, property owners, and individuals harmed by impacts to the fishing industry, coastline, and tourism have already started filing claims in state and federal court for economic damages.  BP and the other companies face billions of dollars in liability for these claims.  The economic damages from the Exxon Valdez spill would be over $1 billion in 2010 dollars, and the Gulf blowout is far worse and in a much more economically significant region.  The litigation after the Exxon Valdez oil spill makes clear two points relevant to the BP Gulf oil blowout litigation.  First, it will take a long time for justice to be served – it was just about 20 years after the 1989 spill that the case was finally resolved in the courts.  Second, as a result of the Supreme Court’s decision in Exxon Shipping Co. v. Baker (2008), punitive damages will be limited to an amount equal to the actual economic damages.

• In addition, BP and the other companies are on the hook for clean up, response costs, and economic claims under the 1990 Oil Pollution Act.  This law, passed after the Exxon Valdez spill, also established a fund to pay these costs, with money generated by an 8 cent tax per barrel of oil produced.  While the fund only has about $1.6 billion in it, BP has the money to cover the claims, which could easily be ten times that amount.

The 1990 Oil Pollution Act also caps liability for economic damages at $75 million, and this is where the political posturing comes in.  Politicians and interest groups have focused on the perceived injustice of the $75 million cap.  Groups like MoveOn.org have rallied behind the “Big Oil Bailout Prevention Act” supported by New Jersey Senator Robert Menendez and other coastal state Democrats.  The “Big Oil Bailout Prevention Act” would raise the liability cap from $75 million to $10 billion, which sounds nice but is really a nonissue for several reasons.  First, the $75 million cap only applies to claims for economic damages, not actual spill clean-up costs and other response costs (which will be billions of dollars).  Further, the $75 million cap does not apply if the companies have violated any federal safety or operational regulation (and it’s very likely that at least one minor safety violation will be shown).  Finally, the $75 million cap does not apply to claims in state court or under maritime law, and as we saw from the Exxon case, that’s where most victims and potential plaintiffs will turn to pursue large claims against BP and other parties.  The problem is that this legislation takes attention away from the real reforms that are needed to reduce the risk of massive environmental disasters and efficiently and fairly compensate the victims when disasters do occur.  There will be time enough for legal reform, but right now all efforts should be focused on stopping the damage and protecting the people and resources of the Gulf.

Update: For more coverage of Gulf oil blowout legal issues, see this great PBS NewsHour story by Quinn Bowman, “Oil Spill Liability a Complicated Legal Web."  My Wayne State colleague Peter Henning has additional coverage on his New York Times DealBook’s White Collar Watch.

Federal funding for Great Lakes restoration won’t stop new pollution problems

The Great Lakes restoration campaign - led by conservation groups, industry, and state and local governments to get more federal funding for research, habitat restoration, and toxic clean-ups - is taking some deserved criticism for simply throwing a lot of money at existing problems without providing new solutions.  As Dan Egan reported in the Milwaukee Journal Sentinel article “Great Lakes aid isn't a cure-all; Despite $475 million restoration plan, damage continues in freshwater system”, some environmental advocates are beginning to question the effectiveness of a strategy that focuses on spending money on old problems as new and ongoing sources of pollution and degradation go unchecked.

I’m not saying the Great Lakes should turn down federal restoration funds – the funded projects will do some good things and pump more money into our regional economy.  However, it doesn’t make much sense to spend federal money researching responses to invasive species when the federal government is still dragging its feet in closing the door on new invasive species coming into the Great Lakes.  Similarly, restoring coastal habitat is certainly important, but the federal government’s and states’ collective failure to enforce wetlands laws will undermine the effectiveness of money spent on coastal habitat restoration.  And as we ask Congress for money to clean up legacy contamination hot spots in the Great Lakes, we should be preventing new toxic messes from occurring – such as contaminated coal waste landfills on Saginaw Bay.

There is also a public perception problem with the Great Lakes restoration campaign.  It gives the public the sense that our environmental problems are remnants of the old days, before laws like the Clean Water Act were put in place.  If this were true, then spending money on old problems would make sense.  But while we have made tremendous progress in environmental protection, the reality is that many environmental disasters are still occurring.  The recent New York Times Toxic Waters series illustrates how pollution from coal mining, coal waste, and animal feedlots is literally poisoning our waters.  If we spent a fraction of the restoration money on enforcing existing laws to prevent new sources of pollution, we would see a better return on our investment with cleaner water and healthier families.

Great Lakes Environmental Law Center and other conservation organizations join with Manitoba and Canada in opposing U.S. water diversion project in court

The Great Lakes Environmental Law Center has filed an amicus curiae (friend of the court) brief in the U.S. District Court for Washington D.C. in Government of the Province of Manitoba v. Ken Salazar, et al.  The case involves a challenge by Manitoba, joined by Canada and several conservation organizations, to the U.S. Bureau of Reclamation’s Environmental Impact Statement for the Northwest Area Water Supply (NAWS) Project. 

The NAWS Project is the first United States transbasin water transfer project to breach the barrier between the Missouri River Basin and the Hudson Bay Basin.  The diversion could transfer invasive species and diseases into downstream waters in the United States and Canada, and threatens the quality and quantity of water supplies.  The proponents of the project have not properly examined less damaging alternatives and options, such as water conservation and recycling.  Nor have the project’s proponents undertaken a full review of the environmental impacts of the water diversion.  For additional background on the NAWS project and other related projects, see the Great Lakes Environmental Law Center’s Transbasin Water Diversions webpage.

Conservationists have long been concerned with the risks of the NAWS project to water resources.  The NAWS water diversion represents the first ever federal project involving an interbasin water transfer linking the Missouri River Basin to the Hudson Bay Basin.  For better or worse, it could become an important precedent-setting project for other water diversions.  Given the stakes, the Bureau of Reclamation should have adhered strictly to the requirements of the National Environmental Policy Act with a thorough and comprehensive Environmental Impact Statement.  Instead, the Bureau of Reclamation is trying to rush through a novel and potentially devastating project that creates a danger for all fresh water basins in the United States, particularly the Great Lakes.

In addition to setting a precedent for other water diversions, the NAWS project threatens water quality and aquatic life in the Missouri River Basin and Hudson Bay Basin.  The diversion of water from one separate drainage basin to another will also impact residential, commercial and recreational water use.  The reductions of water levels in combination with the impacts from climate change pose an increased risk of invasion of non-native species and subsequent transfer of invasive species through the pipeline to the Hudson Bay Basin.

As detailed in our brief, the NAWS project advances an environmentally and economically unsound water diversion.  The project threatens to transfer invasive species, fails to account for climate change impacts, and completely ignores smarter, cheaper, less damaging alternatives like water conservation.  In this project and other legal advocacy on transbasin water diversions, the Great Lakes Environmental Law Center will continue to work for sound, practical policy solutions for water resource management while opposing dangerous, precedent-setting projects that could harm the people and environment of the Great Lakes region.

The Great Lakes Environmental Law Center filed the brief jointly with the National Wildlife Federation, Minnesota Conservation Federation, and South Dakota Wildlife Federation, supporting the Province of Manitoba (Manitoba’s brief is available here).  The Government of Canada also submitted an amicus brief to support Plaintiff Manitoba’s arguments. Attorney Nick Schroeck led the effort, with invaluable assistance from Wayne Environmental Law Clinic student Catherine Deciechi.

Minnesota appeals court upholds the state’s new ballast water permit despite challenge from environmental group

The Minnesota court of appeals has affirmed the state agency’s issuance of a new ballast water permit, despite an environmental group’s challenge that the permit does not do enough to protect Lake Superior from aquatic invasive species.  The Minnesota Pollution Control Agency’s ballast water discharge permit allows ships to delay new treatment technologies to prevent biological pollution until 2016, leaving Lake Superior vulnerable to more invasive species for another seven years.  The Minnesota Center for Environmental Advocacy filed a legal challenge based on Lake Superior’s designation as an “outstanding value resource water,” which requires the state to protect the lake from “degradation” from new pollution threats.  The Minnesota court of appeals, in a decision affirming the state’s issuance of the permit, acknowledged that the environmental group raised legitimate concerns about the general permit and the state’s approach to protecting Lake Superior.  However, the court essentially deferred to the state agency’s technical expertise and legal interpretations, concluding that the issuance of the general permit was not arbitrary and capricious or an error of law (the legal standard that courts use in this type of challenge).  Despite the legal setback, Minnesota is still putting in place a regulatory system for ballast water discharges in the Great Lakes (it’s just not as strong or as immediate as it should be), putting more pressure on the industry and federal government to finally address the problem of aquatic invasive species.

Better protections for wetlands in Michigan and the Great Lakes

The National Wildlife Federation’s recent report, Protecting and Restoring the Kidneys of the Great Lakes: An Assessment of Wetlands Programs in Michigan, Minnesota, Ohio and Wisconsin, has reinvigorated ongoing efforts to improve wetland protection in Michigan.  Michigan is one of two states that has a federally delegated wetland protection program, but for budgetary and political reasons the state is considering dropping its wetland protection program, leaving only the federal government to do the job (and to manage all of the permit requests). 

While the Great Lakes region has lost over 50 percent of its wetlands (and some coastal areas of the Great Lakes have seen 95 percent declines), NWF’s report offers numerous recommendations to change this trend and better protect Great Lakes wetlands.  For starters, Michigan must continue its state wetland protection program, and strengthen it with more funding and resources for assessment and enforcement.  Michigan should also modify or eliminate the statutory exemption language for small isolated wetlands (wetlands less than five acres in size that are not contiguous to a body of water), as these wetlands are critical for preventing runoff pollution and protecting water quality.

As the debate over wetland protection in Michigan heats up, the conservation community is taking their research and message directly to the public, demonstrating the importance of Michigan’s wetlands for both our economy and the health of the Great Lakes in a series of Detroit Free Press opinion columns:

• Dr. Mike Murray, a staff scientist with the National Wildlife Federation’s Great Lakes office and a co-author of the NWF wetlands report, writes that wetlands don’t get enough respect despite being critically important for water quality, flood prevention, and wildlife habitat.

• Jennifer McKay, a policy specialist with Tip of the Mitt Watershed Council, presents the numerous economic, policy, and environmental reasons to keep Michigan in charge of wetlands instead of relying only on the federal government for wetland protection in the state.

• Marc Smith, the Great Lakes state policy manager for the National Wildlife Federation, details how the Clean Water Restoration Act would be a much needed federal boost for wetlands.

• Erin McDonough, the deputy director of policy for the Michigan United Conservation Clubs (and my former colleague), explains how wetlands boost the economy in Michigan, with hunters, anglers and trappers contributing more than $10.3 billion every year to Michigan’s economy.

This policy work and public outreach should convince Michigan’s political leaders to continue the state wetlands program and not leave it only to the federal government to protect one of our state’s most important natural resources.  Instead, Michigan must strengthen its wetlands program as a key component of protecting and restoring the Great Lakes.

Supreme Court rules that mining waste can be dumped into waterbodies as “fill” under the Clean Water Act

In its second Clean Water Act case of the term, the U.S. Supreme Court has ruled that the mining waste can be dumped into waterbodies as “fill” under the Clean Water Act.  The mining company, Coeur Alaska, sought permission to dispose of waste from its Kensington Gold Mine into nearby Lower Slate Lake as “fill” and not “pollution” under the Clean Water Act.  Thus, the company claimed that discharge of the mining waste was only subject to section 404 of the Clean Water Act (which primarily applies to filling wetlands) and did not need a permit to pollute the lake from the EPA pursuant to CWA § 301.  The US Army Corps of Engineers, which administers the § 404 program in Alaska, agreed with the mining company and permitted the activity under § 404. 

Several environmental groups led by the Southeast Alaska Conservation Council challenged the Corps’ decision.  In Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 486 F.3d 638 (9th Cir. 2007), the U.S. Court of Appeals for the Ninth Circuit agreed with the environmental groups and struck down the Corps’ fill-disposal permit.  The court determined that the proposed discharge (piping a slurry of 210,000 gallons of process wastewater and 1,440 tons of tailings each day to the bottom of Lower Slate Lake) is not simply “fill” but really a “froth-flotation.”  Further, since the waste would be dumped and not used to “fill” anything, such a classification is not justified under the Clean Water Act. 

The Supreme Court, in Coeur Alaska v. Southeast Alaska Conservation Council, reversed the 9th Circuit’s decision and relied on an internal agency memo interpreting the Clean Water Act to only subject the disposal of fill to section 404.  The memo, written in May 2004 by Diane Regas, then the Director of the EPA’s Office of Wetlands, Oceans and Watersheds, to Randy Smith, the Director of the EPA’s regional Office of Water overseeing the mine, essentially sided with the Corps over the EPA.  A majority of the Supreme Court found that the Clean Water Act was ambiguous, and deferred to the agency memo’s ultimate interpretation.  The Supreme Court also seemed to take some comfort in the fact that the EPA could still exercise a veto power over a permit issued by the Corps under section 404.

This decision could have significant implications for water protection in the Great Lakes and nationwide.  It could allow mining waste to be dumped in the Great Lakes, as well as the many mountain streams and rivers where mountaintop coal mining is wreaking havoc on the landscape.  However, protections for freshwater could also be restored by the Obama administration and Congress.  Since the Supreme Court ruled that the Clean Water Act’s language was ambiguous and relied on an agency memo for interpretation, a new interpretation (especially in the form of an agency rule) would be the easiest fix.  Legislation has also been introduced in the U.S. Senate (SB 696) to redefine “fill” under the Clean Water Act.  As the impact of the decision plays out nationwide, both the Obama administration and Congress will be under pressure to fix the problem and restore protections for freshwater.

United States and Canada commit to update the Great Lakes Water Quality Agreement

Secretary of State Hillary Clinton used a special event commemorating the 100 year anniversary of the Boundary Waters Treaty between the United States and Canada to announce that the two countries will begin the process of updating the Great Lakes Water Quality Agreement. 

The Great Lakes Water Quality Agreement was initiated pursuant to the Boundary Waters Treaty and first signed in 1972 by President Richard Nixon and Prime Minister Pierre Trudeau.  The 1972 agreement focused on phosphorus pollution and created a precedent for environmental leadership by the International Joint Commission.  The Great Lakes Water Quality Agreement was amended in 1978 with a more ambitious purpose, “to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem.”  The 1978 amendments also included the goal of “virtual elimination” of persistent toxic substances.  The agreement was last amended in 1987 with provisions for addressing toxic hotspots and lakewide community planning.

In 2007, twenty years after the Great Lakes Water Quality Agreement was last amended, the International Joint Commission completed a major review to guide future updates.  This comprehensive review identified numerous threats to the health of the Great Lakes ecosystem, including new toxics, invasive species, harm from sprawl, and climate change.  Further, the agreement itself needs improvements in compliance, scientific capacity, and public openness and involvement.  Earlier this year, over 50 national, regional, state, and local environmental organizations (including the Great Lakes Environmental Law Center) joined a coalition led by Great Lakes United urging President Obama and Prime Minister Harper to revitalize the Great Lakes Water Quality Agreement.  Apparently they listened.

In announcing the countries’ commitment to update the Great Lakes Water Quality Agreement, Secretary Clinton described the new threats since the last update in 1987: “new invasive species have appeared in our lakes, new worrisome chemicals have emerged from our industrial processes, our knowledge of the ecology of the region and how to protect it has grown considerably. In its current form, the Great Lakes Agreement does not sufficiently address the needs of our shared ecosystem.”

Now the work must begin to craft an updated Great Lakes Water Quality Agreement that address the underlying causes and sources of water pollution (chemical, physical, and biological) that threaten water quality in the Great Lakes.  While significant progress has been made at reducing pollution from large industrial and municipal point sources, there are enormous gaps in our management of non-point pollution from runoff, air deposition, and other vectors that are largely unregulated.  An updated Great Lakes Water Quality Agreement can and must close these gaps in Great Lakes water quality protection.

Clean Water Restoration Act passes out of Senate committee, big step towards passage

Congress took a big step towards restoring protections for our Nation’s freshwater today when the U.S. Senate’s Environment and Public Works Committee reported out the Clean Water Restoration Act.  Jim Murphy, Wetlands and Water Resources Counsel for the National Wildlife Federation, is one of the leaders working on this issue and wrote the following guest post providing all of the details.  Jim coordinates NWF’s nationwide litigation and policy advocacy on Clean Water Act and wetlands protection and is a widely recognized expert on these issues.

Today the Senate Environment and Public Works Committee took a big step in ensuring Clean Water Act protections are fully restored to the Nation’s waters.  With the key leadership of Senators Barbara Boxer (D-CA), Max Baucus (D-MT), and Amy Klobuchar (D-MN), an amended Clean Water Restoration Act bill was voted out of committee 12-7.

Passage of the Restoration Act is made necessary by two fractured and confusing Supreme Court decisions, the 4-1-4 decision in Rapanos v. United States (2006) and the 5-4 ruling Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers (2001).  Combined with Bush Administration guidance documents interpreting these decisions in a cramped manner unfavorable to water protection, the result has been the loss or potential loss of basic CWA protections for tens of millions of acres of wetlands, as well as countless stream miles that include the almost 60 percent of stream miles in lower 48 states that do not flow year round.  Additionally, confusion created by SWANCC and Rapanos have led to hundreds of enforcement cases being shelved, weakened requirements for polluters in enforcement cases that have been settled, increased agency workloads with a resulting decline in agency morale, and increased uncertainty and wait times for the regulated community.

The Restoration Act that was voted out of the Senate Environment and Public Works Committee today will fix the problems created by SWANCC and Rapanos by:

1. Removing the confusing term “navigable” from the Act; 
2. Defining the term “waters of the United States” consistent with long-standing Corps and EPA regulations;
3. Providing comprehensive findings establishing Congress’s constitutional bases to broadly protect waters; and
4. Expressly leaving in place existing statutory and regulatory exemptions for agricultural and other activities. 

The bill (S. 787) was originally introduced by Senator Russ Feingold (D-WI), but passage was assured by Senators Boxer, Baucus and Klobuchar, who offered amendments that clarified that existing regulatory exemptions for prior converted croplands and waste treatment systems remained in place, and further clarifying the intent to only restore pre-SWANCC protections, not create new protections.  Senator Baucus’s leadership and effort was particularly instrumental in achieving a balanced and effective compromise.  Weakening amendments creating all types of exemptions for both waters and activities were offered, but resoundingly defeated.

Passage out of the Senate Environment and Public Works Committee has greatly boosted the bill’s chances of becoming law.  Conservationists believe the compromise bill can garner strong bi-partisan support on the Senate floor.  Additionally, it is anticipated a companion bill will soon move in the House Transportation and Infrastructure Committee, where Chairman James Oberstar (D-MN) has been an early champion of restoring pre-SWANCC protections to our waters.  In the previous Congress, nearly 180 House members co-sponsored a bill substantially identical to the one originally introduced by Senator Feingold this Congressional term.

Federal appeals court upholds EPA rule exempting water transfers from Clean Water Act regulation

The Eleventh Circuit Court of Appeals, based in Atlanta, has upheld the Bush EPA’s controversial water transfer rule, which would allow polluted water from a dirty waterbody to be pumped and dumped into a pristine waterbody without a Clean Water Act permit.  This is a critically important issue for water quality and invasive species in the Great Lakes and nationally.  For background on the issue, and the stakes for our lakes, rivers, and streams, see my prior post, “US EPA issues final rule exempting water transfers from Clean Water Act regulation.” 

Several states and numerous environmental organizations (including the Great Lakes Environmental Law Center representing the Michigan Council of Trout Unlimited) have filed petitions challenging the rule in federal court.  However, the petitions were stayed because a prior case, Friends of the Everglades v. South Florida Water Management District, which had been going on since before the final rule was issued, raised the same substantive issues.

The core of the issue is the legality of the “unitary waters” theory that the Bush EPA used to exempt the transfer of pollutants between waterbodies from Clean Water Act regulation.  The Clean Water Act bans the “discharge of any pollutant” without a permit.  “Discharge” is defined as “any addition of any pollutant to navigable waters from any point source.”  (See 33 U.S.C. §§ 1311, 1342(a)(1), 1362(12)).  Under the EPA’s “unitary waters” theory, the waters of the United States are not distinct lakes, rivers, and streams, but one big bucket of water.  So, under this theory, taking polluted water from a dirty river and dumping that water into a pristine trout stream is not “adding” pollutants to navigable waters (which would otherwise be illegal from point sources without a permit).

As the court’s decision noted, “[t]he unitary waters theory has a low batting average.  In fact, it has struck out in every court of appeals where it has come up to the plate.”  The other courts considering this issue “take the view that the transfer of pollutants from one meaningfully distinct navigable body of water to another is an ‘addition … to navigable waters’ for Clean Water Act permitting purposes.”

However, these prior cases were all decided before the Bush EPA issued a final rule adopting the unitary waters theory.  Agency rules are entitled to deference as long as the rule is a reasonable interpretation of an ambiguous statute.  (This is usually called Chevron deference, named after the Supreme Court’s decisions in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984)).  Chevron deference is a simple concept – if the statute is not clear, then the agency gets deference in its interpretation, unless its interpretation is arbitrary and capricious.  As the court in this case stated, for the EPA’s regulation to be upheld, “there must be two or more reasonable ways to interpret the statute, and the regulation must adopt one of those ways.”

The court ultimately concluded that the relevant Clean Water Act language could be interpreted in at least two different ways, and that the EPA’s rule is consistent with one of those interpretations:

There are two reasonable ways to read the § 1361(12) language “any addition of any pollutant to navigable waters from any point source.”  One is that it means “any addition . . . to [any] navigable waters;” the other is that it means “any addition . . . to navigable waters [as a whole].” 

The court further acknowledged that the EPA’s interpretation undermines the Clean Water Act’s goals, but recognized the political realities that led to an imperfect Clean Water Act:

[I]t may seem inconsistent with the lofty goals of the Clean Water Act to leave out of the permitting process the transfer of pollutants from one navigable body of water to another, but it is no more so than to leave out all non-point sources, allowing agricultural run-offs to create a huge “dead zone” in the Gulf of Mexico.  Yet we know the Act does that.  What this illustrates is that even when the preamble to legislation speaks single-mindedly and espouses lofty goals, the legislative process serves as a melting pot of competing interests and a face-off of battling factions.  What emerges from the conflict to become the enactment is often less pure than the preamble promises.  The provisions of legislation reflect compromises cobbled together by competing political forces and compromise is the enemy of single-mindedness.  It is not difficult to believe that the legislative process resulted in a Clean Water Act that leaves more than one gap in the permitting requirements it enacts.

Having concluded that the statutory language is ambiguous, the court ruled that the EPA’s regulation, which accepts the unitary waters theory that transferring pollutants between navigable waters is not an “addition . . . to navigable waters,” is a permissible construction of that language. 

However, this issue is far from over.  Earthjustice, which represents the plaintiff environmental groups, plans to file for a rehearing before a full circuit appellate panel.  With a circuit split, the issue could eventually go to the U.S. Supreme Court.  Further, the Obama EPA could make additional litigation unnecessary by simple rescinding the rule or revising it to protect our freshwater from pollution and invasive species transferred from other waterbodies.  For now, I expect a few more rounds of appellate litigation before environmental groups start pressuring the Obama EPA on this issue.