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Posts Tagged ‘clean water act’

President Trump Executive Order Aims At Revising EPA Waters of The United States (WOTUS) Rule

Monday, July 24th, 2017

On February 28, 2017, President Trump singed an executive order (“Order”) intended to roll back a rule promulgated by the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively “Agencies”) under the Clean Water Act (CWA), known as the Waters of the United States (WOTUS) Rule (“Rule”). Noting that EPA can regulate “navigable waters,” waters that truly affect interstate commerce, the President announced that the Order would direct EPA to take action, paving the way for the elimination of this “very destructive and horrible rule.”

On March 6, 2017, the Agencies published in the Federal Register a Notice of Intent to review and rescind or revise the Rule in response to the Order. The Rule, which was issued under the Obama administration and became effective on August 28, 2015, defines “waters of the United States” to clarify CWA jurisdiction based on science and several U.S. Supreme Court cases. These cases addressed the federal government’s jurisdiction over activities affecting the wetlands, rivers, and streams that fed into “navigable waters,” which are defined as “waters of the U.S.” and regulated under CWA.

After the Rule was issued in 2015, numerous states, farmers, and industry groups filed lawsuits to enjoin the Rule, claiming that the Rule would dramatically expand the federal agencies’ regulatory jurisdiction. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit in In re: EPA, 803 F.3d 804 (6th Cir. 2015), stayed the Rule nationwide, pending the court’s resolution of an issue related to the court’s jurisdiction over the case.

The Order directs the Agencies to initiate the process of rescinding or revising the Rule. The Order first directs the Agencies to review the Rule for consistency with the policy of keeping the Nation’s navigable waters free from pollution and at the same time promoting economic growth and minimizing regulatory uncertainty. Then, it directs the Agencies to publish for notice and comment a proposed rule rescinding or revising the Rule.

In addition, the Order also directs the Agencies and the heads of all executive departments and agencies to review all orders, rules, regulations, guidelines, or policies implementing or enforcing the Rule, and rescind or revise them to reflect any changes made to the Rule. Further, the Order requires that the Agencies take appropriate action concerning any litigation before the federal courts.

Finally, the Order requires that the Agencies interpret the term “navigable waters” in CWA in a manner consistent with Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). The opinion, in which Justices Roberts, Thomas, and Alito joined, interpreted the term “waters of the U.S.” as “relatively permanent, standing or flowing” bodies of water “connected to traditional interstate navigable waters” as well as wetlands with a “continuous surface connection” with such waters. The plurality seemed to support narrower CWA jurisdiction than Justice Kennedy’s concurring opinion in Rapano, based on which the Rule was developed. Justice Kennedy’s opinion suggested that the term “waters of the U.S.” encompasses wetlands that possess a “significant nexus” to navigable waters.

Given the Rule’s extensive nationwide impact, any revision to the Rule will likely be challenged in court by stakeholders. Any change to the Rule requires the Agencies to comply with the notice and comment requirements under the federal Administrative Procedures Act. Stakeholders affected by the revision to the Rule should participate in the forthcoming notice and comment procedures. Thomas Law Group will closely monitor the notice and comment procedures associated with the Order.


Thursday, July 28th, 2016

In Duarte Nursery, Inc. v. United States Army Corps of Engineers, 2016 U.S. Dist. LEXIS 76037, the Eastern District of California granted the U.S. Army Corps of Engineers’ (“Corps”) motion for summary judgment, finding that Duarte Nursery (“Nursery”) had violated the federal Clean Water Act (“Act”) by moving dirt around its property as part of tilling activities. The Act generally prohibits the discharge of pollutants into “navigable waters,” or “waters of the U.S.,” without a permit.

The Nursery owned approximately 2,000 acres of land. Prior to purchasing the land, Nursery president John Duarte was aware of a draft delineation that had been prepared. The draft delineation noted that there were 40.78 acres of pre-jurisdictional waters of the U.S. on the property, including vernal pools, seasonal wetlands, and intermittent and ephemeral drainages that have physical connections to Coyote Creek, a tributary of the navigable Sacramento River. In 2012, the Nursery arranged to have wheat grown on the property. The planting process involved tilling the soil with a harvester with a ripper attachment.

An employee of the Army Corps observed the equipment and activities taking place on the property and informed John Duarte that the ripping activity potentially violated the Act. The Corps then sent a cease and desist letter (“C&D Letter”) to the Nursery in February 2013. In October 2013, the Nursery and its president sued the Corps, raising due process claims under the Fifth Amendment and the Corps asserted an enforcement action as a counterclaim.

In deciding the parties’ cross-motions for summary judgment, the court first rejected the government’s argument that the C&D Letter was not subject to judicial review under section 702 of the Administrative Procedure Act (“APA”) because it was not a final agency action. The court held that a party could seek judicial review of an agency action that was not a “final agency action” when a party raised constitutional challenges to the agency action. Additionally, the court noted that the Supreme Court found cease and desist orders issue under the Act to be sufficiently final to trigger APA review in Sackett v. EPA (2012) 132 S.Ct. 1367, 1374.

Next, the court rejected the plaintiffs’ procedural due process claim under the Fifth Amendment because the C&D Letter, which merely advised plaintiffs that their activity was in violation of the Act, did not deprive plaintiffs of their constitutionally protected interest. The court reasoned that a deprivation of a constitutionally protected interest could occur only after an enforcement action was brought by the DOJ or EPA; threatened enforcement of a deprivation of a liberty or property interest was not enough.

Finally, the court held that Nursery, including its president John Duarte, had violated the Act because they discharged soil into waters of the U.S. without a permit. The court held that a corporate officer who directs the activities could be subject to a civil enforcement action under the Act. The court also rejected the plaintiffs’ contention that the tilling activity was exempt under the Act’s farming exemption because there was no farming activity other than grazing on the property between 1998 and 2012 and the exception only applied to the continuation of established and ongoing farming activities. Moreover, the court found that the tilling activity impaired the flow of the waters of the U.S., necessitating a permit even if the farming exception did apply.

Worth Its Salt: NPDES Permit for Desalination Plant Upheld

Wednesday, December 12th, 2012

In Surfrider Foundation v. California Regional Water Quality Control Board (Nov. 30, 2012) 2012 Cal. App. LEXIS 1223, the Fourth District Court of Appeal upheld the trial court’s denial of a petition for writ of mandamus challenging the California Regional Water Quality Control Board’s (Board) issuance of a National Pollutant Discharge Elimination System (NPDES) permit for a desalination facility proposed in San Diego County.  The petitioners argued the Board failed to comply with the requirements of Water Code section 13142.5, subdivision (b), in issuing the NPDES permit, which provides that “[f]or each new or expanded coastal powerplant or other industrial installation using seawater for cooling, heating, or industrial processing, the best available site, design, technology, and mitigation measures feasible shall be used to minimize the intake and mortality of all forms of marine life.”

Applying the substantial evidence standard of review, the court held that the minimization plan prepared for the NPDES permit comprehensively addressed the requirement that “the best available site, design, technology, and mitigation measures feasible” be used.  The court found that substantial evidence demonstrated that co-locating the desalination facility next to the Encina Power Station reduced intake and mortality to marine life and that a new NPDES permit would be required if the power station ceased operations in the future.  The court also concluded that Water Code section 13142.5 does not preclude the Board from requiring compensatory wetland creation as part of the plan to reduce intake and mortality to marine life.

The court also rejected the petitioners’ claims that several measures proposed in the minimization plan were illusory.  First, the court explained that a comment from a Coastal Commission staff member questioning whether the project could achieve the intake screen velocity required by the NPDES permit did not demonstrate the measure was illusory and that such disagreement during the administrative review process is healthy.  Second, the court concluded that the requirement to use variable frequency drives on the seawater intake pumps was not illusory merely because certain data could not be quantified.  The court found that despite the uncertainties, the evidence demonstrated that the drives would reduce intake and mortality of marine life to some degree.

Next, the court found that the project objective to provide at least 50 million gallons per day of desalinated water at or below the cost of imported water supplies was reasonable.  The court concluded that, in rejecting measures that may otherwise further reduce intake or mortality impacts on marine life, the Board could first consider whether such measures were feasible in light of the project objectives.  The court also determined that the Board could rely on the feasibility analysis included in the prior environmental impact report prepared pursuant for the project to the California Environmental Quality Act to complete the feasibility analysis required by Water Code section 13142.5 because the Board had the discretion to find that “feasibility” had the same definition under both statutory schemes.  Finally, the court rejected the petitioners’ argument that the Board was compelled to include a quantitative analysis comparing potential measures that could be adopted to comply with Water Code section 13142.5.  The court explained that the petitioners argument lacked any statutory or regulatory support.

Key Point:

A court will review the Board’s compliance with Water Code section 13142.5, subdivision (b), based on the substantial evidence standard of review.  Based on this standard, dissenting voices from other agencies do not alone render a decision inadequate.

Written By: Tina Thomas and Christopher Butcher
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

The Sacketts will have their day in Court to Challenge an EPA Compliance Order

Thursday, March 22nd, 2012

In a unanimous decision, the U.S. Supreme Court overturned the lower courts’ ruling and held that Michael and Chantell Sackett, Petitioners, may bring a civil action under the Administrative Procedure Act (APA) to challenge the Environmental Protection Agency’s (EPA) issuance of an administrative compliance order for alleged violation of Section 309 of the Clean Water Act (CWA), 33 U.S.C. section 1319, requiring Petitioners to take certain actions to restore their property to its natural condition or be faced with penalties up to $75,000 per day.  (Sackett v. EPA, 566 U.S. ___ (2012).)

Petitioners, who own a 2/3-acre residential lot in Bonner County Idaho near Priest Lake used dirt and rock to fill part of their lot prior to building a home.  Some months later, Petitioners received a compliance order from the EPA with findings and conclusions which listed several violations of the CWA.  On the basis of the findings and conclusions, the Petitioners were required to restore the site in accordance with an EPA Work Plan.  Petitioners did not believe their property was subject to the CWA and requested a hearing with the EPA, which they were denied.  The Petitioners then brought suit in the District Court, claiming that issuance of the compliance orders was arbitrary and capricious under the APA and deprived them of “life, liberty or property, without due process,” in violation of the Fifth Amendment.  The District Court dismissed for lack of subject matter jurisdiction.  The Ninth Circuit Court of Appeals affirmed and concluded that the CWA precludes pre-enforcement judicial review of compliance orders and does not violate due process under the Fifth Amendment.

The Supreme Court considered whether the compliance order was a “final agency action” under the APA.  The Court determined that the compliance order represented the conclusion of the agency’s consideration as: a) the Petitioners were required to restore their property;  b) legal consequences flowed from the issuance of the order;  c) the compliance order exposed Petitioners to double penalties in a future enforcement proceeding;  d) Petitioners were not allowed to receive a permit for fill with the U.S. Army Corps of Engineers (Corps’ regulations  do not allow the issuance of a permit with an outstanding EPA compliance order); e) Petitioners were not granted a hearing with EPA, and thus, the findings and conclusions of the compliance order were not subject to further agency review;  and f) the APA’s judicial review provision requires that a person have no other adequate remedy in court.  The Court stated that the compliance order “has all the hallmarks of APA finality” and therefore, is subject to judicial review.

The Court stressed that it was not deciding the merits of Petitioners case, only that they had a right to file a complaint now that the EPA’s compliance order is final.  Justice Ginsberg wrote in a separate opinion that she had concurred with the Court’s opinion on the understanding that the merits of the case were still open to debate.

In a separate concurring opinion, Justice Alito argued that “in a nation that values due process, not to mention private property, such treatment [by the EPA] is unthinkable.”  Justice Alito also took this opportunity to call out Congress, the EPA and the Corps for their failure to provide “clarity and predictability” in dealing with the CWA’s definition of “waters of the United States.”  Justice Alito opined
“[r]eal relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.”

Key Points:

The Court’s ruling gives property owners relief from the EPA’s  practice of issuing “compliance orders” to property owners notifying them that their property is a federally protected wetland, and requiring them to stop using their land and restore it to its prior condition, under penalty of  severe fines.  In many cases, the EPA may then wait months or years before actually suing the property owner to collect the fines, which accrue daily. In the meantime, the EPA has operated under the belief that the property owners cannot challenge issuance of the compliance order in court, and instead must wait until the EPA sues them to collect the fines, which may have accrued to millions of dollars.   Under the Court’s ruling, CWA compliance orders are final agency actions, and are subject to pre-enforcement judicial review under the APA.

Written By: Tina Thomas and Michele Tong
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.