Environmental Law Annotations (Agricultural Law and Tax)

This page contains summaries of significant recent court opinions involving environmental issues of importance to agricultural producers and agribusinesses.

Posted February 6, 2022

New ESA Policy for ESA Consultations. The Environmental Protection Agency (EPA) has announced a change in policy regarding Endangered Species Act (ESA) consultations (to determine the impact on endangered or threatened species in light of critical habitat) for newly registered pesticide active ingredients being registered under the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA) for the first time. Pesticides already registered under FIFRA or that have active ingredients already registered by EPA may not be subject to the same policy, but may still require ESA consultation but not under the ESA’s new policy. The EPA will determine whether formal or informal consultation is necessary on a case-by-case basis. EPA Announcement, January 11, 2022. Effective upon announcement.

Posted December 28, 2021

EPA and Corps of Engineers Issue Proposed Rule Redefining “Water of the United States.” On December 7, 2021, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (COE) published a proposed rule redefining a “water of the United States” (WOTUS) in accordance with the pre-2015 definition of the term. In 2015, the EPA and COE adopted the “Clean Water Rule” (CWR) expanding the definition of a WOTUS in response to two U.S. Supreme Court decisions. The CWR was challenged in various federal courts which invalidated the rule in 28 states by 2019. The EPA and COE then adopted a new rule in 2020 – the Navigable Water Protection Rule (NWPR). The NWPR narrowed the definition of a WOTUS to six categories of waterbodies. A federal court vacated the NWPR in 2021. Under the proposed rule, EPA states its intention to define a WOTUS in accordance with the 1986 regulations as further defined by the courts since that time. In addition, the proposed rule would base the existence of a WOTUS on the “significant nexus” standard set forth in prior Supreme Court decisions. As such, a WOTUS would include traditional navigable waters; territorial seas and adjacent wetlands; most impoundments of a WOTUS and wetlands adjacent to impoundments or tributaries that meet either the relatively permanent standard or the significant nexus standard; all waters that are currently used or were used in the past or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide. The proposed rule defines “interstate waters” as “all rivers, lakes, and other waters that flow across, or form a part of State boundaries” regardless of whether those waters are also traditionally navigable. A “tributary” is also defined as being a WOTUS if it fits in the “other waters” category via a significant nexus with covered waters or if it is relatively permanent. The EPA and COE further define the “relatively permanent standard” as “waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters.” The “significant nexus standard” is defined as “waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas (the "foundational waters").” The comment period on the proposed rule expires on February 7, 2022. 86 FR 69372 (Dec. 7, 2021).

Posted November 1, 2021

Court Invalidates 2020 CWA Certification Rule. The Clean Water Act (CWA) permitting process contains a CWA Sec. 401 water quality certification for certain projects that has been in effect since 1971. The Trump Administration sought to streamline the process via the implementation of a new certification in 2020. The current Administration sought to have the EPA reconsider the rule while keeping the 2020 rule in place. Federal district courts in Pennsylvania and South Carolina had already granted the current Administration’s request, but this court disagreed. The court noted that the 2020 rule made substantive changes to the EPA’s procedures for implementing Sec. 401 of the CWA such as: (1) narrowing the scope of certification to ensure that a discharge from a point source into a WOTUS complied with “water quality requirements”; (2) authorizing the EPA to establish the reasonable amount of time for a certifying authority to certify a request; and (3) authorizing the EPA to determine whether a certifying authority’s denial complied with procedural requirements. The court also noted that the 2020 rule had only been in effect for slightly over a year, but that the 1971 rule had been in effect for decades and regulated parties had relied on it. Thus, the court invalidated the 2020 rule while the new rule was being written. In a later opinion, the court denied the defendants motion for a stay of the earlier order vacating and remanding the rule pending appeal.  In re Clean Water Act Rulemaking, No. 20-cv-4636 WHA, 2021 U.S. App. LEXIS 203567 (N.D. Cal. Oct. 21, 2021). Later action in In re Clean Water Act Rulemaking, No. C 20-04636, WHA, 2021 U.S. Dist. LEXIS 234470 (N.D. Cal. Dec. 7, 2021).  

Posted September 11, 2021

FIFRA Doesn’t Preempt State Product Liability Claims. The plaintiffs, husband and wife, claimed that their exposure to Roundup caused them both to develop non-Hodgkin’s lymphoma. The raised numerous state law claims including design defect, negligence and failure to warn. A jury ruled in the plaintiffs’ favor on the state law claims, awarding over $55 million in compensatory damages and $1 billion in punitive damages. The court lowered the total award to $81 million. The defendant appealed, claiming that the judgment on the claims of failure to warn were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) on the basis of express and impossibility preemption. The defendant asserted that FIFRA’s prohibition on misbranded pesticides and limitation of a state’s ability to add any labeling requirement that is “in addition to or different from” FIFRA labeling requirements preempted any state common law failure to warn claim. Monsanto claimed that the plaintiffs’ failure to warn claims are subject to impossibility preemption because it would be impossible for the defendant to add a cancer warning to Roundup under state law without the Environmental Protection Agency (EPA) first altering the federal label. The appellate court concluded that FIFRA did not preempt the plaintiffs’ failure to warn claims because the defendant failed to identify state law requirements that were in addition to or different from the misbranding requirements that FIFRA imposes. The appellate court determined that the state (CA) common law duty to warn consumers about risks posed by products does not impose any requirements that are different from or in addition to the FIFRA requirement to provide use instructions and warnings that are adequate to protect health. Thus, there was no express FIFRA preemption. The appellate court also concluded that the failure to warn claims were not subject to impossibility preemption. The defendant’s argument of impossibility preemption relied solely on cases involving issues of law raised under the Federal Food Drug and Cosmetic Act (FFDCA), and the appellate court determined that the defendant had failed to explain why a doctrine of preemption that has been applied to the FFDCA should be applied to FIFRA. In addition, the appellate court determined that it could not find any other federal or state court opinions where the defendant’s theory of impossibility preemption had been applied to FIFRA. Accordingly, the appellate court upheld the jury’s determination. The appellate court’s decision is consistent with Hardeman v. Monsanto Co., 997 F.3d 941 (9th Cir. 2021), but is inconsistent with Stepehens v. Monsanto, Co., No. CIVSB2104801 (Cal. Super. Ct. 2021) on the issue of whether FIFRA preempts failure to warn claims. Pilliod v. Monsanto Co., 67 Cal. App. 5th 591 (2021).

Posted September 5, 2021

Navigable Waters Protection Rule Vacated. The plaintiff, and Indian Tribe, challenged the Navigable Waters Protection Rule (NWPR) as contrary to the text and objectives of the Clean Water Act (CWA). The term, “Waters of the United States” (WOTUS) is key to administering the CWA because it delineates CWA-protected waters. But, WOTUS is not defined in the CWA. It is defined by EPA regulations. The NWPR is the most recent regulatory definition of a WOTUS, and replaced a 2015 WOTUS rule that was broader in scope. The plaintiff claims that it relies on waters that lost CWA protection due to the NWPR no longer bringing under CWA regulation those waters that have “an effect on or connection to the physical, chemical , and biological integrity of downstream traditional navigable waters.” The plaintiff claimed that the NWPR failed to carry out the CWA’s purpose by excluding ephemeral streams, isolated wetlands and other waters not sharing a surface connection with a protected waterbody. The plaintiff argued that the NWPR violated the CWA by excluding ephemeral streams, isolated waters and other waters that do not share a surface connection with a protected waterbody. The defendant asked the U.S. Department of Justice to request stays for all pending litigation that sought judicial review of the NWPR. A stay was granted in the case, and when the case resumed the defendant filed a motion seeking a voluntary remand of the NWPR to the EPA for review while keeping the NWPR in effect. The plaintiff agreed that the NWPR should be remanded to the EPA, but opposed the defendant’s request that remand be granted but wanted the NWPR vacated. The court agreed with the plaintiff’s argument and vacated the NWPR because it determined that the EPA was unlikely to re-adopt the NWPR on remand by offering better reasoning or complying with procedural requirements. Pasqua Yaqui Tribe v. United States Environmental Protection Agency, No. CV-20-TUC-RM, 2021 U.S. Dist. LEXIS 163921 (D. Ariz. Aug. 30, 2021).

Posted August 29, 2021

Private Property Has Regulable Wetlands Due To “Nexus” With Lake. The plaintiffs bought a .63-acre lot in 2004 on which they intended to build a home. The lot is near numerous wetlands the water from which flows from a tributary to a creek, and eventually runs into a lake approximately 100 yards from the lot. The lake is 19 miles long and is a navigable water subject to the Clean Water Act (CWA) which bars the discharge of a pollutant, including rocks and sand into it. The plaintiffs began construction of their home, and the Environmental Protection Agency (EPA) issued a compliance order notifying the plaintiffs that their lot contained wetlands due to adjacency to the lake and that continuing to backfill sand and gravel on the lot would trigger penalties of $40,000 per day. The plaintiff sued and the EPA claimed that its administrative orders weren’t subject to judicial review. Ultimately the U.S. Supreme Court unanimously rejected the EPA’s argument and remanded the case to the trial court for further proceedings. The EPA withdrew the initial compliance order and issued an amended compliance order which the trial court held was not arbitrary or capricious. The plaintiffs appealed and the EPA declined to enforce the order, withdrew it and moved to dismiss the case. However, the EPA still maintained the lot was a jurisdictional wetland subject to the CWA and reserved the right to bring enforcement actions in the future. In 2019, the plaintiffs resisted the EPA’s motion and sought a ruling on the motion to bring finality to the matter. The EPA claimed that the case was moot, but the appellate court disagreed, noting that the withdrawal of the compliance order did not give the plaintiffs final and full relief. On the merits, the appellate court noted that the lot contained wetlands 30 feet from the tributary, and that under the “significant nexus” test of Rapanos v. United States, 547 U.S. 715 (2006), the lot was a regulable wetland under the CWA as being adjacent to a navigable water of the United States (the lake). Sackett v. Environmental Protection Agency, No. 19-35469, 2021 U.S. App. LEXIS 24329 (9th Cir. Aug. 16, 2021).

State Can Consider Environmental Impacts of High-Capacity Groundwater Wells. The defendant is responsible for evaluating applications to operate high-capacity groundwater wells. For some of these wells, the defendant is to follow an environmental review process before approving an application. For other wells, the environmental preview process is not required, although the defendant will sometimes still consider the potential environmental impacts before approving a well’s application. At issue were eight well applications that did not require environmental review. Although the defendant knew that the wells would have a negative environmental impact, it approved the applications after concluding that it did not have the authority to perform an environmental review. The plaintiffs challenged the defendant’s decision claiming that the defendant’s decision was contrary to a 2011 Wisconsin Supreme Court decision. In response, the defendant claimed that the 2011 decision was no longer good law because Wisconsin passed a statute shortly after the decision was issued limiting the defendant’s actions to only those which were “explicitly required or explicitly permitted by statute or a rule.” Because no Wisconsin statute or rule explicitly required the defendant to conduct a formal environmental review for the eight well applications at issue, the defendant claimed that it lacked the authority to conduct the reviews. The trial court determined that the defendant had improperly interpreted the law, and the state Supreme Court agreed on further review. The state Supreme Court determined that the defendant had both a constitutional duty under the state’s public trust doctrine and statutory authority to consider the environmental effects of all proposed high-capacity wells. The Supreme Court noted that state law granted the defendant broad authority to consider the potential environmental impact of hig-capacity wells. The well applications were remanded to the defendant for review. Clean Wisconsin, Inc. v. Wisconsin Department of Natural. Resources, 961 N.E.2d 611 (Wis. 2021).

Posted June 22, 2021

Regulation of Ag Run-Off Is Legislative Issue. The plaintiffs, two left-wing social justice organizations, sued the State of Iowa and state officials and agencies associated with agriculture and the environment claiming that the public trust doctrine required them to enact legislation and rules forcing farmers to adopt farming practices that would significantly reduce levels of nitrogen and phosphorous run-off into the Raccoon River. The plaintiffs claimed that such a requirement would improve members’ feelings by enhancing aesthetics and recreational uses of the river and by reducing their water bills. Specifically, the plaintiffs sought declaratory relief by couching their claims in the public trust doctrine. The plaintiffs also sought an injunction which would require the State to adopt and implement a remedial plan to limit the amount of nitrogen and phosphorous in the river. The defendants argued that the plaintiffs lacked standing to sue and that the issue was nonjusticiable. After the trial court denied the defendants’ motion to dismiss, the defendants sought an interlocutory appeal. The state Supreme Court first noted that the scope of the public trust doctrine in Iowa is narrow, and that the doctrine should not be overextended. The Supreme Court noted that for a party to have standing, they must have a specific personal or legal interest in the litigation and be injuriously affected. For a party to be injuriously affected, the Supreme Court stated that the injury complained of must be likely to be redressed by a favorable decision. The Supreme Court determined that it would be speculative that a favorable court decision would result in a more aesthetically pleasing river or lower water rates. Further, the Supreme Court determined the injunctive relief sought by the plaintiffs could only be accomplished through legislation. The Supreme Court pointed out that even the plaintiffs admitted that the defendants lacked authority to require limits for nitrogen and phosphorous from agricultural nonpoint sources. As a result, Supreme Court determined the plaintiffs’ claims must be dismissed due to lack of standing. For justiciability, the plaintiffs argued that because constitutional due process rights were at issue, their claims were justiciable. The Supreme Court disagreed, noting that the basis for the plaintiffs’ claims was the public trust doctrine and that under the plaintiffs’ argument, there would be a lack of judicially discoverable and manageable standards. The Supreme Court stated that, “different uses matter in different degrees to different people.” Therefore, the Supreme Court determined that granting any meaningful relief to the plaintiffs would result in the judicial branch asserting superiority over the legislature. Iowa Citizens for Community Improvement, et al. v. State, No. 19-1644, 2021 Iowa Sup. LEXIS 84 (June 18, 2021).

Posted June 20, 2021

EPA Properly Approved Missouri Water Quality Standards. In 2009, the state of Missouri proposed water quality standards for nutrient standards for nutrient pollutants in Missouri lakes. The Environmental Protection Agency (EPA) originally rejected the proposed standards, but ultimately accepted a revised version of the standards in 2018. The plaintiffs, a coalition of environmental groups, sued claiming that the water quality standards should be set aside on the basis that the EPA’s determination was arbitrary and capricious. The court upheld the state standards, finding them to have been grounded upon a rational basis that they would adequately protect the designated uses of protected waterbodies. Missouri Coalition for the Environment Foundation v. Wheeler, No. 2:19-CV-04215-NKL, No. 2:19-cv-04215-NKL (W.D. Mo. Jun. 1, 2021).

Posted March 27, 2021

CWA Contains “Knowing” Requirement, But WOTUS is Not Vague. The defendant, in 2014, operated a business that charged construction companies for the dumping of soil and debris on dry lands near San Francisco bay. The Environmental Protection Agency (EPA) later claimed that the dry land was a “wetland” subject to the dredge and fill permit requirements of Section 404 of the Clean Water Act (CWA). As a result, the defendant was charged with (and later convicted of) violating the CWA without any evidence in the record that the defendant knew or had reason to know that the dry land was a wetland subject to the CWA. On further review, the appellate court noted that the CWA prohibits the “knowing” discharge of a pollutant into covered waters without a permit. At trial, the jury instructions did not state that the defendant had to make a “knowing” violation of the CWA to be found guilty of a discharge violation. Accordingly, the appellate court reversed on this point. However, the appellate court ruled against the defendant on his claim that the regulation defining “waters of the United States” was unconstitutionally vague, and that the 2020 Navigable Waters Protection Rule should apply retroactively to his case. United States v. Lucero, No. 10074, 2021 U.S. App. LEXIS 6307 and 6327 (9th Cir. Mar. 4, 2021).

Trump-Era WOTUS Rule Applies in All States. The “Navigable Waters Protection Rule” (NWPR) issued in April 2020, defines the Clean Water Act (“CWA”) term “waters of the United States” (“WOTUS”). The definition is a key aspect of administering the CWA. Only waters that constitute a WOTUS are subject to the CWA requirements and regulations. However, the Congress left the definition of a WOTUS up to the Environmental Protection Agency (EPA) to write rules defining the term. The NWPR is the most recent attempt at a regulatory definition. In 2020, the Colorado federal district court entered a preliminary injunction that barring the NWPR from taking effect in Colorado as applied to the discharge permit requirement of Section 404 of the CWA. On appeal, the appellate court reversed. The appellate court noted that Colorado had failed to show irreparable harm without the issuance of the preliminary injunction. The result of the appellate court’s decision is that the NWPR is presently in effect in every state in the U.S. Colorado v. United States Environmental Protection Agency, No. 20-1238, 2021 U.S. App. LEXIS 6070 (10th Cir. Mar. 2, 2021).

Posted January 17, 2021

New ESA Definition of “Habitat.” In response to the U.S. Supreme Court decision in Weyerhaeuser Co. v. United States Fish and Wildlife Service, 139 S. Ct. 361 (2018), the USFWS has modified the definition of “habitat” for listed species under the Endangered Species Act (ESA). The modification is the first change in the definition since the ESA’s enactment in 1973. Under Weyerhaeuser, the Court held that an area must first be habitat before it could be “critical habitat.” Because the term “habitat” was not defined in either the text of the ESA or its implementing regulations, the USFWS has promulgated a Final Rule defining “habitat” as “the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” Thus, to be “habitat” an area must already contain the conditions necessary to support the species it is intended to be habitat for. Thus, only those areas which include the environmental conditions that can provide benefits to the target species will be eligible for critical habitat designation. 85 Fed. Reg. 81411 (Dec. 16, 2020), effective, Jan. 15, 2021.

USFWS Clarifies Critical Habitat Designation Process under ESA. The United States Fish and Wildlife Service (USFWS) has issued a Final Rule addressing the designation of critical habitat under the Endangered Species Act (ESA). The Final Rule establishes a process and criteria for excluding certain areas from being designated as critical habitat. Under the Endangered Species Act (ESA), the USFWS may exclude an area from a critical habitat designation if the benefits of exclusion would outweigh designating the area critical habitat. Under the Final Rule, when the USFWS publishes a proposal to designate critical habitat in the Federal Register, it will also make available for public comment the draft economic analysis of the designation. The USFWS will also identify the areas it has reason to consider for exclusion from critical habitat designation and explain its reasoning. Under the Final Rule, “economic impacts” may include, but will not be limited to, “the economy of a particular area, productivity, jobs, and any opportunity costs arising from the critical habitat designation.” In addition, the USFWS is to conduct an exclusion analysis when “the proponent of excluding a particular area (including but not limited to permittees, lessees or others with a permit, lease or contract on federally manage lands) has presented credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area.” Thus, landowners and permittees on either federal or private land can request that the USFWS consider excluding the land from a critical habitat designation if doing so would prevent an economic harm. 50 C.F.R. Part 17, Dec. 17, 2020, effective Jan. 19, 2021.

USFWS Proposed Rule on ESA Agency Consultation. Under the Endangered Species Act (ESA), federal agencies consult with USFWS over federal actions which could potentially harm listed species or designated critical habitat. The Proposed Rule clarifies that consultation is not required for previously approved land management plans from the United States Forest Service and the Bureau of Land Management when new information reveals that the effects of a plan may affect listed species or critical habitat in a way not previously considered. Additionally, consultation need not be reinitiated when a new species is listed or there is a designation of new critical habitat. Fed. Reg. 2021-00366 (Jan. 11, 2021).

Posted January 12, 2021

TRO Entered Against EPA FIFRA Regulation. The plaintiffs sought a temporary restraining order (TRO) against a regulation of the Environmental Protection Agency (EPA) as well as a temporary injunction barring the regulation from going into effect on December 29, 2020. The regulation was designed to strengthen the protections for agricultural workers set forth in the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA). Under the rule, the area surrounding pesticide application equipment was a 100-foot horizontal circle and required handlers to not apply pesticides if any other person besides and appropriately trained and equipped handler entered the circle. In 2020, the EPA issued another regulation rolling back some of the protections of the initial regulations promulgated several years earlier, including the circle provisions. The plaintiffs claimed that the 2020 regulation violated FIFRA and should be repealed before taking effect. The court held that the plaintiffs were likely to succeed on the merits because the EPA’s justifications for the rollback did not satisfy the requirements that the EPA “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” As a result of the court’s issuance of a TRO, the regulation would not take effect until January 12, 2021. During the interim timeframe, the court would consider whether a longer injunction of the regulation was required. Rural & Migrant Ministry v. U.S. Envtl. Prot. Agency, No. 20-CV-10645 (LJL), 2020 U.S. Dist. LEXIS 244221 (S.D. N.Y. Dec. 29, 2020).

Posted December 30, 2020

Jumping Mouse Habitat Designation Upheld. In 2014, the U.S. Fish and Wildlife Service (USFWS) listed the New Mexico Meadow Jumping Mouse as an endangered species based on substantial habitat loss and fragmentation from grazing, water management, drought and wildfire. Accordingly, in 2016, the USFWS designated 14,000 acres along 170 miles of streams and waterways in New Mexico, Arizona and Colorado as critical habitat for the mouse. The U.S. Forest Service erected fencing around some streams and watering holes in the Santa Fe and Lincoln National Forests that were in the designated area The plaintiffs, two livestock organizations, with members that graze cattle in those national forests, sued in 2018 claiming that the USFWS failed to sufficiently consider the economic impact of the critical habitat designation. The trial court dismissed the case, finding that the USFWS was justified in its decision. The trial court also determined that the USFWS need not compensate the plaintiffs for the reduction in value of the plaintiffs’ water rights. The trial court reasoned that the USFWS need not consider all of the economic impacts associated with the mouse’s listing when designating critical habitat, only the incremental costs of the designation itself. The court cited the nine-month annual hibernation period of the mouse giving it only a short time to breed and gain weight for the winter and, as such, the mouse’s habitat needed to remain ideal with tall, dense grass and forage around flowing streams in the designated area. Northern New Mexico Stockman’s Association, et al. v. United States Fish and Wildlife Service, No. CIV 18-1138 JB/JFR, 2020 U.S. Dist. LEXIS 188897 (D. N.M. Oct. 13, 2020).

Posted December 29, 2020

Federal Government Must Pay Farmers Millions For Army Corps of Engineers' Mismanagement of Missouri River. In 2014, 400 farmers along the Missouri River from Kansas to North Dakota sued the federal government claiming that the actions of the U.S. Army Corps of Engineers (COE) led to and caused repeated flooding of their farmland along the Missouri River. The farmers alleged that flooding in 2007-2008, 2010-2011, and 2013-2014 constituted a taking requiring that compensation be paid to them under the Fifth Amendment. The litigation was divided into two phases – liability and just compensation. The liability phase was decided in early 2018 when the court determined that some of the 44 landowners selected as bellwether plaintiffs had established the COE’s liability. In that decision, the court held that the COE, in its attempt to balance flood control and its responsibilities under the Endangered Species Act, had released water from reservoirs “during periods of high river flows with the knowledge that flooding was taking place or likely to soon occur.” The court, in that case, noted that the COE had made other changes after 2004 to reengineer the Missouri River and reestablish more natural environments to facilitate species recovery that caused riverbank destabilization which led to flooding. Ultimately, the court, in the earlier litigation, determined that 28 of the 44 landowners had proven the elements of a takings claim – causation, foreseeability and severity. The claims of the other 16 landowners were dismissed for failure to prove causation. The court also determined that flooding in 2011 could not be tied to the COE’s actions and dismissed the claims for that year. The present case involved a determination of the plaintiffs’ losses and whether the federal government had a viable defense against the plaintiffs’ claims. The court found that the “increased frequency, severity, and duration of flooding post MRRP [Missouri River Recovery Program] changed the character of the representative tracts of land.” The court also stated that, “ [i]t cannot be the case that land that experiences a new and ongoing pattern of increased flooding does not undergo a change in character.” The court determined that three representative plaintiffs, farming operations in northwest Missouri, southwest Iowa and northeast Kansas, were collectively owed more than $7 million for the devaluation of their land due to the establishment of a “permanent flowage easement” that the COE created which constituted a compensable taking under the Fifth Amendment. The impact of the court’s ruling means that hundreds of landowners affected by flooding in six states are likely entitled to just compensation for the loss of property value due to the new flood patterns that the COE created as part of its MRRP. Ideker Farms, Inc. v. United States, No. 14-183L, 2020 U.S. Claims LEXIS 2548 (Fed. Cl. Dec. 14, 2020).

Posted December 22, 2020

EPA Retains Existing Primary and Secondary National Ambient Air Quality Standards for Agricultural Dust. In early December of 2020, the Environmental Protection Agency (EPA), in a Final Agency Action, retained its existing ambient air quality standard for particulate matter including agricultural dust, pollen, spores and soil erosion. The sources of particulate matter from agricultural activities are field operations; dust from unpaved roads; farm equipment exhaust; agricultural burning; pesticides; livestock; and windblown dust. The Clean Air Act (CAA) requires the EPA to set two types of National Ambient Air Quality Standards for particle pollution – primary and secondary. The EPA is required to review the standards every five years and determine whether to retain or revise the standards. RIN 2060-AS50, 40 C.F.R. Part 50 (Dec. 7, 2020).

November 1, 2020

Public Trust Doctrine Inapplicable to Natural Resources Allegedly Harmed by “Climate Change.” The plaintiffs claimed that the public trust doctrine required the State of Oregon to protect various natural resources in the state from harm due to greenhouse gas emissions, climate change, and ocean acidification. The public trust doctrine has historically only applied to submerged and submersible lands underlying navigable waters as well as the navigable waters. The trial court rejected the plaintiffs’ arguments. On appeal the state Supreme Court affirmed, rejecting the test for expanding the doctrine the plaintiffs proposed. Under that test, the doctrine would extend to any resource that is not easily held or improved and is of great value to the public. The state Supreme Court held that the plaintiffs’ test was too broad to be adopted. The Supreme Court remanded the case to the lower court. Chernaik v. Brown, 367 Or. 143 (2020).

Posted October 11, 2020

Damages for Eminent Domain Action Equals Difference in Fair Market Value of Land. The plaintiffs were landowners whose property consisted of 164 acres, primarily cropland and pastureland. The plaintiff gave the defendant county permission to cut down trees on the plaintiffs’ property in order to improve visibility for drivers on an adjacent county road. However, the defendant’s employees proceeded to cut down trees from an area not authorized for removal. In total, the defendant cut down 67 trees, affecting 1.67 acres of the plaintiffs’ land. The plaintiffs filed an inverse condemnation action against the defendant, alleging an unlawful taking of their property for public use without just compensation. The plaintiffs claimed that the damages should be calculated by determining the replacement cost of the trees, which was approximately $100,000. The defendant argued that the damages should be calculated by determining the difference in fair market value of the plaintiffs’ property before and after the trees had been cut down, which was $200. The trial court agreed with the defendant and held that the appropriate measure of damages was the difference in the fair market value of the land. The trial court noted that the plaintiffs had argued their case under the state’s eminent domain statutes but were seeking damages based on a tort cause of action. On appeal, the plaintiffs’ argued the trial court applied the wrong measure of damages. The plaintiffs maintained their argument that the proper method for determining damages was to calculate the cost of restoring the property to its preexisting condition. The appellate court held that the correct measure for damages was in fact the difference in the fair market value of the land before and after the trees were cut down. The appellate court noted that Nebraska courts have consistently held that damages in eminent domain cases are measured based on market value of the property. Further, the appellate court pointed out that the state Supreme Court had previously held that vegetation is not valued separately and should only be considered in how its presence affects the fair market value of the land. Finally, the appellate court noted that the plaintiffs’ argument for calculating damages rested on cases that stemmed from tort actions. Because the plaintiffs had argued their case as one under the eminent domain statutes, they could not seek damages under an unlawful destruction of trees or negligence action. Russell v. Franklin County, 934 N.W.2d 517 (Neb. Ct. App. 2019).

Posted September 22, 2020

Government Must Review CWA Jurisdictional Determination. The plaintiff owns land that it claims has been damaged by the defendant’s conduct with respect to 19 acres by claiming jurisdiction that restricts timber harvesting and access to water supplies. The plaintiff had sought that the defendant make a jurisdictional determination for the property as the plaintiff wanted to construct a water line. After various administrative snafus, the defendant requested that the U.S. Environmental Protection Agency (EPA) concur that a “logging operation” on the property did not qualify for the silviculture exemption under the Clean Water Act (CWA). The EPA and the defendant (U.S. Army Corps of Engineers) determined that the exemption did not apply and issued a cease and desist letter citing the discharge permit requirements of the CWA. After various procedural moves, the court ordered the defendant to conduct another hearing and revisit the notice of violation and cease-and-desist orders. The defendant sought a motion for reconsideration, which the court denied. Lewis v. United States, No. 17-1644-JWD-RLB, 2020 U.S. Dist. LEXIS 169929 (M.D. La. Sept. 16, 2020).

Posted August 3, 2020

Court Upholds Enlist Duo Registration. The plaintiff challenged the defendant’s registration of Enlist Duo pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Enlist Duo contains two active ingredients – 2,4-D and glyphosate. Both ingredients have been registered under FIFRA for many years to control broad-leaf plants and weeds resistant to glyphosate. Enlist Duo delays the development of weeds’ pesticide resistance, allowing for pesticide use later in the growing season. Enlist Duo was originally registered under FIFRA in October 2014 and was reregistered in 2015 and 2017. The plaintiff challenged the 2017 registration as being in violating FIFRA and the Endangered Species Act (ESA). The plaintiff claimed that the defendant registered the pesticide an unconditional use pesticide but incorrectly applied a more lenient “conditional use” standard in the registration process. The court disagreed, noting that the plaintiff had waived this argument by not raising it in the plaintiff’s initial lawsuit challenging the 2014 registration. Even if waiver had not applied, the court determined that the argument would fail because the 2014 registration was “plainly unconditional.” The defendant stated in registration documents that it was an unconditional registration, and the evidence showed that the defendant applied the unconditional registration standard by analyzing both the ecological and human risk of registering Enlist Duo. The plaintiff also claimed that the defendant lacked “substantial evidence” for its 2014, 2015, and 2017 registration decision because it failed to: “(1) properly assess harm to the monarch butterfly from an increased 2,4-D use on milkweed in target fields; (2) consider that Enlist Duo would increase the use of glyphosate over time; (3) correctly consider the volatility of Enlist Duo’s 2,4-D component; and (4) consider the synergistic effects of mixing Enlist Duo with glufosinate.” The court disagreed with all of the claims except one, agreeing that the defendant had failed to properly and sufficiently assess harm to the monarch butterfly when it registered Enlist Duo. As for the plaintiff’s ESA claim, the defendant had concluded that Enlist Duo’s registration would have “no effect” on listed species by using the wrong methodology. The court disagreed, determining that the defendant used the best scientific and commercial data available to reach the “no effect” conclusion under the ESA. Ultimately, the court upheld Enlist Duo’s 2017 registration, but determined that the defendant had failed to properly assess harm to the monarch butterfly as a result of the increased use of 2,4-D on milkweed. Thus, the court remanded the 2017 registration decision to the defendant to address evidence that monarch butterflies may be harmed. By remanding the registration without vacating it, the court allowed Enlist Duo to remain registered and available for use according to its label while the defendant assesses the potential harm to the monarch. The monarch butterfly is not currently listed under the ESA, but final decision on whether to list it is expected before the end of 2020. National Family Farm Coalition v. United States Environmental Protection Agency, No. 17-70810, 2020 U.S. App. LEXIS 22915 (9th Cir. Jul. 22, 2020).

Posted July 26, 2020

WOTUS Rule Goes Into Effect; Courts Split on Injunctive Relief. On June 22, 2020, the Navigable Waters Protection Rule (Navigable Waters Rule or NWR) went into effect. The NWR contains a redefinition of “navigable waters of the United States” that was dramatically expanded under the Obama Administration in 2015 to include such things as ditches and dry creek channels on private property. The Clean Water Act regulates the discharge of a “pollutant” into the navigable waters of the United States without a permit under §404 of the Clean Water Act (CWA). The NWR has triggered multiple lawsuits from environmental activist groups.

A Federal District Court in Colorado on Jun. 19, 2020, issued a preliminary injunction barring the NWR from taking effect in Colorado while the rule is being challenged on the merits in court. Under the NWR, isolated wetlands are excluded from the definition of a “water of the United States” (WOTUS), but are subject to state regulation. The court noted that Colorado is in the process of developing a permitting system for the discharge of dredged or fill material into Colorado waters, and that the state planned to issue a statewide dredge and fill ban if the permitting process wasn’t finalized before the NWR went into effect. As such, in tortured logic, the court determined that Colorado would be injured if the NWR were not enjoined because the state would suffer irreparable harm until by issuing such a ban that would require resources to enforce the ban. The court also concluded that the case against the NWR was likely to succeed on the merits as being in violation of the CWA by excluding all wetlands that are not adjacent to a WOTUS from the definition of a WOTUS, rather than making that determination on a case-by-case basis. The court also determined that the issuance of an injunction was in the public’s interest by eliminating confusion over which WOTUS definitional rule applied. The injunction only applies to dredge and fill permits under §404 of the CWA. It does not apply to discharge of permits under §402 of the CWA. Colorado v. United States Environmental Protection Agency, No. 20-cv-1461-WJM-NRN, 2020 U.S. Dist. LEXIS 108174 (D. Colo. Jun. 19, 2020).

Also, on Jun. 19, 2020, a federal district court in California refused to issue a preliminary injunction against the NWR from taking effect. The court determined that the plaintiffs seeking the injunction failed to show that the case their challenge to the NWR was likely to succeed on the merits because the EPA has wide discretion in defining a WOTUS. The court also determined that the alleged harm caused by the NWR rule taking effect was speculative and did not constitute “irreparable harm.” Accordingly, the court determined that it would not be in the public interest to issue an injunction. California v. Wheeler, No. 20-cv-03005-RS, 2020 U.S. Dist. LEXIS 107949 (N.D. Cal. Jun. 19, 2020).

Posted June 8, 2020

Court Vacates Dicamba Registrations. In 2015, the Obama Administration’s USDA deregulated DT soybean and cotton seeds via the Plant Patent Act (PPA). At that point, Monsanto began to sell the DT seeds in advance of the 2016 growing season. This was done before EPA had approved the companion dicamba herbicides for over-the-top (OTT) use. In 2016, approximately 1.7 million acres of DT soybeans and 50,000 acres of DT cotton were planted. The prior versions of dicamba herbicides could not legally be used on the emergent DT crops, but some farmers applied those older, more volatile versions to the DT crops. In the fall of 2016, the EPA announced that it would grant two-year conditional registrations for three lower-volatility, OTT dicamba herbicides (Monsanto’s XtendiMax; Dupont’s FeXapan; and BASF’s Engenia) in 34 states, noting the benefits of controlling noxious weeds and glyphosate-resistant weeds and that the lower-volatility formulations posed little-to-no risk of adverse environmental effects if used according to the label. Throughout the 2017 growing season, complaints of alleged dicamba-caused damage to commercial crops and other plants increased. Bayer/Monsanto proposed label changes to XtendiMax for use during the 2018 growing season to address off-site drift. The EPA approved additional label restrictions for OTT dicamba products for the 2018 growing season. In late 2018, the EPA granted conditional extensions to the 2016 registrations for two more years. The EPA determined that doing so would provide growers with an additional tool to help manage weeds that are difficult to control for which few alternatives are available, and would provide a long-term benefit by delaying resistance to other herbicides when used appropriately. The EPA also noted that, based on field trials and land-grant university research, non-DT crops could be damaged by off-site drift that could result in yield reductions if the drift occurred during the reproductive growth states of the non-DT crops and, as a result, imposed more restrictions on OTT applications of the dicamba herbicides to DT soybeans and cotton. A coalition of activist groups sought review of the EPA’s 2016 registration decision for XtendiMax, and then amended the petition to include the 2017 label amendments. Oral argument in the case was held in August of 2018. However, the EPA granted the additional two-year conditional registrations before the court decided the case. As a result, the court dismissed the petition. The plaintiffs again sued in early 2019, challenging the EPA’s late 2018 decision to extend the registrations for the OTT dicamba herbicides for two more years. The court did not hear oral arguments in the case until15 months later. Under FIFRA, the EPA must determine that any amendment to a pesticide/herbicide registration “would not significantly increase the risk of any unreasonable adverse effect on the environment.” Such effects include “any unreasonable risk to man or the environment, taking into account the economic, social and environmental costs and benefits of the use of any pesticide…”. 7 U.S.C. §136(bb). The court determined that the EPA “substantially understated the risks that it acknowledged” and “entirely failed to acknowledge other risks.” The court believed that the EPA understated the DT seed acreage plantings in 2018, failed to account for substantial non-compliance with label restrictions, and didn’t account for social cost of DT soybeans and DT cotton achieving a monopoly or near monopoly due to farmers planting DT seeds simply to avoid drift problems. But, the court failed to mention that some farmers refused to plant DT seeds for the express purpose of possibly being drifted upon and suing for damages. The court also made no mention of the fact that numerous drift complaints in 2017 did not result in any yield loss and in some cases resulted in a yield bump. The court also determined that the EPA didn’t account for the social cost of “divisiveness” that dicamba-related issues were creating in rural communities. As a result, the court vacated the registrations even though it noted the harshness that its decision would have on growers that had already purchased DT soybean and cotton seeds and the associated dicamba products. National Family Farm Coalition v. United States Environmental Protection Agency, No. 19-70115, 2020 U.S. App. LEXIS 17495 (9th Cir. Jun. 3, 2020).

Posted June 7, 2020

Farmer Convicted of “Disturbing Wetlands of the United States.” In 1973, the United States Fish and Wildlife Service (USFWS) acquired an easement on the defendant’s property from the prior owner. The easement barred the draining of “small wetland or pothole areas suitable for use as waterfowl production areas.” The easement also prevented the defendant from “draining or permitting the draining, through the transfer of appurtenant water rights or otherwise, of any surface water…now existing or recurring due to natural causes…”. To improve the farming capability of his land, the defendant requested approval in 2010 for a drainage project from the United States Natural Resource Conservation Service (NRCS). The defendant completed the necessary paperwork requesting the NRCS to make a formal wetland determination on the property before the defendant installed any drain tile. The NRCS informed the defendant that his property was subject to the 1973 USFWS easement and instructed him to get permission from the USFWS for his drainage project. The defendant contacted the USFWS and it mapped seven wetland areas identified on his property. The USFWS advised the defendant that his proposed drainage project would violate the easement and proposed alternative locations for tile installation. The USFWS also informed the defendant to notify it at least three days before any excavation or drain tile installation on his property. In 2012, the NRCS sent the defendant a map delineating the wetland on his property that differed from the 2010 USFWS map. In 2013, the defendant installed drain tile with assistance of two contractors. The USFWS later claimed that the tile was installed in areas subject to the easement and disturbed wetlands subject to the easement. The defendant was charged with “disturbing protected wetlands of the United States” in violation of 16 U.S.C. §668dd(c) and (f)(1) (“knowing” violation). A jury found him guilty of the lesser-included offense of violating 16 U.S.C. §668dd(c) and (f)(2) (negligent violation). On appeal, the appellate court vacated his conviction and remanded the case. In early 2020, the defendant was charged with only the lesser-included offense of the negligently disturbing protected wetlands of the United States. A bench trial was held and the court determined that defendant had negligently disturbed protected wetlands in violation of the easement. The trial court determined that the U.S. held a property interest via the easement; identifiable wetlands existed at the time the easement was conveyed; the defendant either knew or should have known that there was a substantial risk that his actions would violate or fail to comply with any provisions of the National Wildlife Refuge Act or accompanying regulations; the defendant engaged in prohibited activity; the activity caused damage to one or more of the wetlands; and the activity was not permitted or otherwise authorized. The evidence showed that both NRCS and USFWS advised the defendant to contact each of them before initiating tiling. He did not and was negligent for not doing so and did not inform either contractor of the existence of the easement. United States v. Mast, No. 4:17-CR-40078-01-KES, 2020 U.S. Dist. LEXIS 89650 (D. S.D. May 21, 2020).

Posted April 24, 2020

Some Discharges Into a WOTUS Via Groundwater May Require a CWA Permit. The defendant owns and operates four wells at the Lahaina Wastewater Reclamation Facility (LWRF), which is the principal municipal wastewater treatment plant for a city. Although constructed initially to serve as a backup disposal method for water reclamation, the wells have since become the defendant’s primary means of effluent disposal into groundwater and, ultimately, the Pacific Ocean. The LWRF receives approximately 4 million gallons of sewage per day from a collection system serving approximately 40,000 people. That sewage is treated at LWRF and then either sold to customers for irrigation purposes or injected into the wells for disposal. The defendant injects approximately 3 to 5 million gallons of treated wastewater per day into the groundwater via its wells. The defendant conceded, and its expert, confirmed that wastewater injected into wells 1 and 2 enters the Pacific Ocean. In addition, in June 2013 the EPA, the Hawaii Department of Health, the U.S. Army Engineer Research and Development Center, and researchers from the University of Hawaii conducted a study on wells 2, 3 and 4. The study involved placing tracer dye into Wells 2, 3, and 4, and monitoring the submarine seeps off Kahekili Beach to see if and when the dye would appear in the Pacific Ocean. This study, known as the Tracer Dye Study, found that 64% of the treated wastewater from wells 3 and 4 discharged into the ocean. The plaintiff sued, claiming that the defendant was in violation of the Clean Water Act (CWA) by discharging pollutants into navigable waters of the United States without a CWA National Pollution Discharge Elimination System (NPDES) permit. The trial court agreed, holding that an NPDES permit was required for effluent discharges into navigable waters via groundwater. On appeal, the appellate court held that the wells were point sources that could be regulated through CWA permits despite the defendant’s claim that an NPDES permit was not required because the wells discharged only indirectly into the Pacific Ocean via groundwater. Specifically, the appellate court held that “a point source discharge to groundwater of “more than [a] de minimis” amount of pollutants that is “fairly traceable from the point source . . . such that the discharge is the functional equivalent of a discharge into a navigable water” is regulated under the CWA.” The appellate court reached this conclusion by citing cases from other jurisdictions determining that an indirect discharge from a point source into a navigable water requires an NPDES discharge permit. The defendant also claimed its effluent injections are not discharges into navigable waters, but rather were disposals of pollutants into wells, and that the CWA categorically excludes well disposals from the permitting requirements. However, the court held that the CWA does not categorically exempt all well disposals from the NPDES requirements because doing so would undermine the integrity of the CWA’s provisions. Lastly, the plaintiff claimed that it did not have fair notice because the state agency tasked with administering the NPDES permit program maintained that an NPDES permit was unnecessary for the wells. However, the court held that the agency was actually still in the process of determining if an NPDES permit was applicable. Thus, the court found the lack of solidification of the agency’s position on the issue did not affirmatively demonstrate that it believed the permit was unnecessary as the defendant claimed. Furthermore, the court held that a reasonable person would have understood the CWA as prohibiting the discharges, thus the defendant’s due process rights were not violated. On further review, the U.S. Supreme Court vacated the appellate court’s opinion and remanded the case. While noting that the underlying statute clearly required a permit when there was a direct discharge from a point source of pollutants into a navigable waters of the United States, the Court also held that a “pollutant” that reaches navigable waters after traveling through groundwater requires a federal permit if the discharge into the navigable water is the “functional equivalent’ of a direct discharge from the actual point source into navigable waters. Hawai’i Wildlife Fund, et al. v. County of Maui, 886 F.3d 737 (2018), vac’d and rem’d. by County of Maui v. Hawaii Wildlife Fund, et al., No. 18-260, 2020 U.S. LEXIS 2410 (U.S. Sup. Ct. Apr. 23, 2020).

Posted April 12, 2020

Court Addresses Direct and Indirect Discharges Under CWA. The plaintiff claimed that the the defendant had violated the Clean Water Act (CWA) by allowing a hatchery that the defendant owned and operated to discharge pollutants into a river in violation of the hatchery’s National Pollutant Discharge Elimination System (NPDES) permit. The plaintiff claimed that the defendant was making both direct and indirect discharges in violation of its NPDES permit. The direct discharge claims are based on current and anticipated future discharges directly from the hatchery into the river. The indirect discharge claims stem from past releases of phosphorus by the hatchery that have settled into sediments at the bottom of the river and continue to leach phosphorus into the water. Upon review of the claims, the trial court dismissed the direct discharge claims and directed the parties to submit additional arguments with respect to the indirect discharge claims. The direct discharge claims were dismissed because in late 2019, the EPA released a new NPDES permit for the hatchery. Once finalized, the permit may allow the discharges that the plaintiffs argue are currently violations of the CWA. Because the anticipated 2020 permit may moot some or all of the plaintiffs’ direct discharge claims, the court dismissed those claims. As for the indirect discharge claims, the court noted that the plaintiffs’ arguments that the defendants have violated the CWA by allowing pollutants to enter a water of the United States through a conduit is similar to an issue that is presently before the United States Supreme Court (Hawai’i Wildlife Fund, et al. v. County of Maui, No. 15-17447, 2018 U.S. App. LEXIS 2582 (9th Cir. Feb. 1, 2018)). Because how the Supreme Court rules on the indirect discharge claim could impact the court’s decision in this case, the court requested that the parties file additional briefing on whether the Maui case should influence the court’s decision. Conservation Law Foundation v. New Hampshire Fish & Game Department, No. 18-CV-996-PB, 2020 U.S. Dist. LEXIS 59608 (D. N.H. Apr. 6, 2020).

EPA Enforcement Notice. The environmental protection agency (EPA) has issued a guidance document regarding enforcement activity during various state-level shutdowns in reaction to the China-originated virus that has spread to the United States. According to the guidance document, EPA will be relaxing enforcement of noncompliance with environmental statutes during the COVID-19 pandemic provided that the noncompliance is a result of the pandemic. The policy will apply retroactively from March 13, 2020. There is currently no set end date, but EPA intends to post a notification on its website at least seven days before terminating the policy. The document specifically addresses animal feeding operations (AFOs) by providing that any AFO which ends up meeting the regulatory definition of concentrated animal feeding operation (CAFO) due to an inability to move animals off-site as a result of the COVID-19 pandemic will not be treated as a CAFO by EPA. Similarly, EPA will not treat small CAFOs as medium CAFOs or medium CAFOs as large CAFOs if the change is a result of the pandemic. EPA Enforcement Notice, Mar. 26, 2020.

Posted April 5, 2020

Lack of Current and Ongoing Violations Bars Suit Against Hog Operation. The parties are adjacent rural landowners. The defendant operates a confinement hog operation facility on its premises and spreads hog manure from the facility on its crop fields. The plaintiff sued under for alleged violations of the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA) due to manure runoff from the defendant’s fields to the plaintiff’s property. The defendant moved for summary judgment on the basis that the manure was not a “solid waste” as RCRA requires and because the CWA claim was barred due to the defendant entering into a consent order with the state which included an administrative penalty and order to develop a manure application procedure. The court agreed, and also noted that the plaintiff had failed to produce any evidence that the defendant’s violations were current and ongoing. Garrison v. New Fashion Pork LLP, No. 18-CV-3073-CJW-MAR, 2020 U.S. Dist. LEXIS 183666 (N.D. Iowa Mar. 27, 2020).

Posted April 4, 2020

FSA Complied with NEPA Environmental Assessment Regarding Poultry CAFO. The plaintiff, an environmental activist group, sued the defendant challenging the defendant’s environmental assessment concerning a poultry confinement facility that a third party owned and used a Farm Service Agency (FSA) loan guarantee to finance its construction Before granting the loan guarantee, the FSA conducted a review under the National Environment Policy Act (NEPA) of the facility’s impact on the environment. The defendant concluded that granting a loan guarantee to the facility owner would not have a significant environmental impact. The plaintiff challenged that finding and moved for summary judgment. The defendant also moved for summary judgment and the court granted the motion concluding that the defendant took the appropriate “hard look” that NEPA required by NEPA. The court noted that the defendant properly relied on measures already in place that would mitigate those any environmental impacts, considered an adequate range of alternative actions, and reasonably determined that further NEPA review was not required. Food & Water Watch v. U.S. Dep’t of Agric., No. CV 17-1714 (BAH), 2020 U.S. Dist. LEXIS (D. D.C. Mar. 26, 2020).

Posted March 7, 2020

Lake Erie’s Rights Too Vague. Sufficient citizens of the city of Toledo, Ohio voted to add the “Lake Erie Bill of Rights” (LEBOR) to the city’s charter in early 2019. The LEBOR prohibited any infringement of the “rights” of Lake Erie to “exist, flourish, and naturally evolve” without explaining the kind of conduct that would infringe those “rights.” The plaintiff, a farming operation that grows crops in four counties near Toledo and Lake Erie, suit to invalidate the LEBOR on constitutional grounds for lack of due process as being void for vagueness. The court agreed and vacated the LEBOR in its entirety. Drewes Farms Partnership v. City of Toledo, No. 3:19 CV 434, 2020 WL 966628 (N.D. Ohio Feb. 27, 2020) No. 3:19 CV 434 2020 U.S. Dist. LEXIS 36427 (N.D. Ohio Feb. 27, 2020).

Posted March 2, 2020

Serial Wetland Violator Ordered to Restore Wetlands. The defendant is a farming family operation that own several tracts of land in western Pennsylvania, including a tract that it purchased in 2012. The tract is adjacent to a creek that flows into Lake Erie. The defendant was found liable for violating the Clean Water Act (CWA) by attempting to clear the site of its wetlands to convert them to arable land. The defendant has been involving in CWA litigation involving its farming operation for over 30 years and entered into a consent decree with the federal government concerning wetland violations on another tract after a federal court opinion was issued against it in 1994 concerning that tract. In the present action, the federal government seeks injunctive relief against the defendant and an order forcing it to restore wetlands that had been cleared. The government sought an order requiring the defendant to retain a qualified consultant to conduct a wetland delineation on the tract and develop a restoration plan consistent with a plan outlined by the government’s expert which would then be submitted to the EPA for approval. The defendant objected that the plan was too abstract for the Court to assess and, in effect, outsourced plan approval to the EPA instead of the Court. The court disagreed with the defendant, finding that the plan was sufficiently detailed to provide a basis for the defendants to retain a qualified delineation expert and construct a restoration plan for EPA approval. The court noted that the plan required the defendant to remove or disable installed tile drains; fill-in ditches to grade level; reintroduce previously cleared vegetation; and reestablish the severed connection between the creek and its floodplain. The court determined that the plan conferred maximum environmental benefit; was achievable as a practical matter; and bore an equitable relationship to the harm caused. Thus, the court ordered the defendant to retain a qualified expert to conduct a wetlands delineation on the site, submit a restoration plan to the EPA for comment or approval using the conceptual plan of the government’s expert. The court ordered the parties to submit a joint status report outlining their progress developing the restoration plan and implementing restoration by March 28, 2020. The government also proposed that the court order a deed restriction on the tract to protect the wetlands as they recover. The court agreed, given the defendant’s history of wetland violations and the need to protect the wetlands as they rehabilitate. The court ordered the defendant to provide proposed deed restriction language based on USCOE model language. The government also sought a $400,000 civil penalty. The court deferred ordering it until after the costs of rehabilitation are determined and adequate financial resources are allocated toward achieving the rehabilitation of the wetlands. The court believed that deferring penalties would give it a chance to assess whether the defendant was acting in good faith to “correct the damage they have done to the land.” United States v. Brace, No. 1:17-cv-00006 (BR), 2020 U.S. Dist. LEXIS 33423 (W.D. Pa. Feb. 27, 2020).

Posted February 29, 2020

Reversion to Agricultural Use Classification Not a Taking. 1,060 acres of undeveloped land on the northeast portion of the Island of Hawaii were designated as conditional urban use. For the 40 prior years, the tract was part of a 3,000-acre parcel zoned for agricultural use. In 1987, the landowner at the time sought to develop a mixed residential community of the 1,060 acres as the first phase of development on the entire 3,000 acres. The landowner petitioned the defendant to reclassify the 1,060 acres as urban. The defendant did so in 1989 on development conditions that ran with title to the land. The land remained undeveloped at the time the plaintiff acquired it in 1999. In 2005, the defendant amended the condition so that fewer affordable housing units needed to be developed. Developmental progress was hampered by the requirement that the plaintiff prepare an environmental impact statement for the development project. In late, 2008, the defendant ordered the plaintiff to show cause for the nondevelopment. In the summer of 2010, some affordable housing units had been constructed, but upon inspection they were determined to not be habitable. The developer then stated that it lacked the funds to complete the development. In 2011, the defendant ordered the land’s reversion to its prior agricultural use classification due to the unfulfilled representations that the land would be developed. The land was given its conditional urban use classification based on those representations. The plaintiff was one of the landowners and challenged the reversion as illegal, and that it amounted to an unconstitutional regulatory taking of the land. The trial court jury found for the plaintiff on the constitutional claim and the trial court denied the defendant’s motion for a judgment as a matter of law. On further review, the appellate court reversed The appellate court stated held that no taking had occurred under the multi-factor analysis of Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978), because the reclassification did not result in the taking of all of the economic value of the property. Rather, the land retained substantial economic value, albeit at a much lesser amount than if it were classified as urban and developed. An expert valued the land at approximately $40 million as developed land and $6.36 million with an agricultural use classification. The appellate court held that the $6.36 million was neither de minimis nor derived from noneconomic uses. Thus, the defendant was entitled to judgment as a matter of law on the issue that a complete economic taking had occurred. It had not. The appellate court also held that the reversion did not interfere substantially with the plaintiff’s investment-backed expectations given that the development conditions were present at the time the plaintiff acquired the property and the plaintiff could expect them to be enforced. The appellate court also determined that the defendant acted properly in protecting the plaintiff’s due process rights by holding hearings over a long period of time. Thus, the appellate court concluded, no reasonable jury could conclude that the reversion effected a taking under the Penn Central factors. The appellate court vacated the trial court’s judgment for the plaintiff, and reversed the trial court’s the trial court’s denial of the defendant’s motion for judgment as a matter of law, affirmed the trial court’s dismissal of the plaintiff’s equal protection claim and remanded the case. Bridge Aina Le’a, LLC v. State Land Use Commission, No. 18-15738, 2020 U.S. App. LEXIS 5138 (9th Cir. Feb. 19, 2020).

Posted January 24, 2020

COE Need Not Do ESA Consultation For Operations. The U.S. Army Corps of Engineers (COE), along with the Bureau of Reclamation, manages the water in the Rio Grande River with the purpose of maintaining a balance between the persona, commercial and agricultural needs of local people and the needs of plants and animals. The plaintiff, an environmental activist group with a history of “monkeywrenching the judicial system with lawsuits as a tool of intimidation, influence and policy-making,” claimed that the Endangered Species Act (ESA) required the COE was required to consult with the U.S. Fish and Wildlife Service (FWS) about water management policies on the Rio Grande River. The plaintiff accused the COE of failing to protect the needs of the Southwestern Willow Flycatcher and the Rio Grande Silvery Minnow, two endangered species. Under the ESA, agencies must formally consult with FWS if an agency action “may affect” a listed species, and is one “in which the agency has discretion to act for the benefit of an endangered species.” The parties agreed that the COE’s actions on the river would affect both of the endangered species. Thus, the only question before the court was whether the COE had discretion to manage the river for the benefit of the listed species. The court determined that the COE did not have such discretion because the COE must conduct its water management activity on the Rio Grande River according to instructions from the Flood Control Acts of 1948 and 1960. Thus, the court upheld the lower court’s conclusion that the COE did not need to engage in formal ESA consultation over its operations in the Middle Rio Grande Valley. WildEarth Guardians v. United States Army Corps of Engineers, No. 18-2153, 2020 U.S. App. LEXIS 1604 (10th Cir. Jan. 17, 2020).

Posted January 13, 2020

Ministry Might Have Valid “Taking” Claim. The plaintiff is a nonprofit church that owns a 40-acre parcel within the boundaries of a National Wildlife Refuge (Refuge). The U.S. Fish and Wildlife Service (FWS), as a part of two restoration projects in the Refuge that also involved saving native fish species, the FWS cause spring waters that have flowed through the plaintiff’s property to be re-channeled outside the plaintiff’s property and allegedly cause the plaintiff’s property to be flooded. The plaintiff brought constitutional takings claims for the flooding and the loss of vested water rights. The defendant (U.S. government) moved for summary judgment claiming that the restoration project did not cause the flooding and that the takings claims were not ripe for review. On the flooding claim, the court determined that genuine issues of material fact remained as to whether the FWS projects caused the flooding and whether it was reasonably foreseeable. Thus, this claim could proceed. On the vested water right claim, the court determined that the claim was ripe for review, but that the plaintiff had failed to submit enough evidence to defeat the government’s motion for summary judgment on the issue of whether it had suffered a taking of vested water rights. Ministerio Roca Solida, Inc. v. United States, No. 16-826L, 2019 U.S. Claims LEXIS 1812 (Fed. Cl. Nov. 20, 2019).

Posted January 11, 2020

Court Limits Bases For Challenging CWA Permits Under Chesapeake Bay TMDL. In 2015, two counites sought judicial review of their "municipal separate storm sewer system" ("MS4") permits. In their individual suits, the trial courts mostly agreed with the State Department of the Environment (Department), and the counties appealed. The cases were combines. The MS4 permits are discharge permits and are controlled under the Clean Water Act. The counites are located in the Chesapeake Bay area where the “total maximum daily load” of pollutants is monitored by the EPA and Maryland Watershed Implementation Plan (WIP) areas. The counites have had MS4 permits since the 1990’s. Both counites were in the permit renewal phase when issues with the permits came up in 2014. The counties argued that the Department overstepped its authority under the CWA by not considering the “practicability” when adding the impervious surface restoration requirement to the permit. The counties also claimed that the Department overstepped its authority under the CWA by including the impervious surface restoration requirement in the baseline for compliance for the entire county, not just the area in the permit. On appeal, the appellate court affirmed in part and reversed in part. The appellate court held that the Department may include the requirement without reference to the “maximum extent practicable” standard. The appellate court found that the Department acted according to the EPA’s interpretation of the CWA that authorizes agencies to include water quality-based effluent limitations in MS4s. In addition, the appellate court held that the impervious surface restoration requirement in the permit was not arbitrary or capricious. The court determined that the Department had a rational basis to add the requirement. The appellate court also found that the Department did not exceed its authority under the CWA when it calculated the impervious surface requirement using a county-wide baseline. The appellate court reasoned that the Department’s inclusion of the impervious surface restoration requirement was consistent with the underlying principle of the Chesapeake Bay “total maximum daily load” which requires that the MS4 permits include the requirement and is not limited to the particular permit area. The appellate court also found that the Department had the authority to treat the counties as Phase I jurisdictions for the purposes of MS4 permits. The appellate court pointed out that there is no case law or statutory grounds for the counties to challenge the phase classification given by the Department. As for the “water quality trading” as a compliance method, the appellate court held that it was fine for the Department to not include such compliance process in the permits. At the time of granting the permits in 2014, the Department had not adopted such regulations for trading as a compliance method. Maryland. Department of the Environment v. County Commissioners, 465 Md. 169, 214 A.3d 61 (2019).

Posted January 10, 2020

Issuance of State Pollution Discharge Permits Gets Mixed Results. The State of Minnesota issued a pollution discharge permit to a steel company in accordance with the Clean Water Act. The issuance of the permit governed discharges into both groundwater and surface water and was accompanied with several conditions and the company sought a variance from the groundwater water quality standards. Environmental groups claimed that the permit did not adequately protect surface water. The court concluded that the State did not violate the Clean Water Act when it determined that state law did not violate the CWA by not governing discharges of pollutants into groundwater. However, the court determined that state rules did not properly interpret applicable water quality standards. As such, the court remanded the case to the state for further proceedings. In Re Reissuance of an NPDES/SDS Permit to the U.S. Steel Corp., No. A18-2094, 2019 Minn. App. LEXIS 376 (Minn. Ct. App. Dec. 9, 2019).

Posted January 4, 2020

EPA Had Duty To Develop TMDL. The plaintiffs, various environmental activist groups, sued the defendant (federal Environmental Protection Agency (EPA)) for violation of the Clean Water Act (CWA) by failing to issue a temperature total maximum daily loads (TMDL) under 33 U.S.C. §1313(d)(2) for two rivers when the state failed to take action. The court held that the CWA subjects the EPA to a nondiscretionary duty to develop and issue a temperature TMDL when a state fails to do so. Columbia Riverkeeper v. Wheeler, No. 18-35982, 2019 U.S. App. LEXIS 37954 (9th Cir. Dec. 20, 2019).

Posted November 23, 2019

CAFO Permit Properly Granted. In early 2016, a farm applied for a "General Operating Permit" to operate a Class 1C poultry Confined Feeding Operation “CAFO.” Later that year, the farm was issued a “State No-Discharge" CAFO operating permit. The plaintiff challenged the issuance before the Administrative Hearing Commission (ACH), and the ACH determined that the CAFO permit was issued in accordance with the applicable law and regulations. In late 2017, the defendant (state Dept. of Natural Resources) affirmed. The plaintiff sued and that state appellate court affirmed. The appellate court noted that the farm provided a 2014 google map image with labels and setback distances marked. Other maps were also presented during the agency hearings and submitted as evidence. The appellate court determined that the defendant’s decision was supported by sufficient evidence. Because the maps provided the necessary information to determine whether the setback distance requirements had been satisfied. The appellate court also determined that the farm did not have to provide a copy of proposed building plans to obtain a building permit, and that the plaintiff could not challenge the ACH appointment of commissioners. K Tre Holdings, LP v. Mo. Dep't of Nat. Res., No. SD35512, 2019 Mo. App. LEXIS 1146 (Ct. App. Jul. 26, 2019).

Posted November 2, 2019

Multiple Claims and Motions in Hog Odor Case. The defendants operate a confinement hog operation next to the plaintiff’s property. The plaintiff claimed that the hog operation was in violation of the Resource Conservation and Recovery Act ("RCRA"); the Clean Water Act ("CWA"); the conservation plan required by the Natural Resource Conservation Service ("NRCS"); portions of the Farm Bill; and several state laws and regulations due to improper disposing of animal waste. The plaintiff claimed that hog manure continues to be misapplied to fields, causing the manure to overflow onto the plaintiff's adjacent property and into water on the plaintiff’s property. The defendants’ moved to dismiss the claims, and the court granted dismissal of the RCRA claim with prejudice because the plaintiff failed to allege that the overapplied manure was "solid waste." The court h,owever, allowed the plaintiff to amend the CWA claim to assert facts showing that the defendants were making discharges into "navigable waters.” The Plaintiff also sought reconsideration of the dismissal of the RCRA claim. The court partially granted the motion, but required the plaintiff to refile the motion under the proper rule. The defendants claimed that the court lacked subject matter jurisdiction over the CWA claim because the amended complaint only addressed the alleged 2018 violation, and there was not proper notification of the alleged 2018 violation before bringing this case. The court determined that were no procedural or jurisdictional defects that barring the CWA claim. On the RCRA claim, the court held that the plaintiff’s amended complaint contained facts presenting a viable RCRA claim sufficient to withstand a motion to dismiss. The court did not reconsider the plaintiff’s claim alleging a violation of the Farm Bill. Garrison v. New Fashion Pork LLP, No. 18-CV-3073-CJW-MAR, 2019 U.S. Dist. LEXIS 183666 (N.D. Iowa Oct. 22, 2019).

Posted September 26, 2019

Farmer Sued For Wetland Violation Without Specific Recommendation From EPA. The defendant was alleged to have discharged “pollutants” into a “waters of the United States” (WOTUS) as a result of tractor tillage activities on his farmland containing or near to wetlands contiguous to a creek that flowed into a WOTUS. Staff of the U.S. Army Corps of Engineers (COE) saw the tilled ground and investigated. The COE staff then conferred with the EPA and then referred the matter to the U.S. Department of Justice. The U.S. sued (during the Obama Administration) for enforcement of a CWA §404 permit “by the authority of the Attorney General, and at the request of the Secretary of the Army acting through the United States Corps of Engineers.” The defendant moved for summary judgment on the basis that the CWA authorizes only the EPA Administrator to file a CWA §404 enforcement action and that the court, therefore, lacked jurisdiction. The court disagreed with the defendant on the basis that 28 U.S.C. §1345 conferred jurisdiction. That statute states, “Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States or by any agency or officer thereof expressly authorized to sue by Act of Congress. The court rejected the defendant’s claim that 33 U.S.C. §1319(b) and 33 U.S.C. §1344(s)(3) authorized only the EPA to sue for violations of the CWA, thereby limiting the jurisdiction conferred by 28 U.S.C. §1345. Those provisions provide that the EPA Secretary is the party vested with the authority to sue for alleged CWA violations. The court determined that there is a “strong presumption” against implied repeal of federal statutes, especially those granting jurisdiction to federal courts. In addition, the court determined that the defendant failed to show that the general grant of jurisdiction was irreconcilable with either of the statutes the defendant cited. Accordingly, the court determined that the defendant could be sued by the U.S. Department of Justice upon the mere recommendation of the COE and without a specific recommendation from the EPA alleging a CWA violation, and in a situation where the CWA did not determine any CWA jurisdiction and only the COE did. This finding was despite a 1979 Attorney General opinion No. 197 determining that the EPA and not the COE has the ultimate authority to construe what is a navigable WOTUS. United States v. Lapant, No. 2:16-CV-01498-KJM-DB, 2019 U.S. Dist. LEXIS 75309 (E.D. Cal. May 3, 2019).

Posted September 22, 2019

Irrigation Return Flows Subject to CWA. The plaintiffs (various fishing activist groups) filed a Clean Water Act (CWA) citizen suit action claiming that the defendant’s (U.S. Bureau of Reclamation) Grasslands Bypass Project in the San Joaquin Valley of California was discharging polluted water (water containing naturally-occurring selenium from soil) into a WOTUS via a subsurface tile system under farmland in California’s Central Valley without a CWA permit. The plaintiffs directly challenged the exemption of tile drainage systems from CWA regulation via “return flows from irrigated water” on the basis that groundwater discharged from drainage tile systems is separate from any irrigation occurring on farms and is, therefore, not exempt. After the lower court initially refused to grant the government’s motion to dismiss, it later did dismiss the case noting that the parties agreed that the only reason the project existed was to enable the growing of crops requiring irrigation, and that the drainage of contaminated water only occurred due to irrigated agriculture. The lower court noted that the plaintiffs failed to plead sufficient facts to support a claim that some discharges were unrelated to agricultural crop production. Later, the plaintiffs retooled their complaint to claim that not all of the irrigated water that was discharged through the tile systems came from crop production. Rather, the plaintiffs claimed that some of the discharges that flowed into groundwater were from former farmlands that now contained solar panels. It was this “seepage” from the non-farmland that the plaintiffs claimed was discharged in the farm field tile system and caused the system to contain pollutants that didn’t come exclusively from agricultural crop irrigation. The lower court found the tile system to be within the exemption for “return flows from irrigation,” noting that “entirely” meant “majority” because (in the court’s view) a literal interpretation of the amended statutory language would produce an “absurd result.” The appellate court reversed. The appellate court held that discharges that include irrigation return flows from activities “unrelated” to crop production are not exempt from the CWA permit requirement. To the appellate court, “entirely” meant just that – “entirely.” It didn’t mean “majority” as the lower court had determined. Thus, the exception for return flows from agriculture only applies when all of the discharges involved comes from agricultural sources. The case was remanded for further review based on the appellate court’s opinion.  Pacific Coast Federation of Fishermen’s Associations v. Glaser, No. 17-17310, 2019 U.S. App. LEXIS 26938 (9th Cir. Sept. 6, 2019).

Posted August 20, 2019

More CWA Violations for 30-Year-Old Litigation. This case nvolving Clean Water Act (CWA) violations has been ongoing for nearly thirty years. The current litigation arises from consent decrees entered into in 1990. The Government has brought this action for the defendant’s violation of the decree. The Government moved to exclude undisclosed expert opinion and strike the defendant’s non-conforming brief. The court granted the government’s motion for summary judgment on the issue of liability issue, but struck both the government’s and defendant’s motion in limine to exclude expert witness testimony. The court noted that the defendant’s brief was prejudicial in that it was 9,000 pages with 2, 400 pages being duplicates. The court also noted that the defendant had been habitual offenders with respect to late filing and noncompliance with court orders. On the merits, the court determined that the defendant had discharged a pollutant from a point source without authorization. The only question remaining was whether the discharge was into navigable waters of the United States. On that issue, the court applied a significant nexus test to conclude that the defendant had, indeed, discharged a pollutant into the navigable waters of the U.S. United States v. Brace, No. 1:17-cv-00006 (BR), 2019 U.S. Dist. LEXIS 134921 (W.D. Pa. Aug. 12, 2019).

Posted July 14, 2019

EPA Exempts Animal Waste Air Emissions From Community Notification. In 2018, the Congress exempted animal waste emissions from reporting from the reporting requirements of the Comprehensive Environmental Response Compensation Liability Act (CERCLA, more commonly known as “Superfund”). However, the 2018 provision did not eliminate the need to notify local governments of the presence of covered substances. The EPA has now promulgated a final regulation exemption air emissions from animal wastes from the reporting requirements of the Emergency Planning, Community Right-to-Know Act. 40 C.F.R. Part 355 (Jun. 4, 2019).

Posted June 29, 2019

EPA Acted Properly in Evaluating State’s Data For Listing of Impaired Waters. The plaintiff is an activist group involved in state water quality finding and submitted photos and testimony to the state concerning algae blooms on the Shenandoah River. The state relied on this information but attempted to create a more scientific standard to measure the algae. The state looked to other state’s procedures to quantify algae and employed two people to focus on the issue. The state determined that healthy levels of algae are dependent on location and weather patterns, and that quantifying healthy levels by photos or scientific process is difficult. The plaintiffs contested the state’s 2010, 2012, and 2014 Integrated Reports. In 2016, the state published a draft report, which like the rest of the prior reports, declined to list any segments of the Shenandoah River as impaired. Like the prior reports, the EPA accepted the state’s findings of no impairment under the Clean Water Act (CWA). The plaintiff sued the EPA, challenging its acceptance of the state’s findings on the 2014 and 2016 reports. The plaintiff claimed that the expert report, photographs, and testimonials they submitted during the comment period established that at least some segments of the Shenandoah River were impaired for recreational use due to excessive algal growth. The plaintiff claimed that the state ignored this evidence and attempted to create a new scientific-based evaluation that was not grounded in state law. The plaintiff also claimed that the EPA “…rubber-stamped these failures and, in doing so, acted arbitrarily and capriciously and in violation of the CWA.” The court determined that the plaintiff had standing to sue because it showed that it had members that suffered from the algae blooms in the river. However, the court held that the state satisfied its obligation to assemble and evaluate the plaintiff’s data during its decision-making process. The state, the court concluded, gave enough deference to the plaintiff’s photos and testimony, all of which was produced by non-experts. In addition, the court determined that the EPA was justified in accepting the state’s findings that the river was not at a critical level. While the plaintiff challenged the EPA's reliance on the "complex" and "subjective" nature of the states' narrative water-quality criteria, the court concluded that it was the proper standard to apply. The court also held that the EPA properly relied on the state’s quantification of the healthy level of algae bases on location specific data, and on the state’s development of numerical thresholds for assessing algae-related impairment in the future. The EPA acted reasonably in accepting the states’ decision to collect more information before making a conclusive impairment determination under the relevant standard. Scientific decisions are also given great deference by the courts as well. Thus, the court denied the plaintiff's motion for summary judgment and granted the state’s and EPA’s cross-motions for summary judgment. Potomac Riverkeeper, Inc. v. Wheeler, No. 17-cv-1023, 2019 U.S. Dist. LEXIS 54800 (D. D.C. Mar. 31, 2019).

CWA Pollution Permit Plans Didn’t Follow All Conditions. The defendant farms Atlantic salmon at net pen facilities located throughout Puget Sound and holds a National Pollutant Discharge Elimination System ("NPDES") permit. The Clean Water Act ("CWA") requires any entity that discharges pollutants into the waters of the United States to hold and comply with the terms of NPDES. NPDES permit holders must complete and comply with pollution plans. In late 2017, the plaintiff sued asserting several CWA violations, including that defendant's plans are facially noncompliant with their respective permits. The plaintiff motioned for partial summary judgment and the court partially granted it. The court held that the plaintiff’s notice of suit did not provide the defendant with sufficient notice as to the claim that the defendant failed "to identify and implement technology that will minimize fish escapes" under a heading titled "Violations of the Fish Release Prevention & Monitoring Plan." The letter was not specific as to alleged violations of this condition based on an inspection regime imposed by another condition. However, the court determined that the defendant’s 2012, 2015, and both 2017 pollution prevention plans failed to include the condition of annual inspection of the main cage system as required. The defendant conceded that all but the later 2017 plan did not meet the condition, and the court granted the plaintiff’s motion for partial summary judgment on this issue. The court also found that the defendant also failed to address the storage and disposal of disease control chemicals in its 2012, 2015, and both 2017 pollution prevention plans. The plans adequately accounted for the actual feeding of medicated feed but not the disposal of unused medicated feed. In addition, some of plans did not account for disposal of iodine and MS-222. The court granted partial summary judgment for the plaintiff on this issue. Another condition required that the pollution prevention plans address "[h]ow solid and biological wastes are collected, stored, and ultimately disposed.” None of the plans addressed this issue, thus the court grants the plaintiff’s partial motion for summary judgment on this issue. The court also found that the defendant's 2012, 2014, and 2017 release prevention plans did not satisfy a condition requiring procedures to be in place for "routinely tracking the number of fish within the pens, the number of fish lost due to predation and mortality, and the number of fish lost due to escapement." The plans had procedure to account for mortality, but the logs did not account for missing fish from predation or escapees. The court granted partial summary judgment on this issue. Wild Fish Conservancy v. Cooke Aquaculture Pac. LLC, No. C17-1708-JCC, 2019 U.S. Dist. LEXIS 70974 (W.D. Wash. Apr. 26, 2019).

Posted June 16, 2019

Pipeline Company Is a “Common Carrier” That Can Use Eminent Domain. In 2014, a pipeline company filed documents with the Iowa Utilities Board (IUB) signifying its intent to lay a pipeline. The pipeline would traverse Iowa from the northwest corner to the southeast corner of the state, passing through eighteen counties over approximately 343 miles. At the end of 2014, the pipeline company held meetings in all eighteen counties. In 2015, the pipeline company petitioned the IUB to start construction and sought “the use of the right of eminent domain for securing right of way for the proposed pipeline project” due to several landowners in the path of the pipeline refusing to grant an easement. The pipeline asserted such authority as a “common carried” (a public or private entity that carries goods or people). In November and December of 2015, the IUB held hearings on the petition. Hundreds of people were present to give testimony for both sides. On March 10, 2016, the IUB issued a 159-page final decision and order. This order found that the pipeline would promote the public convenience and necessity, involve a capital investment in Iowa of $1.35 billion, and generate $33 million in Iowa sales tax during construction and $30 million in property tax in 2017. The order also noted that the pipeline had utilized a software program to lay the pipeline’s path to avoid critical areas, and that state law gave the pipeline the power to exercise eminent domain where necessary. After the IUB’s issuance of the order, several motions for clarification and rehearing were filed, which the IUB denied. Numerous parties sought judicial review of the order, and the parties were consolidated into a single case. On February 15, 2017, the trial court denied the petitions for judicial review. On further review, Iowa Supreme Court addressed numerous issues. The Court determined that the Iowa Chapter of the Sierra Club (an environmental activist group) had standing under state law on behalf of its affected members who did not need to be landowners, just aggrieved or adversely affected to “agency action.” First the court looked at the standing of the parties. While the pipeline had already largely been constructed, the Court determined that the matter was not moot because the IUB retained the authority to impose other “terms, conditions, and restrictions” in the petitioners’ favor. On the IUB”s authority to issue a construction permit to the pipeline company based on the promotion of public convenience and necessity, the Court determined that the IUB’s decision to grant the permit was not “[b]ased upon an irrational, illogical, or wholly unjustifiable application of law” and its factual determinations were supported by “substantial evidence.” The Court noted that the evidence showed that the pipeline would reduce oil transport costs which would provide a lower price for petroleum products; transport oil more safely than rail; and provide secondary economic benefits to the citizens of Iowa. However, the Court did conclude that private economic development, by itself, is not a valid “public use,” rejecting the holding of the U.S. Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005), joining Illinois, Michigan, Ohio and Oklahoma. The Court also did not find any violation of the statutory limit on the use of eminent domain with respect to farmland because the pipeline company was a common carried under the IUB’s jurisdiction – an entity not statutorily limited on the use of eminent domain on farmland. Thus, the Iowa Constitutional provision on the use of eminent domain was not violated, nor was the Fifth Amendment of the U.S. Constitution. The Court also upheld the IUB’s determination that the pipeline route was proper and need not be rerouted based on speculative surface development, but did conclude that the pipeline be laid under existing field drainage tile where necessary. Puntenney, et al. v. Iowa Utilities Board, No. 17–0423, 2019 Iowa Sup. LEXIS 69 (Iowa Sup. Ct. May 31, 2019).

Posted June 4, 2019

Challenge to Critical Habitat Designation Dismissed for Standing.  In 2013 the Defendants, the U.S. Fish and Wildlife Service, proposed to designate land (primarily federal) in California as critical habitat for the mountain yellow-legged frog and the Sierra Nevada yellow-legged frog. No regulatory flexibility analysis was conducted that would have detailed how the designation would impact farmers, rancher and other landowners. The US Forest Service determined that some of the grazing activities that they grant may affect these listed amphibians. A Biological Opinion was subsequently issued on grazing activities and concluded that with proper conservation that grazing could still be done. In 2016, the FWS issued the Final Rule designating critical habitat for the amphibians. The plaintiffs claimed that the defendants’ 2016 failure to conduct a regulatory flexibility analysis violated the Regulatory Flexibility Act and the Administrative Procedure Act, and also claimed that the Forest Service consultations could cause restrictions on grazing permits and other hardships. The defendant’s moved for dismissal arguing the plaintiffs did not have standing and the issue was not ripe. Both parties moved for summary judgment. The court dismissed the plaintiff’s complaint for lack of jurisdiction. To have a viable claim the court held, the plaintiffs must "show a 'substantial probability' that [they] ha[ve] been injured, that the defendant caused [their] injury, and that the court [can] redress that injury." The court determined that the alleged harms associated with consultations under Section 7 of the Endangered Species Act did not establish standing. Participation in these consultations are costly but completely voluntary with only the federal agencies required to participate in the consultations In addition, the plaintiffs did not present any evidence that their participation was required or that the consultations delayed the grazing permitting process. The plaintiffs’ participation in the consultation may be a prudent business move, but not mandatory and they did not delay the grazing permitting process. The consultations seemed to be within the plaintiffs’ normal course to secure grazing permits and ultimately, they were granted permits. The court also held that the grazing permit modification did not create standing. The Final Rule did not reduce the total head grazing permit, but increased the "increased monitoring requirements," and decreased the allowable use. All of these issues stem from the Forest Service’s actions (granting/changing permits) in response to the defendant’s rule. The Forest Service is not a party. Thus, any granted relief, would not bind the Forest Service to the order. California Cattlemen's Association, et al. v. United States Fish & Wildlife Service., et. al., No. 1:17-cv-01536 (TNM) 2019 U.S. Dist. LEXIS 52082 (D. D.C. Mar. 27, 2019).

Posted May 31, 2019

Promulgation of 2015 WOTUS Rule Violated APA. The EPA issued a Proposed “Waters of the United States” (WOTUS) a.k.a. “Clean Water Rule” in 2014. The proposed rule included under federal control (in its definition of “adjacent” wetlands) all wetland adjacent to jurisdictional waterways including those in a riparian area or floodplain or with surface or shallow subsurface connections to waterways. The proposed rule was subject to public hearing and comment in accordance with the Administrative Procedure Act (APA). During the public comment period, a draft of a “Connectivity Report” was available which reviewed how wetlands and small streams can affect water quality of larger downstream waters. After the public comment period closed, the Science Advisory Board published a review of the Report and the public comment period was reopened. However, the public comment period was thereafter closed and not reopened after the Connectivity Report was finalized. In late June of 2015 the final rule was issued that contained limits on how far away wetlands could be from waterways and still be considered “adjacent” – waters within 100 feet of waterways and those within the 100-year floodplain of a waterway or waters 1,500 feet from the ordinary high-water mark of the Great Lakes or 1,500 feet of the high-tide line of certain Categorically Covered Waters. The plaintiffs sued, asserting violations of the APA. The court agreed, noting that the final rule “was the first time that the agencies gave notice that they intended to define adjacency by precise physical distance-based criteria – rather than the ecologic and hydrologic criteria in the proposed rule.” The court found this change to be significant because it altered the jurisdictional scope of the Clean Water Act, and that the final rule was the first time that the EPA and the COE had given notice of intent to define adjacency by precise physical distance-based criteria rather than on the ecologic and hydrologic criteria of the proposed rule. While the court noted that the agencies sought public comment on whether there should be some sort of geographic limitation on “adjacent” waters, the court concluded that the request was too vague for the public to comment on. The court stated that, “The [APA} does not envision requiring interested parties to parse through such vague references like tea leaves to discern an agency’s regulatory intent regarding such significant changes to a final rule,” and that the changes “could not have been reasonably anticipated.” The court also noted that the public was not allowed to comment on the final version of the 300-page “Connectivity Report” which reviewed how wetland and small streams can affect water quality of larger downstream waters. The court determined that the Report was the “most critical factual material used to support the final rule.” As such, the court determined that the plaintiffs had been deprived “of a meaningful opportunity to comment and possibly deconstruct the Final Connectivity Report” in violation of the APA. The court declined to address the 2015 final rule on the merits and did not vacate the regulation, but remanded the matter to the EPA and COE to cure the APA violations. The court’s ruling also did not affect other pending lawsuits challenging the 2015 WOTUS rule, and kept in place the injunction to keep the 2015 rule from taking effect in Texas, Mississippi and Louisiana. Texas v. United States Environmental Protection Agency, No. 3:15-CV-00162, 2019 U.S. Dist. LEXIS 89113 (S.D. Tex. May 28, 2019).

Posted April 14, 2019

Constitutional Takings Claim Based on Soil Erosion At Issue. The plaintiffs are land owners along a river which is south of a lake. In 1974, the government completed the lake dam, which has a spillway that releases water when it floods. The spillway discharges water and sediment downstream, directly across from plaintiffs' property. Since 1986 (the first use of the spillway) the spillway has been used 17 times. In 1990 the plaintiffs first complained of the water from the spillway eroding their property where they operate a sod farm. The plaintiff contacted the U.S. Army Corps of Engineers (COE) in 2003, 2004, 2007, 2008, 2009, 2011, 2015, and 2016 concerning the erosion. The COE continually maintained that it "will not—and cannot—mitigate the erosion," explaining that "there is no program that authorizes the “COE” to directly address [the plaintiffs’] situation." In 2015, the erosion rendered the plaintiffs’ center pivot inoperable. The plaintiffs spent approximately $10,000 on new irrigation equipment to continue business operations and approximately $15,000 on riprap to prevent further erosion. On June 6, 2018, the plaintiffs filed suit, claiming that over eight acres of land has been lost due to erosion from the water released from the spillway and seeking compensation under the Fifth Amendment as a compensable taking of their property. The Government moved to dismiss this claim. The court denied the motion on the basis that the “continuing claims” doctrine applied. Under that doctrine, the court concluded, each release of water through the spillway constituted a discreet takings claim. The Government claimed that the court lacked subject matter jurisdiction on the basis that the plaintiffs’ claim was barred by the statute of limitations as it accrued in 1990 when the plaintiffs first noticed the erosion. However, the plaintiffs asserted that the statute of limitations did not begin to run until 2015 when their operation had to be altered because of the erosion. Further, the plaintiffs asserted that the “continuing claims” doctrine should extend their claim because each use of the auxiliary spillway constituted a new breach of duty by the Government. The court agreed with the plaintiff, and also pointed out that erosion-type takings involve an act of “taking” that occurs over a long period of time. Thus, the statute of limitations does not begin to run until the situation “stabilizes.” Ultimately, the court held that the record had not been developed sufficiently for the court to determine when the erosion stabilized. Hence, the Government’s motion to dismiss was denied for further development of the record. Brown v. United States, No. 18-801L, 2019 U.S. Claims LEXIS 231 (Fed. Cl. Mar. 15, 2019).

Posted December 15, 2018

Endangered Species Can’t Be Protected Where It Can’t Survive. The U.S. Fish and Wildlife Service, in 2001, listed the dusky gopher frog as an endangered species after determining that its wild population had dwindled to about 100 that were found at a single pond in Mississippi. Its habitat had covered coastal areas of Alabama, Louisiana and Mississippi in certain open-canopy pine forests that have since been almost entirely replaced with urban development, agricultural operations and closed-forest timber farming enterprises. Upon making the designation, the Secretary had to designate the critical habitat for the frog. It did so in 2010. Among the areas designated as critical habitat was a 1,544-acre site in Louisiana where the frog species had last been seen in 1965. While that acreage was largely comprised of closed-canopy timber, it contained five ephemeral ponds and the USFWS believed that the tract met the statutory definition of “unoccupied critical habitat” because it could be a prime breeding ground for the frog. The USFWS then issued a report on the probable economic impact of designating the tract (and the other areas) as critical habitat. The plaintiff owns part of the 1,544-acre tract and leased the balance from a group of landowners that had plans for development of the portion of the tract that they owned. Those development costs could amount to over $30 million (in timber farming and development) if the USFWS barred all development on the tract. But, according the USFWS, those potential costs would not be “disproportionate” to the conservation benefits of the designation. Consequently, the USFWS decided to not exclude the 1,544-acre tract from the frog’s critical habitat. The plaintiff and the landowners sued to vacate the designation on the basis that the tract couldn’t be designated as critical habitat because it hadn’t been habitat for the frog since 1965 and couldn’t be habitat without significant modification. The plaintiff also challenged the decision of the USFWS not to exclude the tract from the frog’s critical habitat on the basis that the USFWS had failed to adequately weigh the benefits of designating the tract against the economic impact of the designation. The claim was that the USFWS used an unreasonable methodology for estimating economic impact and failed to consider certain categories of costs. The trial court upheld the designation on the basis that the tract fit the definition of “unoccupied critical habitat” which only required the USFWS to decide that the tract was essential for the frog’s conservation. On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed on the basis that that definition of “critical habitat” required a “habitability” requirement. The appellate court also determined that the decision of the USFWS was not subject to judicial review. On further review, the Supreme Court unanimously reversed 8-0 (Justice Kavanaugh did not participate). Chief Justice Roberts wrote the Court’s opinion, and pointed out that to be “critical habitat,” the designated area must first be “habitat.” Indeed, the Court pointed out that once a species is designated as endangered, the Secretary must designate the habitat of the species which is then considered to be critical habitat. 16 U.S.C. §1533(a)(3)(A)(i). That also applied in the context of unoccupied critical habitat that is determined to be essential for conservation of the species – the area must be “habitat.” Because the appellate court did not interpret the term “habitat” (the appellate court simply concluded that “critical habitat” was not limited to areas that were “habitat”), the Supreme Court vacated the appellate court’s opinion and remanded on this issue. The Supreme Court also disagreed with the appellate court’s holding that the determination of the USFWS to not exclude the tract as critical habitat was not subject to judicial review. The Supreme Court noted that the plaintiff’s claim involving the alleged improper weighing of costs and benefits of the designation as critical habitat was the type of claim that the federal court’s routinely review when determining whether to set aside an agency decision as an abuse of discretion. Thus, the Supreme Court also vacated this part of the appellate court’s decision and remanded on the issue. Weyerhaeuser Co. v. United States Fish & Wildlife Service, No. 17-71, 2018 U.S. LEXIS 6932 (U.S. Sup. Ct. Nov. 27, 2018).

Posted November 25, 2018

Minimal Fine For Ammonia Emissions From Confinement Chicken Facilities. The defendant owns and operates two chicken facilities in Arizona. A natural byproduct of the decomposition of chicken waste is ammonia, which is included among the chemical compounds that are listed as extremely hazardous substances under the Emergency Planning and Community Right to Know Act (EPCRA). Both of the defendant’s facilities emitted into the air over 100 pounds per day of ammonia from animal waste during the timeframe relevant to this proceeding and individuals who lived nearby both facilities testified that they could smell ammonia regularly at their residences. The plaintiff is an environmental protection activist group with members that live near the two facilities owned the defendant owns. The plaintiff filed a complaint alleging that the defendant violated EPCRA because it failed to file the necessary reports regarding the release of ammonia at both facilities. The defendant argued that the release of ammonia at the facilities fell under the statutory exemption at 42 U.S.C. § 11004(a)(4). Under this exception, a release is not reportable if it “results in exposure to persons solely within this site or sites on which a facility is located.” The defendant claimed to have performed a monthly test which resulted in a finding of ammonia emissions of zero parts per million at the facility each month. However, several individuals from the areas near both facilities testified that they could smell ammonia regularly at their residences. In addition, the defendant admitted that it did not capture, store, or otherwise prevent the gaseous ammonia from entering the ambient air. Based on these facts, the trial court determined that it was not plausible that releasing thousands of pounds of ammonia into the ambient air daily for a period of years did not regularly result in exposure to people outside the facility. Therefore, the court held that the release at issue here did not fall within the exemption in 42 U.S.C. § 11004(a)(4). The defendant also argued that the ammonia released as a byproduct of the chicken waste was exempt from regulation as a hazardous material “used in a routine agricultural operation.” The EPCRA provides an exemption for activities at routine agricultural operations from reporting requirements for hazardous materials used in routine operations. However, the trial court determined that because the Congress did not use the phrases “produced or stored” but rather only used the word “used” in the exemption, the Congress did not mean to include material that is produced or stored at, but not ultimately used in, agricultural operations. “Used” is defined as “employed in accomplishing something.” Thus, because the defendant did not employ the ammonia in accomplishing any ultimate goal or objective it did not qualify as a material used in a routine agricultural operation. The defendant also argued that the release fell under the statutory exemption from the EPCRA reporting requirement of material that is a fertilizer held for sale to the ultimate consumer. However, the trial court determined that the gaseous ammonia released by the chicken waste itself is not a fertilizer. Instead, the ammonia is a byproduct of a material—the chicken waste—that is eventually converted to a fertilizer. The fact that the defendant later processed the chicken waste and sold it as fertilizer did not transform the gas released by the chicken waste at an earlier stage into fertilizer. Thus, the trial court determined that the defendant failed to comply with the written notice requirement under the EPCRA for 592 days at one facility and for 1,825 days at another facility. However, because there were no actual problems that emergency personnel encountered due to the defendant’s lack of reporting and the defendant did not have a history of prior violations under the EPCRA, the court assessed the minimum $3,000 fine for the violations. Don’t Waste Ariz. Inc. v. Hickman’s Egg Ranch Inc., No. CV-16-03319-PHX-GMS, 2018 U.S. Dist. LEXIS 188044 (D. Ariz. Nov. 2, 2018).

Posted November 17, 2018

Frozen Dirt is a “Navigable Wetland.” In its 1987 Manual for delineating wetlands, before the U.S. Army Corps of Engineers (COE) may assert jurisdiction over an alleged wetland, it must find that the area satisfies the three wetland criteria of hydric soil, predominance of hydrophytic vegetation, and wetland hydrology (soil saturation/inundation). Wetland hydrology under the 1987 Manual requires either the appropriate inundation during the growing season or the presence of a primary indicator. Table 5 of the 1987 Manual indicates a nontidal area is not considered to evidence wetland hydrology unless the soil is seasonally inundated or saturated for 12.5 percent to 25 percent of the growing season. A “growing season” is defined as a season in which soil temperature at 19.7 inches below the surface is above 41 degrees Fahrenheit. The 1987 Manual lists six field hydrologic indicators, in order of decreasing reliability, as evidence that inundation and/or soil saturation has occurred: (1) visual observation of inundation; (2) visual observation of soil saturation; (3) watermarks; (4) drift lines; (5) sediment deposits; and (6) drainage patterns within wetlands. In 1989, the COE adopted a new manual. The 1989 Manual superseded the 1987 Manual. The delineation procedures contained in the 1989 manual were less stringent. Thus, it became more likely that the COE could determine that a particular tract contained a regulable wetland. This change in delineation techniques caught the attention of the Congress which barred the use of the 1989 Manual via the 1992 Budget Act. Pub. L. No. 102-104, 105 Stat. 510 (Aug. 17, 1991). Specifically, the 1992 Budget Act prohibited the use of funds to delineate wetlands under the 1989 Manual "or any subsequent manual not adopted in accordance with the requirements for notice and public comment of the rulemaking process of the Administrative Procedure Act." The 1992 Budget Act also required the Corps to use the 1987 Manual to delineate any wetlands in ongoing enforcement actions or permit application reviews. In the 1993 Budget Act, the Congress again addressed the issue by stating that, “None of the funds in this Act shall be used to identify or delineate any land as a "water of the United States" under the Federal Manual for Identifying and Delineating Jurisdictional Wetlands that was adopted in January 1989 or any subsequent manual adopted without notice and public comment. Furthermore, the Corps of Engineers will continue to use the Corps of Engineers 1987 Manual, as it has since August 17, 1991, until a final wetlands delineation manual is adopted.” Thus, it was clear that Congress mandated that the COE continue to use the 1987 Manual to delineate wetlands unless and until the COE utilized the formal rulemaking process to change the delineation procedure. While the Congress mandated the use of the 1987 Manual to delineate wetlands, it also appropriated funds to the U.S. Environmental Protection Agency (EPA) to contract with the National Academy of Sciences for a review and analysis of wetland regulation at the federal level. See Department of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations Act of 1993, Pub. L. 102-389, 106 Stat. 1571 (Oct. 6, 1992); H.R. Rep. No. 102-710, at 51 (1992); H.R. Conf. Rep. No. 102-902 at 41. This resulted in a report being published in 1995 containing a suggestion that the 1987 Manual either eliminate the requirement of a “growing season” approach to wetland hydrology or move to a region-specific set of criteria for delineating wetlands. Consequently, the COE began issuing regional “supplements” to the 1987 Manual that provided criteria for wetland delineation that varied across the country. For instance, in the COE’s 2007 Alaska Supplement, the COE eliminated the measure of soil temperature contained in the 1987 Manual and replaced it with “vegetation green-up, growth, and maintenance as an indicator of biological activity occurring both above and below ground.” In this case, the plaintiff was a closely-held family pipe fabrication company in Alaska that sought to relocate its business for expansion purposes. The plaintiff found a suitable location (a 455-acre tract in North Pole) where it would need to lay gravel and construct buildings as well as a railroad spur. Because gravel is contained within the regulatory definition of “pollutant” under the Clean Water Act (CWA) and because the tract was purportedly a “wetland,” the plaintiff had to obtain a discharge permit so that it could place gravel fill on the property before starting construction. The plaintiff received a permit in 2004 and, pursuant to that permit, cleared about 130 acres from the site. In 2008, the plaintiff submitted another permit application to place gravel fill on the site. The COE issued a new jurisdictional determination in 2010, concluding that wetlands were present on 351 acres, including about 200 acres of permafrost – frozen soil. The COE granted the plaintiff a discharge permit to place gravel fill on 118 acres, but included mitigation conditions that the plaintiff objected to. The plaintiff sued on the basis that the COE’s delineation of permafrost as a wetland was improper and, thus, a discharge permit was not necessary. The COE delineated the permafrost on the tract as wetland based on its 2008 Alaska Supplement. U.S. Army Corps of Engineers, Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Alaska Region (Version 2.0) (Sept. 2007). However, the COE’s 1987 Manual specifically excludes permafrost from the definition of a wetland. The plaintiff argued that the Congress had instructed the COE to continue to use the wetland delineation standards in the 1987 Manual until the COE adopted a “final wetland delineation manual” as set forth in the 1992 and 1993 Budget Acts, as noted above. Thus, because permafrost does not have the required “growing season” (it never reached 41 degrees Fahrenheit at a soil depth of 19.7 inches) it cannot be a wetland. The plaintiff pointed out that by virtue of the issuance of regional supplements to the 1987 Manual, the COE had expanded its jurisdiction over private property by modifying the definition of a “wetland.” Key to the plaintiff’s argument was the point that the Supplement was not a new manual that had been developed in accordance with the formal rulemaking process (e.g., notice, comment, and public hearing). It also was never submitted to the Congress and the Government Accountability Office which, the plaintiff noted, the Congressional Review Act requires before any federal governmental agency rule can become effective. 5 U.S.C. Ch. 8, Pub. L. No. 104-121, §201. The trial court ruled against the plaintiff, holding that the COE could rely on the 2008 Supplement when delineating a wetland and determining its jurisdiction. The trial court determined that the Budget Acts have no force beyond the funds that they appropriate. That meant that the COE could delineate wetlands in accordance in whatever manner it determined – the 1987 Manual or any subsequent Manual or supplemental guidance that it issued. On appeal, the appellate court affirmed, holding that the 1993 Budget Act did not require the COE to continue using the 1987 Manual to delineate wetlands. The appellate court stated that there is a “very strong presumption” that if an appropriations act changes substantive law, it does so only for the fiscal year for which the bill is passed” unless there is a clear statement of futurity. Because the 1993 Budget Act contained no such statement, the Court held that the requirement for use of the definition of a growing season in accordance with the 1987 Manual expired at the end of the 1993 fiscal year. Tin Cup, LLC v. United States Army Corps of Engineers, No. 17-35889, 2018 U.S. App. LEXIS 27085 (9th Cir. Sept. 21, 2018).

Posted October 19, 2018

Groundwater Is Not a “Point Source” of Pollution Under the CWA. The defendant, a utility that burns coal to produce energy, produces coal ash as a byproduct. The coal ash is discharged into man-made ponds. The plaintiffs, environmental activist groups, claimed that the chemicals from the coal ash in the ponds leaked into surrounding groundwater where it was then carried to a nearby lake that was subject to regulation under the Clean Water Act (CWA). The plaintiffs claimed that the contamination of the lake without a discharge permit violated the CWA and the Resource Conservation and Recovery Act (RCRA). The trial court had dismissed the RCRA claim but the appellate court reversed that determination and remanded the case on that issue. On the CWA claim, the trial court ruled as a matter of law that the CWA applies to discharges of pollutants from a point source through hydrologically connected groundwater to navigable waters where the connection is "direct, immediate, and can generally be traced." The trial court held that the defendant’s facility was a point source because it "channel[s] the flow of pollutants . . . by forming a discrete, unlined concentration of coal ash," and that the Complex is also a point source because it is "a series of discernible, confined, and discrete ponds that receive wastewater, treat that wastewater, and ultimately convey it to the Cumberland River." The trial court also determined that the defendant’s facility and the ponds were hydrologically connected to the Cumberland River by groundwater. As for the defendant’s facility, the court held that "[f]aced with an impoundment that has leaked in the past and no evidence of any reason that it would have stopped leaking, the Court has no choice but to conclude that the [defendant’s facility] has continued to and will continue to leak coal ash waste into the Cumberland River, through rainwater vertically penetrating the Site, groundwater laterally penetrating the Site, or both." The trial court determined that the physical properties of the terrain made the area “prone to the continued development of ever newer sinkholes or other karst features." Thus, based on the contaminants flowing from the ponds, the court found defendant to be in violation of the CWA. The trial court also determined that the leakage was in violation of the defendant “removed-substances” and “sanitary-sewer” overflow provisions. The trial court ordered the defendant to "fully excavate" the coal ash in the ponds (13.8 million cubic yards in total) and relocate it to a lined facility. On further review, the appellate court reversed. The appellate court held that the CWA does not apply to point source pollution that reaches surface water by means of groundwater movement. The appellate court rejected the plaintiffs’ assertion that mere groundwater is equivalent to a discernable point source through which pollutants travel to a CWA-regulated body of water. The appellate court noted that, to constitute a “conveyance” of groundwater governed by the CWA, the conveyance must be discernible, confined and discrete. While groundwater may constitute a conveyance, the appellate court reasoned that it is neither discernible, confined nor discrete. Rather, the court noted that groundwater is a “diffuse medium” that “seeps in all directions, guided only by the general pull of gravity. This it [groundwater] is neither confined nor discrete.” In addition, the appellate court noted that the CWA only regulates pollutants “…that are added to navigable waters from any point source.” In so holding, the court rejected the holdings in Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018) and Upstate Forever, et al. v. Kinder Morgan Energy Partners, LP, et al., 887 F.3d 637 (4th Cir. 2018). Tennessee Clean Water Network v. Tennessee Valley Authority, No. 17-6155, 2018 U.S. App. LEXIS 27237 (6th Cir. Sept. 24, 2018).

Posted October 6, 2018

USFWS Decision on ESA listing of Gunnison Sage-Grouse Upheld. In January 2013 the U.S. Fish and Wildlife Service (USFWS) issued a proposed a rule listing the Gunnison sage-grouse as “endangered” under the Endangered Species Act (ESA), and identifying more than 1.7 million acers in Southwest Colorado and Southeast Utah as critical habitat. After four public comment periods, three public hearings, and evaluation by five peer reviews, the government decided on issued a final rule in late 2014 listing the Gunnison sage-grouse as “threatened,” and identified 1.4 million acers as critical habitat. The plaintiffs challenged the rulemaking procedure and the final designation. The plaintiffs had spent millions of dollars to protect the species and claimed that they had done everything the federal government had requested concerning the protection of the species to avoid federal listing and the resulting federal control and regulation of the species. However, the court disagreed, determining that the designation of the area at issue as critical habitat was not arbitrary, capricious, an abuse of discretion, without observance of the required procedures, or otherwise contrary to law. The court determined that the research and data presented reasonably lead the government to determine the status of the species as threatened. The plaintiffs, the court noted, did not present any evidence to rebut the government’s data or that it was not accurately accounted for. While the court viewed the existing regulatory mechanisms as adequate, the court concluded that they did not provide for larger impacts on the species. As for the future efforts, the court held that the government accurately and properly utilized the Policy for Evaluation of Conservation Efforts (PECE) when it formulated the final rule. Likewise, the court analyzed the critical habitat designation claims and determined that the governments’ analysis was not overbroad as being supported by reason and scientific and evidentiary support. In addition, the court held that the National Environmental Policy Act analysis was not conducted randomly and impulsively. The plaintiffs’ evidence that an environmental assessment was received a few days before the final ruling was published merely showed that the government had a preferred alternative and did not engage in predetermination, the court determined. The court also examined the plaintiffs’ claim that the government did not consider the economic impacts of the rule, and concluded that the government did more than required. Colorado v. United States Fish and Wildlife Service, No. 15-cv-00286-CMA-STV, 2018 U.S. Dist. LEXIS 166422 (D. Colo. Sept. 27, 2018).

Posted September 15, 2018

Court Orders Lorsban Ban. The Federal Food, Drug, and Cosmetic Act (FFDCA) governs the use of pesticides on food products regulated by the EPA. The EPA sets the pesticide tolerance levels within statutory guidelines. This case originates from a 2007 petition filed by activists requesting EPA to revoke the tolerance levels for chlorpyrifos (i.e., ban chlorpyrifos, commonly known as “Lorsban”) based on alleged neurological impacts on children. In 2014, the court ordered the EPA to issue a final response to the petition by October 2015. However, in November of 2015 the EPA issued a proposed rule to revoke. The EPA, based on scientific data from the USDA, later issued an order reversing itself denying the 2007 petition, leaving the tolerance levels in place. The order did not refute any of the activists’ research, merely stating that the tolerance should not be revoked as, “the science addressing neurodevelopmental effects remains unresolved.” This order stated the EPA needed more time to clarify the unresolved science and that the EPA had the discretion to set the time table to resolve the matter. The EPA set a deadline of October 2022 to review the chlorpyrifos registration. The petitioners sued for mandamus relief, claiming that the EPA has still not adequately responded to the 2007 petition. However, the court disagreed, holding that the EPA’s 2017 order was an official denial of the 2007 petition. The petitioners appealed, and the appellate court granted the petition to review, and also permitted states to intervene with filed objections. As for the 2017 order, the appellate court ordered it vacated as in violation of the FFDCA and the issue remanded to the EPA with instructions to revoke all tolerances and cancel all registrations of chlorpyrifos within 60 days. The EPA argued that the appellate court did not have jurisdiction because the matter was an administrative one within the EPA. However, the appellate court determined that there was no jurisdictional limit on the court, just the parties involved. The appellate court weighed the need for an exhaustive use of the administrative process. Considering that there was heavy individual interest against and little institutional interest for the administrative review process, the appellate court determined that it was not necessary for the petitioners to exhaust the administrative process. In so holding, the appellate court accepted the activists’ “science” and ignored the scientific data of the USDA. League of United Latin American. Citizens v. Wheeler, No. 17-71636, 2018 U.S. App. LEXIS 22152 (9th Cir. Aug. 9, 2018).

Posted September 13, 2018

Another Federal Court Enjoins Obama-Era WOTUS Rule. On September 12, 2018, a Texas federal court entered a preliminary injunction against the implementation of the Obama-era "Waters of the United States" (a.k.a. "Clean Water Rule") rule in Texas, Louisiana and Mississippi until the court resolved the case on the issue that is pending before it. The court specifically noted that the public’s interest in having the Obama-era WOTUS rule preliminarily enjoined was “overwhelming.” Texas v. United States Environmental Protection Agency, et al., No. 3:15-CV-00162 (S.D. Tex. Sept. 12, 2018)

Posted August 16, 2018

Suspension of WOTUS Rule Enjoined. On February 28, 2017, President Trump issued Executive Order 13778 directing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to review those agencies’ 2015 Waters of the United States (WOTUS) rule for consistency with the administration’s policy and publish for notice and comment a proposed rule that either rescinded or revised the rule to make it consistent with an earlier U.S. Supreme Court decision on the scope of WOTUS. This “suspension” rule was published in the Federal Register on February 6, 2018, and had the effect of delaying the 2015 WOTUS rule for two years. In the interim period, the controlling interpretation of WOTUS was to be the 1980s regulation that had been in place before the 2015 WOTUS rule became effective. The plaintiffs, a consortium of environmental and conservation activist groups, challenged the manner in which the suspension rule was enacted. The plaintiffs claimed that the rule violated the Administrative Procedures Act (APA) due to inadequate public notice and comment, and that the substantive implications of the suspension were not considered which was arbitrary and capricious, and improperly restored the 1980s regulation. The court agreed, determining that the content restriction on the scope of the public comments that the agencies levied during the rulemaking process violated the APA, and enjoined the suspension rule on a nationwide basis. South Carolina Conservation League, et al. v. Pruitt, No. 2-18-cv-330-DCN, 2018 U.S. Dist. LEXIS 138595 (D. S.C. Aug. 16, 2018).

Posted July 28, 2018

COE and EPA Issue WOTUS Rulemaking Notice. As directed by President Trump, the U.S. Army Corps of Engineers (COE) and the Environmental Protection Agency (EPA) have issued a supplemental notice of proposed rulemaking. The proposed rule seeks to “clarify, supplement and seek additional comment on” the 2017 congressional attempt to repeal the Obama Administration’s 2015 Waters of the United States (WOTUS) rule which expanded the meaning of WOTUS to include “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters and other waters that have a significant nexus to interstate waters.” If the Obama Administration rule is repealed, the prior regulations defining a WOTUS will become the law again. The agencies are seeking additional comments on the proposed rulemaking via the supplemental notice. The comment period is open through August 13, 2018. Comments can be submitted by accessing the page at the following link: https://www.regulations.gov/docket?D=EPA-HQ-OW-2017-0203. COE/EPA, “Waters of the United States"– Reinstatement of Preexisting Rules, No. EPA-HQ-OW-2017-0203 (Jul. 12, 2018).

Posted July 4, 2018

U.S. Army Corps of Engineers Makes WOTUS Determination Without Supporting Evidence. The plaintiff, a developer, obtained title to a 100-acre tract on the southeast side of Chicago metro area in 1995. The local town then passed a zoning ordinance allowing development of the property. The tract was divided into three sections - 25 acres were to be developed into 168 townhomes; 61 acres to be developed into 169 single-family homes; and 14 acres in between the other acreages to function as a stormwater detention area. The townhomes and water detention area was to be developed first and then the single-family housing. Construction of the townhomes began in 1996, and the single-family housing development was about to begin when the defendant designated about 13 acres of the undeveloped property as “wetlands” and asserted regulatory jurisdiction under the Clean Water Act (CWA). The defendant claimed jurisdiction on the basis that the “wetland” drained via a storm sewer pipe to a creek that was a tributary to a river that was a navigable water of the U.S. The plaintiff administratively appealed the defendant’s jurisdictional determination to the Division Engineer who agreed that the District Engineer failed to properly interpret and apply the U.S. Supreme Court decision in Rapanos v. United States, 547 U.S. 715 (2006). On reconsideration, the District Engineer issued a second approved jurisdictional determination in 2010 concluding that the tract had a significant nexus to the navigable river. The plaintiff appealed, but the Division Engineer dismissed the appeal as being without merit. In 2011, the plaintiff sought reconsideration of the defendant’s appeal decision because of a 1993 prior converted cropland designation that excluded a part of the 100-acres from CWA jurisdiction. Upon reconsideration, the District Engineer issued a third jurisdictional determination in 2012 affirming its prior determination noting that farming activities had ceased by the fall of 1996 and wetland conditions had returned. The plaintiff appealed on the basis that the “significant nexus” determination was not supported by evidence. The Division Engineer agreed and remanded the matter to the District Engineer for supportive documentation and to follow the defendant’s 2008 administrative guidance. The District Engineer issued a new jurisdictional determination with supportive evidence, including an 11-page document that had previously not been in the administrative record. This determination, issued in 2013, constituted a final agency determination, from which the plaintiff sought judicial review. The plaintiff claimed that the defendant didn’t follow its own regulations, disregarded the instructions of the Division Engineer, and violated the Administrative Procedures Act (APA) by supplementing the record with the 11-page document. The court noted that existing regulations allowed the Division Engineer, on remand, to instruct the District Engineer to supplement the administrative record on remand and that the limitation on supplementing the administrative record only applied to the Division Engineer. The court also determined that the supplemental information did not violate the Division Engineer’s remand order, and that the supplemental information had been properly included in the administrative record and was part of the basis for the 2013 reviewable final agency determination. The court also upheld the defendant’s nexus determination because it sufficiently documented a physical, chemical and biological impact of the navigable river. The court also determined that the prior converted cropland exemption did not apply because farming activities had been abandoned for at least five years and wetland characteristics returned. The court noted that the defendant and the Environmental Protection Agency (EPA) had jointly adopted a rule in 1993 adopting the NRCS exemption for prior converted cropland. While the joint regulation did not refer to the abandonment exception, the defendant and EPA did explain in the Federal Register that they would use the NRCS abandonment provisions such that prior converted cropland that is abandoned and exhibits wetland characteristics are jurisdictional wetlands under the CWA. The court noted that prior caselaw had held that the CWA’s exemption of “prior converted croplands” included the abandonment provision, and that it would apply the same rationale in this case. The court noted that the specific 13-acre parcel at issue in the case had not been farmed since 1996, and that conversion to a non-ag use did not remove the abandonment provision. The plaintiff also claimed that the wetlands at issue were “artificial” wetlands (created by adjacent development) under 7 C.F.R. §12.2(a) that were not subject to the defendant’s jurisdiction. However, the court noted that the defendant never adopted the “artificial wetland” exemption of the NRCS and, therefore, such a classification was inapplicable. The court granted the defendant’s cross motion for summary judgment. On appeal, the appellate court three-judge panel in a unanimous opinion (the author of the opinion is a Trump appointee and another judge is also a Trump appointee; the third panel member is a Ford appointee) first noted that the Corps concluded that the tract was a WOTUS based on the 11-page document both “alone and in combination with other wetlands in the area.” However, the appellate court held that this conclusion lacked substantial evidence. Simply stating that wetlands filter out pollutants and that the tract has a “discrete and confined intermittent flow” to a creek that flowed to a WOTUS which gave the tract the ability to pass pollutants along was mere speculation that didn’t support a significant nexus with a navigable water. The appellate court also that the Corps also determined that the development of the tract would result in a floodwater rise of a fraction of one percent. On this point, the court stated, “If the Corps thinks that trivial number significant, it needs to give some explanation as to why.” The appellate court found similarly with respect to the potential increase on downstream nitrogen. The Corps provided no reasoning for its conclusion. The appellate court also noted that the Corps referenced the National Wetland Inventory for a listing of all of the wetlands in the area that were in proximity to the creek that flowed into a navigable waterway. But, again, the appellate court scolded the Corps for making a bald assertion that the wetlands in the watershed were adjacent to the same tributary without any supporting evidence. The Corps claimed it didn’t have to show or explain how each wetland was adjacent to the creek, but the appellate court stated that constituted jurisdictional overreach. Importantly, the court stated that, “the significant nexus test has limits: the Corps can consider the effects of in-question wetlands only with the effects of lands that are similarly situated. To do as the Corps did on this record – to consider the estimated effects of a wide swath of land that dwarfs the in-question wetlands, without first showing or explaining how the land is in fact similarly situated – is to disregard the test’s limits…. By contrast, the Corps’ similarly-situated finding here, lacking as it does record support or explanation, is little more than administrative ipse dixit.” Consequently, the appellate court vacated the trial court’s grant of summary judgment to the Corps and remanded with instructions to remand to the Corps for reconsideration of its jurisdiction over the tract. Orchard Hill Building Co. v. United States Army Corps of Engineers, No. 17-3403, 2018 U.S. App. LEXIS 17608 (7th Cir. Jun. 27, 2018), rev’g and remanding, No. 15-cv-06344, 2017 U.S. Dist. LEXIS 151673 (N.D. Ill. Sept. 19, 2017).

Posted June 16, 2018

Another Federal Court Enters An Injunction Against EPA’s WOTUS Rule. The Clean Water Act makes illegal the discharging of dredge or fill material into the “navigable waters of the United States” without first obtaining a permit from the Secretary of the Army acting through the Corps of Engineers (COE). In March of 2014, the EPA and the COE released a proposed rule defining “waters of the United States” (WOTUS) in a manner that would significantly expand the agencies’ regulatory jurisdiction under the CWA. Under the proposed rule, the CWA would apply to all waters which have been or ever could be used in interstate commerce as well as all interstate waters and wetlands. In addition, the proposed WOTUS rule specifies that the agencies’ jurisdiction would apply to all “tributaries” of interstate waters and all waters and wetlands “adjacent” to such interstate waters. The agencies also asserted in the proposed rule that their jurisdiction applies to all waters or wetlands with a “significant nexus” to interstate waters. Under the proposed rule, “tributaries” is broadly defined to include natural or man-made waters, wetlands, lakes, ponds, canals, streams and ditches if they contribute flow directly or indirectly to interstate waters irrespective of whether these waterways continuously exist or have any nexus to traditional “waters of the United States.” The proposed rule defines “adjacent” expansively to include “bordering, contiguous or neighboring waters.” Thus, all waters and wetlands within the same riparian area of flood plain of interstate waters would be “adjacent” waters subject to CWA regulation. “Similarly situated” waters are evaluated as a “single landscape unit” allowing the agencies to regulate an entire watershed if one body of water within it has a “significant nexus” to interstate waters. The proposed rule became effective as a final rule on August 28, 2015 in 37 states. In the present action, the plaintiffs claim that the WOTUS rule, implemented in 2015, violates the Clean Water Act, the Administrative Procedure Act, the Commerce Clause of the Constitution, and the Tenth Amendment. In the present action, the plaintiffs sought an injunction preventing the rule from being implemented in 11 states pending a full hearing on the merits. To receive the injunction, the plaintiffs had to prove that they would (1) likely succeed on the merits; (2) be irreparably harmed; (3) sustain more potential injury than the defendant would be harmed; and (4) establish that the injunction is not contrary to the public interest. The court determined that the plaintiffs had met the standards for all four requirements. As for success on the merits, the court determined that the WOTUS rule would not likely be upheld under the U.S. Supreme Court standard set forth in Rapanos v. United States, 547 U.S. 715 (2006), and was random and impulsive. The court also determined that the irreparable harm standard had been satisfied given the increase in federal jurisdiction of “wetlands” under the rule which overstepped states’ rights and had the potential to impose substantial monetary harm on affected landowners. As for the balancing of the equities, the court determined that the loss of state rights and the increased potential for monetary damages outweighed the harm to the government in complying with an injunction. The court also reasoned that entering an injunction would not violate public policy because the WOTUS rule may be an be an unenforceable rule as inconsistent with prior court rulings concerning the scope of the government’s jurisdiction over wetlands. Accordingly, the court entered a preliminary injunction. Georgia v. Pruitt, No. 2:15-cv-79, 2018 U.S. Dist. LEXIS 97223 (S.D. Ga. Jun. 8, 2018).

Note. The court’s order of preliminary injunction prevents the WOTUS rule from being implemented in 11 states – Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia and Wisconsin. A prior decision by the North Dakota federal district court had blocked the rule from taking effect in 13 states – AK, AZ, AR, CO, ID, MO, MT, NE, NV, NM, ND, SD and WY. North Dakota v. United States Environmental Protection Agency, No. 3:15-cv-59 (D. N.D. May 24, 2016). On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide injunction barring the rule from being enforced anywhere in the U.S. Ohio, et al. v. United States Army Corps of Engineers, et al., 803 F.3d 804 (6th Cir. 2015). Over 20 lawsuits had been filed at the federal district court level. On February 22, 2016, the U.S. Court of Appeals for the Sixth Circuit ruled that it had jurisdiction to hear the challenges to the final rule, siding with the EPA and the U.S. Army Corps of Engineers that the CWA gives the circuit courts exclusive jurisdiction on the matter. The court determined that the final rule is a limitation on the manner in which the EPA regulates pollutant discharges under CWA Sec. 509(b)(1)(E), the provision addressing the issuance of denial of CWA permits (codified at 33 U.S.C. §1369(b)(1)(E)). That statute, the court reasoned, has been expansively interpreted by numerous courts and the practical application of the final rule, the court noted, is that it impacts permitting requirements. As such, the court had jurisdiction to hear the dispute. The court also cited the Sixth Circuit’s own precedent on the matter in National Cotton Council of America v. United States Environmental Protection Agency, 553 F.3d 927 (6th Cir. 2009) for supporting its holding that it had jurisdiction to decide the dispute. Murray Energy Corp. v. United States, Department of Defense, No. 15-3751, 2016 U.S. App. LEXIS 3031 (6th Cir Feb. 22, 2016). In January of 2017, the U.S. Supreme Court agreed to review the Sixth Circuit’s decision. National Association of Manufacturers v. Department of Defense, et al., 137 S. Ct. 811 (2017). About a month later, President Trump issued an Executive Order directing the EPA and the COE to revisit the Clean Water Rule and change their interpretation of waters subject to federal jurisdiction such that it only applied to waters that were truly navigable – the approach taken by Justice Scalia in Rapanos v. United States, 547 U.S. 715 (2006). The EPA and Corps later indicated they would follow the President’s suggested approach, and would push the effective date of the revised Clean Water Rule to two years after its finalization and publication in the Federal Register. In November of 2017, the EPA issued a proposed rule delaying the effective date of the WOTUS rule until 2020. In January of 2018, the U.S. Supreme Court ruled unanimously that jurisdiction over challenges to the WOTUS rule was in the federal district courts, reversing the Sixth Circuit’s opinion. National Association of Manufacturer’s v. Department of Defense, No. 16-299, 2018 U.S. LEXIS 761 (U.S. Sup. Ct. Jan. 22, 2018). The Court determined that the plain language of the Clean Water Act (CWA) gives authority over CWA challenges to the federal district courts, with seven exceptions none of which applied to the WOTUS rule. In particular, the WOTUS rule neither established an “effluent limitation” nor resulted in the issuance of a permit denial. While the Court noted that it would be more efficient to have the appellate courts hear challenges to the rule, the court held that the statute would have to be rewritten to achieve that result. Consequently, the Supreme Court remanded the case to the Sixth Circuit, with instructions to dismiss all of the WOTUS petitioners currently before the court. Once the case was dismissed, the nationwide stay of the WOTUS rule that the court entered in 2015 was removed, and the injunction against the implementation of the WOTUS rule entered by the North Dakota court was reinstated in those 13 states. Thus, an injunction is presently in place in 24 states against the implementation of the rule. Another case against the WOTUS rule is currently pending in a Texas federal court.

Posted June 9, 2018

Case Challenging Roundup Label Not Dismissed. The plaintiff claimed that the label of the defendant’s Roundup pesticide was misleading. The label stated that the pesticide, “targets enzymes found in plants but not humans or animals.” However, the plaintiff claimed that the targeted enzymes were also present in the gut of humans and animals. According to the plaintiff, this meant that the label was misleading in violation of the District of Columbia Consumer Protection Procedures Act (CCPA). The defendant moved to dismiss the case based on preemption by the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA), statute of limitations and that the label did not violate the CCPA. The court did not decide the statute of limitation claim, but noted that the defendant could raise it later in a motion for summary judgment. The court also did not dismiss the case on the CCPA claim, finding instead that the plaintiff had submitted enough evidence for the claim to be heard. The court also determined that the FIFRA claim was not preempted, and would not dismiss the case on that ground. Beyond Pesticides v. Monsanto Co., No. 17-941 (TJK), 2018 U.S. Dist. LEXIS 72210 (D. D.C. Apr. 30, 2018).

Posted June 2, 2018

Letter Asking For Recapture Of CWA Permit Does Not Toll Statute Of Limitations. A landowner owned property adjacent to a lake and has been in the process of building a road across his property since 1998. The landowner uses this road for agricultural purposes. Because constructing the road requires dredging and filling portions of the lake and its surrounding creeks and inlets, he applied for permits from the United States Army Corps of Engineers (COE) under the Clean Water Act (CWA). Between 1998 and 2009, the COE issued six permit and exemption determinations to the landowner. The plaintiff owns the majority of the lake’s shoreline. The lake is of significant historical and cultural value to the plaintiff, and the plaintiff fears that the landowner’s activities harm the lake. In 2010, the plaintiff sent the COE a letter requesting that it recapture the landowner’s road project and order him to remove the entirety of the road. The COE concluded that the landowner was continuing to use his land for agricultural purposes and declined to intervene. The plaintiff brought the present action against the COE arguing that they had violated the Administrative Procedure Act, the CWA, and the National Historic Preservation Act in issuing the permit and exemption determinations to the landowner. The trial court dismissed the plaintiff’s claims. The COE moved to dismiss the case and the trial court agreed. The trial court determined that the 2010 letter was not a final agency action for purposes of the permit and exemptions determinations because the letter did not impact the landowner’s legal rights or the legal rights of the plaintiff or the COE. The trial court also determined that the plaintiff’s recapture claim under 33 U.S.C. §1344(f)(2) was not a justiciable enforcement action. The trial court also held that the plaintiff’s claims arising from the COE’s permit and exemption determinations made from 1998 to 2003 were barred by the statute of limitations. However, the trial court did not make a final determination with respect to the lawfulness of the Corp’s regulations enacted pursuant to the National Historic Preservation Act. On appeal, the appellate court affirmed. The plaintiff argued that the COE’s initial permit and exemption determinations were merely preliminary and that there was no final decision on any of those matters until August 30, 2010. However, the appellate court determined that the 2010 letter was not a reconsideration of the COE’s permit and exemption determination but rather, was a statement of how the COE applied the law at the time it issued the permit and exemptions to the landowner. Therefore, the appellate court held that the letter did not determine the parties’ rights or obligations or compel legal consequences. The appellate court also pointed out that the plaintiff’s arguments in this regard were really aimed at addressing the statute of limitations issue. If the plaintiff could establish that the permit and exemption determinations were not final until the 2010 letter, the plaintiff was free to pursue these challenges. However, the appellate court held that the letter did not provide an avenue for the plaintiff to avoid the statute of limitations. The appellate court also held that the plaintiff’s claims arising from the COE’s permit and determinations made from 1998-2003 were barred by the statute of limitations. The plaintiff, the appellate court held, were not eligible for equitable tolling because it had not diligently pursued its rights. The appellate court noted that the plaintiff was aware of the landowner’s project, and that the COE had issued four permit and exemption determinations in furtherance of this project, no later than January 25, 2005. In addition, the appellate court noted that the plaintiff knew that the landowner’s project may affect its ability to fish on the lake. Finally, the appellate court determined that the plaintiff was suspicious that the landowner did not intended to use the land for agricultural purposes and would instead develop the land. Nevertheless, the plaintiff claimed that its cause of action did not accrue until it became aware that the landowner changed the use of his road from agricultural purposes to development purposes in 2008. However, the appellate court held that the plaintiff did not diligently pursue its rights because it knew that the COE had authorized the landowner’s road and that their legal rights were affected by the landowner’s project no later than January 25, 2005. The appellate court also held that the COE did not violate its own regulations in issuing the 2009 nationwide-permit determination. applicable regulation against the plaintiff’s claim that the regulation was arbitrary and capricious. The appellate court also determined that it lacked jurisdiction to rule on the Corps’ regulations involving the National Historic Preservation Act. Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. United States Corps of Engineers, No. 16-4283, 2018 U.S. App. LEXIS 10417 (8th Cir. Apr. 25, 2018).

Posted May 28, 2018

Maryland Regulations Satisfy CWA Requirements for State CAFO Discharge Permits. The plaintiff, an environmental activist organization, sued the defendant in an attempt to force the defendant to demand more environmental accountability from confinement livestock operations on Maryland’s Eastern Shore. Specifically, the plaintiff claimed that the defendant was not following Clean Water Act (CWA) requirements for issuing state discharge permits for confined animal feeding operations (CAFOs) pursuant to 40 C.F.R. §122.44. The trial court determined that the defendant’s permit requirements followed all the necessary federal and state laws. On appeal, the court affirmed. The appellate court noted that, starting in June of 2014, the defendants had been in contact with the Environmental Protection Agency (EPA) about the its proposed permit. During the informal assessment period, the EPA made comments and by September of 2014, there were “no objections” to the proposal. After the EPA comment period, the defendants opened public comment on the permit, which ended October 20, 2014. The last day of public comment the plaintiff submitted written commentary on the permit that focused on the annual soil testing provisions in the proposal and claimed that they did not meet CWA requirements or EPA regulations. The plaintiff also asserted in its letter that the manner in which the defendant required CAFOs to monitor pollutants was not stringent enough to ensure CWA compliance. The plaintiff wanted all CAFOs to sample water into which waste water flowed as a condition of receiving a permit. The defendant replied that 33 U.S.C. § 1318(a)(1)(A)(iii)-(iv) granted it discretion to determine the testing needed to meet CWA objectives. The final determination was posted by the defendant on December 1, 2014, in which the defendant again asserted that had regulatory discretion to determine the necessary testing based on 40 C.F.R. § 122.44(i)(1). The plaintiff sought judicial review on the final determination for the 2014 permit. The trial court upheld the permit on the basis that it was comparable to the 2009 permit which was determined to be CWA-compliant. The plaintiffs appealed. On appeal, the plaintiff claimed that the permit did not meet the standards set forth in Maryland Dep't of Environment v. Anacostia Riverkeeper, 447 Md. 88, 134 A.3d 892 (2016) on the basis that the 2014 permits did not require the feeders to monitor water pollutants or set a number of required monitoring events. However, the court noted that the requirements that the plaintiff relied upon were for storm water discharges, not CAFO effluent discharges. The plaintiff also claimed that the required monitoring should apply to every CAFO, but the appellate court as inconsistent with existing laws and regulations applicable to CAFOs. The court also noted that the permit correctly accounted for pollution monitoring with “nutrient management plans” and “effluent limitation guidelines” needed to carry out the objectives of the CWA. Finally, the plaintiff claimed that the defendant must monitor for pollutants and effluents. However, the appellate court pointed out that 40 C.F.R. § 122.44(i)(1) states that this must be done “when applicable” and noted that the 2014 permit did not allow the discharge of any pollutants. The appellate court upheld the permit as compliant with the CWA, EPA regulations, and applicable state (MD) law, noting specifically that the states have flexibility in developing effluent limitatons. Food & Water Watch v. Maryland. Department of Environment, No. 2602, 2018 Md. App. LEXIS 464 (Md. Court App. May 14, 2018).

Posted May 24, 2018

Ongoing Addition of “Pollutants” to Navigable Waters Sufficient for CWA Citizen-Suit Case. The plaintiffs, a consortium of environmental and conservation groups, brought a citizen suit under the Clean Water Act (CWA) claiming that the defendant violated the CWA by discharging “pollutants” into the navigable waters of the United States without a required discharge permit via an underground ruptured gasoline pipeline owned by the defendant’s subsidiary. The plaintiff claimed that a discharge permit was needed because the CWA defines “point source pollutant” (which requires a discharge permit) as “any discernible, confined and discrete conveyance, included but not limited to any…well…from which pollutants are or may be discharged.” The trial court dismissed the plaintiffs’ claim. On appeal, the appellate court held that the court had subject matter jurisdiction under the CWA’s citizen suit provision because the provision covered the discharge of “pollutants that derive from a ‘point source’ and continue to be ‘added’ to navigable waters.” Thus, even though the pipeline was no longer releasing gasoline, it continues to be passing through the earth via groundwater and continued to be discharged into regulable surface waters. This finding was contrary to the trial court’s determination that the court lacked jurisdiction because the pipeline had been repaired and because the pollutants had first passed through groundwater. As such, the appellate court determined that, in accord with the Second and Ninth Circuits, that a pollutant can first move through groundwater before reaching navigable waters and still constitute a “discharge of a pollutant” under the CWA that requires a federal discharge permit. The discharge need not be channeled by a point source until reaching navigable waters that are subject to the CWA. The appellate court did, however, point out that a discharge into groundwater does not always mean that a CWA discharge permit is required. A permit in such situations is only required if there is a direct hydrological connection between groundwater and navigable waters. In the present case, however, the appellate court noted that the pipeline rupture occurred within 1,000 feet of the navigable waters. The court noted that the defendant had not established any independent or contributing cause of pollution. Upstate Forever, et al. v. Kinder Morgan Energy Partners, LP, et al., 887 F.3d 637 (4th Cir. 2018).

Posted May 19, 2018

Road Construction Activity Violates Clean Water Act. The defendant is a sand and gravel mining company that operates on property adjacent to Saline Creek. The plaintiff claimed that the defendant’s operations degraded his ability to recreate in Saline Creek. In early 2011, the plaintiff served the defendant with a notice letter informing the company that it was violating section 404 of the Clean Water Act (CWA) which requires a permit from the U.S. Army Corps of Engineers to discharge dredge or fill material into navigable waters of the United States. After receiving the plaintiff’s notice, the defendant hired an environmental consulting firm to perform a Section 404 impact analysis of its Saline Creek operations. By June 1, 2011, the defendant had not addressed the CWA violations that the plaintiff alleged in his notice. As a result, the defendant filed a citizen suit. The trial court held a bench trial and determined that the defendant violated section 404. Specifically, the trial court found that the defendant’s construction of a roadway in Saline Creek and the filling of its surrounding wetlands without a permit constituted a continuing violation of the CWA. The defendant appealed. On appeal the defendant argued that the plaintiff did not have Article III standing to bring the suit. Article III standing requires showing (1) an injury in fact that is (2) fairly traceable to the challenged action of the defendant and is (3) likely to be redressed by a favorable decision. The appellate court determined, however, that the plaintiff had shown injury in fact by maintaining that he regularly swims and fishes in Saline Creek and that his ability to do so has been diminished by the defendant’s discharge of material into the creek and its surrounding wetlands. The appellate court held that such recreational impairments constituted an injury in fact for a plaintiff filing a citizen suit under the CWA. In addition, the plaintiff testified that the quality of Saline Creek did not begin to decline until after the defendant began its mining operations, and the plaintiff’s expert testified that the defendant’s mining operations caused the degradation in quality. This, coupled with the trial court's finding that the defendant unlawfully discharged materials into Saline Creek's wetlands, sufficiently demonstrated that the plaintiff’s injury was fairly traceable to the defendant’s unlawful actions. Finally, the court held that the redressability element was easily met because the injunctive relief and civil penalties sought by the plaintiff will restore the affected waters and deter future violations. As such, the appellate court held that the plaintiff had Article III standing to bring the citizen suit. The defendant also argued that the plaintiff did not provide adequate notice to bring the citizen suit. However, the appellate court held that because the plaintiff’s notice letter described the specific pollutants, specific locations, the specific sections of the CWA that were violated and a specific date of violation, the defendant was provided with sufficient information to clearly identify the violation. Thus, the plaintiff’s letter constituted adequate notice. Finally, the defendant argued that the trial court erred when it determined that it violated the CWA. At the trial court hearing, the defendant’s CEO testified that a neighboring landowner had built the road before the defendant’s purchase of the land in 1991.But one of the landowner's employees attested that the landowner did no such thing and that "he has observed Ozark employees maintaining, rebuilding, and driving on the road”. Based on this evidence, the trial court found that the defendant constructed the road by placing dredge and fill material into Saline Creek. In addition, the trial court found the plaintiff’s testimony to be credible because it was detailed and corroborated by photographs. The appellate court affirmed. Benham v. Ozark Materials River Rock, LLC, No. 17-5069, 2018 U.S. App. LEXIS 7157 (10th Cir. Mar. 22, 2018).

Posted March 31, 2018

City’s Sediment Erosion Violates CWA. The Colorado River is a navigable body of water that passes through Austin, Texas. A park borders a stretch of the river in southeast Austin. A creek runs through the park and empties into the river. A channel extends from a bend in the creek to a discharge point across the river from the plaintiff’s backyard. The channel originally existed as a natural gully that brought water to the river from a different manmade channel that did not extend to the river. The soil underneath much of the park is sand and other fine sediment gradually deposited by the Colorado River at a slow-moving bend in the river. The natural gully traced its path to the river through this sandy soil. Due to the elevation at which the manmade channel abruptly ended, the natural gully's path through the sandy soil had a slope of 2 percent. After the city acquired the land now constituting the park, it recognized that the gully posed an erosion problem and in 2010, the City began construction of the a channel along the footprint of the gully in order to reduce erosion and define the contours of the gully. The city excavated dirt and sand to shape the channel, filled in the top of the channel bed with less erosive material, covered the Channel bed with erosion-control fabric, and installed rock berms. However, the City's construction project failed to stop the erosion problem. The channel bed is now at least 10 to 12 feet lower than it was when construction began. The channel's headcut—a highly erosive elevation drop at which fast-moving water scours out soil—is moving inland by hundreds of feet every year. Even minor rain events of one to two inches began moving the headcut 30 or 50 feet upstream. These are rates of progression that would be considered fast over a full year. The defendant lives directly across the river from the mouth of the channel. From his backyard, which abuts the river's northern bank, he can see the sandbar that lies across the river at the mouth of the channel. The defendant claimed that the sight of the sandbar makes it "very frustrating" to go out to his backyard and that seeing the sandbar makes it less enjoyable for him to use his decks or swim in the river. The plaintiff sued the city of Austin for violations of the Clean Water Act (CWA). The city claimed that the plaintiff did not have standing because his injuries were not traceable to the city’s conduct because the primary causes of the sandbar foundation are head cutting caused by the 1976 channel design, the loose sandy soil underneath the channel, and two major floods in 2015. However, the court held that the plaintiff did not need to prove with scientific certainty that the city’s conduct alone caused his injuries, only that the city’s conduct contributed to his injuries. The CWA makes it unlawful to discharge pollutants except in compliance with certain provisions of the CWA. Sand and sediment are pollutants under the CWA. In addition, the parties stipulated that the Colorado River is a navigable water of the United States and that the channel is a point source. The sediment eroding from the channel into the river is a pollutant. There was ample evidence from the city's own engineers that substantial erosion in the channel continues, and the city did not dispute that sediment continues to be discharged from the channel. The court held that these facts established an ongoing violation of the CWA. The city had a National Pollutant Discharge Elimination System (NPDES) permit that allowed them to discharge storm water and pollutants from the from the Municipal Storm Sewer System (MS4). The city claimed that discharges from the channel are covered by its MS4 permit and that its discharges complied with the permit. However, the court determined that the city’s Environmental Criteria Manual required the city to retrieve sediment carried offsite from construction sites after rain events and prohibits the release of excessive amounts of sediment in storm water runoff. Thus, the substantial ongoing erosion of sediment resulting from the city's construction of the channel did not comply with these requirements and took the city out of compliance with its MS4 permit. Finally, because the sedimentary discharges have no detrimental effect on human health or environment and because the city has made good-faith efforts to comply with the CWA the court only awarded the plaintiff a nominal civil penalty of $25,000. Kleinman v. City of Austin, No. 1:15-cv-497-RP, 2018 U.S. Dist. LEXIS 36126 (W.D. Tex. Mar. 6, 2018).

Posted March 27, 2018

Spending Bill Restores Animal Waste Air Reporting Exemption For Farms. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA), the federal government is to be notified when large quantities of hazardous materials are released into the environment. Once notified, the Environmental Protection Agency (EPA) has discretion to take remedial actions or order further monitoring or investigation of the situation. In 2008, the EPA issued a final regulation exempting farms from the reporting/notification requirement for air releases from animal waste on the basis that a federal response would most often be impractical and unlikely. However, the EPA retained the reporting/notification requirement for Confined Animal Feeding Operations (CAFOs) under EPCRAs public disclosure rule. Various environmental groups challenged the exemption on the basis that the EPA acted outside of its delegated authority to create the exemption. Agricultural groups claimed that the retained reporting requirement for CAFOs was also impermissible. The environmental groups claimed that emissions of ammonia and hydrogen sulfide (both hazardous substances under CERCLA) should be reported as part of furthering the overall regulatory objective. The court noted that there was no clear way to best measure the release of ammonia and hydrogen sulfide, but determined that continuous releases are subject to annual notice requirements. The court held that the EPA’s final regulation should be vacated as an unreasonable interpretation of the de minimis exception in the statute. As such, the challenge brought by the agriculture groups to the CAFO carve out was mooted and dismissed. Waterkeeper Alliance, et al. v. Environmental Protection Agency, No. 09-1017, 2017 U.S. App. LEXIS 6174 (D.C. Cir. Apr. 11, 2017).

Update: The court’s order potentially subjected almost 50,000 farms to the additional reporting requirement. As such, the court delayed enforcement of its ruling by issuing multiple stays, giving the EPA additional time to write a new rule. The EPA issued interim guidance on October 25, 2017. The court issued its most recent stay in the matter on February 1, 2018, with the expiration scheduled for May 1. However, on March 23, 2018, President Trump signed into law the Consolidated Appropriations Act of 2018, H.R. 1625. Division S, Title XI, Section 1102 of that law, entitled the Fair Agricultural Reporting Method Act (FARM Act), modifies 42 U.S.C. §9603 to include the EPA exemption for farms that have animal waste air releases. Specifically, 42 U.S.C. §9603(e) is modified to specify that “air emissions from animal waste (including decomposing animal waste) at a farm” are exempt from the CERCLA Sec. 103 notice and reporting requirements. “Animal waste” is defined to mean “feces, urine, or other excrement, digestive emission, urea, or similar substances emitted by animals (including any form of livestock, poultry, or fish). The term animal waste “includes animal waste that is mixed or commingled with bedding, compost, feed, soil or any other material typically found with such waste.” A “farm” is defined as a site or area (including associated structures) that is used for “the production of a crop; or the raising or selling of animals (including any form of livestock, poultry or fish); and under normal conditions, produces during a farm year any agricultural products with a total value equal to not less than $1,000.”

Point-Source Chlorine Discharges From Non-Concentrated Aquatic Animal Production Facility Requires NPDES Permit. The defendant owns and operates a cold-water oyster hatchery adjacent to Quilcene Bay, near the north end of the Hood Canal in Washington state. The defendant’s hatchery is the world's largest shellfish hatchery, capable of producing over 45 billion eyed oyster larvae per year. As part of its operation, the hatchery discharges pollutants into Quilcene Bay through pipes, ditches, and channels. The plaintiff filed a citizen suit under §505 of the Clean Water Act (CWA), alleging that discharges from the hatchery through pipes, ditches, and channels violated the CWA because the hatchery did not obtain a National Pollution Discharge Elimination System (NPDES) permit. Six months after the plaintiff filed its complaint, the defendant wrote a letter to the Washington Department of Ecology (WDE), asking whether the WDE’s view, communicated in 2013, that the defendant’s shellfish hatchery did not require a NPDES permit, was still applicable. Ten days later, WDE responded that an NPDES permit was not required. The defendant subsequently moved to dismiss the complaint, contending that despite the hatchery’s use of pipes, ditches and channels to discharge pollutants into Quilcene Bay, an NPES permit was not required. The trial court denied the defendant’s motion to dismiss and the defendant appealed. The appellate court determined that it was undisputed that discharges from point sources must obtain NPDES permits; that pipes, ditches, and channels are point sources under the CWA; and that a non-concentrated aquatic animal production facility was a kind of "concentrated animal feeding operation," that was, in itself, a point source. The disputed question, the court determined, was whether pipes, ditches, and channels that discharge pollutants from such a facility are point sources. The court pointed out that the CWA requires an NPDES permit for the discharge of any pollutant. The CWA, the appellate court noted, defines discharge of a pollutant as any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft. The appellate court thus concluded, based on the plain meaning of the text of the CWA, that pipes, ditches, channels, and concentrated animal feeding operations that discharge pollutants into navigable waters are all point sources subject to the NPDES permit requirement. Thus, as a necessary corollary, pipes, ditches, and channels that discharged pollutants from an aquatic animal production facility that was a non-concentrated aquatic animal production facility were point sources requiring an NPDES permit. In addition, the appellate court determined that the fact that an aquatic animal production facility is not a concentrated aquatic animal production facility does not mean that the facility does not discharge pollutants through pipes, ditches, and channels and is, therefore, not subject to the CWA’s discharge permit requirement. Thus, the appellate court held that, assuming the plaintiff’s allegations in its complaint were true, the defendant’s discharges of chlorine required an NPDES permit. The trial court’s decision denying the defendant’s motion to dismiss was affirmed. Forest Coal v. Coast Seafoods Co., No. 16-35957, 2018 U.S. App. LEXIS 5937 (9th Cir. Mar. 9, 2018).

Posted March 11, 2018

California Blocked In Attempt to Label Glyphosate With Cancer Warning. The plaintiff, a consortium of agricultural groups, challenged the plans of the defendant (the director of the Office of Environmental Health Hazard Assessment (OEHHA)) to require label warnings on products containing glyphosate, a weed-killing chemical. California, in accordance with Proposition 65, requires the Governor to publish a list of chemicals known by the State to cause cancer, as determined by outside entities including the U.S. EPA, the U.S. FDA and the International Agency for Research on Cancer (IARC). Proposition 65 also requires a warning label. While the IARC , in 2015, classified glyphosate as “probably carcinogenic” to humans, other organizations, including the EPA, concluded that there was no evidence that glyphosate causes cancer. As a result of the IARC’s determination, the OEHHA issued a “Notice of Intent to List Glyphosate” in November of 2015, and then listed glyphosate as a chemical known by California to cause cancer on July 7, 2017. As a result, the associated warning label took was set to take effect one year later – July 7, 2018. The plaintiff claimed that the warning label violated the First Amendment by requiring the plaintiff to make false, misleading and highly controversial statements about its products. The plaintiff sought a preliminary injunction against the label requirement. The court issued the injunction, citing the volume of evidence in the record that glyphosate is not, in fact, known to cause cancer. Thus, a warning label would not be factually accurate. National Association of Wheat Growers, et al., v. Zeise, No. 2:17-2401 WBS EFB, 2018 U.S. Dist. LEXIS 30736 (E.D. Cal. Feb. 26, 2018).

Posted March 3, 2018

Some Discharges To Groundwater Require a CWA Permit. The defendant owns and operates four wells at the Lahaina Wastewater Reclamation Facility (LWRF), which is the principal municipal wastewater treatment plant for a city. Although constructed initially to serve as a backup disposal method for water reclamation, the wells have since become the defendant’s primary means of effluent disposal into groundwater and, ultimately, the Pacific Ocean. The LWRF receives approximately 4 million gallons of sewage per day from a collection system serving approximately 40,000 people. That sewage is treated at LWRF and then either sold to customers for irrigation purposes or injected into the wells for disposal. The defendant injects approximately 3 to 5 million gallons of treated wastewater per day into the groundwater via its wells. The defendant conceded, and its expert, confirmed that wastewater injected into wells 1 and 2 enters the Pacific Ocean. In addition, in June 2013 the EPA, the Hawaii Department of Health, the U.S. Army Engineer Research and Development Center, and researchers from the University of Hawaii conducted a study on wells 2, 3 and 4. The study involved placing tracer dye into Wells 2, 3, and 4, and monitoring the submarine seeps off Kahekili Beach to see if and when the dye would appear in the Pacific Ocean. This study, known as the Tracer Dye Study, found that 64% of the treated wastewater from wells 3 and 4 discharged into the ocean. The plaintiff sued, claiming that the defendant was in violation of the Clean Water Act (CWA) by discharging pollutants into navigable waters of the United States without a CWA National Pollution Discharge Elimination System (NPDES) permit. The trial court agreed, holding that an NPDES permit was required for effluent discharges into navigable waters via groundwater. On appeal, the appellate court held that the wells were point sources that could be regulated through CWA permits despite the defendant’s claim that an NPDES permit was not required because the wells discharged only indirectly into the Pacific Ocean via groundwater. Specifically, the appellate court held that “a point source discharge to groundwater of “more than [a] de minimis” amount of pollutants that is “fairly traceable from the point source . . . such that the discharge is the functional equivalent of a discharge into a navigable water” is regulated under the CWA.” The appellate court reached this conclusion by citing cases from other jurisdictions that determed that an indirect discharge from a point source into a navigable water requires an NPDES discharge permit. The defendant also claimed its effluent injections are not discharges into navigable waters, but rather were disposals of pollutants into wells, and that the CWA categorically excludes well disposals from the permitting requirements. However, the court held that the CWA does not categorically exempt all well disposals from the NPDES requirements because doing so would undermine the integrity of the CWA’s provisions. Lastly, the plaintiff claimed that it did not have fair notice because the state agency tasked with administering the NPDES permit program maintained that an NPDES permit was unnecessary for the wells. However, the court held that the agency was actually still in the process of determining if an NPDES permit was applicable. Thus, the court found the lack of solidification of the agency’s position on the issue did not affirmatively demonstrate that it believed the permit was unnecessary as the defendant claimed. Furthermore, the court held that a reasonable person would have understood the CWA as prohibiting the discharges, thus the defendant’s due process rights were not violated. Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018).

Note: After the Ninth Circuit issued its opinion, the EPA, on February 20, 2018, requested comment on whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater may be subject to Clean Water Act (“CWA”) regulation. Specifically, EPA seeks comment on whether EPA should consider clarification or revision of previous EPA statements regarding the Agency’s mandate to regulate discharges to surface waters via groundwater under the CWA. A number of courts have taken the view that Congress intended the CWA to regulate the release of pollutants that reach “waters of the United States” regardless of whether those pollutants were first discharged into groundwater. However, other courts, have taken the view that neither the CWA nor the EPA’s definition of waters of the United States asserts authority over ground waters, based solely on a hydrological connection with surface waters. EPA has not stated that CWA permits are required for pollutant discharges to groundwater in all cases. Rather, EPA’s position has been that pollutants discharged from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional water may be subject to CWA permitting requirements. As part of its request, EPA seeks comment by May 21, 2018 on whether it should review and potentially revise its previous positions. In particular, the EPA is seeking comment on whether it is consistent with the CWA to require a CWA permit for indirect discharges into jurisdictional surface waters via groundwater. The EPA also seeks comment on whether some or all of such discharges are addressed adequately through other federal authorities, existing state statutory or regulatory programs or through other existing federal regulations and permit programs.

Posted February 8, 2018

EPA Action on WOTUS Rule.  On February 6, 2018, the Corps and the EPA finalized a rule moving the applicable date of the 2015 WOTUS rule to February 6, 2020. With the final rule, the EPA reiterated that the the final rule is separate from the process that the Corps and EPA are undertaking to reconsider and revise the 2016 WOTUS rule. The February 6, 2018 final rule is an attempt to inform courts not to use the 2015 WOTUS but instead follow pre-2015 WOTUS rule guidance in deciding cases until the new WOTUS rule becomes effective. 83 Fed. Reg. 5200 (Feb. 6, 2018).

Indirect Discharges of “Pollutants” Into a WOTUS Require a Federal Permit. A wastewater treatment plant owned and operated water wells at its facility, and were the defendant’s primary way to dispose of effluent into groundwater. The facility received and treated about four million gallons of sewage daily for 40,000 persons. The sewage was treated and then sold for irrigation purposes or disposed by means of injection into the wells. The well water ultimately flowed into the Pacific Ocean. While it was undisputed that the wells were “point sources” under the Clean Water Act (CWA) and that the CWA requires a permit to discharge a “pollutant” into the navigable waters of the United States (WOTUS), the defendant claimed that the CWA required that the point source convey the pollutant directly into the WOTUS which did not occur in this case. Instead, the discharges in this case were into groundwater which then ultimately found its way into the Pacific Ocean. The court disagreed, noting that the Second Circuit and the Fifth Circuit had previously held that an indirect discharge from a point source that ultimately entered a navigable water triggered CWA liability. The court also noted that Justice Scalia’s opinion in Rapanos (547 U.S. 715 (2006)) noted that the CWA bars the “addition of any pollutant to navigable waters” rather than a direct addition. However, the court did not provide any guidance to assist a determination of when the connection between a point source and a navigable water is insufficient to support CWA liability. Hawai’i Wildlife Fund, et al. v. County of Maui, No. 15-17447, 2018 U.S. App. LEXIS 2582 (9th Cir. Feb. 1, 2018).

Posted January 28, 2018

Reallocation of Reservoir Water For Municipal Use Does Not Violate NEPA Or CWA. Chatfield Reservoir is a reservoir southwest of Denver, Colorado. The defendant planned to reallocate 20,600 acre-feet of water in the reservoir from flood control to storage for municipal and industrial use. The plaintiff challenged the planned reallocation. In 1986, Congress passed the Water Resources Development Act (WRDA). Under the WRDA, the storage space in the reservoir was to be reassigned to joint flood control-conservation purposes, including storage for municipal and industrial water supply, agriculture, and recreation and fishery habitat protection and enhancement. The defendant and the Colorado Water Conservation Board performed a study to research possibilities for the reallocation project. Beginning in 2007, the plaintiff participated in the study group as a special technical advisor. The study group narrowed a group of 38 initial concepts to a set of four alternative plans that would be evaluated in detail. In July of 2013, the defendant issued its Final Integrated Feasibility Report/Environmental Impact Statement (FRE/EIS) and invited public comment. The defendant selected alternative 3 - reallocation to allow an additional 20,600 acre-feet of water supply storage, because it was the alternative that minimized the cost of supplying water, and because it would fully meet the purpose of and need for the project. On May 24, 2014, the defendant issued a Record of Decision formally approving its selection of alternative 3 as the plan for the project going forward. The plaintiff claimed that the defendant violated the National Environmental Policy Act (NEPA), which requires that before an agency takes a major federal action significantly affecting the quality of the human environment it must prepare an in-depth environmental impact statement (EIS) in which agencies are required to take a “hard look” at the environmental consequences of the proposed action. The plaintiff claimed that the defendant’s use of the term “average year yield” to discuss the project’s goals violated NEPA’s requirement for informed public participation because it constituted an “arbitrary creation” that the defendant “made up.” However, the court determined that the term is defined in the FR/EIS and the definition provides an understandable and relevant measure in context. Therefore, the use of the term did not detract from the FR/EIS and presented a reasonable, good faith, objective presentation of the topics that NEPS requires. The plaintiff also asserted that the average year yield calculations were based on water rights held by 15 initial participants in the project, several of whom by the time the rule of decision was issued were no longer involved in the project. The plaintiff claimed that it was possible that the new water providers who claim the storage capacity will have less-senior water rights than the former participants, leading to less water being stored in the reservoir. However, the court determined that the FR/EIS showed that the water rights held by the water providers were only one factor among many that affect the pool elevation, and the FR/EIS discussed a plan for adaptive reservoirs management to compensate for the various factors affecting pool elevation along with the environmental impact of the fluctuations in elevation. Thus, the court held that the lack of discussion of the environmental impact of potential water rights changes is not significant enough to defeat the goals of informed decision making and informed public comment. Accordingly, the court held that the plaintiff did not show that he defendant violated the NEPA. The plaintiff also argues that the defendant violated the Clean Water Act (CWA), arguing that the defendant’s CWA analysis should use the same alternatives used for the NEPA analysis to determine the least environmentally damaging practicable alternative. However, the court determined that by its terms, the CWA does not require that NEPA alternatives be evaluated in determining the least environmentally damaging practicable alternative. In addition, the NEPA requires that connected or closely related actions be discussed in the same impact statement. The plaintiff argues that the court should apply this anti-segmentation rule to the defendant’s CWA analysis. However, the court found that there was no legal basis for applying the NEPA anti-segmentation rule to a CWA analysis. The CWA requires the defendant to consider “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” The defendant interpreted it to require consideration of alternatives to the proposed discharge, not alternatives to related actions that will not result in discharge. The court determined that this interpretation was based on a rational reading of the regulation and therefore the court would not disturb it. Consequently, because the plaintiff did not show that the defendant acted arbitrarily, capriciously or contrary to law in selecting alternative 3, the court affirmed the defendant’s decision. Audubon Soc’y of Greater Denver v. United States Army Corps of Engineers, No. 14-cv-02749-PAB, 2017 U.S. Dist. LEXIS 204127 (D. Colo. Dec. 12, 2017).

Federal District Courts Have Jurisdiction to Hear WOTUS Challenges. The Clean Water Act makes illegal the discharging of dredge or fill material into the “navigable waters of the United States” without first obtaining a permit from the Secretary of the Army acting through the Corps of Engineers (COE). In March of 2014, the EPA and the COE released a proposed rule defining “waters of the United States” in a manner that would significantly expand the agencies’ regulatory jurisdiction under the CWA. Under the proposed rule, the CWA would apply to all waters which have been or ever could be used in interstate commerce as well as all interstate waters and wetlands. In addition, the proposed rule specifies that the agencies’ jurisdiction would apply to all “tributaries” of interstate waters and all waters and wetlands “adjacent” to such interstate waters. The agencies also asserted in the proposed rule that their jurisdiction applies to all waters or wetlands with a “significant nexus” to interstate waters. Under the proposed rule, “tributaries” is broadly defined to include natural or man-made waters, wetlands, lakes, ponds, canals, streams and ditches if they contribute flow directly or indirectly to interstate waters irrespective of whether these waterways continuously exist or have any nexus to traditional “waters of the United States.” The proposed rule defines “adjacent” expansively to include “bordering, contiguous or neighboring waters.” Thus, all waters and wetlands within the same riparian area of flood plain of interstate waters would be “adjacent” waters subject to CWA regulation. “Similarly situated” waters are evaluated as a “single landscape unit” allowing the agencies to regulate an entire watershed if one body of water within it has a “significant nexus” to interstate waters. The proposed rule became effective as a final rule on August 28, 2015 in 37 states, but a decision by a North Dakota federal district court judge blocked the rule from taking effect in the remaining 13 states. The lawsuit filed in that case and in other similar lawsuits across the country claimed that the rule exceeded congressional authority under the CWA, interfered with state sovereignty to regulate non-federal waters and that the EPA violated the Administrative Procedures Act (APA) when it issued the rule. At least one court issued a temporary injunction, and legislative efforts to rescind the rule were taken. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide injunction barring the rule from being enforced anywhere in the U.S. Ohio, et al. v. United States Army Corps of Engineers, et al., 803 F.3d 804 (6th Cir. 2015). Over 20 lawsuits had been filed at the federal district court level. On February 22, 2016, the U.S. Court of Appeals for the Sixth Circuit ruled that it had jurisdiction to hear the challenges to the final rule, siding with the EPA and the U.S. Army Corps of Engineers that the CWA gives the circuit courts exclusive jurisdiction on the matter. The court determined that the final rule is a limitation on the manner in which the EPA regulates pollutant discharges under CWA Sec. 509(b)(1)(E), the provision addressing the issuance of denial of CWA permits (codified at 33 U.S.C. §1369(b)(1)(E)). That statute, the court reasoned, has been expansively interpreted by numerous courts and the practical application of the final rule, the court noted, is that it impacts permitting requirements. As such, the court had jurisdiction to hear the dispute. The court also cited the Sixth Circuit’s own precedent on the matter in National Cotton Council of America v. United States Environmental Protection Agency, 553 F.3d 927 (6th Cir. 2009) for supporting its holding that it had jurisdiction to decide the dispute. Murray Energy Corp. v. United States, Department of Defense, No. 15-3751, 2016 U.S. App. LEXIS 3031 (6th Cir Feb. 22, 2016). In January of 2017, the U.S. Supreme Court agreed to review the Sixth Circuit’s decision. National Association of Manufacturers v. Department of Defense, et al., 137 S. Ct. 811 (2017). About a month later, President Trump issued an Executive Order directing the EPA and the COE to revisit the Clean Water Rule and change their interpretation of waters subject to federal jurisdiction such that it only applied to waters that were truly navigable – the approach taken by Justice Scalia in Rapanos v. United States, 547 U.S. 715 (2006). The EPA and Corps later indicated they would follow the President’s suggested approach, and would push the effective date of the revised Clean Water Rule to two years after its finalization and publication. In November of 2017, the EPA issued a proposed rule delaying the effective date of the WOTUS rule until 2020. In January of 2018, the U.S. Supreme Court ruled unanimously that jurisdiction over challenges to the WOTUS rule was in the federal district courts, reversing the Sixth Circuit’s opinion. National Association of Manufacturer’s v. Department of Defense, No. 16-299, 2018 U.S. LEXIS 761 (U.S. Sup. Ct. Jan. 22, 2018). The Court determined that the plain language of the Clean Water Act (CWA) gives authority over CWA challenges to the federal district courts, with seven exceptions none of which applied to the WOTUS rule. In particular, the WOTUS rule neither established an “effluent limitation” nor resulted in the issuance of a permit denial. While the Court noted that it would be more efficient to have the appellate courts hear challenges to the rule, the court held that the statute would have to be rewritten to achieve that result. Consequently, the Supreme Court remanded the case to the Sixth Circuit, with instructions to dismiss all of the WOTUS petitioners currently before the court. Once the Sixth Circuit dismisses the case, the nationwide stay of the WOTUS rule that the court entered in 2015 will be removed, and the injunction against the implementation of the WOTUS rule entered by a federal court in North Dakota will be reinstated effective in North Dakota and 12 other states.

Posted January 3, 2018

Federal Court Says That Hydrologically Connected Groundwater Not Subject to CWA NPDES Permit Requirement. The plaintiffs, environmental activist groups, brought a citizen enforcement action against the defendant claiming that the defendant violated the Resource, Conservation and Recovery Act (RCRA) surrounding its handling of coal combustion residuals which also lead to a violation of the Clean Water Act (CWA) by virtue of the discharge of pollutants into the navigable waters of the United States without a permit. The defendant moved for dismissal on the basis that the plaintiffs lacked standing to bring an RCRA claim and that the RCRA claim was barred by the abstention doctrine. The defendant also claimed that the CWA claim failed as a matter of law. The court determined that the “pollutants” were “discharged” into federally jurisdictional waters only via a hydrological connection to groundwater and, as such, were not subject to the CWA’s permit requirements. Thus, the plaintiff’s CWA claim was dismissed. As for the RCRA claim, the court determined that the plaintiffs lacked standing to bring the claim. The defendant’s motion to dismiss was granted. Kentucky Waterways Alliance v. Kentucky Utilities Company, No. 5:17-292-DCR, 2017 U.S. Dist. LEXIS 212329 (D. Ky. Dec. 28, 2017).

Posted December 30, 2017

Conviction Upheld for Clean Water Act Violations. The defendant, a disabled Vietnam Navy veteran, was charged with multiple counts of criminal violations of the Clean Water Act (CWA) by virtue of the unauthorized knowing discharge of “pollutants” into the “waters of the United States” (WOTUS) (in violation of 33 U.S.C. §1251-1388) and depradation of U.S. property (18 U.S.C. §1361). The defendant, represented by a federal public defender, was indicted for building illegal ponds (nine in total) in an existing stream on two parcels - one federal and one private (which the defendant did not own). The defendant did the work due to multiple fires in the area in recent years and to create stock water ponds for his animals. The government claimed that the ponds resulted in the discharge of dredged and fill material into a tributary stream and adjacent wetlands and damaged both properties, even though there was no tributary from the ponds. At the time the ponds were discovered, the defendant was on probation for misdemeanor violations of U.S. Forest Service regulations. The defendant admitted to constructing the ponds by using an excavator on the federal property. The excavation work comprised about 1.2 acres and extended onto the adjacent private property. Dredged material from the ponds had been used to create the berms and had been placed in and around the streams and wetlands. The defendant continued constructing the ponds after federal officials told him to cease. The trial court judge had been the focus of a complaint filed by the defendant years earlier. The trial court determined that the stream at issue was a WOTUS on the basis that the stream headwater and wetland complex provided critical support to trout in downstream rivers and fisheries, including the Boulder and Jefferson Rivers (60 miles away) – navigable waters of the U.S. The trial court jury, after a second trial and the introduction by the government of evidence that it allegedly manufactured, found the defendant, age 77, guilty of two counts of illegal discharge of pollutants into WOTUS without a federal permit and one count of injury or depredation of U.S. property. On appeal, the appellate court affirmed. The appellate court held that U.S. Supreme Court Justice Kennedy’s opinion in Rapanos v. United States, 547 U.S. 715 (2006) was controlling and that the trial court jury instructions based on Justice Kennedy’s opinion in Rapanos was proper. Accordingly, the “significant nexus” test of Justice Kennedy was satisfied based on the evidence. The appellate court also held that the definition of WOTUS was not too vague to be enforced. Thus, there was no due process violation. The defendant had fair warning that his conduct was criminal based on the holding of Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007) where the court held that Justice Kennedy’s concurrence in Rapanos was the controlling test for determining CWA jurisdiction. That opinion was issued several years before the defendant engaged in his excavation activities. Subsequent Ninth Circuit caselaw had not changed that as not being clearly irreconcilable. In any event, the case the defendant claimed changed the test for CWA jurisdiction in the Ninth Circuit was decided after the defendant’s dredging and pond construction activities. In addition, the appellate court determined that there was no double jeopardy violation when the trial court did not grant his motion to acquit after the jury deadlocked at his first trial. The appellate court also held that the trial court property allowed into evidence the “U.S. Army Corps of Engineers Jurisdictional Determination Form Instruction Guidebook” because the Corps used it to make jurisdictional determinations and it discusses the applicable regulations and law. United States v. Robertson, 875 F.3d 1281 (9th Cir. 2017).

Posted September 23, 2017

Prior Converted Cropland Exception to CWA Jurisdiction Inapplicable. The plaintiff, a developer, obtained title to a 100-acre tract on the southeast side of Chicago metro area in 1995. The local town then passed a zoning ordinance allowing development of the property. The tract was divided into three sections - 25 acres were to be developed into 168 townhomes; 61 acres to be developed into 169 single-family homes; and 14 acres in between the other acreages to function as a stormwater detention area. The townhomes and water detention area was to be developed first and then the single-family housing. Construction of the townhomes began in 1996, and the single-family housing development was about to begin when the defendant designated about 13 acres of the undeveloped property as “wetlands” and asserted regulatory jurisdiction under the Clean Water Act (CWA). The defendant claimed jurisdiction on the basis that the “wetland” drained via a storm sewer pipe to a creek that was a tributary to a river that was a navigable water of the U.S. The plaintiff administratively appealed the defendant’s jurisdictional determination to the Division Engineer who agreed that the District Engineer failed to properly interpret and apply the U.S. Supreme Court decision in Rapanos v. United States, 547 U.S. 715 (2006). On reconsideration, the District Engineer issued a second approved jurisdictional determination in 2010 concluding that the tract had a significant nexus to the navigable river. The plaintiff appealed, but the Division Engineer dismissed the appeal as being without merit. In 2011, the plaintiff sought reconsideration of the defendant’s appeal decision because of a 1993 prior converted cropland designation that excluded a part of the 100-acres from CWA jurisdiction. Upon reconsideration, the District Engineer issued a third jurisdictional determination in 2012 affirming its prior determination noting that farming activities had ceased by the fall of 1996 and wetland conditions had returned. The plaintiff appealed on the basis that the “significant nexus” determination was not supported by evidence. The Division Engineer agreed and remanded the matter to the District Engineer for supportive documentation and to follow the defendant’s 2008 administrative guidance. The District Engineer issued a new jurisdictional determination with supportive evidence, including an 11-page document that had previously not been in the administrative record. This determination, issued in 2013, constituted a final agency determination, from which the plaintiff sought judicial review. The plaintiff claimed that the defendant didn’t follow its own regulations, disregarded the instructions of the Division Engineer, and violated the Administrative Procedures Act (APA) by supplementing the record with the 11-page document. The court noted that existing regulations allowed the Division Engineer, on remand, to instruct the District Engineer to supplement the administrative record on remand and that the limitation on supplementing the administrative record only applied to the Division Engineer. The court also determined that the supplemental information did not violate the Division Engineer’s remand order, and that the supplemental information had been properly included in the administrative record and was part of the basis for the 2013 reviewable final agency determination. The court also upheld the defendant’s nexus determination because it sufficiently documented a physical, chemical and biological impact of the navigable river. The court also determined that the prior converted cropland exemption did not apply because farming activities had been abandoned for at least five years and wetland characteristics returned. The court noted that the defendant and the Environmental Protection Agency (EPA) had jointly adopted a rule in 1993 adopting the NRCS exemption for prior converted cropland. While the joint regulation did not refer to the abandonment exception, the defendant and EPA did explain in the Federal Register that they would use the NRCS abandonment provisions such that prior converted cropland that is abandoned and exhibits wetland characteristics are jurisdictional wetlands under the CWA. The court noted that prior caselaw had held that the CWA’s exemption of “prior converted croplands” included the abandonment provision, and that it would apply the same rationale in this case. The court noted that the specific 13-acre parcel at issue in the case had not been farmed since 1996, and that conversion to a non-ag use did not remove the abandonment provision. The plaintiff also claimed that the wetlands at issue were “artificial” wetlands (created by adjacent development) under 7 C.F.R. §12.2(a) that were not subject to the defendant’s jurisdiction. However, the court noted that the defendant never adopted the “artificial wetland” exemption of the NRCS and, therefore, such a classification was inapplicable. The court granted the defendant’s cross motion for summary judgment. Orchard Hill Building Co. v. United States Army Corps of Engineers, No. 15-cv-06344, 2017 U.S. Dist. LEXIS 151673 (N.D. Ill. Sept. 19, 2017).

Posted September 21, 2017

Animal Feeding Operation Did Not Need Pollutant Discharge Permit. Rolling Green Family Farms, an animal feeding operation applied to the North Dakota Department of Health, the defendant in this case, for an animal feeding operation permit. The application stated that Rolling Green planned to have a 9,056-head swine sow facility. The defendant issued a public notice of its intent to issue a permit and held a public hearing. Over 130 people attended the hearing including the surrounding landowners, plaintiffs in this case. After the comment period ended, the defendant issued its response and subsequently issued the animal feeding operation permit to Rolling Green. The landowners appealed to the district court arguing that the permit was not in accordance with the law because a North Dakota pollutant discharge elimination system (NDPDES) permit was required. The district court affirmed the defendant’s permit decision and the plaintiffs again appealed. The plaintiffs argued that N.D. Admin. Code §§ 33-16-03.1-05(1) and 33-16-03.1-03(4) required Rolling Green to obtain a NDPDES permit because it is a concentrated animal feeding operation housing more than 2,500-head of swine. The defendant claimed that current EPA rules require only discharging facilities to obtain an NPDES permit. The court determined that even if the rules could be read as requiring a non-discharging facility to apply for an NPDES permit, such requirement would not be grounds for denying this permit or issuing any type of enforcement action against the facility. In addition, the court pointed out that the federal Clean Water Act regulations only require operations that actually discharge pollutants to apply for a pollutant discharge elimination system permit. Thus, the court determined that the defendant should amend its rule to make it consistent with the federal regulation, but that the current state rule would remain in effect until amended. However, the court also determined that reversing the decision and remanding for the defendant to apply its own state rules would be a useless act because Rolling Green could challenge the denial under N.D.C.C. § 23-01-04.1(5) because the state rule is more stringent than the corresponding federal rule. As a result, the court concluded that the defendant did err in failing to apply the state administrative rules but reversing the decision would be futile because Rolling Green could successfully challenge the denial. Consequently, the judgment of the district court was affirmed. Coon v. N.D. Dep’t of Health, No. 20170089, 2017 ND 215 (N.D. Sup. Ct. Aug. 30, 2017).

Posted August 19, 2017

Fact Issues Remain In WOTUS Jurisdiction Case. The EPA issued an enforcement order in early 2012 for the plaintiff’s work on his property done to flatten out the property so it could be developed. The EPA claimed that the defendant had filled-in streams on the property without first obtaining a dredge and fill permit under §404 of the Clean Water Act (CWA). The EPA claimed that the plaintiff had placed over 100,000 cubic yards of rock, dirt and debris on the property that buried almost 2,000 linear feet of streams. The EPA sought a fine in excess of $400,000. On cross motions for summary judgment, the court stated that it would accept either of two definitions for “waters of the United States” (WOTUS) – (1) a definition including “relatively permanent” waterways; or (2) a definition including anything that has a “significant nexus” to navigable waters. The plaintiff claimed that because one stream in question emptied into a hayfield and had no bank or bed of high-water mark, any connection to larger waterways downstream was broken resulting in no “relatively permanent water” flowing across the hayfield. The EPA claimed that they were required to look above and below breaks in stream connections when determining if areas such as the hayfield are “navigable waters of the United States” and that at least one of the “streams” constituted a “relatively permanent water.” The court ruled that the EPA had not violated the plaintiff’s due process rights or acted with political retribution, and also determined that factual matters remained regarding EPA jurisdiction over the property under the CWA based on either definition of WOTUS. Foster, et al. v. United States Environmental Protection Agency, No. 14-16744, 2017 U.S. Dist. LEXIS 129103 (S.D. W. Va. Aug. 14, 2017).

Posted July 22, 2017

Government’s Land Ownership Enough to Convey CERCLA Liability. The plaintiff’s predecessor operated a molybdenum open pit mine largely on land that the defendant, the federal government, owned. The plaintiff’s predecessor disposed of 324 million tons of rock waste and 100 million tailings on the property. The property was listed as a “Superfund” site in accordance with the Comprehensive Environmental Response Compensation Liability Act (CERCLA). The plaintiff began the process of cleaning up the waste rock that had been dumped on the site along with tailings, and the estimated cleanup cost was pegged between $517 and $889 million (not including the costs that the plaintiff had already incurred). The plaintiff sued in 2013, claiming that the Department of the Interior and the Department of Agriculture were liable for the cleanup cost because they encouraged and financed the predecessor’s mining operation and also financed the predecessor’s mining and waste disposal activities at the site which resulted in soil and water contamination. The trial court determined that the defendant’s ownership of the land was insufficient to convey CERCLA liability and granted the defendant’s motion for summary judgment. On appeal, the appellate court reversed. The appellate court noted that the term “owner” for CERCLA liability purposes covers entities that are fee owners, such as the defendant. The appellate court took particular note that the defendant did much more than passively hold title by encouraging mining activities on the land, loaning funds so that the predecessor’s mining operation could function, and approving permits. The court noted that those facts meant that the defendant had actual knowledge of mining activities on its property. While the defendant was found liable as an “owner” under CERCLA, the appellate court determined that the defendant was not also liable under CERCLA as an “arranger.” On that point, the appellate court noted that the defendant neither owned nor possessed the waste rock or tailings from the predecessor’s mining activities as required by CERCLA’s arranger liability provision. Chevron Mining, Inc. v. United States, No. 15-2209, 2017 U.S. App. LEXIS 12959 (10th Cir. Jul. 19, 2017).

Posted April 14, 2017

EPA Rule Exempting Farms From Air Release Reporting Vacated. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA), the federal government is to be notified when large quantities of hazardous materials are released into the environment. Once notified, the Environmental Protection Agency (EPA) has discretion to take remedial actions or order further monitoring or investigation of the situation. In 2008, the EPA issued a final regulation exempting farms from the reporting/notification requirement for air releases from animal waste on the basis that a federal response would most often be impractical and unlikely. However, the EPA retained the reporting/notification requirement for Confined Animal Feeding Operations (CAFOs) under EPCRAs public disclosure rule. Various environmental activist groups challenged the exemption in the final regulation on the basis that the EPA acted outside of its delegated authority to create the exemption. Agricultural groups claimed that the carve-out for CAFOs was also impermissible. The environmental groups claimed that emissions of ammonia and hydrogen sulfide (both hazardous substances under CERCLA) should be reported as part of furthering the overall regulatory objective. The court noted that there was no clear way to best measure the release of ammonia and hydrogen sulfide, but noted that continuous releases are subject to annual notice requirements. The court held that the EPA’s final regulation should be vacated as an unreasonable interpretation of the de minimis exception in the statute. As such, the challenge brought by the agriculture groups to the CAFO carve out was mooted and dismissed. Waterkeeper Alliance, et al. v. Environmental Protection Agency, No. 09-1017, 2017 U.S. App. LEXIS 6174 (D.C. Cir. Apr. 11, 2017).

Posted April 13, 2017

Farm Groups Have Standing To Bring “Reverse” FOIA Suit. In 2008, the Government Accounting Office (GAO) issued a report stating that the Environmental Protection Agency (EPA) had inconsistent and inaccurate information about confined animal feeding operations (CAFOs), and recommended that EPA compile a national inventory of CAFO’s with NPDES permits. Also, as a result of a settlement reached with environmental activist groups, the EPA agreed to propose a rule requiring all CAFOs to submit information to the EPA as to whether an operation had an NPDES permit. The information required to be submitted had to provide contact information of the owner, the location of the CAFO production area, and whether a permit had been applied for. Upon objection by industry groups, the proposed rule was withdrawn and EPA decided to collect the information from federal, state and local government sources. Three environmental activist groups submitted Freedom of Information Act (FOIA) requests to obtain the EPA’s records containing CAFO information. In response, the EPA released information gathered from 28 states and from the EPA’s data systems. The released information contained the CAFO owner’s name and mailing address, email address and primary telephone number. When ag groups were notified of the release, the EPA agreed to look into whether it had disclosed information that was not publicly available that could trigger FOIA privacy concerns. The EPA determined that the records released that had been obtained from 19 states were not eligible for exemption from FOIA under 5 U.S.C. §552(b)(6) because the information was publicly available over the internet. The EPA obtained additional information about CAFOs, and various environmental activist groups filed a FOIA request. Some of the requested information include the CAFO owner’s legal name and mailing address, email address, and telephone number. EPA released information gathered from 28 states, and from its own data systems. The plaintiffs, two national ag groups, sued seeking an order to bar the EPA from making additional disclosures of personal information already collected, and recalling the personal information already released. The plaintiffs claimed that the EPA abused its discretion and acted arbitrarily and capriciously by releasing the information. Several environmental activist groups intervened in support of the disclosure. The trial court granted summary judgment for the EPA on the basis that the plaintiff lacked standing. On appeal, the court reversed, finding that that trial court improperly addressed the merits of the plaintiffs’ claim rather than the standing issue, and noted that the claims were still live because the EPA had proposed to release more information from seven states (including Minnesota). The appellate court noted that an individual’s interest in controlling the dissemination of information regarding personal matters does not disappear simply because the information may be publicly available in some form. Here, the EPA made it much easier for the activist groups to identify and target particular CAFOs. Accordingly, the appellate court held that the disclosure would invade a substantial privacy interest of the CAFO owners and further little public interest recognizable under FOIA. As such, the records were exempt from public disclosure, and the EPA had abused its discretion in determining that the exemption from mandatory FOIA disclosure did not apply. The court remanded on the issue of injunctive relief to bar the EPA from disclosing the additional records. American Farm Bureau Federation v. United States Environmental Protection Agency, No. 15-1234, 2016 U.S. App. LEXIS 16623 (8th Cir. Sept. 9, 2016).

Note: On March 27, 2017, the court approved a settlement agreement ending the litigation between the parties. Under the terms of the settlement, only the city, county, zip code and permit status of an operation will be released. EPA is also required to conduct training on FOIA, personal information and the Privacy Act.

Posted March 29, 2017

Court Says Endangered Species Act Applies to Threatened Species On Private Land With No Interstate Connection. The plaintiffs were landowners in Utah whose experienced problems with the prevalence of the Utah prairie dog damaging their tracts. The Utah prairie dog is a threatened species under the Endangered Species Act (ESA) and has approximately 70 percent of its population on private land. The Utah prairie dog is found only in Utah, and its population has increased about 12 times over since 1973. As a threatened species, the U.S. Fish and Wildlife Service (USFWS) issued a special rule regulating the “taking” of the Utah prairie dog. Under the rule, “taking” was limited to agricultural land, property within one-half mile of conservation land and areas where the species creates serious human safety hazards or disturb the sanctity of significant cultural or burial sites. Incidental taking is allowed if it occurs as part of standard agricultural practices. The plaintiffs challenged the rule as applied to private land as not authorized under either the Commerce Clause or the Necessary and Proper Clause of the U.S. Constitution and sought declaratory and injunctive relief. The trial court granted the plaintiffs motion for summary judgment on the basis that the Commerce Clause does not authorize the Congress to enact legislation authorizing the regulation of the taking of a purely intrastate species without a substantial effect on interstate commerce and the Necessary and Proper Clause did not authorize the regulation of taking of the species because the regulation is not essential to the ESA’s economic scheme. The government appealed. On review, the appellate court reversed. The appellate court determined that the “substantial effect” on interstate commerce was to be determined under the rational basis standard. Under that standard, the appellate court held that the Congress has the power to regulate purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce. Thus, because (in this court’s view) the Commerce Clause authorized the regulation of noncommercial purely intrastate activity that is an essential part of a broader regulatory scheme, the “take” regulation was constitutional. The appellate court noted that approximately 68 percent of ESA-protected species have habitats that do not cross state borders, as such the court reasoned that the ESA could be severely undercut if the ESA only allowed protection to those species whose habitats were in multiple states. People for the Ethical Treatment of Property Owners v. Unites States Fish and Wildlife Service, No. 14-4151, 2017 U.S. App. LEXIS 5440 (10th Cir. Mar. 29, 2017).

Posted March 7, 2017

County Decision Approving CAFO Upheld. The defendant approved a Concentrated Animal Feeding Operation (CAFO) conditional use permit (CUP) for a 5,500-head dairy operation. A nearby landowner challenged the defendant’s decision on the basis that the defendant had failed to conduct due diligence in determining that proposed CAFO would not create significant pollution. The landowner also claimed that the defendant failed to consider the need for odor control measures, the applicant’s current and past environment violations, and whether the defendant followed its ordinances concerning setback requirements. The landowner also claimed that the defendant didn’t fully consider the nutrient and manure management plans. The trial court upheld the defendant’s approval, finding that there was no evidence that the defendant acted fraudulently or in arbitrary ow willful disregard of any undisputed and indisputable proof. The court also noted that the defendant’s land use ordinance specifically gives the defendant the ability to hear and decide on CUPs. In addition, the court held that the defendant and the state (SD) Department of Environmental and Natural Resources have the authority to oversee the applicant’s ability to follow the rules governing the CAFO and enforce them. On further review, the SD Supreme Court affirmed, but remanded on one issue. The Supreme Court determined that the defendant regularly pursued its authority under state law in granting CUPs and monitoring them to ensure that their conditions were satisfied. The Supreme Court also held that the landowners were not denied due process based on the applicant’s manure management plan. The Court determined that a new plan had not been presented during the hearing, so there was nothing that hadn’t been subject to the public notice requirement and the landowner’s due process rights had not been violated. The Court also determined that the defendant did not act with bias against the landowner and gave them an opportunity to speak out at the public hearing. However, the Court remanded on the point that the defendant mistakenly believed that past environmental violations are never relevant in considering whether to approve a CUP for a CAFO. Adolph v. Grant County Board of Adjustment, et al., No. 27884, 2017 S.D. LEXIS 26 (S.D. Sup. Ct. Mar. 1, 2017).

Oil Companies Need Not Return Land to its “Natural State.” The plaintiff oversaw coastal lands and claimed that the defendants’ (various oil and gas companies) exploration activities off of the Gulf of Mexico coast caused infrastructural and ecological damage to coastal lands that increased the risk of flooding due to storm surges and required costly protection measures. The case was originally brought in state court, but was moved to federal court on the basis that the case raised a federal issue. The trial court granted the defendants’ motion to dismiss and the appellate court affirmed. The case was properly in the federal court because the claim involved alleged damage to a federal levee system and associated claims. The appellate court also noted that state (LA) law does not require oil companies to return land to its “natural state” based on a 2005 LA Supreme Court opinion finding that the LA mineral code “does not impose an implied duty to restore the surface to its original, pre-lease condition absent proof that the lessee exercised his rights under the lease unreasonably or excessively.” The appellate court also held that the requirements of the Rivers and Harbors Act of 1899, the Clean Water Act and the Coastal Zone Management Act did not extend to the protection of the levee authority. The court reasoned that the Rivers and Harbors Act did not impose a duty to protect the plaintiff, the Clean Water Act dredge and fill permit requirement did not establish any private duty owed to the plaintiff, and the issuance of permits for exploration activities under the Coastal Zone Management Act did not impose a private duty to prevent environmental damage. Thus, the defendants had no duty to protect the plaintiff from higher flood protection costs that might arise from coastal erosion that might be the result of the defendants’ dredging activities. Board of Commissioners of the Southeast Louisiana Flood Protection Authority – East, et al. v. Tennessee Gas Pipeline Co., L.L.C., No. 15-30162, 2017 U.S. App. LEXIS 3865 (5th Cir. Mar. 3, 2017).

Posted February 25, 2017

Allegation of Future Restrictions on Water Rights Not Enough To Confer Standing. The plaintiffs claimed that the defendant (various federal agencies) did not conduct a required formal consultation under Section 7 of the Endangered Species Act (ESA) for a 2013 release of water from a dam in an amount exceeding the dam’s designated applicable water release schedule. The plaintiffs claimed that the release injured them by forcing them to place stricter restrictions on the operation of the Central Valley Project which would restrict water deliveries thereby negatively impacting the winter and spring run of salmon. The court held that the plaintiffs lacked standing on the basis that the alleged injuries were merely speculative. San Luis & Delta-Mendota Water Authority, et al. v. Haugrud, et al., No. 14-17493, 2017 U.S. App. LEXIS 2924 (9th Cir. Feb. 21, 2017).

Label-Based Claim Not FIFRA Preempted. The defendant manufactures a chemical weed killer. The labels on the bottles of the weed killer specify the amount of chemical to mix with water to make a certain amount of product that can be applied to weeds. An additional label was taped to the back of the bottles and sealed tight such that it could not be removed without tearing unless very careful effort was used. The plaintiff followed the label instructions and claimed that the mixture made substantially less weed killer than the label stated. The plaintiff sued claiming violations of the Magnuson-Moss Warranty Act (MMWA), the state (CA) Consumer Legal Remedies Act, CA False Advertising Law, CA Unfair Competition Law, as well as breach of express warranty and breach of the implied warranty of merchantability. The defendant moved to dismiss the state-based claims due to preemption by the Federal Insecticide Fungicide Rodenticide Act (FIFRA), and that there was no breach of warranty or other state law provisions. On the FIFRA preemption claim, the court rejected the defendant’s motion on the basis that none of the state law provisions claimed to have been violated imposed any requirement for labeling or packaging in addition to or different from FIFRA requirements. But, the court noted that any injunctive relief that would dictate the contents of the defendant’s EPA-approved label, or which would require the defendant to change the contents of its label is preempted by FIFRA. But, restitution and damages are not preempted. The court, however, did find that the defendant did not violate the MMWA because the label statement that the product would make a certain number of gallons did not constitute a “written warranty” within the meaning of the MMWA which narrowly defines the term. The balance of the defendant’s remaining arguments were rejected. Martin v. Monsanto Co., No. ED CV 16-2168-JFW (SPX), 2017 U.S. Dist. LEXIS 22565 (C.D. Cal. Feb. 16, 2017).

Posted February 20, 2017

COE Jurisdictional Determination Subject to Court Review. The plaintiff, a peat moss mining company, sought the approval of the Corps of Engineers (COE) to harvest a swamp (wetland) for peat moss to use in landscaping projects. The COE issued a jurisdictional determination that the swamp was a wetland subject to the permit requirements of the Clean Water Act (CWA). The plaintiff sought to challenge the COE determination, but the trial court, in a highly disingenuous opinion in light of the unanimous U.S. Supreme Court opinion in Sackett v. Environmental Protection Agency, 566 U.S. 20 (2012), ruled for the COE, holding that the plaintiff had three options: (1) abandon the project; (2) seek a federal permit costing over $270,000; or (3) proceed with the project and risk fines of up to $75,000 daily and/or criminal sanctions including imprisonment. On appeal, the court unanimously reversed, strongly criticizing the trial court's opinion. Based on Sackett, the court held that COE Jurisdictional Determinations constitute final agency actions that are immediately appealable in court. The court noted that to hold elsewise would allow the COE to effectively kill the project without any determination of whether it's position as to jurisdiction over the wetland at issue was correct in light of Rapanos v. United States, 547 U.S. 715 (U.S. 2006). The court noted that the COE had deliberately left vague the "definitions used to make jurisdictional determinations" so as to expand its regulatory reach. While the COE claimed that the jurisdictional determination was merely advisory and that the plaintiff had adequate ways to contest the determination, the court determined that such alternatives were cost prohibitive and futile. The court stated that the COE's assertion that the jurisdictional determination (and the trial court's opinion) was merely advisory ignored reality and had a powerful coercive effect. The court held that the Fifth Circuit, which reached the opposition conclusion with respect to a COE Jurisdictional Determination in Belle Co., LLC v. United States Army Corps. of Engineers, 761 F.3d 383 (5th Cir. 2014), cert. den., 83 U.S.L.W. 3291 (U.S. Mar. 23, 2015), misapplied the Supreme Court's decision in Sackett. Hawkes Co., Inc., et al. v. United States Army Corps of Engineers, 782 F.3d 984 (8th Cir. 2015), rev'g., 963 F. Supp. 2d 868 (D. Minn. 2013). In a later decision, the court denied a petition to rehear the case en banc and by the panel. Hawkes Co., Inc., et al. v. United States Army Corps of Engineers, No. 13-3067, 2015 U.S. App. LEXIS 11697 (8th Cir. Jul. 7, 2015). In December of 2015, the U.S. Supreme Court agreed to hear the case and affirmed the Eighth Circuit on May 31, 2016. The Court, in a unanimous opinion, noted that the memorandum of agreement between the EPA and the Corps established that jurisdictional determinations are “final actions” that represent the Government’s position, are binding on the Government in any subsequent Federal action or litigation involving the position taken in the jurisdictional determination. When the landowners received an “approved determination” that meant that the Government had determined that jurisdictional waters were present on the property due to a “nexus” with the Red River of the North, located 120 miles away. As such, the landowners had the right to appeal in Court after exhausting administrative remedies and the Government’s position take in the jurisdictional determination was judicially reviewable. Not only did the jurisdictional determination constitute final agency action under the Administrative Procedure Act, it also determined rights or obligations from which legal consequences would flow. That made the determination judicially reviewable. United States Army Corps of Engineers v. Hawkes Company, No. 15-290, 2016 U.S. LEXIS 3489 (U.S. Sup. Ct. May 31, 2016).

On remand, the trial court granted summary judgment for the plaintiff on the grounds that the plaintiff’s property did not constituted “waters of the United States” that the defendant had jurisdiction over. The court determined that the government did not establish a “significant nexus” under the Rapanos standard between the plaintiff’s property and the Red River 93 miles away that the defendant claimed were connected via ditches and seasonal tributaries. The court noted that there was insufficient evidence that groundwater contributed to the tributaries or that there existed sufficient water in the tributaries. There was also no evidence with respect to the extent of water flowing from the man-made ditch connecting the plaintiff’s property to the tributaries. The defendant also did not present water quality data or that nutrients were transported from the plaintiff’s property to the Red River. The court also determined that the Jurisdictional Determination was not based on the “significant nexus” standard of Rapanos and was arbitrary and capricious. The court entered an injunction that ordered the defendant to not assert jurisdiction over the plaintiff’s property. In doing so, the court determined that the defendant had an adequate chance to develop a record which negated a remand back to the defendant to address the evidentiary inadequacies. Hawkes Co., Inc., et al. v. United States Army Corps of Engineers, No. 13-107 ADM/TNL, 2017 U.S. Dist. LEXIS 10680 (D. Minn. Jan. 24, 2017).

Posted February 15, 2017

State Inaction on TMDLs is a “Constructive Submission” That EPA Must Act On. In response to state legislation, the West Virginia Department of Environmental Protection (WVDEP) did not develop total maximum daily loads (TMDLs) related to ionic toxicity. The plaintiff, an environmental activist group, sued the defendant (U.S. EPA) when the defendant did not take action to force the WVDEP to promulgate a TMDL for waters that the WVDEP and the U.S. Environmental Protection Agency (EPA) had identified as impaired. While the court noted that the Clean Water Act (CWA) provides the EPA with discretion in either approving or disapproving state TMDL submissions, the court held that the failure of a state to submit a TMDL is a “constructive submission” to the EPA of no TMDLs which the EPA must then review. The Clinton-appointed judge issuing the opinion admitted that his theory of constructive submission was one that he had to “gin up” in order to have a mechanism to “require the EPA to step in when states don’t comply with the CWA.” Ohio Valley Environmental Coalition, Inc., et al. v. McCarthy, NO: 3:15-0271, 2017 U.S. Dist. LEXIS 20392 (S.D. W. Va. Feb. 14, 2017).

Posted January 28, 2017

Under Iowa Law A Political Subdivision Cannot Sue Another. The plaintiff, a municipal waterworks that provides drinking water to a metropolitan area, sued upstream drainage districts for money damages and other remedies to recover its costs to remove nitrates (as required by the Federal Safe Drinking Water Act) from river water. The case was filed in federal court, but involved several state (IA) related questions. The federal court certified the state questions to the IA Supreme Court. On the question of whether drainage districts had unqualified immunity from all of the damage claims in the complaint, the Court held that they do based on the fact that drainage districts were formed over a century ago with a limited and targeted role to drain farmland so that it is more productive and are presumed to benefit the public. The Court pointed out that the immunity precedent was reaffirmed in 2012 when the Court held that a railroad could not sue a drainage district for the railroad’s costs incurred in repairing underground drainage tile (Chicago Central & Pacific Railroad v. Calhoun County Board of Supervisors, 816 N.W.2d 367 (Iowa 2012)), and that it has been IA precedent for over 100 years. As for another question, the Court noted that the plaintiff, as a political subdivision, cannot make a constitutional challenge to the drainage district statute. The only remedy the plaintiff would have is a mandamus action to make the defendant do something that it is statutorily required to do – and there is no statutory duty to filter out nitrates. The broad immunity granted to drainage districts is not unconstitutional. Relatedly, the Court answered another certified question with respect to whether the plaintiff could raise constitutional protections of inalienable rights, due process, equal protection and takings in the negative. The Court noted that those Constitutional provisions existed to protect citizens against overreaching government, which was not the case before the Court. The Court noted that even if the plaintiff could assert those Constitutional protections, that the increased need to treat nitrates from river water to meet standards for kitchen tap water would not rise to a constitutional violation. Board of Water Works Trustees of the City of Des Moines v. Sac County, et al., No. 16-0076, 2017 Iowa Sup. LEXIS 7 (Iowa Sup. Ct. Jan. 27, 2017).

Posted January 19, 2017

EPA “Water Transfers Rule” Is a Reasonable Interpretation of the Clean Water Act. New York City draws its drinking water from the Catskill Mountain/Delaware River watershed and other nearby rivers. The movement of the water is a “water transfer” that conveys or connects waters of the United States without subjecting those waters to any intervening industrial, municipal, or commercial use. The Environmental Protection Agency (EPA) does not subject waters transfers to the National Pollution Discharge Elimination System (NPDES) permit process under the Clean Water Act (CWA). See 73 Fed. Reg. 33,697-708 (Jun. 13, 2008), codified at 40 C.F.R. §122.3(i)). The plaintiffs, environmental activist groups, challenged the EPA position that the water transfer for the NY drinking supply should be subject to the NPDES system. The trial court, finding that the EPA position was entitled to Chevron deference, nevertheless determined that the EPA’s position was an unreasonable interpretation of the CWA and was invalid under the Chevron standard. The trial court vacated the rule and remanded it to the EPA for further assessment. On appeal, the appellate court reversed. The appellate court determined that the CWA was silent on the issue of whether an NPDES permit is required for water transfers, which then required a determination of the reasonableness of the EPA position under a basic standard that the courts not second-guess the EPA interpretation when the statute at issue is silent. The appellate court determined that the EPA interpretation was supported by valid considerations – the CWA did not require that water quality be improved when it is transferred; the rule preserves state authority over many aspects of water regulation; the rule gives regulators flexibility to balance the need to improve water quality with the potentially high costs of compliance with an NPDES permitting program; and allows for several alternative means for regulating water transfers. Thus, the EPA’s statutory interpretation was reasonable. Catskill Mountains Chapter v. United States Environmental Protection Agency, No. 14-1823, 2017 U.S. App. LEXIS 914 (2d Cir. Jan. 18, 2017).

Posted January 6, 2017

EPA Within Its Rights To Not Impose Limits on Fertilizer Runoff. Numerous environmental groups sued the EPA to force them to impose limits on fertilizer runoff from farm fields. The groups claimed that many states hadn’t done enough to control nitrogen and phosphorous pollution from agricultural runoff, and that the EPA was required to mandate federal limits under the Administrative Procedure Act – in particular, 5 U.S.C. §553(e) via §303(c)(4) of the CWA. Initially, the groups told the EPA that they would sue if the EPA did not write the rules setting the limits as requested. The EPA essentially ignored the groups’ petition by declining to make a “necessity determination. The groups sued and the trial court determined that the EPA had to make the determination based on a 2007 U.S. Supreme Court decision involving the Clean Air Act (CAA). That decision was reversed on appeal on the basis that the EPA has discretion under §303(c)(4)(B) of the CWA to decide not to make a necessity determination as long as the EPA gave a “reasonable explanation” based on the statute why it chose not to make any determination. The appellate court noted that the CWA differed from the CAA on this point. On remand, the trial court noted upheld the EPA’s decision not to make a necessity determination. The court noted that the CWA gives the EPA “great discretion” when it comes to regulating nutrients, and that the Congressional policy was to leave regulation of diffused surface runoff up to the states. The court gave deference to the EPA’s "comprehensive strategy of bringing the states along without the use of federal rule making…". Gulf Restoration Network v. Jackson, No. 12-677 Section: "A" (3), 2016 U.S. Dist. LEXIS 173459 (E.D. La. Dec. 15, 2016).

EPA TMDL Approval Doesn’t Mean that Stormwater Discharges Need Permit. The plaintiff claimed that the EPA’s approval of the state TMDL for a waterbody constituted a determination that particular stormwater discharges were contributing to the TMDL being exceeded and that federal permits were thus necessary. The court, however, determined that the EPA’s approval of the TMDL did not mean that EPA had concluded that stormwater discharges required permits. The court noted that there was nothing in the EPA’s approval of the TMDL indicating that the EPA had done its own fact finding or that EPA had independently determined that stormwater discharges contributed to a violation of state water quality standards. The regulations simply do not require an NPDES permit for stormwater discharges to waters of the United States for which a TMDL has been established. A permit is only required when, after a TMDL is established, the EPA makes a determination that further controls on stormwater are needed. Conservation Law Foundation v. United States Environmental Protection Agency, No. 15-165-ML, 2016 U.S. Dist. LEXIS 172117 (D. R.I. Dec. 13, 2016).

Posted September 11, 2016

Farm Groups Have Standing To Bring “Reverse” FOIA Suit. In 2008, the Government Accounting Office (GAO) issued a report stating that the Environmental Protection Agency (EPA) had inconsistent and inaccurate information about confined animal feeding operations (CAFOs), and recommended that EPA compile a national inventory of CAFO’s with NPDES permits. Also, as a result of a settlement reached with environmental activist groups, the EPA agreed to propose a rule requiring all CAFOs to submit information to the EPA as to whether an operation had an NPDES permit. The information required to be submitted had to provide contact information of the owner, the location of the CAFO production area, and whether a permit had been applied for. Upon objection by industry groups, the proposed rule was withdrawn and EPA decided to collect the information from federal, state and local government sources. Three environmental activist groups submitted Freedom of Information Act (FOIA) requests to obtain the EPA’s records containing CAFO information. In response, the EPA released information gathered from 28 states and from the EPA’s data systems. The released information contained the CAFO owner’s name and mailing address, email address and primary telephone number. When ag groups were notified of the release, the EPA agreed to look into whether it had disclosed information that was not publicly available that could trigger FOIA privacy concerns. The EPA determined that the records released that had been obtained from 19 states were not eligible for exemption from FOIA under 5 U.S.C. §552(b)(6) because the information was publicly available over the internet. The EPA obtained additional information about CAFOs, and various environmental activist groups filed a FOIA request. Some of the requested information include the CAFO owner’s legal name and mailing address, email address, and telephone number. EPA released information gathered from 28 states, and from its own data systems. The plaintiffs, two national ag groups, sued seeking an order to bar the EPA from making additional disclosures of personal information already collected, and recalling the personal information already released. The plaintiffs claimed that the EPA abused its discretion and acted arbitrarily and capriciously by releasing the information. Several environmental activist groups intervened in support of the disclosure. The trial court granted summary judgment for the EPA on the basis that the plaintiff lacked standing. On appeal, the court reversed, finding that that trial court improperly addressed the merits of the plaintiffs’ claim rather than the standing issue, and noted that the claims were still live because the EPA had proposed to release more information from seven states (including Minnesota). The appellate court noted that an individual’s interest in controlling the dissemination of information regarding personal matters does not disappear simply because the information may be publicly available in some form. Here, the EPA made it much easier for the activist groups to identify and target particular CAFOs. Accordingly, the appellate court held that the disclosure would invade a substantial privacy interest of the CAFO owners and further little public interest recognizable under FOIA. As such, the records were exempt from public disclosure, and the EPA had abused its discretion in determining that the exemption from mandatory FOIA disclosure did not apply. The court remanded on the issue of injunctive relief to bar the EPA from disclosing the additional records. American Farm Bureau Federation v. United States Environmental Protection Agency, No. 15-1234, 2016 U.S. App. LEXIS 16623 (8th Cir. Sept. 9, 2016).

Posted August 18, 2016

Government Didn’t Adequately Consider Alternative to Bat Deaths From Proposed Wind Farm. The U.S. Fish and Wildlife Service (USFWS) issued a permit to a wind energy company allowing for the killing (“taking”) a certain number of Indiana Bats as a consequence of the company’s proposed wind farm. The plaintiff claimed that the USFWS did not adequately consider reasonable alternatives that would have minimized the harm to the protected bats along with other wildlife as is required by the National Environmental Policy Act (NEPA) due to the significant impact on the environment by the proposed wind farm. The court noted that the USFWS did not consider the benefit of implementing a cut in the blade speed on bats rather than a shut-down at night. As such, the USFWS did not comply with its NEPA obligations to consider a feasible alternative. The court, however, did not find a violation of the Endangered Species Act. The value of the bats are estimated at $74 per crop acre in avoided pesticide use. Union Neighbors United, Inc. v. Jewell, No. 15-5147, 2016 U.S. App. LEXIS 14377 (D.C. Cir. Aug. 5, 2016).

Air Emissions of Hazardous Waste Don’t Create CERCLA Liability. The defendant operated a smelter approximately 10 miles into Canada north of the Washington border. In a prior action, the state of Washington and an Indian tribe obtained a court decision that the defendant could be held liable under the Comprehensive Environmental Response, Compensation Liability Act (CERCLA) for discharges of hazardous waste that cross into the United States. As a result, the plaintiffs amended their complaint to claim that the defendant arranged for disposal and thereby triggered CERCLA liability via emissions from its facility that the wind carried and deposited into the Columbia River. The trial court denied the defendant’s motion to dismiss on the basis that the air emission amounted to a “disposal” under CERCLA once deposited onto land or water. On appeal, while the court noted that the plaintiffs had posited a reasonable construction of CERCLA, the court cited its prior decision in Center for Community Action and Environmental Justice v. BNSF Railway Co,764 F.3d 1019 (9th Cir. 2014) where the court held that diesel particulate emissions “transported by wind and air currents” were not a “disposal” of waste within the meaning of the Resource Conservation Recovery Act, and its prior decision in Carson Harbor Village, Limited v. Unocal Corporation, 270 F.3d 863 (9th Cir. 2001) where the court held that mere passive migration does not constitute a disposal under CERCLA. Thus, air emissions are excluded from regulation under CERCLA. Pakootas v. Teck Cominco Metals, Ltd., No. 15-35228, 2016 U.S. App. LEXIS 13662 (9th Cir. Jul. 27, 2016).

Posted July 4, 2016

Right-Of-Way Grant For Development of Wind Energy Facility Did Not Violate MBTA. The Bureau of Land Management (BLM) granted a right-of-way to a wind energy company for use in the development and operation of a wind energy facility. The plaintiff, an activist group, filed suit against the Department of the Interior claiming that the BLM violated the Migratory Bird Treaty Act (MBTA) in granting the right-of-way based on possible future conduct of the wind energy facility (e.g., future bird fatalities). Specifically, the plaintiff claimed that the grant of the right-of-way should have been conditioned on the facility getting “take” permits from the U.S. Fish and Wildlife Service. The court rejected the plaintiff’s argument on the basis that the MBTA does not provide for the vicarious liability of agencies that act in a purely regulatory capacity. The court reasoned that was the case where the regulatory actions, like the one present in this case, do not directly or proximately cause the “take” of migratory birds. Thus, the BLM’s authorization for the facility to construct and operate a wind energy facility on public lands did not amount to an illegal “take” of migratory birds without a permit under the MBTA. The court also held that the BLM need not condition its right-of-way approval because the Administrative Procedures Act and the MBTA do not require the BLM to guarantee that the recipient of the right-of-way will comply with the MBTA in the future or require the BLM to ensure the recipient of the right-of-way would act lawfully in the future. The court made no ruling on whether the incidental “take” of migratory birds by a wind energy facility constituted an MBTA violation. The circuit courts are presently split on whether an incidental take is an MBTA violation with the Tenth Circuit in United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010), holding that the MBTA is a strict liability statute that does not have an intent requirement and that the MBTA is violated by the incidental take of migratory birds whenever the “take” is foreseeable. Protect our Communities Foundation v. Jewell, No. 14-55666, 2016 U.S. App. LEXIS 10269 (9th Cir. Jun. 7, 2016).

Posted June 25, 2016

Pasture Chiseling Activity Constituted Discharge of “Pollutant” That Violated the CWA. The plaintiff bought approximately 2,000 acres in northern California in 2012. Of that 2,000 acres, the plaintiff sold approximately 1,500 acres. The plaintiff retained an environmental consulting firm to provide a report and delineation map for the remaining acres and requested that appropriate buffers be mapped around all wetlands. The firm suggested that the plaintiff have the U.S. Army Corps of Engineers (COE) verify the delineations before conducting any grading activities. Before buying the 2,000 acres, the consulting firm had provided a delineation of the entire tract, noting that there were approximately 40 acres of pre-jurisdictional wetlands. The delineation on the remaining 450 acres of pasture after the sale noted the presence of intact vernal and seasonal swales on the property along with several intermittent and ephemeral drainages. A total of just over 16 acres of pre-jurisdictional waters of the United States were on the 450 acres – having the presence of hydric soils, hydrophytic vegetation and hydrology (1.07 acres of vernal pools; 4.02 acres of vernal swales; .82 acres of seasonal wetlands; 2.86 acres of seasonal swales and 7.40 acres of other waters of the United States). In preparation to plant wheat on the tract, the property was tilled at a depth of 4-6 inches to loosen the soil for plowing with care taken to avoid the areas delineated as wetlands. However, an officer with the (COE) drove past the tract and thought he saw ripping activity that required a permit. The COE sent a cease and desist letter and the plaintiff responded through legal counsel requesting documentation supporting the COE’s allegation and seeking clarification as to whether the COE’s letter was an enforcement action and pointing out that agricultural activities were exempted from the CWA permit requirement. The COE then provided a copy of a 1994 delineation and requested responses to numerous questions. The plaintiff did not respond. The COE then referred the matter to EPA for enforcement. The plaintiff sued the COE claiming a violation of his Fifth Amendment right to due process and his First Amendment right against retaliatory prosecution. The EPA refused the referral due to the pending lawsuit so the COE referred the matter to the U.S. Department of Justice (DOJ). The DOJ filed a counterclaim against the plaintiff for CWA violations. The court granted the government’s motion on the due process claim because the cease and desist letter did not initiate any enforcement that triggered due process rights. The court also dismissed the plaintiff’s retaliatory prosecution claim. On the CWA claim brought by the defendant, the court determined that the plaintiff’s owner could be held liable as a responsible party. The court noted that the CWA is a strict liability statute and that the intent of the plaintiff’s owner was immaterial. The court then determined that the tillage of the soil causes it to be “redeposited” into delineated wetlands. The redeposit of soil, the court determined, constituted the discharge of a “pollutant” requiring a national pollution discharge elimination system (NPDES) permit. The court reached that conclusion because it found that the “waters” on the property were navigable waters under the CWA due to a hydrological connection to a creek that was a tributary of Sacramento River and also supported the federally-listed vernal pool fairy shrimp and tadpole shrimp. Thus, a significant nexus with the Sacramento River was present. The court also determined that the farming equipment, a tractor with a ripper attachment constituted a point source pollutant under the CWA. The discharge was not exempt under the “established farming operation” exemption of 33 U.S.C. §1344(f)(1) because farming activities on the tract had not been established and ongoing, but had been grazed since 1988. Thus, the planting of wheat could not be considered a continuation of established and ongoing farming activities. Duarte Nursery, Inc. v. United States Army Corps of Engineers, No. 2:13-cv-02095-KJM-AC, 2016 U.S. Dist. LEXIS 76037 (E.D. Cal. Jun. 10, 2016).

Posted June, 13, 2016

Stay Entered in WOTUS Case. In a case filed in 2015 involving the EPA’s “waters of the United States” (WOTUS) rule, the court has now issued a “stay” pending a decision by the U.S. Court of Appeals for the Sixth Circuit, which has decided that it (and other federal court of appeals) have exclusive jurisdiction to hear the challenges to the WOTUS rule. Thus, it has become unclear, the court determined, whether the federal district courts retained any jurisdiction over any of the claims in the litigation over the rule. Because proceeding with the case in the district court could be duplicative of the Sixth Circuit litigation, the court entered the stay. North Dakota v. United States Environmental Protection Agency, No. 3:15-cv-59 (D. N.D. May 24, 2016).

Posted May 31, 2016

COE Jurisdictional Determination Subject to Court Review. The plaintiff, a peat moss mining company, sought the approval of the Corps of Engineers (COE) to harvest a swamp (wetland) for peat moss to use in landscaping projects. The COE issued a jurisdictional determination that the swamp was a wetland subject to the permit requirements of the Clean Water Act (CWA). The plaintiff sought to challenge the COE determination, but the trial court, in a highly disingenuous opinion in light of the unanimous U.S. Supreme Court opinion in Sackett v. Environmental Protection Agency, 132 S. Ct. 1367 (2012), ruled for the COE, holding that the plaintiff had three options: (1) abandon the project; (2) seek a federal permit costing over $270,000; or (3) proceed with the project and risk fines of up to $75,000 daily and/or criminal sanctions including imprisonment. On appeal, the court unanimously reversed, strongly criticizing the trial court's opinion. Based on Sackett, the court held that COE Jurisdictional Determinations constitute final agency actions that are immediately appealable in court. The court noted that to hold elsewise would allow the COE to effectively kill the project without any determination of whether it's position as to jurisdiction over the wetland at issue was correct in light of Rapanos v. United States, 547 U.S. 715 (U.S. 2006). The court noted that the COE had deliberately left vague the "definitions used to make jurisdictional determinations" so as to expand its regulatory reach. While the COE claimed that the jurisdictional determination was merely advisory and that the plaintiff had adequate ways to contest the determination, the court determined that such alternatives were cost prohibitive and futile. The court stated that the COE's assertion that the jurisdictional determination (and the trial court's opinion) was merely advisory ignored reality and had a powerful coercive effect. The court held that the Fifth Circuit, which reached the opposition conclusion with respect to a COE Jurisdictional Determination in Belle Co., LLC v. United States Army Corps. of Engineers, 761 F.3d 383 (5th Cir. 2014), cert. den., 83 U.S.L.W. 3291 (U.S. Mar. 23, 2015), misapplied the Supreme Court's decision in Sackett. Hawkes Co., Inc., et al. v. United States Army Corps of Engineers, 782 F.3d 984 (8th Cir. 2015), rev'g., 963 F. Supp. 2d 868 (D. Minn. 2013). In a later decision, the court denied a petition to rehear the case en banc and by the panel. Hawkes Co., Inc., et al. v. United States Army Corps of Engineers, No. 13-3067, 2015 U.S. App. LEXIS 11697 (8th Cir. Jul. 7, 2015). In December of 2015, the U.S. Supreme Court agreed to hear the case and affirmed the Eighth Circuit on May 31, 2016. The Court, in a unanimous opinion, noted that the memorandum of agreement between the EPA and the Corps established that jurisdictional determinations are “final actions” that represent the Government’s position, are binding on the Government in any subsequent Federal action or litigation involving the position taken in the jurisdictional determination. When the landowners received an “approved determination” that meant that the Government had determined that jurisdictional waters were present on the property due to a “nexus” with the Red River of the North, located 120 miles away. As such, the landowners had the right to appeal in Court after exhausting administrative remedies and the Government’s position take in the jurisdictional determination was judicially reviewable. Not only did the jurisdictional determination constitute final agency action under the Administrative Procedure Act, it also determined rights or obligations from which legal consequences would flow. That made the determination judicially reviewable. United States Army Corps of Engineers v. Hawkes Company, No. 15-290, 2016 U.S. LEXIS 3489 (U.S. Sup. Ct. May 31, 2016).

Posted April 16, 2016

Non-Listing of Wolverine as Threated Violated ESA. The U.S. Fish and Wildlife Service (FWS) made a determination that the wolverine should not be listed as a threatened species after first proposing to do so, but then withdrawing the proposal. In making its determination, the FWS determined that “global warming” (now referred to by its proponents as “climate change”) and projected spring snow cover would have no impact on the wolverine and its reproductive denning scale in the foreseeable future. In an 85-page opinion filled with politicized statements and conclusions, the court determined that the FWS erred in making such a determination, and also erred in concluding that small population size and low genetic diversity did not pose an independent threat to wolverine viability. The court held that the FWS decision to withdraw the listing proposal based on these determinations was arbitrary and capricious because the wolverine stood “squarely in the path of global climate change.” The court failed to make any mention of how the wolverine survived prior periods of significant warming that have been scientifically established or note that there is no sound scientific data supporting “global warming” presently. Defenders of Wildlife v. Jewell, No. CV 14-246-M-DLC, 2016 U.S. Dist. LEXIS 45532 (D. Mont. Apr. 4, 2016).

Posted April 12, 2016

NRCS Properly Determined Wetland Status of Farmland. The plaintiffs, a married couple, own farmland in the prairie pothole region of southeast South Dakota. The defendant determined that 0.8 acres of one of the plaintiffs’ field was a prairie pothole that was properly classified as a wetland that could not be farmed without the plaintiffs losing farm program eligibility. The plaintiffs administratively appealed the defendant’s determination to the USDA National Appeals Division (NAD), but failed to show (according to the NAD) that the determination was erroneous by a preponderance of the evidence because the defendant had followed the proper procedures in determining the wetland status of the 0.8 acres. The plaintiffs sought review of the NAD hearing officer’s decision, but the decision was upheld. From that decision, the plaintiffs’ sought judicial review. The plaintiffs did not dispute that the tract contained a predominance of hydric soils, but claimed that the tract did not contain the necessary hydrology (degree of flooding or soil saturation) to qualify as a wetland under the USDA guidelines. The plaintiffs also claimed that the tract would not support a prevalence of hydrophytic vegetation under normal circumstances. The trial court, however, granted the defendant’s motion for summary judgment on the basis that the defendant’s decision was not arbitrary, capricious or contrary to the law. On further review, the appellate court affirmed. The court determined that the defendant’s method for determining hydrology by using aerial photographs taken when the tract was under normal environmental conditions was proper, given that the tract was drier than normal during the defendant’s site visit and because the plaintiffs had tilled the tract such that it was not in its normal condition at the time of the site visit. The plaintiffs’ claim that the defendant had relied on “color tone” differences in the photographs to identify the tract as a wetland was dismissed because the defendant had actually identified some of the specifically authorized wetland signatures rather than just relying on changes in color tone. The court also rejected the plaintiffs’ claim that the defendant had relied on a comparison site too distant from the tract at issue that wasn’t within the local area as the regulations required. The comparison site chosen was 40 miles away but was within the same Major Land Resource Area. As such, the comparison site satisfied the regulatory criteria contained in 7 C.F.R. §12.31(b)(2) to find a similar tract in its natural vegetative state. Accordingly, the defendant’s use of the comparison site was not arbitrary, capricious or contrary to the law. Foster v. Vilsack, No. 14-3887, 2016 U.S. App. LEXIS 6538 (8th Cir. Apr. 11, 2016).

Posted April 1, 2016

Court Upholds USDA Determination That Farmland Contains Wetlands and Converted Wetlands. The plaintiff (and her now-deceased husband) has owned the farm at issue since the early 1980s. The farm has been continuously used for livestock and grain production for over 150 years. The tenants that farm the land participate in federal farm programs. In 1987, the plaintiffs were notified that the farm could contain wetlands due to the presence of hydric soils and, in 1991, the USDA made a non-certified determination of potential wetlands, prior converted wetlands and converted wetlands on the property. In 1994, the plaintiff’s husband noticed that passersby were dumping garbage on a portion of the property. To deter the garbage-dumping, the plaintiff’s husband cleaned up the garbage, cleared brush, and removed five trees initially and more trees several years later. In 2002, an attempt was made to place the farm in the Conservation Reserve Program, which triggered a field visit by USDA-NRCS. However, a potential wetland violation had been reported and NRCS was tasked with making a determination of whether a wet area had been converted to wetland after November 28, 1990. The petitioner’s husband requested a certified wetland determination, and in late 2002 the NRCS made a “routine wetland determination” that found all three criteria for a wetland (hydric soil, hydrophytic vegetation and hydrology) were present by virtue of comparison to adjacent property because the tract in issue was being farmed. The plaintiff’s husband was notified in early 2003 of a preliminary technical determination that 2.8 acres were converted wetlands and 1.6 acres were wetlands. The petitioner’s husband requested a reconsideration and a site visit. Two separate site visits were scheduled and later cancelled due to bad weather. The husband also timely notified NRCS that he was appealing the preliminary wetland determination and requested a field visit, asserting that NRCS had made a technical error. A field visit occurred in the spring of 2003 and a written appeal was filed of the preliminary wetland determination and a review by the state conservationist was requested. The appeal claimed that the field visit was inadequate. No site visit occurred, and a certified final wetland determination was never made.

The husband died, and nine years later a new tenant submitted a “highly erodible land conservation and wetland conservation certification” to the FSA. The tenant also requested permission to remove an old barn and house from a field to allow farming of that ground. In late 2012, the NRCS discovered that a final wetland determination had never been made and a field visit was scheduled shortly after a foot of snow and several inches of rain had fallen on the property. The NRCS determined that one field did not contain wetlands, another field had 1.3 acres of wetland, another field had 0.7 acres of converted wetlands and yet another field had 1.9 acres of converted wetlands. The plaintiff appealed the final technical determination to the USDA-NAD. The plaintiff claimed that drainage tile had been installed pre-1985 on the tracts where NRCS claimed converted wetland existed, and that another field with claimed wetlands was actually being used as pasture unlike the comparison site which was not being used. The plaintiff also claimed that the removal of trees and vegetation were not dispositive indicators of wetland and that improper comparison sites were used. A tiling company, however, discovered that no drainage tile had ever been installed on the subject tracts.

The USDA-NAD affirmed the certified final technical determination, and the plaintiff appealed, but the NAD Director affirmed. The plaintiff appealed, and the court affirmed on the basis that the removal of trees and vegetation had the “effect of making possible the production of an agricultural commodity” where the trees once stood and, thus, the NRCS determination was not arbitrary or capricious with respect to the converted wetland determination. The court also determined that NRCS followed regulatory procedures found in 7 C.F.R. §12.31(b)(2)(ii) for determining wetland status on the land that was being farmed by comparing the land to comparable tracts that were not being farmed. The court also noted that existing regulations do not require site visits during the growing season and “normal circumstances” of the land does not refer to normal climate conditions but instead refers to soil and hydrologic conditions normally present without regard to the removal of vegetation. The court also determined that the ten-year timeframe between the preliminary determination and the final determination did not deprive the plaintiff of due process rights. As a result, the court granted the government’s motion for summary judgment. Boucher v. United States Department of Agriculture, No. 1:13-cv-01585-TWP-DKL, 2016 U.S. Dist. LEXIS 23643 (S.D. Ind. Feb. 26, 2016).


U.S. Supreme Court Declines To Review TMDL Case. Section 303 (“Water Quality Standards and Implementation Plans”), requires states to adopt water-quality standards, to the extent not previously done, and to carry forward those already adopted subject to EPA approval. Standards are to be set for both interstate and intrastate waters, and the standards must be updated periodically and submitted to EPA for review and approval. The standards are to take into account the unique needs of each waterway including “propagation of fish and wildlife” as well as “agricultural...and other purposes.” Any state that fails to set water quality standards is subject to the EPA imposing its own standards on the state. Section 303 does not exempt any rivers or waters, but covers all waters to the full extent of federal authority over navigable waters. The states are to establish total maximum daily loads (TMDLs) for watercourses that fail to meet water quality standards after the application of controls on point sources. A TMDL establishes the maximum amount of a pollutant that can be discharged or “loaded” into the water at issue from all combined sources on a daily basis and still permit that water to meet water quality standards. A TMDL must be set “at a level necessary to implement water quality standards.” The CWA does not define TMDL, but the EPA’s regulations break it into a “waste load allocation” for point sources and a “load allocation” for nonpoint sources. TMDLs purpose is to limit the amount of pollutants in a watercourse on any particular date.

A significant question is whether the EPA has the authority to regulate nonpoint source pollutants under § 303 through the TMDL process and require reductions in nonpoint source discharges. In 2010, the EPA published a TMDL of nitrogen, phosphorous and sediment that can be released into the Chesapeake Bay watershed. The TMDL set forth a timetable for compliance by the affected states. In addition, states were required to determine how much agriculture had to reduce runoff by adopting new technology and conservation practices. The new rules were legally challenged in 2011 on the basis that the EPA lacked the authority to regulate individual pollutants from farmland and other specific sources, and that the EPA lacked the authority to regulate individual pollutants from farmland and other specific sources. In 2014, attorneys’ general from 21 states joined the lawsuit. In mid-2015, however, while the court held that likely economic injury in the form of higher compliance costs was sufficient to confer standing to challenge the TMDL, the court held that the EPA had acted within its authority under 33 U.S.C. §1251(d) in developing the TMDL. In early 2016, the U.S. Supreme Court declined to review the Third Circuit’s decision. American Farm Bureau, et al. v. United States Environmental Protection Agency, et al., 792 F.3d 281 (3d Cir. 2015), cert. den., No. 15-599, 2016 U.S. LEXIS 1074 (U.S. Sup. Ct. Feb. 29, 2016).


Road Salt Used on Streets Is Not “Solid Waste” For RCRA Purposes.The plaintiff sued the city of Omaha, Nebraska, for a violation of the federal Resource Conservation Recovery Act (RCRA), claiming that “hazardous waste” was “discarded” when rain water and melting snow “released” the salt into the environment. The trial court dismissed the complaint on the basis that the road salt did not satisfy RCRA’s definition of “solid waste.” On appeal, the court affirmed. The appellate court affirmed on the basis that the road salt was not “discarded” because it was released into the environment as a result of its intended use and, therefore, did not meet the RCRA definition of “solid waste.” Krause v. City of Omaha, No. 15-2985, 2016 U.S. App. LEXIS 3018 (8th Cir. Feb. 22, 2016).


Appellate Court To Decide Fate of EPA’s “Waters of the United States” Final Rule. The Clean Water Act makes illegal the discharging of dredge or fill material into the “navigable waters of the United States” without first obtaining a permit from the Secretary of the Army acting through the Corps of Engineers (COE). But what are the “waters of the United States”? It’s a phrase that has been the subject of many court cases since the early 1970s, and in 2006 the U.S. Supreme Court rendered its most recent opinion involving the scope of federal regulation over isolated wetlands in Rapanos, et ux., et al. v. United States Army Corps of Engineers, 126 S. Ct. 2208 (2006).

Unfortunately, the Court failed to clarify the meaning of the CWA phrase “waters of the United States” and the scope of federal regulation of isolated wetlands, and didn’t issue a majority opinion. Instead, the Court issued five separate opinions. The end result was that the concurring opinion written on the narrowest grounds became the holding of the Court. That was Justice Kennedy’s opinion. He said that the COE needed to establish a significant nexus on a case-by-case basis when seeking to regulate wetlands based on adjacency to non-navigable tributaries, in order to avoid unreasonable application of the CWA. That’s neither a clear victory for the landowners in the cases or the COE, and it didn’t provide clear guidance on the scope of “waters of the United States.” In subsequent years, the lower courts struggled to apply the Kennedy standard in cases involving alleged “waters of the United States” and the government’s ability to regulate activity involving those waters.

In March of 2014, the EPA and the COE released a proposed rule defining “waters of the United States” in a manner that would significantly expand the agencies’ regulatory jurisdiction under the CWA. Under the proposed rule, the CWA would apply to all waters which have been or ever could be used in interstate commerce as well as all interstate waters and wetlands. In addition, the proposed rule specifies that the agencies’ jurisdiction would apply to all “tributaries” of interstate waters and all waters and wetlands “adjacent” to such interstate waters. The agencies also asserted in the proposed rule that their jurisdiction applies to all waters or wetlands with a “significant nexus” to interstate waters. Under the proposed rule, “tributaries” is broadly defined to include natural or man-made waters, wetlands, lakes, ponds, canals, streams and ditches if they contribute flow directly or indirectly to interstate waters irrespective of whether these waterways continuously exist or have any nexus to traditional “waters of the United States.” The proposed rule defines “adjacent” expansively to include “bordering, contiguous or neighboring waters.” Thus, all waters and wetlands within the same riparian area of flood plain of interstate waters would be “adjacent” waters subject to CWA regulation. “Similarly situated” waters are evaluated as a “single landscape unit” allowing the agencies to regulate an entire watershed if one body of water within it has a “significant nexus” to interstate waters.

The proposed rule became effective as a final rule on August 28, 2015 in 37 states, but a decision by a North Dakota federal district court judge blocked the rule from taking effect in the remaining 13 states. The lawsuit filed in that case and in other similar lawsuits across the country claimed that the rule exceeded congressional authority under the CWA, interfered with state sovereignty to regulate non-federal waters and that the EPA violated the Administrative Procedures Act (APA) when it issued the rule. At least one court issued a temporary injunction, and legislative efforts to rescind the rule were taken. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide injunction barring the rule from being enforced anywhere in the U.S. Ohio, et al. v. United States Army Corps of Engineers, et al., 803 F.3d 804 (6th Cir. 2015). Over 20 lawsuits had been filed at the federal district court level.

On February 22, 2016, the U.S. Court of Appeals for the Sixth Circuit ruled that it had jurisdiction to hear the challenges to the final rule, siding with the EPA and the U.S. Army Corps of Engineers that the CWA gives the circuit courts exclusive jurisdiction on the matter. The court determined that the final rule is a limitation on the manner in which the EPA regulates pollutant discharges under CWA Sec. 509(b)(1)(E), the provision addressing the issuance of denial of CWA permits (codified at 33 U.S.C. §1369(b)(1)(E)). That statute, the court reasoned, have been expansively interpreted by numerous courts and the practical application of the final rule, the court noted, is that it impacts permitting requirements. As such, the court had jurisdiction to hear the dispute. The court also cited the Sixth Circuit’s own precedent on the matter in National Cotton Council of America v. United States Environmental Protection Agency, 553 F.3d 927 (6th Cir. 2009) for supporting its holding that it had jurisdiction to decide the dispute. Still pending is a decision by the U.S. Circuit Court of Appeals for the Eleventh Circuit involving Florida and 10 other states that are trying to overturn a trial court ruling that the U.S. Circuit Court of Appeals is the proper venue for challenges to the final rule. In mid-February, the Eleventh Circuit postponed oral argument pending the decision of the Sixth Circuit. Murray Energy Corp. v. United States, Department of Defense, No. 15-3751, 2016 U.S. App. LEXIS 3031 (6th Cir Feb. 22, 2016).


EPA Need Not Respond to Petition of Activist Groups. The plaintiffs, a consortium of environmental activist groups and community organizers, sued the Environmental Protection Agency (EPA) for not responding to their 2011 petition that alleged that ammonia gas from confined animal feeding operations (CAFOs) endangered public health and welfare, should be designated as a "criteria pollutant" under the Clean Air Act (CAA), and that National Ambient Air Quality Standards should be established for ammonia. The plaintiffs sought to compel the EPA to respond within 90 days and also claimed that the EPA had violated the Administrative Procedures Act (APA) by not responding. However, the court ruled that it lacked subject matter jurisdiction to hear the petition, because the plaintiffs should have brought suit under the CAA which requires a 180-day notice before filing. Because the CAA provided a remedy for the plaintiffs, they were required to sue under the CAA before attempting to sue under the APA. The petition was dismissed. The plaintiffs have stated in another court filing that they will provide the required 180-day notice and sue under the CAA. Environmental Integrity Project, et al. v. United States Environmental Protection Agency, No. 15-0139 (ABJ), 2015 U.S. Dist. LEXIS 160578 (D. D.C. Dec. 1, 2015).


EPA Registration of Insecticides Toxic to Honey Bees Vacated. The Environmental Protection Agency (EPA), in 2010, unconditionally approved the registration of sulfoxaflor in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act which bars the sales of pesticides that haven’t been approved and registered by the EPA. The plaintiffs, commercial bee keepers and bee keeping organizations, challenged the approval based on studies which showed that sulfoxaflor was highly toxic to bees. The court determined that the EPA’s approval was not supported by substantial evidence and that the approval posed the potential for more environmental harm than vacating the approval. Pollinator Stewardship Council, et al. v. United States Environmental Protection Agency, No. 13-72346, 2015 U.S. App. LEXIS 19945 (9th Cir. Nov. 12, 2015).


Court Approves 5 Percent Valuation Discount For Environmental Contamination. At issue in this case was the proper determination of the fair market value of the plaintiff's 229.24-acre commercial property for property tax purposes. 110 acres of the tract contained buildings and other improvements with the balance of the tract considered to be "excess" land. The tract had been previously used by the U.S. Navy to operate a weapons manufacturing plant where they buried numerous contaminants which resulted in significant environmental damage to the tract. The tract became subject to an environmental remediation agreement under which the plaintiff was partly responsible for remediation costs. In 2003, the defendant notified the plaintiff of its intent to increase the tract's property tax assessment. The plaintiff filed an appeal with the county Board, which affirmed. The matter then proceeded to court which affirmed. On further review, the appellate court affirmed in part and vacated and remanded in part. The appellate court noted that an appraisal must be based on the tract's current status, considering it's potential for development, and that the trial court's reliance on one of the experts was not supported by the evidence. The appellate court also noted that restrictions on the tract impacted the tract's market value. The appellate court vacated the trial court's order and remanded the case for calculation of the assessed value with consideration of the plaintiff's environmental obligations. On further review, the state (PA) Supreme Court upheld an appraiser's opinion that the value of the tract was fair market value less five percent for environmental "stigma." Harley-Davidson Motor Company v. Springettsbury Township, et al., No. 82 MAP 2014, 2015 Pa. LEXIS 2170 (Pa. Sup. Ct. Sept. 29, 2015).


Withdrawal of CAFO Information Reporting Rule Upheld. In 2011, the defendant (U.S. EPA) proposed a rule that would have required a confined animal feeding operation (CAFO) to release comprehensive data providing precise CAFO locations, animal types, and number of head as well as personal contact information including names addresses, phone numbers and email addresses of CAFO owners. The Department of Homeland Security (DHS) had informed the defendant that the release of such personal and confidential information could constitute a domestic safety risk. The DHS pointed out that such personal business information is exempted from disclosure under FOIA enumerated exemptions No. 4 and No. 6. In an earlier challenge to the proposed rule, a different court held that the opponents to the rule lacked standing for failure to demonstrate an actual or imminent injury - American Farm Bureau Federation, et al. v. United States Environmental Protection Agency, et al., No. 13-1751 ADM/TNL, 2015 U.S. Dist. LEXIS 9106 (D. Minn. Jan. 27, 2015). The defendant withdrew the proposed rule in 2012, reserving the right to developing a similar rule in the future. The plaintiffs, various activist groups, generally opposed to confinement livestock facilities and related production activities challenged the defendant's withdrawal of the rule as a violation of the Administrative Procedures Act (APA). The court granted summary judgment for the defendant given the greater deference owed to the defendant when it withdraws a rule and maintains the status quo. The court agreed with the defendant that the better approach was to "explore, develop and assess" existing sources of data and keep an option open to require mandatory reporting of such information in the future. The court also determined that the withdrawal of the rule did not violate the Clean Water Act. Environmental Integrity Project, et al. v. McCarthy, No. 13-1306 (RDM), 2015 U.S. Dist. LEXIS 131653 (D. D.C. Sept. 29, 2015).


Unlawful Taking Under the MBTA Requires A Deliberate Act. The plaintiff owns and operates an oil refinery in Texas. After a 2002 inspection of the facility, the Environmental Protection Agency (EPA) filed a criminal indictment against the defendant for Clean Air Act violations for failure to cover tanks with emission-control equipment, and for "taking" migratory birds in violation of the Migratory Bird Treaty Act (MBTA). The trial court found the defendant guilty of three violations of the MBTA on the basis that liability under the MBTA could result irrespective of the defendant's intent simply based on proximate cause. On appeal, the court reversed. The appellate court applied the well-understood common law meaning of "take" (when not combined with "harass" or "harm") so as to preclude events that cause mere accidental or indirect harm to protected birds. The court determined that the evidence did not show that the equalization tanks were utilized with the deliberate intent to cause bird deaths. In so holding, the court rejected contrary holdings of the Second and Tenth Circuits on the issue. The court also noted that an MBTA violation would not arise from bird collisions with electrical transmission lines, thus power companies would not need to seek an incidental take permit from the USFWS in the Fifth Circuit. United States v. Citgo Petroleum Corp, et al., No. 14-40128, 2015 U.S. App. LEXIS 15865 (5th Cir. Sept. 4, 2015), rev'g. and remanding, 893 F. Supp. 2d 841 (S.D. Tex. 2012).