Clean Water Act Update

1. Clean Water Act Update Prof. Craig N. Johnston Lewis & Clark Law School

2. Update on “Fill Material,” Mining, and Valley Fills • Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 129 S.Ct. 2458 (2009). • Question whether the Corps could issue a s 404 permit to Coeur Alaska allowing it to discharge 4.5 million tons of slurry and tailings into Lower Slate Lake, despite the fact that EPA’s NPDES regulations prohibited process waste water discharges from froth-flotation gold mines. • The record indicated that the discharges will raise the lakebed 50 feet, to what is now the lake’s surface, and kill all fish and nearly all aquatic life. Id. at 2464 and 486 F.3d 638, 642 (9th Cir. 2007) (opinion below).

3. Coeur Alaska – Lower Slate Lake

4. Another picture of Lower Slate Lake (2005)

5. Lower Slate Lake (Oct., 2006)

6. Coeur Alaska – The Opinion • First determined that the project could only trigger one of the two programs, not both. 129 S.Ct. at 2467. • Agreed with all of the parties that slurry meets the regulatory definition of “fill material.” Id. at 2468. • Concluded that under the regulations: [I]f the discharge is fill, the discharger must seek a s 404 permit from the Corps; if not, only then must the discharger consider whether EPA performance standard applies, so that the discharger requires a s 402 permit from the EPA. Id. at 2469. • Relied on Chevron in deferring to EPA’s view that the prohibition in s 306(e) (regarding discharges in violation of new source standards) does not apply to discharges regulated under s 404. Id. at 2469-2477.

7. Coeur Alaska – Subsequent Developments • EPA asked the Corps to reconsider the permit. • Corps reaffirmed its decision. • EPA declined to exercise its veto authority under s 404(c). • Now the focus has shifted to the Pebble Mine, which is proposed at the headwaters of Bristol Bay, which are the home of the world’s largest sockeye salmon runs. • In May, six Alaskan tribes took the unusual step of asking EPA to use s 404(c) to essentially veto any such permit in advance. • This resulted in Rep. Don Young introducing a bill to eliminate EPA’s veto authority.

8. Valley Fills - History • The Corps’ redefinition of fill material in 2002 was driven in large part by its desire to facilitate mountaintop mining. See, e.g., 67 Fed. Reg. 31129 (May 9, 2002) (preamble to final rule), and 65 Fed. Reg. 21292 (April 20, 2000) (proposed rule) (both noting that the Corps was motivated to respond to a district court decision overturning a s 404 permit in that context). • The Corps also issued Nationwide Permit 21 to facilitate the issuance of permits for mountaintop mining in at least some circumstances without individualized permit review. • Environmentalists were generally unsuccessful in challenging these developments. See, e.g., Ohio Valley Env. Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009), reh’g denied, 567 F.3d 130 (2009) (holding that the valley streams that received the fill were waste treatment systems, not waters of the United States). • In April, EPA estimated that almost 2,000 miles of Appalachian headwater streams have been buried by mountaintop coal mining.

9. This is a Massey valley fill in W.Va. According to the West Virginia Department of Environmental Protection (DEP), this particular fill is about 900 feet high and 2,000 feet long.

10. Another valley fill in southern W.Va.

11. Valley Fills – Recent Developments • EPA issued an important guidance document on April 1, 2010, designed to improve its review of mountaintop mining projects in Appalachia. http://water.epa.gov/lawsregs/guidance/wetlands/mining.cfm • Increased focus on water quality effects, especially regarding conductivity • In June of this year, the Corps announced its decision to suspend Nationwide Permit 21 in the Appalachian region. This permit had been used to authorize some surface coal mining projects without individualized permit-review processes. • The jury is out regarding how much of a difference EPA’s new guidance document will make. In its first major test, EPA in the end declined to veto a permit the Corps had proposed for the Pine Creek Surface Mine (owned by a subsidiary of Arch Coal), after finding that the company had made sufficient changes to address its concerns. • Rumor has it, though, that EPA is poised to veto a permit for Arch Coal’s Spruce No. 1 Mine in Logan County, W. Va.

12. Water Transfers/Unitary Waters • EPA promulgated the “Water Transfers Rule” in June of 2008. 73 Fed. Reg. 33697 (June 13, 2008). • Excludes “water transfers” from NPDES jurisdiction. • Defined as those “activit[ies] that convey[] and connect[] waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use.” 40 C.F.R. s 122.3.

13. History • It did this against a backdrop in which three Circuits had concluded that the NPDES program applied in circumstances in which polluted water from one water way is transferred into another water way. • Dubois v. U.S., 102 F.3d 1273 (1st Cir. 1996); • Catskills Mts. Chapt. Of Trout Unlimited v. City of New York, 273 F.3d 481 (2d Cir. 2001) (“Catskills I”); and Catskills Mts. Chapt. Of Trout Unlimited v. City of New York, 451 F.3d 77 (2d Cir. 2006) (“Catskills II”); • Miccosukee Tribe of Indians of Florida v. South Fla. Water Mgt. Dist., 280 F.3d 1364 (11th Cir. 2002), aff’d in part, vacated and remanded, 541 U.S. 95 (2005); and • See also N. Plains Res. Council v. Fidelity Exploration & Dev., 325 F.3d 1155 (9th Cir. 2003) (clean with coal bed methane groundwater). • Additionally, in Miccosukee, the Supreme Court expressed significant skepticism about what EPA was by then calling the “unitary waters” theory. South Fla. Water Mgt. Dist. v. Miccosukee Tribe of Indians of Fla., 541 U.S. 95, 105-106 (2005).

14. Subsequent Developments • Friends of the Everglades v. South Fla Water Mgt. Dist., 570 F.3d 1210 (11th Cir. 2009). • Not a facial challenge; • Upheld the “water transfers rule,” applying Chevron; • If the statute is ambiguous, and if EPA’s interpretation is reasonable, what the 11th Circuit did is consistent with National Cable & Telecom. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005). • Cert. Petition filed on August 5th of this year. The Respondents have not yet responded. • There are facial challenges to the rule pending in both the 11th Circuit and in district courts in both Florida and New York (the case pending in the 11th Circuit is a consolidated challenge). All of these actions have been stayed. From an environmental perspective, one would hope (and assume) that the challenges within the 11th Circuit will be dropped.

15. Interpreting Rapanos(Rapanos v. United States, 547 U.S. 715 (2006) • Both the Eighth Circuit and the Sixth Circuit have agreed with the First Circuit that a water is jurisdictional under Rapanosif it meets either Justice Kennedy’s “significant nexus” test or the plurality’s “relatively permanent flow” or “continuous surface water connection” tests (applying to tributaries and their adjacent wetlands, respectively). • United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009); • United States v. Cundiff, 555 F.3d 200, 210-13 (6th Cir. 2009) • United States v. Johnson, 467 F.3d 56, 66 (2006).

16. Interpreting Rapanos(cont.) • The Ninth and Seventh Circuits have found that a water is jurisdictional if it meets Justice Kennedy’s test, without deciding whether meeting the plurality’s test would also be sufficient. • Northern Calif. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007); and • United States v. Gerke Excavating, Inc., 464 F.3d 723, 724-25 (7th Cir. 2006) (per curiam). • The Eleventh Circuit has determined that Justice Kennedy’s test is the law of the case; i.e., the only test that can confer jurisdiction. • United States v. Robison, 505 F.3d 1208, 1221-22 (11th Cir. 2007). • Thus far, not a single circuit has taken the view that the plurality opinion embodies the only test through which a water can qualify as jurisdictional.