Blog - Water Marks

Supreme Court Offers Comfort to Owners of Dams and Water Control Facilities

2013-01-15T17:58:49+00:00

In a ruling that has important implications for the hydropower industry, municipal water control systems, and dam owners everywhere, the U.S. Supreme Court strongly affirmed an earlier holding that a "discharge of a pollutant" as regulated by the Clean Water Act does not occur when polluted water flows from an improved, man-made portion of a navigable water way into an unimproved portion of the same waterway.

When monitoring stations on the Los Angeles and San Gabriel Rivers indicated repeated exceedances of water quality standards in those water bodies, the Natural Resources Defense Council and the Santa Monica Baykeeper brought suit under the Clean Water Act ("CWA"), charging that the Los Angeles County Flood Control District (the "District") was in violation of its permit. The District operates a municipal separate storm sewer system that discharges to the rivers. Because the monitoring points are within concrete channels constructed for flood control purposes, the Ninth Circuit Court of Appeals had held that discharge from these concrete channels into the unimproved waterways below constituted a discharge under the CWA regulated by the District's discharge permit.

The Supreme Court, in an opinion by Justice Ginsburg, held that "no discharge of pollutants occurs when water, rather than being removed and then returned to the water body, simply flows from one portion of the water body to another." This holding follows closely the reasoning of the Court's 2004 decision in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, where the Court determined that pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the CWA. Justice Ginsburg drove home the point with an apt analogy from the Miccosukee opinion, that, "f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not "added" soup or anything else to the pot." Like a good soup, this opinion should bring some comfort to hydropower operators and dam owners.

Michigan Passes Groundwater Well Dispute Statute – Again

2012-12-14T14:36:57+00:00

The hectic lame-duck session of the Michigan Legislature has resulted in the resurrection of the state's once-and-future groundwater dispute resolution process. Michigan had originally passed similar legislation in 2003, then repealed it in 2009 as a budget cutting measure. Pressure to revive the dispute resolution process mounted as complaints about failing wells increased under the past year's drought conditions, as water use for irrigation increased and water tables lowered. The bill provides a formal process for resolving disputes between high-capacity wells (such as irrigation wells) and residential or other low-capacity wells that allege impacts from the high-capacity withdrawals.

The revived law would allow small-capacity well owners to file complaints with the Director of either the MDEQ or MDARD (if the alleged perpetrator was an agricultural well), if the small-capacity well owners reasonably believe that a high-capacity well has interfered with the operation of their wells. The law gives the Director the authority to investigate the claim and to seek to resolve the complaint among the affected parties.

If such the informal resolution is not successful, the Director may issue an Order declaring a groundwater dispute in existence. This Order gives the Director authority to require the immediate temporary provision of a potable water supply to affected people. The Director may also restrict the quantity of groundwater that may be withdrawn by the high-capacity well, and order compensation for the owners of affected small-quantity wells. The Director's Orders are subject to direct judicial review in the circuit court. The law contains an exemption from its requirements for fire suppression wells and dewatering wells, such as those used in mining operations. The new law reinstates Part 317 of the State's Natural Resources and Environmental Protection Act (NREPA).

EPA Pushes Back on Stormwater Discharges from Logging Roads

2012-12-10T16:15:52+00:00

I previously wrote about the Ninth Circuit decision in Northwest Environmental Defense Center v. Brown (NEDC), 640 F.3d 1063 (9th Cir. 2011) where the court overturned EPA's Silviculture Rule and said that where stormwater runoff is collected in systems of ditches, channels, and culverts, and then discharged into adjacent rivers, these discharges constitute industrial “point sources” under the CWA and require NPDES permits. Now, the EPA has revised its Phase I stormwater regulations to say that a NPDES permit is (again) not required for stormwater discharges from logging roads. The EPA says it did not intend for logging roads to be regulated as industrial facilities, and so in light of NEDC, it has revised its rules to clarify the Agency’s intent.

In the meantime, the Ninth Circuit case is now before the Supreme Court, which heard oral arguments on it on December 3, 2012.

The EPA believes that the more flexible regulation available under Section 402(p)(6) of the Clean Water Act is better suited to addressing the complexity of forest road ownership, management, and use than the NPDES discharge limitations that apply to industrial dischargers. It has added language to its stormwater regulations to clarify that, for the purposes of assessing whether stormwater discharges are “associated with industrial activity,” the only facilities under the Logging Industrial Code that are treated as “industrial discharges” for stormwater purposes are rock crushing, gravel washing, log sorting, and log storage.

EPA Wants More From Enbridge on Kalamazoo River Cleanup

2012-10-09T14:09:53+00:00

EPA has proposed a new Order to require Enbridge to do further cleanup from its July 2010 pipeline spill on the Kalamazoo River in southwest Michigan. The Order, if finalized, would require installation of additional oil-containment devices at the following locations: upstream of Ceresco Dam, upstream of Kalamazoo Dam, upstream of the neck of Morrow Lake, and at other locations to be specified by U.S. EPA. The new Order would also require removal of the submerged oil and oil-contaminated sediment or other sources of sheen from these same areas by August 1, 2013. Enbridge has 30 days from October 3 to submit written comments on the proposed Order.

Coast Guard Proposes New Rule on Discharges in the Great Lakes

2012-08-27T17:39:18+00:00

The Coast Guard is proposing to replace its interim rule with a new rule to regulate the operation of U.S. and foreign vessels carrying bulk dry cargo (e.g., limestone, iron ore, coal) on U.S. waters of the Great Lakes, and the operation of U.S. bulk dry cargo vessels anywhere on the Great Lakes. The new requirements address the discharge of bulk dry cargo residue ("DCR"). The proposed rule would continue to allow non-hazardous and non-toxic discharges of bulk DCR in limited areas of the Great Lakes. However, vessel owners and operators would need to minimize DCR discharges and document their methods for doing so in DCR management plans. Certain additional DCR discharges currently allowed would be restricted.

The potential for DCR discharges to encourage non-native species, the interaction of this regulation with EPA's Vessel General Permit and the states' coastal zone management plans as well as various other laws and treaties, and a variety of other topics are covered in the Federal Register Notice. Comments on the proposed rule can be submitted to the online docket on or before October 29, 2012.

Congress Requires Faster Corps Action on Asian Carp

2012-07-09T13:14:37+00:00

Congress has included the "Stop Invasive Species Act" as an amendment to the transportation bill it approved before the July 4th recess. The Act requires the U.S. Army Corps of Engineers to speed up implementation of strategies to protect the Great Lakes from Asian carp. Under the Act, the Corps will be required to submit its report in 18 months, and will require more than the list of options the Corps was going to include in its report. Instead, the legislation would require specific steps to prevent invasive species migration at 18 potential entry points, including hydrological separation from the Mississippi River via the controversial Chicago-area river and canal systems. The Act was sponsored by Michigan's Congressman Dave Camp and Senator Debbie Stabenow.

EPA’s Section 316(b) Water Intake Regulations - New Comment Opportunity

2012-06-27T16:29:56+00:00

On June 11, EPA published a "Notice of Data Availability" in the Federal Register regarding its proposed regulations for cooling water intake structures at existing facilities. This notice provides an additional opportunity for interested parties to weigh in on EPA's proposed regulations, despite the closure of the public comment period in August, 2011.

While the EPA asserts that it "is not reopening the proposed rule for comment through this notice," the agency nevertheless solicits comment on some two dozen issues associated with the new proposed regulations and alternatives for compliance. Among the key issues for comment include the definition of closed cycle recirculating systems and compliance options associated with their use, how to construct the intake velocity compliance alternative, how to construct the impingement technical requirements and compliance alternatives, as well as on how much flexibility should be granted to the permitting authorities, among other issues. For entities likely to be subject to these new regulations, this "Notice" provides a valuable additional opportunity to have input into EPA's decision-making. Comments must be received on or before July 11, 2012.

U.S. EPA Forming a Great Lakes Advisory Board

2012-06-07T14:49:22+00:00

U.S. EPA has announced the formation of the Great Lakes Advisory Board to provide advice to the Administrator in her capacity as Chair of the Inter-Agency Task Force, on matters related to Great Lakes restoration and protection. The Inter-Agency Task Force's Great Lakes efforts are focused in 5 major areas: 1) cleaning up toxics and toxic hot spot Areas of Concern; 2) combating invasive species; 3) promoting near-shore health by protecting watersheds from polluted runoff; 4) restoring wetlands and other habitats; and 5) raising public awareness, tracking progress, and working with partners.

The Board will be comprised of approximately fifteen members, and EPA will consider a broad range of candidates, including those from: environmental groups, business, agricultural groups, funders/foundations, environmental justice groups, youth groups, academia, and state, local and tribal representatives. Nominees will be solicited through a second Federal Register notice in the coming weeks, with the Board expected to be established this summer.

New Fracking Disclosure Rules for Federal and Indian Lands

2012-05-21T17:50:38+00:00

The Bureau of Land Management has proposed rules requiring public disclosure of the chemicals used in hydraulic fracturing at oil and gas wells on federal and Indian lands. Operations on private lands will be unaffected by this rule.

Companies operating on federal and Indian lands would be required to provide the trade name of each chemical and its purpose in the fracking fluid, but only after the fracking operation is completed. Companies may seek to protect proprietary information. Information about the handling and hauling of produced water and flowback fluids would also have to be submitted after the operation is completed.

The proposed rules will enter a 60-day public comment period once they are published in the Federal Register. The BLM has indicated its intention to finalize the rules by the end of the year.

North Carolina Chicken Farm Fights NPDES Permit for Air Emissions

2012-04-23T13:49:03+00:00

In a novel approach to water quality regulation, the North Carolina Department of Environment and Natural Resources (DENR) has required a large chicken farm to obtain a Clean Water Act NPDES permit in an attempt to regulate air emissions of ammonia and other pollutants from the farm. Should the state succeed in its argument that water quality impacts of air emissions can be regulated under NPDES permits, it would potentially open a wide variety of sources (some regulated and some unregulated under the Clean Air Act) to new regulation under the Clean Water Act – whether or not they are direct dischargers.

The farm holds an NPDES permit from 2004 that prohibits discharges to water. No discharge to water has ever occurred. No air permit is required for the facility, based on a determination that emissions are below federal thresholds. Nevertheless, in 2010 the state added several best management practices (BMPs) to the NPDES permit to address airborne ammonia emissions from the facility that were thought to be impacting local waters.

The farm initially challenged the BMPs before an administrative law judge, who sided with the farm. However, the administrative law judge's holding was overturned by the state's administrative board of appeals. The farm has now filed in the state Superior Court a Petition for Review of the decision and order by the state administrative appeals board. While this is a local skirmish at the moment, it has the potential for significant impacts nationally if the state succeeds in court.