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Posts Tagged ‘Clean Water Act’

By most accounts, it was a tough day for EPA in the Supreme Court on Monday. Although the Sacketts got their share of skepticism from the Justices, the EPA really took it on the chin during the oral argument of the Priest Lake wetland case.


KEA joined several other conservation organizations in a brief 
to point out that the Sacketts had ample opportunity to work with EPA and the Corps of Engineers to avoid the compliance order, and unnecessary expense, had they chosen to do so.

The issue before the court was whether a “compliance order” issued by EPA to the Sacketts for a Clean Water Act violation is immediately reviewable in a court. The Sacketts, who claim that their property has no wetlands and are therefore not under Clean Water Act jurisdiction, argued that there is no easy way to challenge EPA’s compliance order determination that a wetland exists. Moreover, they say, tough Clean Water Act penalties can accrue at a substantial rate. EPA, meanwhile, argues that the Clean Water Act doesn’t provide for an early hearing. Besides, the Sacketts would eventually get their day in court one way or another, and if EPA couldn’t prove their case, there’d ultimately be no penalties.

At the oral argument, the Supreme Court seemed openly skeptical about the compliance order. Rather than viewing it as a notice, or a warning, which would be followed by an EPA enforcement action, the Justices seemed inclined to consider it an action in and of itself. As such, they hinted that it was a “final” agency decision which should be subject to Court review.

However, Justices were also skeptical of the Sacketts’ argument that they should receive a hearing regarding the compliance order, but also if they were to lose on the wetland jurisdiction issue in the early hearing, they should get another chance to argue their case in a later enforcement case brought by EPA. In other words, EPA would have to prove their wetland case twice.

All of which goes to the real importance of the case. Enforcement of the Clean Water Act is difficult enough for EPA, which is already stretched thin. Compliance orders are designed to be a tool to shortcut formal proceedings – to provide violators with a less formal (and usually less expensive) route to compliance, without going to court and assuming all the risks and expenses that entails. If the Supreme Court finds that EPA’s compliance orders trigger additional hearings or other formalities, it will seriously impact the way Clean Water Act enforcement gets done.

Court watchers and EPA watchers are already speculating as to what EPA might do if the Supreme Court rules for the Sacketts. One guess is that the compliance orders may become less “order-like” and more “warning-ish.” A mere warning, everyone agrees, is not reviewable in Court. Would things be significantly better for the Sacketts if they had received a warning about a Clean Water Act violation as opposed to the compliance order they received? Doubtful. It could, however, delay the actual enforcement of obvious violations, which would also delay cleanup and restoration efforts.

Another guess, and most worrisome to conservation groups, is that EPA will abandon administrative processes and go directly to enforcement actions filed in court. Because of the complexity and expense of doing so, EPA might simply do less enforcement – which could be devastating for the country’s waterways.

Congress, of course, could fix all of this by clarifying what constitutes a wetland, and clarifying procedures. But that isn’t likely to happen any time soon with the current Congress. The Supreme Court’s decision is expected sometime this spring.

 

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This morning, the U.S. Supreme Court agreed to allow filing of an amicus brief in the Sackett v. EPA case which will be argued at the Court on Monday morning. (The Supreme Court’s order (pdf) is here.)  The brief is being filed on behalf of NRDC, the Waterkeeper Alliance, Idaho Conservation League, Idaho Rivers United, Lake Pend Oreille Waterkeeper, and Kootenai Environmental Alliance.

 

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Here’s the thing to remember. We live in the United States of America. We are a nation of laws. We have a Constitution that gives Congress the authority to pass laws under enumerated powers. One of those powers is provided by the Constitution’s commerce clause. Congress passed the Clean Water Act. The Supreme Court has affirmed that, within commerce clause limits, the Clean Water Act is constitutional.

Under the Clean Water Act, within these jurisdictional limits, you cannot fill a wetland without a permit. If you do so, you are subject to enforcement. If you do so intentionally, you are subject to criminal enforcement.

These are facts. They are not arguable.

Agreed, there is significant uncertainty as to the jurisdictional limits. The Supreme Court has issued an almost impossibly complex test for jurisdiction that the lower federal courts are still figuring out. Still, if you have wetlands on your property, the prudent thing would be to make a phone call to the EPA or Corps of Engineers BEFORE firing up the bulldozer. Filling them first and asking questions later is at your own risk.

Ignorance is not an excuse. And it really shouldn’t be a rallying cry either.

 

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We meant to get back to our brief mention of potential Congressional action to destroy the Clean Water Act. The cynically named “Clean Water Cooperative Federalism Act,” HB 2018, turns the long-standing successful structure of the Clean Water Act on its head, stripping EPA oversight over water quality programs in the states.

The Clean Water Act has been a prime example of “cooperative federalism” common to environmental (and other federal) laws. Generally, the federal enabling legislation sets a basic structure and sets minimum standards and allows states do the implementation. NRDC explains it in this way:

The federal Clean Water Act provides a safety net for waterways across the country, where states must implement minimum provisions to protect water quality.  States can always do more if they so choose, but the law recognizes that Americans deserve a minimum standard of protection no matter where they live, and the Clean Water Act is designed to prevent a “race to the bottom” in places where the benefits of clean water may be ignored for short term economic or political gain.  

Now, Congress is preparing to eliminate the safety net. The opening statement of EPA’s “Technical Assessment H.R. 2018” says it bluntly:  “The bill would overturn almost 40 years of federal legislation by preventing EPA from protecting public health and water quality.”  Furthermore, EPA’s assessment of HB 2018 says:

  • “The bill would prevent EPA from providing its views on whether a proposed project that pollutes or even destroys lakes, streams, or wetlands would violate Clean Water Act standards.”
  • “The bill would remove EPA’s existing state coordination role and eliminate the careful Federal/State balance established in the current Clean Water Act.”
  • “The bill would prevent EPA from protecting communities from unacceptable adverse impacts to their water supplies and the environment caused by Federal permits.”
  • “The bill would substantively eliminate the opportunity for EPA, the federal government’s expert on water quality, to comment on Federal permits impacting water quality and public health.

Ironically, Idaho is one of very few states that have not claimed control of Clean Water Act permitting, so some of the provisions would not “benefit” Idaho’s fiercely anti-federal attitudes.

Much of this congressional activity is rooted in the new politics in the U.S. House of Representatives, and simmering controversies over cleaning up the Chesapeake Bay and lakes in Florida, and over EPA’s skepticism over mountaintop removal coal mining in West Virginia. Notwithstanding the specific regional concerns, it seems that forces in Congress seem bent on destroying the whole Clean Water Act for the whole of the country.  By all accounts, this is the most serious attack on clean water in a long long time.

We’ve posted one link to take action via our local Waterkeepers. Here’s another one to take action via NRDC. Representatives — even the ones in Idaho — should hear from constituents who think that our water quality protections should be improved – not sacrificed on behalf of polluting industries in the service of some phony “federalism.”

UPDATE 7/12: The White House today issued a very rare veto threat on HB 2018. (A pdf) We hope it works.

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Just a very quick mini-update, but our local Waterkeeper friends – Spokane Riverkeeper and Lake Pend Oreille Waterkeeper — are justifiably concerned about a new Congressional attack on the federal Clean Water Act.  We’ll publish more information on this soon, but you can get a head start now — read more and take action here.

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Although construction on the Fernan Road reconstruction project was completed this past fall, the paperwork was wrapped up just recently.  Recall that KEA and Idaho Conservation League had threatened a Clean Water Act lawsuit regarding numerous violations at the construction site.  An agreement was finalized recently with the Federal Highway Administration, the agency responsible for the project, to resolve the claims.

Fernan Violation -- photo by KEA BlackberryCam

At KEA, we were tipped off to problems at the site by members and neighbors living along Fernan Lake. KEA and ICL performed our own inspections at least five times in 2009 which indicated potential violations of the project’s construction permit. In July 2009, Idaho DEQ inspected the site and issued a warning letter to FHWA regarding violations of water quality standards for turbidity.

As a result of direct negotiations between our attorneys at Gonzaga Environmental Law Clinic and the Federal Highway Administration, major improvements to the project were installed in 2010 to prevent massive erosion and sediment problems our investigation had identified. At ICL and KEA’s request, FHWA hired a certified erosion control specialist to review and improve erosion controls at the site. FHWA implemented best management practices, and trained their contractors and personnel on monitoring and reporting practices and preventing discharges. FHWA also updated its stormwater prevention plan to tighten controls on discharges.

By all accounts, the project in 2010 was greatly improved over the project in 2009. Thanks to our lawyers and our erosion expert and our environmental colleagues. We are pleased to have made a difference.

 

 

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As you probably know, we’ve been rallying support for water quality monitoring for weeks now.  We have been calling on Gov. Otter to restore funding to the budget to perform one of the basic functions under the Clean Water Act, something the Governor and legislature have declined to fund for the past two years. Of course, this is exactly what you’d expect of your local grassroots conservation organization.

But guess what — we’re not the only ones. Because of the potential impact that another year of non-monitoring  would have on water quality permitting and municipal budgets, a number of Idaho municipalities have joined in the chorus. Boise, Nampa, Hailey, Moscow, Post Falls, Ponderay, and Blaine County are on record as supporting the water quality monitoring line item in the budget.  (And we believe that more municipalities will be weighing in soon.)

Agriculture and industry should consider the impacts as well. A third straight year without water quality monitoring data could force EPA to require Idaho dischargers to meet stricter effluent standards in their permits.  A number of states have cut back on water quality monitoring during the tight budgets during the economic downturn, but Idaho’s elimination of the entire program for two years is unparalleled.

Idaho DEQ has been outspoken in the need for funding this year, and in an AP article over the weekend, Idaho Lt. Gov. Brad Little signaled that he understands the concern. But still no definitive word from Gov. Otter.  And, of course, any water quality line item would still need approval by the state legislature. So if you haven’t done so already, consider sending your governor and legislators a quick note. All of us in Idaho — individuals, cities and businesses alike — depend on clean water.

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