Oct 24: In the case of USA v. Robison, in the U.S. Court of Appeals, Eleventh Circuit, Case No. 05-17019. Defendants McWane, Inc. (McWane), James Delk (Delk), and Michael Devine (Devine) appeal their convictions for their roles in a Clean Water Act (CWA) conspiracy (Count 1), as well as their convictions for substantive violations of the CWA (Counts 2, 3, 5, 7-19, 21, and 22). After the defendants’ convictions, the United States Supreme Court addressed how to define “navigable waters” under the CWA in Rapanos v. United States [See link below].
The Appeals Court ruled, "The definition of 'navigable waters' in the jury charge in this case was erroneous under Rapanos, and the government has not shown that the error was harmless. Accordingly, we must vacate defendants’ CWA convictions and remand the case for a new trial." The Appeals Court also said that McWane appeals its conviction for making a false statement to the Environmental Protection Agency (EPA) (Count 24). Because McWane was entitled to a judgment of acquittal on that charge, we vacate McWane’s conviction on Count 24 as well."
In the case, the parties agree that the definition of “navigable waters” is a key element of the CWA criminal offenses in this case. Based on the Supreme Court’s Rapanos decision, defendants contend that a key discharge point, Avondale Creek, is not a “navigable water” within the meaning of the CWA, and that the district court erroneously instructed the jury as to the definition of the term “navigable waters.” The district court charged the jury that “navigable waters” include “any stream which may eventually flow into a navigable stream or river,” and that such stream may be man-made and flow “only intermittently.”
The Appeals Court said the district court's jury charge relied on the definitions in United States v. Eidson, 108 F.3d 1336 (11th Cir. 1997), however the defendants’ trial occurred before Rapanos, and the Supreme Court indicated in Rapanos that Eidson’s “expansive definition” of "tributaries," "is no longer good law." The Appeals Court said, "Accordingly, we consider Rapanos in detail in order to determine exactly how and to what extent the district court’s 'navigable waters' instruction was erroneous. We then consider whether the incorrect jury instruction was harmless error."
In interpreting Rapanos, the Eleventh Circuit said, "The entire Supreme Court agreed that the term 'navigable waters' encompasses something more than traditionally 'navigable-in-fact' waters... However, five Justices concluded that remand was necessary for consideration of whether the wetlands at issue were 'navigable waters' covered by the CWA, and whether the EPA and the Army Corps of Engineers had impermissibly extended their regulatory authority under the CWA. The Eleventh Circuit analyzes in some detail the Rapanos decision in three parts including: Justice Scalia’s plurality opinion; Justice Kennedy’s concurrence; and Justice Stevens’s dissent.
The Eleventh Circuit says the various appeals court circuits are also split on the question of "which Rapanos opinion provides the holding." They say both the Seventh and the Ninth Circuits concluded that Justice Kennedy’s concurrence controls and adopted the “significant nexus” test. But, they said the First Circuit, on the other hand, concluded that because the dissenting Rapanos Justices would find jurisdiction under either Justice Scalia’s plurality test or Justice Kennedy’s “significant nexus” test, “'the United States may elect to prove jurisdiction under either test.'"
The Appeals Court concludes, "in determining the governing holding in Rapanos, we cannot disconnect the facts in the case from the various opinions and determine which opinion is narrower in the abstract. Thus, pursuant to Marks, we adopt Justice Kennedy’s 'significant nexus' test as the governing definition of 'navigable waters' under Rapanos. See Gerke, 464 F.3d at 725; River Watch II, 496 F.3d at 999-1000."
Next the Appeals Court considered whether the district court’s jury charge comported with Justice Kennedy’s “significant nexus” test. Restating that, "under Justice Kennedy’s concurrence, a water can be considered 'navigable' under the CWA only if it possesses a 'significant nexus' to waters that 'are or were navigable in fact or that could reasonably be so made...' Moreover, a 'mere hydrologic connection' will not necessarily be enough to satisfy the 'significant nexus' test." The Eleventh Circuit then rules that, "The district court here did not mention the phrase 'significant nexus' in its 'navigable waters' instruction to the jury... Rather, the district court instructed the jury that a continuous or intermittent flow into a navigable-in-fact body of water would be sufficient to bring Avondale Creek within the reach of the CWA. As such, the instruction did not satisfy Justice Kennedy’s “significant nexus” test and was erroneous..."
Access the complete opinion (click here). Access WIMS eNewsUSA Blog for various articles related to Rapanos (click here). Access various eNewsUSA blog posts related to the Rapanos decision (click here). [*Water]
Showing posts sorted by relevance for query rapanos. Sort by date Show all posts
Showing posts sorted by relevance for query rapanos. Sort by date Show all posts
Monday, October 29, 2007
Wednesday, November 01, 2006
U.S. v. Johnson Provides Another Interpretation Of Rapanos
Oct 31: In the U.S. Court of Appeals, First Circuit, Case No. 05-1444. Following the First Circuit's decision in this case, see United States v. Johnson, 437 F.3d 157 (1st. Cir. 2006), appellants moved for rehearing en banc (full panel), noting the Supreme Court's grant of certiorari in United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004). The Appeals Court held the petition in abeyance pending a decision in that case. Following the decision in Rapanos v. United States, appellants supplemented their previous petition. They requested that the Appeals Court grant a rehearing en banc to resolve the conflict between the panel decision and Rapanos, or, alternately, that the decision be vacated with prejudice on the ground that the evidence in the record supports a judgment in their favor. The government filed a response requesting that the Appeals Court vacate its previous decision and remand the case to the district court (Massachusetts). The Appeals Court said in a 2-1 decision, "After careful consideration, we vacate and remand for further proceedings consistent with Rapanos..."
In its opinion, the Appeals Court explained the history of the case saying, "In separate rulings on liability and remedy, the district court granted summary judgment in favor of the government. The district court denied appellants' motion for reconsideration, stating that 'there is a sufficient basis for the United States to exercise jurisdiction because the undisputed evidence shows that the three wetlands are hydrologically connected to the navigable Weweantic River by nonnavigable tributaries.'" The Appeals Court affirmed the trial court's judgment in a divided, 2-1 decision. The majority concluded that it was unnecessary to decide whether the "diffusion of water through wetlands" was a sufficient hydrological connection to support a "significant nexus." The dissenting Judge said the United States "...may not constitutionally regulate wetlands that are neither themselves navigable nor truly adjacent to navigable waters."
The Appeals Court offers a brief summation of the Supreme Court decision in Rapanos v. United States. In their briefs for en banc rehearing, appellants contended that a rehearing was necessary to resolve the tension between the panel opinion and Rapanos. They argued that under either the plurality opinion or Justice Kennedy's concurrence, a" hydrological connection" is insufficient to establish jurisdiction, although they also argued strenuously that the plurality's test alone should apply. The government argued that additional factfinding is necessary before the legal principles articulated in Rapanos can be applied in this case and opposed the petition for en banc review and urged the Appeals Court, instead "to vacate the panel's decision and remand the case to the district court."
The Appeals Court ruled, "We agree with the government that remand to the district court for application of the Rapanos standards is appropriate. The parties presented their cases in the district court without any awareness of the standards that now apply. They should now have an opportunity to develop their positions in the district court with an awareness of these standards. However, the question of what legal standard to apply is one of some complexity, and other courts have taken varying approaches to the issue. We conclude that the United States may assert jurisdiction over the target sites if it meets either Justice Kennedy's legal standard or that of the plurality. We explain our reasoning..."
In explaining, the Appeals Court says, in the months since Rapanos, four courts have applied its legal standards -- two district courts and two courts of appeals [See links below to the WIMS-EcoBizPort Special Report on Rapanos]. The Appeals Court discusses the district court decisions -- United States v. Evans; and United States v. Chevron Pipe Line Co. -- and the other Appeals Court decisions -- Northern California River Watch v. City of Healdsburg (9th Circuit); and USA v. Gerke Excavating, Inc.
The Appeals Court also analyzes the so-called "Marks directive" that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds," Marks, 430 U.S. at 193 (internal citation omitted). On Marks, the Appeals Court says the understanding of "narrowest grounds" as used in Marks "does not translate easily to the present situation."
In its conclusion, again in a split 2-1 decision, the Appeals Court says on remand, "...the district court should do exactly as Justice Stevens has suggested. The federal government can establish jurisdiction over the target sites if it can meet either the plurality's or Justice Kennedy's standard as laid out in Rapanos." The dissent in the opinion indicates, "I depart from the majority in interpreting what standards Rapanos has established. The plurality's 'hydrological connection' test provides the proper constitutional limit on federal regulation under the Clean Water Act. Although the majority has provided an able analysis of a thorny issue, I cannot concur that Justice Kennedy's seemingly opaque 'significant nexus' test is a constitutional measure of federal regulatory jurisdiction..."
Access the complete opinion and brief dissent (click here). Access the WIMS-EcoBizPort Special Report on Rapanos for links and extensive information (click here). [*Water]
In its opinion, the Appeals Court explained the history of the case saying, "In separate rulings on liability and remedy, the district court granted summary judgment in favor of the government. The district court denied appellants' motion for reconsideration, stating that 'there is a sufficient basis for the United States to exercise jurisdiction because the undisputed evidence shows that the three wetlands are hydrologically connected to the navigable Weweantic River by nonnavigable tributaries.'" The Appeals Court affirmed the trial court's judgment in a divided, 2-1 decision. The majority concluded that it was unnecessary to decide whether the "diffusion of water through wetlands" was a sufficient hydrological connection to support a "significant nexus." The dissenting Judge said the United States "...may not constitutionally regulate wetlands that are neither themselves navigable nor truly adjacent to navigable waters."
The Appeals Court offers a brief summation of the Supreme Court decision in Rapanos v. United States. In their briefs for en banc rehearing, appellants contended that a rehearing was necessary to resolve the tension between the panel opinion and Rapanos. They argued that under either the plurality opinion or Justice Kennedy's concurrence, a" hydrological connection" is insufficient to establish jurisdiction, although they also argued strenuously that the plurality's test alone should apply. The government argued that additional factfinding is necessary before the legal principles articulated in Rapanos can be applied in this case and opposed the petition for en banc review and urged the Appeals Court, instead "to vacate the panel's decision and remand the case to the district court."
The Appeals Court ruled, "We agree with the government that remand to the district court for application of the Rapanos standards is appropriate. The parties presented their cases in the district court without any awareness of the standards that now apply. They should now have an opportunity to develop their positions in the district court with an awareness of these standards. However, the question of what legal standard to apply is one of some complexity, and other courts have taken varying approaches to the issue. We conclude that the United States may assert jurisdiction over the target sites if it meets either Justice Kennedy's legal standard or that of the plurality. We explain our reasoning..."
In explaining, the Appeals Court says, in the months since Rapanos, four courts have applied its legal standards -- two district courts and two courts of appeals [See links below to the WIMS-EcoBizPort Special Report on Rapanos]. The Appeals Court discusses the district court decisions -- United States v. Evans; and United States v. Chevron Pipe Line Co. -- and the other Appeals Court decisions -- Northern California River Watch v. City of Healdsburg (9th Circuit); and USA v. Gerke Excavating, Inc.
The Appeals Court also analyzes the so-called "Marks directive" that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds," Marks, 430 U.S. at 193 (internal citation omitted). On Marks, the Appeals Court says the understanding of "narrowest grounds" as used in Marks "does not translate easily to the present situation."
In its conclusion, again in a split 2-1 decision, the Appeals Court says on remand, "...the district court should do exactly as Justice Stevens has suggested. The federal government can establish jurisdiction over the target sites if it can meet either the plurality's or Justice Kennedy's standard as laid out in Rapanos." The dissent in the opinion indicates, "I depart from the majority in interpreting what standards Rapanos has established. The plurality's 'hydrological connection' test provides the proper constitutional limit on federal regulation under the Clean Water Act. Although the majority has provided an able analysis of a thorny issue, I cannot concur that Justice Kennedy's seemingly opaque 'significant nexus' test is a constitutional measure of federal regulatory jurisdiction..."
Access the complete opinion and brief dissent (click here). Access the WIMS-EcoBizPort Special Report on Rapanos for links and extensive information (click here). [*Water]
Friday, August 11, 2006
Ninth Circuit Interprets Supreme Court Wetlands Decision
Aug 10: In the case of Northern California River Watch v. City of Healdsburg, in the U.S. Court of Appeals, Ninth Circuit, Case No. 04-15442. [Editor's Note: The Ninth Circuit provides considerable discussion of its interpretation of the Rapanos decision and, in particular, the interpretation of Justice Kennedy's "controlling" opinion. The discussion begins on page 9 of the opinion.]
The City of Healdsburg appeals the district court’s judgment in favor of Northern California River Watch, an environmental group, in this litigation under the Clean Water Act (CWA). Plaintiff alleges that Healdsburg, without first obtaining a National Pollutant Discharge Elimination System (NPDES) permit, violated the CWA by discharging sewage from its waste treatment plant into waters covered by the Act. Healdsburg discharged the sewage into a body of water known as “Basalt Pond,” a rock quarry pit that had filled with water from the surrounding aquifer, located next to the Russian River.
The issue is whether Basalt Pond is subject to the CWA because the Pond contains wetlands adjacent to a navigable river of the United States. The district court held that discharges into the Pond are discharges into the Russian River, a navigable water of the United States protected by the CWA. The court followed the United States Supreme Court decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
The Ninth Circuit, in what is believed to be the first Appeals Court interpretation of the Supreme Court's Rapanos decision [See WIMS 8/2/06] said, "The Supreme Court, however, has now narrowed the scope of that decision. See Rapanos v. United States, 126 S.Ct. 2208 (2006). In a 4-4-1 decision, the controlling opinion is that of Justice Kennedy who said that to qualify as a navigable water under the CWA the body of water itself need not be continuously flowing, but that there must be a “significant nexus” to a waterway that is in fact navigable. Adjacency of wetlands to navigable waters alone is not sufficient. Id. at 2236-52. In light of Rapanos, we conclude that Basalt Pond and its wetlands possess such a “significant nexus” to waters that are navigable in fact, because the Pond waters seep directly into the navigable Russian River. We affirm the district court’s holding that Basalt Pond is subject to the CWA. We also affirm the district court’s ruling that neither the waste treatment system nor the excavation operation exceptions in the Act apply to Healdsburg’s discharges."
In it discussion of the Supreme Court ruling in Rapanos, the Ninth Circuit said, "In the last term, however, the Supreme Court discussed the intersection between Riverside Bayview Homes and SWANCC. United States v. Rapanos, 126 S.Ct. 2208 (2006). The Rapanos decision involved two consolidated cases, United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004) (Rapanos I) and Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004)...
"In Rapanos, a 4-4-1 plurality opinion, the Supreme Court addressed how the term 'navigable waters' should be construed under the Act. The plurality, written by Justice Scalia for four Justices, would have reversed on the grounds that only those wetlands with a continuous surface connection to bodies that are 'waters of the United States' are protected under the CWA. Justice Stevens, writing the dissent for four Justices, would have affirmed on the grounds that wetlands not directly adjacent to navigable waters, but adjacent to tributaries of navigable waters, are protected under the CWA. Justice Stevens argued that Riverside Bayview Homes is still the controlling precedent and does not require a 'significant nexus' test.
"Justice Kennedy, constituting the fifth vote for reversal, concurred only in the judgment and, therefore, provides the controlling rule of law. See Marks v. United States, 430 U.S. 188, 193 (1977) (explaining that '[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds')..."
Access the complete opinion (click here). On August 1: The Senate Committee on Environment and Public Works, Subcommittee on Fisheries, Wildlife, and Water, Chaired by Lincoln Chafee (R-RI) held a hearing on interpreting the effect of the U.S. Supreme Court's recent decision in the joint cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers on "The Waters of the United States". Access the hearing website and links to all testimony (click here). Access a "simple" explanation of the Rapanos v. U.S. decision from QuizLaw (click here). [*Water]
The City of Healdsburg appeals the district court’s judgment in favor of Northern California River Watch, an environmental group, in this litigation under the Clean Water Act (CWA). Plaintiff alleges that Healdsburg, without first obtaining a National Pollutant Discharge Elimination System (NPDES) permit, violated the CWA by discharging sewage from its waste treatment plant into waters covered by the Act. Healdsburg discharged the sewage into a body of water known as “Basalt Pond,” a rock quarry pit that had filled with water from the surrounding aquifer, located next to the Russian River.
The issue is whether Basalt Pond is subject to the CWA because the Pond contains wetlands adjacent to a navigable river of the United States. The district court held that discharges into the Pond are discharges into the Russian River, a navigable water of the United States protected by the CWA. The court followed the United States Supreme Court decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
The Ninth Circuit, in what is believed to be the first Appeals Court interpretation of the Supreme Court's Rapanos decision [See WIMS 8/2/06] said, "The Supreme Court, however, has now narrowed the scope of that decision. See Rapanos v. United States, 126 S.Ct. 2208 (2006). In a 4-4-1 decision, the controlling opinion is that of Justice Kennedy who said that to qualify as a navigable water under the CWA the body of water itself need not be continuously flowing, but that there must be a “significant nexus” to a waterway that is in fact navigable. Adjacency of wetlands to navigable waters alone is not sufficient. Id. at 2236-52. In light of Rapanos, we conclude that Basalt Pond and its wetlands possess such a “significant nexus” to waters that are navigable in fact, because the Pond waters seep directly into the navigable Russian River. We affirm the district court’s holding that Basalt Pond is subject to the CWA. We also affirm the district court’s ruling that neither the waste treatment system nor the excavation operation exceptions in the Act apply to Healdsburg’s discharges."
In it discussion of the Supreme Court ruling in Rapanos, the Ninth Circuit said, "In the last term, however, the Supreme Court discussed the intersection between Riverside Bayview Homes and SWANCC. United States v. Rapanos, 126 S.Ct. 2208 (2006). The Rapanos decision involved two consolidated cases, United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004) (Rapanos I) and Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004)...
"In Rapanos, a 4-4-1 plurality opinion, the Supreme Court addressed how the term 'navigable waters' should be construed under the Act. The plurality, written by Justice Scalia for four Justices, would have reversed on the grounds that only those wetlands with a continuous surface connection to bodies that are 'waters of the United States' are protected under the CWA. Justice Stevens, writing the dissent for four Justices, would have affirmed on the grounds that wetlands not directly adjacent to navigable waters, but adjacent to tributaries of navigable waters, are protected under the CWA. Justice Stevens argued that Riverside Bayview Homes is still the controlling precedent and does not require a 'significant nexus' test.
"Justice Kennedy, constituting the fifth vote for reversal, concurred only in the judgment and, therefore, provides the controlling rule of law. See Marks v. United States, 430 U.S. 188, 193 (1977) (explaining that '[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds')..."
Access the complete opinion (click here). On August 1: The Senate Committee on Environment and Public Works, Subcommittee on Fisheries, Wildlife, and Water, Chaired by Lincoln Chafee (R-RI) held a hearing on interpreting the effect of the U.S. Supreme Court's recent decision in the joint cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers on "The Waters of the United States". Access the hearing website and links to all testimony (click here). Access a "simple" explanation of the Rapanos v. U.S. decision from QuizLaw (click here). [*Water]
Friday, September 29, 2006
PLF Petition To Define “Waters Of The United States”
Sep 27: Pacific Legal Foundation (PLF), who brought and argued the Rapanos v. United States case before the U.S. Supreme Court last term, announced that it has formally petitioned the Federal government to change the regulatory definition of “waters of the United States” to reflect Congressional intent and the United States Supreme Court’s interpretation in the recent Rapanos decision. PLF said the petition is part of a major new Clean Water Act litigation project known as “Beyond Rapanos: Charting a Course to Liberty.”
According to the rulemaking petition filed by PLF the immediate adoption of new regulations, consistent with the intent of Congress as interpreted by the Supreme Court in Rapanos, is vital to the public interest. PLF argues that based on the Court’s findings, the government’s current interpretation is unreasonable and invalid. Principal Attorney Reed Hopper, who argued Rapanos said, “For 30 years, the public has been subject to uncertain and inconsistent jurisdictional standards that have been the hallmark of Clean Water Act enforcement. It is time for action and time for a change.
PLF indicated that their Beyond Rapanos project will be a major focus of the foundation’s efforts for several years to come and will center on defending victims of Clean Water Act enforcement actions throughout the country. Hopper said, “PLF is actively pursuing litigation all over the United States that will, once and for all, return common sense and the rule of law to enforcement of the Clean Water Act. At every turn, PLF will be working to effect change and rein in government’s unjustified power over property owners who are being victimized by unreasonable enforcement of the Act.”
Last month, PLF announced the filing of its first “Beyond Rapanos” case – Fairbanks North Star Borough v. United States Army Corps of Engineers. According to PLF, this case is one of the first to test the Corps’ interpretation of the Clean Water Act following the Rapanos decision. In Fairbanks, PLF sued the Army Corps of Engineers over what they called arbitrary enforcement of the Clean Water Act on land that is frozen to a depth of 20 inches. In this case, PLF is representing an Alaskan Borough which they say is "simply attempting to build playgrounds and athletic fields on a two-acre parcel. The land has no hydrological connection to navigable waters of the United States yet the Army Corps of Engineers asserts that the land is suitable for regulation under the CWA because it includes areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions."
Aside from the PLF efforts, two Circuits of the U.S. Court of Appeals have recently provided interpretations of the confusing 4-4-1, U.S. Supreme Court decision in Rapanos -- the Seventh Circuit, USA v. Gerke Excavating, Inc. (September 22, 2006) [See WIMS 9/25/06]; and the Ninth Circuit, Northern California River Watch v. City of Healdsburg (August 10, 2006) [See WIMS 8/11/06].
Access a release from PLF with links to the petition and related information including a list of Rapanos-related cases (click here). Access the WIMS-eNewsUSA Blog post on the Seventh Circuit, USA v. Gerke Excavating, Inc., September 22, 2006 decision of the Seventh Circuit with links to that opinion and additional information (click here). Access the WIMS-eNewsUSA Blog post on the Northern California River Watch v. City of Healdsburg, August 10, 2006,decision of the Ninth Circuit with links to that opinion and additional information (click here). Access the complete June 16, 2006, Supreme Court Rapanos opinion and syllabus (click here). [*Water]
According to the rulemaking petition filed by PLF the immediate adoption of new regulations, consistent with the intent of Congress as interpreted by the Supreme Court in Rapanos, is vital to the public interest. PLF argues that based on the Court’s findings, the government’s current interpretation is unreasonable and invalid. Principal Attorney Reed Hopper, who argued Rapanos said, “For 30 years, the public has been subject to uncertain and inconsistent jurisdictional standards that have been the hallmark of Clean Water Act enforcement. It is time for action and time for a change.
PLF indicated that their Beyond Rapanos project will be a major focus of the foundation’s efforts for several years to come and will center on defending victims of Clean Water Act enforcement actions throughout the country. Hopper said, “PLF is actively pursuing litigation all over the United States that will, once and for all, return common sense and the rule of law to enforcement of the Clean Water Act. At every turn, PLF will be working to effect change and rein in government’s unjustified power over property owners who are being victimized by unreasonable enforcement of the Act.”
Last month, PLF announced the filing of its first “Beyond Rapanos” case – Fairbanks North Star Borough v. United States Army Corps of Engineers. According to PLF, this case is one of the first to test the Corps’ interpretation of the Clean Water Act following the Rapanos decision. In Fairbanks, PLF sued the Army Corps of Engineers over what they called arbitrary enforcement of the Clean Water Act on land that is frozen to a depth of 20 inches. In this case, PLF is representing an Alaskan Borough which they say is "simply attempting to build playgrounds and athletic fields on a two-acre parcel. The land has no hydrological connection to navigable waters of the United States yet the Army Corps of Engineers asserts that the land is suitable for regulation under the CWA because it includes areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions."
Aside from the PLF efforts, two Circuits of the U.S. Court of Appeals have recently provided interpretations of the confusing 4-4-1, U.S. Supreme Court decision in Rapanos -- the Seventh Circuit, USA v. Gerke Excavating, Inc. (September 22, 2006) [See WIMS 9/25/06]; and the Ninth Circuit, Northern California River Watch v. City of Healdsburg (August 10, 2006) [See WIMS 8/11/06].
Access a release from PLF with links to the petition and related information including a list of Rapanos-related cases (click here). Access the WIMS-eNewsUSA Blog post on the Seventh Circuit, USA v. Gerke Excavating, Inc., September 22, 2006 decision of the Seventh Circuit with links to that opinion and additional information (click here). Access the WIMS-eNewsUSA Blog post on the Northern California River Watch v. City of Healdsburg, August 10, 2006,decision of the Ninth Circuit with links to that opinion and additional information (click here). Access the complete June 16, 2006, Supreme Court Rapanos opinion and syllabus (click here). [*Water]
Tuesday, September 26, 2006
USA v. Gerke Excavating, Inc. Interprets Rapanos Decision
Sep 22: In the U.S. Court of Appeals, Seventh Circuit (WI, IL, IN), Case No. 04-3941. This is the second U.S. appeals court case to interpret the U.S. Supreme Court 4-4-1 decision in Rapanos v. United States, 126 S.Ct. 2208 (2006) [See links below]. In a brief, but important 5-page decision, the Appeals Court reconsiders its previous decision in this case as a result of the Rapanos decision.
This suit charges that the defendant, Gerke Excavating, violated the Clean Water Act by discharging pollutants into “navigable waters” from “point sources” without having obtained the permit from the Corps of Engineers that is required if the pollutant consists of dredge or fill material. The district judge granted summary judgment for the government and imposed a civil penalty. The Seventh Circuit Appeals Court affirmed that decision on June 21, 2005. 412 F.3d 804 (7th Cir. 2005).
Gerke filed a petition for certiorari with the Supreme Court and the High Court granted the petition, 126 S. Ct. 2964 (2006), and remanded the case to the Appeals Court for further consideration in light of its June 19, 2006, decision Rapanos v. United States, where the Court reversed two judgments by the Sixth Circuit upholding Federal authority over wetlands [See WIMS 6/19/06], as the Seventh Circuit had in the instant case.
On it reconsideration the Seventh Circuit said, "There was, however, no majority opinion in Rapanos. Four Justices, in an opinion supporting reversal, wanted to limit federal authority over 'navigable waters' ... Justice Kennedy concurred in the judgment to reverse but not in the plurality opinion. The four dissenting Justices took a much broader view of federal authority; Justice Kennedy criticized them as well as criticizing the plurality. When a majority of the Supreme Court agrees only on the outcome of a case and not on the ground for that outcome, lower-court judges are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose. Marks v. United States, 430 U.S. 188, 193 (1977). In Rapanos, that is Justice Kennedy’s ground...
"Thus, any conclusion that Justice Kennedy reaches in favor of federal authority over wetlands in a future case will command the support of five Justices (himself plus the four dissenters), and in most cases in which he concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality), the exception being a case in which he would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection. The plurality’s insistence that the issue of federal authority be governed by strict rules will on occasion align the Justices in the plurality with the Rapanos dissenters when the balancing approach of Justice Kennedy favors the landowner. But that will be a rare case, so as a practical matter the Kennedy concurrence is the least common denominator (always, when his view favors federal authority)."
In its final determination on the instant case, the Appeals Court concluded, "Justice Kennedy’s proposed standard, which we conclude must govern the further stages of this litigation, requires factfinding not yet undertaken by the district court. We therefore remand the case to that court for such further proceedings as may be necessary to apply the standard."
Access the complete opinion (click here). Access the previous, June 21, 2005, decision of the Seventh Circuit in this case (click here). Access the WIMS-eNewsUSA Blog post on the Northern California River Watch v. City of Healdsburg, August 10, 2006, decision of the Ninth Circuit with links to that opinion and additional information (click here). Access the complete Supreme Court Rapanos opinion and syllabus (click here). [*Water]
This suit charges that the defendant, Gerke Excavating, violated the Clean Water Act by discharging pollutants into “navigable waters” from “point sources” without having obtained the permit from the Corps of Engineers that is required if the pollutant consists of dredge or fill material. The district judge granted summary judgment for the government and imposed a civil penalty. The Seventh Circuit Appeals Court affirmed that decision on June 21, 2005. 412 F.3d 804 (7th Cir. 2005).
Gerke filed a petition for certiorari with the Supreme Court and the High Court granted the petition, 126 S. Ct. 2964 (2006), and remanded the case to the Appeals Court for further consideration in light of its June 19, 2006, decision Rapanos v. United States, where the Court reversed two judgments by the Sixth Circuit upholding Federal authority over wetlands [See WIMS 6/19/06], as the Seventh Circuit had in the instant case.
On it reconsideration the Seventh Circuit said, "There was, however, no majority opinion in Rapanos. Four Justices, in an opinion supporting reversal, wanted to limit federal authority over 'navigable waters' ... Justice Kennedy concurred in the judgment to reverse but not in the plurality opinion. The four dissenting Justices took a much broader view of federal authority; Justice Kennedy criticized them as well as criticizing the plurality. When a majority of the Supreme Court agrees only on the outcome of a case and not on the ground for that outcome, lower-court judges are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose. Marks v. United States, 430 U.S. 188, 193 (1977). In Rapanos, that is Justice Kennedy’s ground...
"Thus, any conclusion that Justice Kennedy reaches in favor of federal authority over wetlands in a future case will command the support of five Justices (himself plus the four dissenters), and in most cases in which he concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality), the exception being a case in which he would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection. The plurality’s insistence that the issue of federal authority be governed by strict rules will on occasion align the Justices in the plurality with the Rapanos dissenters when the balancing approach of Justice Kennedy favors the landowner. But that will be a rare case, so as a practical matter the Kennedy concurrence is the least common denominator (always, when his view favors federal authority)."
In its final determination on the instant case, the Appeals Court concluded, "Justice Kennedy’s proposed standard, which we conclude must govern the further stages of this litigation, requires factfinding not yet undertaken by the district court. We therefore remand the case to that court for such further proceedings as may be necessary to apply the standard."
Access the complete opinion (click here). Access the previous, June 21, 2005, decision of the Seventh Circuit in this case (click here). Access the WIMS-eNewsUSA Blog post on the Northern California River Watch v. City of Healdsburg, August 10, 2006, decision of the Ninth Circuit with links to that opinion and additional information (click here). Access the complete Supreme Court Rapanos opinion and syllabus (click here). [*Water]
Friday, March 09, 2007
San Francisco Baykeeper v. Cargill Salt Division
Mar 8: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 04-17554, 05-15051. Other amici curiae involved in the case include: Pacific Legal Foundation, National Wildlife Federation, National Association of Home Builders and the U.S. Department of Justice, Environment & Natural Resources Division.
San Francisco Baykeeper and Citizens Committee to Complete the Refuge (collectively Baykeeper) filed a citizen suit under the Clean Water Act (CWA) against Cargill Salt Division and Cargill, Incorporated (Cargill). Baykeeper alleged that Cargill discharged pollutants into “waters of the United States” without a permit. The body of water into which Cargill allegedly discharged waste is a non-navigable, intrastate pond (the Pond), not determined to be a “wetland,” that collects polluted runoff within Cargill’s waste containment facility located near the southeastern edge of San Francisco Bay.
The district court granted summary judgment in favor of Baykeeper after determining that the Pond qualifies as a “water of the United States” because it is adjacent to a protected water of the United States (Mowry Slough). Cargill then brought the appeal. The Appeals Court said, "Because we conclude that mere adjacency provides a basis for CWA coverage only when the relevant waterbody is a 'wetland,' and no other reason for CWA coverage of Cargill’s Pond is supported by evidence or is properly before us, we reverse the district court’s summary judgment."
In further discussing the case relation to the Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), and Rapanos v. United States, 126 S. Ct. 2208 (2006); the Appeals Court said, "We conclude, therefore, that nothing in Bayview, SWANCC or Rapanos requires or supports the view that Cargill’s Pond is a water of the United States because it is adjacent to Mowry Slough. Baykeeper contends, however, that the Pond is more than merely adjacent; it has a nexus to Mowry Slough. It is not sufficient, however, for Baykeeper simply to make its individual case; it must establish that it was unreasonable for the EPA to confine to wetlands the CWA’s reach to non-navigable waterbodies adjacent to protected waters. Even on its own terms, however, Baykeeper’s argument fails. The evidence in support of Baykeeper’s nexus falls far short of the nexus that Justice Kennedy required in Rapanos even for wetlands that the Corps sought to hold subject to the CWA..."
The Appeals Court noted further, "In short, the 'Adjacent Waters Theory upon which the District Court based its Jurisdictional Ruling' does not rely on evidence of tributary status or effect on interstate commerce. Accordingly, we conclude that these alternative theories are independent of the 'Adjacent Waters Theory' and are waived."
The National Association of Home Builders (NAHB), an amicus party in the case, issued a release that "cheered the decision." NAHB President Brian Catalde said, “These regulatory burdens translate into expenses that increase the price of homes. We need to stop this bureaucratic expansion on behalf of our home buyers... We should all want the same thing: protection for the nation’s water supply. But the rules about how to achieve that need to be clear, for the sake of all of us. Let’s keep our environmental regulations strong, but make them sensible. Make them consistent. Our nation’s home builders – and our nation’s home buyers – deserve no less.”
Access the complete opinion (click here). Access the NAHB release (click here). Access WIMS eNewsUSA Blog for various articles related to Rapanos (click here). Access the WIMS-EcoBizPort Special Report on Rapanos for links and extensive information (click here). [*Water]
San Francisco Baykeeper and Citizens Committee to Complete the Refuge (collectively Baykeeper) filed a citizen suit under the Clean Water Act (CWA) against Cargill Salt Division and Cargill, Incorporated (Cargill). Baykeeper alleged that Cargill discharged pollutants into “waters of the United States” without a permit. The body of water into which Cargill allegedly discharged waste is a non-navigable, intrastate pond (the Pond), not determined to be a “wetland,” that collects polluted runoff within Cargill’s waste containment facility located near the southeastern edge of San Francisco Bay.
The district court granted summary judgment in favor of Baykeeper after determining that the Pond qualifies as a “water of the United States” because it is adjacent to a protected water of the United States (Mowry Slough). Cargill then brought the appeal. The Appeals Court said, "Because we conclude that mere adjacency provides a basis for CWA coverage only when the relevant waterbody is a 'wetland,' and no other reason for CWA coverage of Cargill’s Pond is supported by evidence or is properly before us, we reverse the district court’s summary judgment."
In further discussing the case relation to the Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), and Rapanos v. United States, 126 S. Ct. 2208 (2006); the Appeals Court said, "We conclude, therefore, that nothing in Bayview, SWANCC or Rapanos requires or supports the view that Cargill’s Pond is a water of the United States because it is adjacent to Mowry Slough. Baykeeper contends, however, that the Pond is more than merely adjacent; it has a nexus to Mowry Slough. It is not sufficient, however, for Baykeeper simply to make its individual case; it must establish that it was unreasonable for the EPA to confine to wetlands the CWA’s reach to non-navigable waterbodies adjacent to protected waters. Even on its own terms, however, Baykeeper’s argument fails. The evidence in support of Baykeeper’s nexus falls far short of the nexus that Justice Kennedy required in Rapanos even for wetlands that the Corps sought to hold subject to the CWA..."
The Appeals Court noted further, "In short, the 'Adjacent Waters Theory upon which the District Court based its Jurisdictional Ruling' does not rely on evidence of tributary status or effect on interstate commerce. Accordingly, we conclude that these alternative theories are independent of the 'Adjacent Waters Theory' and are waived."
The National Association of Home Builders (NAHB), an amicus party in the case, issued a release that "cheered the decision." NAHB President Brian Catalde said, “These regulatory burdens translate into expenses that increase the price of homes. We need to stop this bureaucratic expansion on behalf of our home buyers... We should all want the same thing: protection for the nation’s water supply. But the rules about how to achieve that need to be clear, for the sake of all of us. Let’s keep our environmental regulations strong, but make them sensible. Make them consistent. Our nation’s home builders – and our nation’s home buyers – deserve no less.”
Access the complete opinion (click here). Access the NAHB release (click here). Access WIMS eNewsUSA Blog for various articles related to Rapanos (click here). Access the WIMS-EcoBizPort Special Report on Rapanos for links and extensive information (click here). [*Water]
Tuesday, August 07, 2007
Northern California River Watch v. City of Healdsburg
Aug 6: In the U.S. Court of Appeals, Ninth Circuit, Case No. 04-15442. The case provides another interpretation of the U.S. Supreme Court decision in Rapanos v. U.S (See links below). Defendant/Appellant City of Healdsburg (Healdsburg) appeals the district court’s judgment in favor of Plaintiff/Appellee Northern California River Watch (River Watch), an environmental group, in this litigation under the Clean Water Act (CWA). Plaintiff alleges that Healdsburg, without first obtaining a National Pollutant Discharge Elimination System (NPDES) permit, violated the CWA by discharging sewage from its waste treatment plant into waters covered by the Act. Healdsburg discharged the sewage into a body of water known as “Basalt Pond,” a rock quarry pit that had filled with water from the surrounding aquifer, located next to the Russian River.
According to the Ninth Circuit, the issue is whether Basalt Pond is subject to the CWA because the Pond, containing wetlands, borders additional wetlands that are adjacent to a navigable river of the United States. The district court held that discharges into the Pond are discharges into the Russian River, a navigable water of the United States protected by the CWA. The court followed the United States Supreme Court decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). The Supreme Court, however, has now narrowed the scope of that decision. See Rapanos v. United States, 126 S.Ct. 2208 (2006). In a 4-4-1 decision, the Appeals Court said, "the controlling opinion is that of Justice Kennedy who said that to qualify as a regulable water under the CWA the body of water itself need not be continuously flowing, but that there must be a 'significant nexus' to a waterway that is in fact navigable.
"In light of Rapanos, we conclude that Basalt Pond possesses such a 'significant nexus' to waters that are navigable in fact, not only because the Pond waters seep into the navigable Russian River, but also because they significantly affect the physical, biological, and chemical integrity of the River. We affirm the district court’s holding that Basalt Pond is subject to the CWA. We also affirm the district court’s ruling that neither the waste treatment system nor the excavation operation exceptions in the Act apply to Healdsburg’s discharges."
Access the complete opinion (click here). [Access various posts on WIMS-eNewsUSA Blog and the WIMS-EcoBizPort Special Report on the Rapanos Supreme Court Decision & Related Activities]. [*Water]
According to the Ninth Circuit, the issue is whether Basalt Pond is subject to the CWA because the Pond, containing wetlands, borders additional wetlands that are adjacent to a navigable river of the United States. The district court held that discharges into the Pond are discharges into the Russian River, a navigable water of the United States protected by the CWA. The court followed the United States Supreme Court decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). The Supreme Court, however, has now narrowed the scope of that decision. See Rapanos v. United States, 126 S.Ct. 2208 (2006). In a 4-4-1 decision, the Appeals Court said, "the controlling opinion is that of Justice Kennedy who said that to qualify as a regulable water under the CWA the body of water itself need not be continuously flowing, but that there must be a 'significant nexus' to a waterway that is in fact navigable.
"In light of Rapanos, we conclude that Basalt Pond possesses such a 'significant nexus' to waters that are navigable in fact, not only because the Pond waters seep into the navigable Russian River, but also because they significantly affect the physical, biological, and chemical integrity of the River. We affirm the district court’s holding that Basalt Pond is subject to the CWA. We also affirm the district court’s ruling that neither the waste treatment system nor the excavation operation exceptions in the Act apply to Healdsburg’s discharges."
Access the complete opinion (click here). [Access various posts on WIMS-eNewsUSA Blog and the WIMS-EcoBizPort Special Report on the Rapanos Supreme Court Decision & Related Activities]. [*Water]
Tuesday, June 05, 2007
EPA & Corps Issue Wetland Guidance Documents
Jun 5: Just days after Congressman Jim Oberstar (D-MN), Chair of the House Transportation and Infrastructure Committee, introduced legislation with over 150 cosponsors which he said is designed "to fix the Clean Water Act (CWA) after it was damaged by two U.S. Supreme Court rulings" [See WIMS 5/22/07]; U.S. EPA and the U.S. Army Corps of Engineers issued joint guidance for their field offices which they say will "ensure America's wetlands and other water bodies are protected under the Clean Water Act (CWA)." The agencies said the action reinforces the Bush Administration's commitment to protect and enhance the quality of our nation's wetlands and water bodies.
Benjamin Grumbles, EPA's assistant administrator for Water said, "The Bush Administration is committed to protecting wetlands and streams under the Clean Water Act and Supreme Court decisions. Today's action sends a clear signal we'll use our regulatory tools to meet the president's ambitious wetlands goals." John Paul Woodley Jr., assistant secretary of the Army (Civil Works) said, "We are committed to protecting America's aquatic resources under the Clean Water Act and in accordance with the recent Supreme Court decision. This interagency guidance will enable the agencies to make clear, consistent, and predictable jurisdictional determinations. The results, once posted on agency Web sites, will document how the scope of the Clean Water Act jurisdiction is being determined."
EPA and Corps staff will also use the guidance when taking enforcement actions under the CWA. The guidance clarifies those circumstances where a person may need to obtain a CWA Section 404 permit before conducting activities in wetlands, tributaries, and other waters. Individual tribal, state and local laws, regulations, or policies may further protect aquatic water resources. The guidance is consistent with the Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell v. United States regarding the scope of the agencies' jurisdiction under the CWA [Access various posts on WIMS-eNewsUSA Blog and the WIMS-EcoBizPort Special Report on the Rapanos Supreme Court Decision & Related Activities].
Specifically, the guidance discusses the agencies' protection of three classes of waters through the following actions: (1) Continuing to regulate "traditionally navigable waters," including all rivers and other waters that are large enough to be used by boats that transport commerce and any wetlands adjacent to such waters; (2) Continuing to regulate "non-navigable tributaries that are relatively permanent and wetlands that are physically connected to these tributaries"; and (3) Continuing to regulate based on case-by-case determinations for other tributaries and adjacent wetlands that have certain characteristics that significantly affect traditionally navigable waters.
The guidance supports a strong regulatory program that ensures no net loss of wetlands, which is one of three key elements to the Bush Administration wetlands policy. The other two elements include an active management program that will result in the restoration, enhancement and protection of three million acres of wetlands by 2009 and a commitment to conserve isolated wetlands such as prairie potholes.
EPA said that during the first six months of implementing the guidance, the agencies are inviting public comments on case studies and experiences applying the guidance. The guidance notice of availability will be published in the Federal Register soon. The agencies said they will more broadly consider jurisdictional issues, including additional clarification and definition of key terminology, through rulemaking or other appropriate policy practice.
As part of the latest action, U.S. EPA has posted three new documents: (1) June 2007 Legal Memorandum (12 pp, discussing Clean Water Act Jurisdiction Following the U.S. Supreme Court Decision in Rapanos v. United States & Carabell v. United States.); (2) June 2007 Memorandum of Agreement (7 pp, regarding Coordination on Jurisdictional Determinations under Clean Water Act Section 404 in Light of the SWANCC and Rapanos Supreme Court Decisions.); (3) June 2007 Questions and Answers (7 pp).
Access a joint EPA/COE release (click here). Access the legal memorandum and Q&A document and background information on EPA's website (click here). Access the prepublication copy of FR notice (click here). Access additional documents and a powerpoint presentation on the COE website (click here). [*Water]
Benjamin Grumbles, EPA's assistant administrator for Water said, "The Bush Administration is committed to protecting wetlands and streams under the Clean Water Act and Supreme Court decisions. Today's action sends a clear signal we'll use our regulatory tools to meet the president's ambitious wetlands goals." John Paul Woodley Jr., assistant secretary of the Army (Civil Works) said, "We are committed to protecting America's aquatic resources under the Clean Water Act and in accordance with the recent Supreme Court decision. This interagency guidance will enable the agencies to make clear, consistent, and predictable jurisdictional determinations. The results, once posted on agency Web sites, will document how the scope of the Clean Water Act jurisdiction is being determined."
EPA and Corps staff will also use the guidance when taking enforcement actions under the CWA. The guidance clarifies those circumstances where a person may need to obtain a CWA Section 404 permit before conducting activities in wetlands, tributaries, and other waters. Individual tribal, state and local laws, regulations, or policies may further protect aquatic water resources. The guidance is consistent with the Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell v. United States regarding the scope of the agencies' jurisdiction under the CWA [Access various posts on WIMS-eNewsUSA Blog and the WIMS-EcoBizPort Special Report on the Rapanos Supreme Court Decision & Related Activities].
Specifically, the guidance discusses the agencies' protection of three classes of waters through the following actions: (1) Continuing to regulate "traditionally navigable waters," including all rivers and other waters that are large enough to be used by boats that transport commerce and any wetlands adjacent to such waters; (2) Continuing to regulate "non-navigable tributaries that are relatively permanent and wetlands that are physically connected to these tributaries"; and (3) Continuing to regulate based on case-by-case determinations for other tributaries and adjacent wetlands that have certain characteristics that significantly affect traditionally navigable waters.
The guidance supports a strong regulatory program that ensures no net loss of wetlands, which is one of three key elements to the Bush Administration wetlands policy. The other two elements include an active management program that will result in the restoration, enhancement and protection of three million acres of wetlands by 2009 and a commitment to conserve isolated wetlands such as prairie potholes.
EPA said that during the first six months of implementing the guidance, the agencies are inviting public comments on case studies and experiences applying the guidance. The guidance notice of availability will be published in the Federal Register soon. The agencies said they will more broadly consider jurisdictional issues, including additional clarification and definition of key terminology, through rulemaking or other appropriate policy practice.
As part of the latest action, U.S. EPA has posted three new documents: (1) June 2007 Legal Memorandum (12 pp, discussing Clean Water Act Jurisdiction Following the U.S. Supreme Court Decision in Rapanos v. United States & Carabell v. United States.); (2) June 2007 Memorandum of Agreement (7 pp, regarding Coordination on Jurisdictional Determinations under Clean Water Act Section 404 in Light of the SWANCC and Rapanos Supreme Court Decisions.); (3) June 2007 Questions and Answers (7 pp).
Access a joint EPA/COE release (click here). Access the legal memorandum and Q&A document and background information on EPA's website (click here). Access the prepublication copy of FR notice (click here). Access additional documents and a powerpoint presentation on the COE website (click here). [*Water]
Wednesday, December 17, 2008
Reps. Report "Drastic Deterioration" Of CWA Enforcement
Dec 16: Chairman James Oberstar (D-MN), of the House Transportation & Infrastructure Committee and Oversight and Government Reform Committee Chairman Henry Waxman (D-CA) have written to President-elect Obama regarding their investigation into what they called "the drastic deterioration of the Clean Water Act [CWA] enforcement program." Chairman Waxman said, "One of the legacies of the Bush Administration is its failure to protect the safety and health of the nation's waters. Our investigation reveals that the clean water program has been decimated as hundreds of enforcement cases have been dropped, downgraded, delayed, or never brought in the first place. We need to work with the new Administration to restore the effectiveness and integrity to this vital program."
The two Representatives reported that new internal documents obtained by the Committees show that "hundreds of Clean Water Act violations have not been pursued with enforcement actions. Dozens of existing enforcement cases have become informal responses, have had civil penalties reduced, and have experienced significant delays. Many violations are not even being detected because of the substantial reduction in investigations. Violations involving oil spills make up nearly half of the Clean Water Act violations that have been detected but are not being addressed."
They said EPA refused to produce hundreds of documents to the Committees and redacted many of the documents it did produce. EPA concealed the identity of corporations and individuals accused of polluting waters and the specific waters that may have been affected. In addition, the Committees' investigation revealed that the Assistant Secretary for the Army for Civil Works "placed the interests of corporate lobbyists over the scientific determinations of career officials in making Clean Water Act decisions about the Santa Cruz River in Arizona."
Chairman Oberstar said,"This Administration has only exacerbated a series of bad Supreme Court decisions by not enforcing the Clean Water Act and by placing development interests above those of the public. By withholding relevant information and misleading Congress our nation's waters have gone unprotected for too long. Only through Congressional action can we restore necessary Clean Water Act protections to our nation's waters."
The Committees' investigation included the review of more than 20,000 pages of documents produced to the Committees by the EPA and the U.S. Army Corps of Engineers. Much of the review relates to the June 2006, the Supreme Court decision in the case of Rapanos v. United States that federal agencies could assert jurisdiction under the Clean Water Act for many waters only after going through a time-consuming and resource-intensive process of demonstrating a "significant nexus" to "traditional navigable waters."
In their 23-page Memo of findings, the Representatives say, "The documents indicate that the Supreme Court's decision . . . [in Rapanos] and the Administration's guidance implementing that decision have resulted in a dramatic decline in the number of Clean Water Act inspections, investigations, and enforcement actions. In numerous e-mails, memos, and other documents, EPA field offices across the country have expressed serious concerns about this negative trend, warning that they are no longer able to ensure the safety and health of the nation's waters. . ."
Jan Goldman-Carter Wetlands and Water Resources Counsel for National Wildlife Federation (NWF) reacted to the legislative investigation and said, “This memorandum reveals what we always feared -- the Clean Water Act is being crushed by the current legal uncertainty and our important water resources are suffering. It is time for Congress to stop the bleeding and restore full protections to our Nation’s waters.” NWF attorney Jim Murphy said, “It is now beyond question that leaving the status quo in place is a catastrophic choice for our children’s future. The new Congress, with vigorous support from the new Administration, must reverse the damage done to the Clean Water Act and put us back on the path to clean water.”
Joan Mulhern, Legislative Counsel for the public interest law firm Earthjustice said, "We have known for some time that the Clean Water Act is broken and that thousands of streams, rivers and wetlands have lost federal anti-pollution protections. But now we know the extent to which the Bush administration has been covering up the problem. While the committees' report is very revealing, the EPA's cover-up continues. They are still withholding documents on hundreds of dropped enforcement actions, and the information they did give the chairmen redacted identifying information that would tell the American people which water bodies have been contaminated illegally with oil spills, fills, and other industrial discharges by polluters. The new administration must immediately reverse this pattern of leaving waters unprotected and hiding the mess from the public, and support swift Congressional passage of the Clean Water Restoration Act."
Access a release and link to the text of the letter to President-elect Obama, a memorandum discussing the Committees' findings, and accompanying internal documents (click here). Access a release from NWF (click here). Access a release from Earthjustice (click here). Access the WIMS-EcoBizPort Special Report on Rapanos for links and extensive information (click here). Access WIMS eNewsUSA Blog for various articles related to Rapanos (click here). [*Water]
The two Representatives reported that new internal documents obtained by the Committees show that "hundreds of Clean Water Act violations have not been pursued with enforcement actions. Dozens of existing enforcement cases have become informal responses, have had civil penalties reduced, and have experienced significant delays. Many violations are not even being detected because of the substantial reduction in investigations. Violations involving oil spills make up nearly half of the Clean Water Act violations that have been detected but are not being addressed."
They said EPA refused to produce hundreds of documents to the Committees and redacted many of the documents it did produce. EPA concealed the identity of corporations and individuals accused of polluting waters and the specific waters that may have been affected. In addition, the Committees' investigation revealed that the Assistant Secretary for the Army for Civil Works "placed the interests of corporate lobbyists over the scientific determinations of career officials in making Clean Water Act decisions about the Santa Cruz River in Arizona."
Chairman Oberstar said,"This Administration has only exacerbated a series of bad Supreme Court decisions by not enforcing the Clean Water Act and by placing development interests above those of the public. By withholding relevant information and misleading Congress our nation's waters have gone unprotected for too long. Only through Congressional action can we restore necessary Clean Water Act protections to our nation's waters."
The Committees' investigation included the review of more than 20,000 pages of documents produced to the Committees by the EPA and the U.S. Army Corps of Engineers. Much of the review relates to the June 2006, the Supreme Court decision in the case of Rapanos v. United States that federal agencies could assert jurisdiction under the Clean Water Act for many waters only after going through a time-consuming and resource-intensive process of demonstrating a "significant nexus" to "traditional navigable waters."
In their 23-page Memo of findings, the Representatives say, "The documents indicate that the Supreme Court's decision . . . [in Rapanos] and the Administration's guidance implementing that decision have resulted in a dramatic decline in the number of Clean Water Act inspections, investigations, and enforcement actions. In numerous e-mails, memos, and other documents, EPA field offices across the country have expressed serious concerns about this negative trend, warning that they are no longer able to ensure the safety and health of the nation's waters. . ."
Jan Goldman-Carter Wetlands and Water Resources Counsel for National Wildlife Federation (NWF) reacted to the legislative investigation and said, “This memorandum reveals what we always feared -- the Clean Water Act is being crushed by the current legal uncertainty and our important water resources are suffering. It is time for Congress to stop the bleeding and restore full protections to our Nation’s waters.” NWF attorney Jim Murphy said, “It is now beyond question that leaving the status quo in place is a catastrophic choice for our children’s future. The new Congress, with vigorous support from the new Administration, must reverse the damage done to the Clean Water Act and put us back on the path to clean water.”
Joan Mulhern, Legislative Counsel for the public interest law firm Earthjustice said, "We have known for some time that the Clean Water Act is broken and that thousands of streams, rivers and wetlands have lost federal anti-pollution protections. But now we know the extent to which the Bush administration has been covering up the problem. While the committees' report is very revealing, the EPA's cover-up continues. They are still withholding documents on hundreds of dropped enforcement actions, and the information they did give the chairmen redacted identifying information that would tell the American people which water bodies have been contaminated illegally with oil spills, fills, and other industrial discharges by polluters. The new administration must immediately reverse this pattern of leaving waters unprotected and hiding the mess from the public, and support swift Congressional passage of the Clean Water Restoration Act."
Access a release and link to the text of the letter to President-elect Obama, a memorandum discussing the Committees' findings, and accompanying internal documents (click here). Access a release from NWF (click here). Access a release from Earthjustice (click here). Access the WIMS-EcoBizPort Special Report on Rapanos for links and extensive information (click here). Access WIMS eNewsUSA Blog for various articles related to Rapanos (click here). [*Water]
Tuesday, July 05, 2011
GOP Senators Object To CWA Guidance Document; Comment Extended
Jul 5: U.S. EPA and Army Corps of Engineers announced in the Federal Register [76 FR 39101-39102] they are extending the comment period until July 31, on their proposed Guidance Regarding Identification of Waters Protected by the Clean Water Act (CWA). On May 2, 2011, EPA the Corps officially announced availability of draft guidance (76 FR 24479) that describes how the agencies will identify waters protected by the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act or CWA or Act) and implement the Supreme Court's decisions on this topic (i.e., Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) (531 U.S. 159 (2001)) and Rapanos v. United States (547 U.S. 715 (2006)) (Rapanos)). The comment period was originally set to expire on July 1, 2011, and the agencies are extending the public comment period by 30 days. EPA and the Corps originally announced the Guidance on April 27, as part of the Administration's National Clean Water Framework [See WIMS 4/27/11]. The Guidance would replace previous guidance concerning the scope of protection for critical waters.
On June 30, Senator James Inhofe (R-OK), Ranking Member of the Senate Committee on Environment and Public Works (EPW), along with 40 Republican colleagues sent a letter to EPA and the Corps asking the agencies to abandon their draft guidance document. Senator Inhofe, who is leading the effort said, "I am pleased to join 40 of my colleagues in opposition to EPA and Army Corps' recent guidance document, which seeks to greatly expand federal jurisdiction over our nation's waters. Whether it's global warming or clean water, the Obama EPA is aggressively trying to achieve through regulation what could not be achieved through legislation, and this guidance document is a prime example. The agencies should immediately abandon it and work to implement an effective balance between state and federal authority-that balance is the best way to achieve substantial progress in protecting water."
In their letter the Senators said, "We have a great deal of concern about the actions that the Agencies are pursuing. The Agencies claim that this guidance document is simply meant to clarify how the Agencies understand the existing requirements of the CWA in light of the current law, regulations, and Supreme Court cases. More than clarifying, they greatly expand what could be considered jurisdictional waters through a slew of new and expanded definitions and through changes to applications of jurisdictional tests. This guidance document improperly interprets the opinions of the plurality and Justice Kennedy's opinion in Rapanos v. United States by incorporating only their expansive language in an attempt to gain jurisdictional authority over new waters, while ignoring both justices' clear limitations on federal CWA authority. . .
In their letter the Senators said, "We have a great deal of concern about the actions that the Agencies are pursuing. The Agencies claim that this guidance document is simply meant to clarify how the Agencies understand the existing requirements of the CWA in light of the current law, regulations, and Supreme Court cases. More than clarifying, they greatly expand what could be considered jurisdictional waters through a slew of new and expanded definitions and through changes to applications of jurisdictional tests. This guidance document improperly interprets the opinions of the plurality and Justice Kennedy's opinion in Rapanos v. United States by incorporating only their expansive language in an attempt to gain jurisdictional authority over new waters, while ignoring both justices' clear limitations on federal CWA authority. . .
"Because the draft guidance will substantively change how the agencies decide which waters are subject to federal jurisdiction and will impact the regulated community's rights and obligations under the CWA, this guidance has clear regulatory consequences and goes beyond being simply advisory guidelines. The draft guidance will shift the burden of proving jurisdictional status of waters from the Agencies to the regulated communities, thus making the guidance binding and fundamentally changing the legal rights and responsibilities that they have. When an agency acts to change the rights of an individual, we believe that the agency must go through the formal rulemaking process."
On June 22, 2011, the Small Business Administration (SBA) Office of Advocacy also submitted public comments on the Guidance and among other concerns raised questions regarding the "guidance" v. "rule" issue [See WIMS 6/24/11]. SBA Advocacy said, "Advocacy is concerned that the Agencies are choosing to address the very important issue of the determination of jurisdictional decision in guidance rather than through the rulemaking process. Advocacy believes that imposition of the changes the Agencies propose in the Guidance is properly made through the rulemaking process as governed by the Administrative Procedure Act. Advocacy realizes that the Agencies are soliciting comments on the proposed guidance. However, the rulemaking process provides the public and small businesses with important protections beyond the ability to comment such as the right to a Regulatory Flexibility Analysis and the requirement that agencies respond to comments. . ."
Access today's FR announcement (click here). Access the letter from Republican Senators including highlights of several specific issues regarding the draft guidance document (click here). Access the EPA Docket for this action for background and to submit and review comments (click here). Access the Obama Administration's Clean Water Framework (click here). Access the draft Clean Water Act guidance from U.S. EPA and the U.S. Army Corps of Engineers with supporting documents and commenting instructions (click here). [*Water]
Friday, March 30, 2012
GOP Members Call On OMB To Reject EPA/USACE Water Guidance
Mar 28: Senator James Inhofe (R-OK), Ranking Member of the Senate Committee on Environment and Public Works, joined Senators Jeff Sessions (R-AL) and Pat Roberts (R-KS), as well as Representatives John Mica (R-FL), Frank Lucas (OK), and Bob Gibbs (OH) to send a letter to Cass Sunstein Administrator of Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB) asking that the document, "Guidance on Identifying Waters Protected by the Clean Air Act," put forth by U.S. EPA and the Army Corps of Engineers (USACE) not be finalized. They said, "This guidance document seeks to give the federal government control over virtually every body of water in the United States, no matter how small."
In their lengthy letter, the Members said in part, "We continue to be concerned that this so-called guidance misconstrues and manipulates the legal standards announced in the SWANCC and Rapanos Supreme Court decisions [i.e. Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001); and Rapanos v. United States, 547 U. S. 715 (2006)], and will not further the goal of clarifying which waters are subject to CWA jurisdiction. We are also concerned that the Administration is seeking, through so-called guidance, to change the scope and meaning of the CWA.
"If the Administration seeks statutory changes to the Clean Water Act, a proposal must be submitted to Congress for legislative action. If the Administration seeks to make regulatory changes, a notice and comment rulemaking is required, following the proper, transparent rulemaking process that is dictated by the Administrative Procedure Act. We have informed the Agencies of this, and that we expect them to formally withdraw this guidance and undertake a formal rulemaking to address the definition of "waters of the United States" in the context of the SWANCC and Rapanos decisions. However, the Agencies have repeatedly ignored our calls to not finalize the guidance. . .
"Further, we remain concerned that the Agencies have not fully taken into account the full extent of the changes the guidance would make in expanding the scope of Federal jurisdiction under the CWA. . . the guidance is intended to apply to more jurisdictional interpretations, under other CWA programs, than just those covered by the Army Corps in making §404 determinations. Specifically, the guidance also would apply to jurisdictional determinations made under §402, which governs National Pollutant Discharge Elimination System permits, §311, covering oil spills and SPCC plans, §303, dealing with water quality standards and total maximum daily loads, and §401, involving State water quality certifications. . .
"Finally, it was reported recently that there is no clear path forward on when or how the Agencies will proceed with a rulemaking. . . Changes in guidance will only exacerbate the confusion and legal uncertainty that surrounds the CWA and continue to embroil the States and regulated community in unending legal challenges. The scope of those affected by the guidance document is far reaching and it is clear that sufficient review of the impacts has not been considered by the agencies. We request that the guidance document not be finalized."
Senator Inhofe said, "The Obama-EPA continues to pursue a water guidance document that sets the stage for the federal government to take over virtually every body of water in the United States from irrigation ditches to puddles of water on the road. Republicans believe that any changes to the Clean Water Act through the Administration should be done through rulemaking, which requires a transparent process that allows for a public comment period. Instead, the Agencies appear to be skipping these required steps and relying on this guidance document to change the scope and meaning of the Clean Water Act. We will continue fighting this every step of the way."
House Agriculture Committee Chairman Lucas said, "The EPA has ignored repeated requests from Congress to abandon a guideline that creates a foundation to regulate essentially any body of water, such as a farm pond or even a ditch. Through this measure the EPA and the Army Corps of Engineers would assume broad and expanded authorities under the Clean Water Act to further regulate land use for farmers and ranchers. Similar legislative proposals have already been rejected by Congress, yet this Administration continues down a path of regulatory overreach. The vitality and health of our nation's waterways are important to all of us. Our disagreement is how we achieve this goal."
Access a release from the GOP Members including the complete letter and additional comments (click here). [#Water]
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Friday, April 03, 2009
Sen. Feingold Bill To Restore Scope Of CWA Protected Waters
Apr 2: Senator Russ Feingold (D-WI) reintroduced legislation which he says will "restore protections for waterways throughout the country that impact the drinking water of more than 100 million Americans." Feingold’s Clean Water Restoration Act (CWRA, S. 787) would ensure protections for rivers, streams and wetlands, which were long protected under the Clean Water Act (CWA), but "are now in jeopardy of losing protections as a result of two recent Supreme Court cases." He said, "Since those decisions, more and more waters continue to be stripped of protections previously provided by the CWA, which became law in 1972." Feingold is joined by twenty-three cosponsors including Senator Barbara Boxer, Chairman of the Environment and Public Works (EPW) Committee, and Senator Ben Cardin, Chairman of the EPW Water and Wildlife Subcommittee.
Feingold said, “The choice before us today is simple but urgent: If you support the Clean Water Act, you must also support this bill to restore the protections of the Clean Water Act. Every day Congress fails to reaffirm Clean Water Act protections, more and more waters are stripped of their protections, jeopardizing the drinking water of millions of Americans, as well as our nation's wildlife habitats, recreational pursuits, agricultural and industrial uses, and public health. I am pleased the bill has such broad support from governors, attorneys general, farming groups, outdoor recreation groups and others who recognize the great danger of leaving our waters and wetlands unprotected.”
According to a release, the CWA was enacted in 1972 to clean up and protect our nation’s waters, including isolated wetlands and headwater streams, which are critical to our environment and economy. However, two controversial, closely decided U.S. Supreme Court cases, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006, greatly reduced the scope of the CWA, undermining decades of clean water protections. Feingold said, "The decisions have also led to significant confusion, permitting delays and increased costs caused by uncertainty about which waters remain protected after the court decisions."
The President and members of his administration have spoken in favor of restoring the scope of the CWA. During the campaign, President Obama’s campaign stated that if elected, he would support and sign into law legislation that effectively restores the historical scope of the CWA. During her nomination hearings, Lisa Jackson, EPA Administrator, stated that if confirmed, she would assist Congress with legislation to clarify the scope of the CWA. And in April 2008, Carol Browner, who served as the EPA Administrator under President Clinton and who currently works on climate change issues in the Obama administration, testified in support of Feingold’s legislation.
Access a release with comments from supporters and link to a list of endorsements (click here). Access legislative details for S. 787 (click here). Access numerous WIMS-eNewsUSA blog postings on the Rapanos and Northern Cook County decisions and related matters (click here). [*Water]
Feingold said, “The choice before us today is simple but urgent: If you support the Clean Water Act, you must also support this bill to restore the protections of the Clean Water Act. Every day Congress fails to reaffirm Clean Water Act protections, more and more waters are stripped of their protections, jeopardizing the drinking water of millions of Americans, as well as our nation's wildlife habitats, recreational pursuits, agricultural and industrial uses, and public health. I am pleased the bill has such broad support from governors, attorneys general, farming groups, outdoor recreation groups and others who recognize the great danger of leaving our waters and wetlands unprotected.”
According to a release, the CWA was enacted in 1972 to clean up and protect our nation’s waters, including isolated wetlands and headwater streams, which are critical to our environment and economy. However, two controversial, closely decided U.S. Supreme Court cases, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006, greatly reduced the scope of the CWA, undermining decades of clean water protections. Feingold said, "The decisions have also led to significant confusion, permitting delays and increased costs caused by uncertainty about which waters remain protected after the court decisions."
The President and members of his administration have spoken in favor of restoring the scope of the CWA. During the campaign, President Obama’s campaign stated that if elected, he would support and sign into law legislation that effectively restores the historical scope of the CWA. During her nomination hearings, Lisa Jackson, EPA Administrator, stated that if confirmed, she would assist Congress with legislation to clarify the scope of the CWA. And in April 2008, Carol Browner, who served as the EPA Administrator under President Clinton and who currently works on climate change issues in the Obama administration, testified in support of Feingold’s legislation.
Access a release with comments from supporters and link to a list of endorsements (click here). Access legislative details for S. 787 (click here). Access numerous WIMS-eNewsUSA blog postings on the Rapanos and Northern Cook County decisions and related matters (click here). [*Water]
Wednesday, April 21, 2010
Bipartisan America's Commitment To Clean Water Act
Apr 21: Representative James Oberstar (D-MN), Chairman of the Committee on Transportation and Infrastructure (T&I), introduced legislation which he said would reaffirm the ability of the Clean Water Act to protect the nation's waters, including wetlands. H.R. 5088, "America's Commitment to Clean Water Act," will restore bedrock protections from water polluters who place families and communities nationwide at risk. Representatives John Dingell (D-MI.) and Vernon Ehlers (R-MI.), who joined Oberstar at a press conference, are original cosponsors of the bill.
According to a release In 2001 and 2006, two decisions of the U.S. Supreme Court "threw the nation's clean water programs into turmoil, creating confusion and uncertainty for communities, developers, and agricultural interests, and placed at risk the nation's ability to restore, protect, and maintain water quality and the water-related environment. The Supreme Court overruled 30 years of regulatory policy and limited the scope of the waters protected by the Clean Water Act." [Solid Waste Agency of Northern Cook County v. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006]. Oberstar said his bill restores the Clean Water Act to its pre-2001 status.
The release indicates that on February 28, the New York Times reported that as a result of the two Supreme Court decisions, companies have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters without being prosecuted. According to the article, EPA regulators working on those cases estimate that more than 1,500 major pollution investigations have been discontinued or shelved in the last four years. Further, data from 2008, the most recent year available, show there were over 20,000 beach closings and advisories that year due to pollution, and studies in the Great Lakes show that as many as 10 percent of beachgoers report getting sick after swimming in beach waters open for swimming.
Representative Oberstar said, "Turmoil, confusion, and uncertainty are no way to run a program. That is why I developed legislation to restore the common understanding of the scope of the Clean Water Act based on decades-old interpretations of the U.S. Army Corps of Engineers and the Environmental Protection Agency. By restoring the common understanding and practice as existed in 2001 of the extent to which the nation's waters and wetlands are protected by the Clean Water Act, we can provide much-needed certainty to the regulated community, and avoid costly litigation over responsibility for protecting clean water."
Representative Oberstar continued saying, "Opponents of the Clean Water Act argue that the Federal government should not require a permit for everything you do that might affect a wet area. I agree. The Clean Water Act never required such permits, and I do not offer legislation that would do so. Simply put, if it was not regulated before 2001, it will not be regulated with the enactment of my legislation. However, some people have opposed the Clean Water Act for decades, and it should not come as a surprise that these same groups are using recent Supreme Court decisions as justification to roll back protections under the Clean Water Act. On this, I strongly disagree."
"Clean, safe water is a basic right for all Americans. Yet, unless we act, the Clean Water Act cannot ensure that right," said Oberstar. "Since the Clean Water Act was enacted in 1972, Americans have overwhelmingly expressed their support for protecting our nation's waters and keeping them safe from polluters. H.R. 5088 will restore the nation's commitment to clean water and protect the health and safety of all Americans."
The release indicates that two years ago, the T&I Committee conducted a thorough, day-long hearing that heard from two dozen witnesses on five panels who both supported and opposed prior legislation introduced by Oberstar. He invited suggestions from any and all interested parties. Oberstar said, "The bill that I introduce today is a new bill that responds to comments I heard from witnesses at our hearing and other stakeholders. It more clearly and specifically targets its one objective -- addressing two Supreme Court decisions that I believe were wrongly decided. This bill includes multiple changes to emphasize that it will reaffirm and restore the original scope of the Clean Water Act, and not expand its geographic scope."
Oberstar's original Clean Water Restoration Act (CWRA) was introduced on May 22, 2007, also with Representatives John Dingell and Vernon Ehlers supporting, and with 150 co-sponsors and endorsements from 300 organizations representing the conservation community, family farmers, fishers, boaters, labor unions and civic associations [See WIMS 5/22/07].
The substance of the new bill strikes the term "navigable waters" and replaces it with "waters of the United States." And, the bill defines "waters of the United States" to include the current regulatory definition excluding waste treatment systems including treatment ponds or lagoons, and excluding prior converted croplands. Both "waste treatment system" and " prior converted cropland" are also defined.
Access a release from Representative Oberstar (click here). Access the 11-page H.R. 5088 (click here). Access a fact sheet "What the Bill Actually Does and Does Not"(click here). Access a table comparing the bill to prior legislation (click here). Access a section by section summary (click here). Access a video of the press briefing including statements from supporters (click here). Access the WIMS Special Report on Rapanos and related activities (click here). Access multiple WIMS-eNewsUSA blog posting on the Supreme Court decisions and CWA (click here).
Monday, July 07, 2008
Honigman Alert Re: Corps CWA Jurisdictional Determinations Letter
Jul 3: Honigman Miller Schwartz and Cohn LLP (Honigman), one of the WIMS-EcoBizPort corporate sponsors, issued an Environmental Alert drawing attention to an important June 26, 2008, Regulatory Guidance Letter (No. 08-02, 7-pages+attachment) from the United States Army Corps of Engineers regarding Jurisdictional Determinations (JDs) under Section 404 of the Clean Water Act (CWA) and Sections 9 and 10 the Rivers and Harbors Act of 1899 (RHA).
The Corps issues jurisdictional determinations in order to identify and delineate waters under the Corps’ jurisdiction, such as wetlands or other navigable waters. Honigman indicates that the June 26, 2008, Letter explains the two types of JDs issued by the Corps, i.e., an Approved JD and a Preliminary JD. The Letter also discusses when an Approved JD is required, and when a person can decline to request and obtain an Approved JD and elect to use a Preliminary JD instead.
According to the Letter, an Approved JD "is an official Corps determination that jurisdictional ‘waters of the United States,’ or ‘navigable waters of the United States,’ or both, are either present or absent on a particular site." If jurisdictional water is deemed present, then an Approved JD can serve as an initial step in the permitting process. An Approved JD will specifically identify and delineate the waterbodies and wetlands that are subject to the Corps’ jurisdiction. Alternatively, an Approved JD may document that no jurisdictional waters exist at a site. An Approved JD can be relied upon for up to five years, can be used as evidence in a CWA citizen suit, and is a final agency action that is immediately appealable.
Honigman explains that a Preliminary JD, on the other hand, is a non-binding opinion that there may be jurisdictional water of the United States on a particular site. It is neither definitive nor authoritative. A Preliminary JD is, therefore, advisory and not appealable. The recipient of a Preliminary JD can later request an Approved JD.
The Corps will provide an Approved JD when: (1) a party requests an Approved JD; (2) a party contests jurisdiction over a particular body of water; (3) a party appeals from a permit decision that was not based on an Approved JD; or (4) if the Corps determines that jurisdiction does not exist over a particular body of water. While a landowner, permit applicant, or other affected party can elect to request an Approved JD, it can also decline to request an Approved JD and may instead obtain a Corps individual or general permit authorization based on either a Preliminary JD, or, where appropriate, no JD at all.
A Preliminary JD may be used, for example, to waive or set aside questions regarding CWA/RHA jurisdiction over a particular site in order to expedite Corps permit authorization. An affected party may even make an informed, voluntary decision to obtain a Preliminary JD in situations where the indications suggest that no jurisdictional waters are present; however, the Letter states that "a permit decision made on the basis of a preliminary JD will treat all waters and wetlands that would be affected in any way by the permitted activity on the site as if they are jurisdictional waters of the U.S." The Corps may also use Preliminary JDs instead of Approved JDs in enforcement actions where access to a site is impractical or unauthorized.
The Letter states that the Corps is now required to use a specified form whenever a Preliminary JD is issued. The form, called the Preliminary Jurisdictional Determination Form (Preliminary JD Form), sets forth the minimum requirements for a Preliminary JD and provides information for the requesting party regarding the option to request an Approved JD and appeal rights. According to the Letter, the information on a Preliminary JD Form should be limited to the amount and location of wetlands and waterbodies on a site, and should not contain the level of detail required for a permit decision. The Letter also states that the type of information collected to support the decision on a permit application, such as decisions and judgments on environmental impacts and public interest determinations, will be the same whether the permit application was preceded by a Preliminary JD or an Approved JD.
The Letter notes that a key distinction between an Approved and a Preliminary JD is that a Preliminary JD cannot be used as a finding that there are no jurisdictional waters on a site. Only Approved JDs can make such a determination. However, the Letter states that the Corps retains the right to issue a "no-permit required" letter to indicate that a certain proposed activity is not subject to the CWA or RHA. A "no-permit required" letter, however, does not make any determinations regarding the presence or absence of jurisdictional waterbodies on a site.
Honigman notes that, "The Letter does not address the decision-making process behind the issuance of JDs." For guidance on the jurisdiction of the CWA and the RHA, the Letter refers to regulations promulgated by the Corps, and the Corps’ June 19, 2007 memorandum entitled "Memorandum re: Clean Water Act (CWA) Jurisdiction Following the U.S. Supreme Court Discussion in Rapanos v. United States."
Access the Honigman Alert posted on the WIMS-EcoBizPort website and link to the complete letter and contact information (click here). Access the WIMS-EcoBizPort Special Report on the Rapanos decision and related issues (click here) [*Water]
The Corps issues jurisdictional determinations in order to identify and delineate waters under the Corps’ jurisdiction, such as wetlands or other navigable waters. Honigman indicates that the June 26, 2008, Letter explains the two types of JDs issued by the Corps, i.e., an Approved JD and a Preliminary JD. The Letter also discusses when an Approved JD is required, and when a person can decline to request and obtain an Approved JD and elect to use a Preliminary JD instead.
According to the Letter, an Approved JD "is an official Corps determination that jurisdictional ‘waters of the United States,’ or ‘navigable waters of the United States,’ or both, are either present or absent on a particular site." If jurisdictional water is deemed present, then an Approved JD can serve as an initial step in the permitting process. An Approved JD will specifically identify and delineate the waterbodies and wetlands that are subject to the Corps’ jurisdiction. Alternatively, an Approved JD may document that no jurisdictional waters exist at a site. An Approved JD can be relied upon for up to five years, can be used as evidence in a CWA citizen suit, and is a final agency action that is immediately appealable.
Honigman explains that a Preliminary JD, on the other hand, is a non-binding opinion that there may be jurisdictional water of the United States on a particular site. It is neither definitive nor authoritative. A Preliminary JD is, therefore, advisory and not appealable. The recipient of a Preliminary JD can later request an Approved JD.
The Corps will provide an Approved JD when: (1) a party requests an Approved JD; (2) a party contests jurisdiction over a particular body of water; (3) a party appeals from a permit decision that was not based on an Approved JD; or (4) if the Corps determines that jurisdiction does not exist over a particular body of water. While a landowner, permit applicant, or other affected party can elect to request an Approved JD, it can also decline to request an Approved JD and may instead obtain a Corps individual or general permit authorization based on either a Preliminary JD, or, where appropriate, no JD at all.
A Preliminary JD may be used, for example, to waive or set aside questions regarding CWA/RHA jurisdiction over a particular site in order to expedite Corps permit authorization. An affected party may even make an informed, voluntary decision to obtain a Preliminary JD in situations where the indications suggest that no jurisdictional waters are present; however, the Letter states that "a permit decision made on the basis of a preliminary JD will treat all waters and wetlands that would be affected in any way by the permitted activity on the site as if they are jurisdictional waters of the U.S." The Corps may also use Preliminary JDs instead of Approved JDs in enforcement actions where access to a site is impractical or unauthorized.
The Letter states that the Corps is now required to use a specified form whenever a Preliminary JD is issued. The form, called the Preliminary Jurisdictional Determination Form (Preliminary JD Form), sets forth the minimum requirements for a Preliminary JD and provides information for the requesting party regarding the option to request an Approved JD and appeal rights. According to the Letter, the information on a Preliminary JD Form should be limited to the amount and location of wetlands and waterbodies on a site, and should not contain the level of detail required for a permit decision. The Letter also states that the type of information collected to support the decision on a permit application, such as decisions and judgments on environmental impacts and public interest determinations, will be the same whether the permit application was preceded by a Preliminary JD or an Approved JD.
The Letter notes that a key distinction between an Approved and a Preliminary JD is that a Preliminary JD cannot be used as a finding that there are no jurisdictional waters on a site. Only Approved JDs can make such a determination. However, the Letter states that the Corps retains the right to issue a "no-permit required" letter to indicate that a certain proposed activity is not subject to the CWA or RHA. A "no-permit required" letter, however, does not make any determinations regarding the presence or absence of jurisdictional waterbodies on a site.
Honigman notes that, "The Letter does not address the decision-making process behind the issuance of JDs." For guidance on the jurisdiction of the CWA and the RHA, the Letter refers to regulations promulgated by the Corps, and the Corps’ June 19, 2007 memorandum entitled "Memorandum re: Clean Water Act (CWA) Jurisdiction Following the U.S. Supreme Court Discussion in Rapanos v. United States."
Access the Honigman Alert posted on the WIMS-EcoBizPort website and link to the complete letter and contact information (click here). Access the WIMS-EcoBizPort Special Report on the Rapanos decision and related issues (click here) [*Water]
Thursday, June 18, 2009
Sen. Inhofe Predicts "Demise" Of Clean Water Restoration Act
Jun 18: U.S. Senator James Inhofe (R-OK), Ranking Member of the Senate Environment and Public Works Committee, issued a release following an EPW business meeting which approved an amended version of the Clean Water Restoration Act (S. 787). Senator Inhofe said the bill "faces certain demise in the Senate." Senator Mike Crapo (R-ID) also placed a "hold" on the bill immediately following the meeting.
Senator Inhofe said, “The superficial changes made to this bill don’t change its underlying intention and ultimate effect: to radically expand federal power over farms, ranches, and private property.We heard plenty of talk about a grand compromise to address concerns from rural America. Yet in the end, the revised bill, which passed on a party-line vote, still lacks support from a large swath of rural stakeholders. I am pleased to support Senator Crapo’s hold on the bill. On the very outside chance this bill ever actually reaches the Senate floor, I will work closely with Senator Crapo and others to defeat it and ensure that we protect private property owners, farmers, ranchers, and all those affected by the bill’s regulatory overreach.
“This bill is further proof that Washington doesn’t ’get’ rural America. The Democrats are moving a bill that amounts to the biggest bureaucratic power grab in a generation--and it’s directed right at America's heartland. In fact, this bill is a significant part of a hostile agenda—whether it’s new energy taxes from cap-and-trade or more unfunded mandates from Washington—aimed squarely at rural America.”
The bill is designed to clarify the Clean Water Act (CWA) in light of the Supreme Court decisions in the controversial decisions of, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006. The bill would eliminate the "navigable" water definition and replace it with "waters of the United States."
The hearing included a response from the legal councils for the Democrats and Republicans regarding what water bodies would be covered and not covered by the bill. The original bill was introduced by Senator Russ Feingold (D-WI) [See WIMS 4/13/09] and the Committee added and approved the so-called Baucus, Klobuchar , Boxer amendment. Republicans argue that the bill represents a "major expansion" of the CWA scope. Democrats argue that the bill only represents a return to the way the law was interpreted before the two Supreme Court decisions.
Access a release from Senator Inhofe (click here). Access an opening statement at the meeting from Senator Inhofe (click here). Access a webcast of the meeting (click here). Access legislative details for S. 787 (click here). Access the hearing website where additional information on the Committee action may be available (click here).
Senator Inhofe said, “The superficial changes made to this bill don’t change its underlying intention and ultimate effect: to radically expand federal power over farms, ranches, and private property.We heard plenty of talk about a grand compromise to address concerns from rural America. Yet in the end, the revised bill, which passed on a party-line vote, still lacks support from a large swath of rural stakeholders. I am pleased to support Senator Crapo’s hold on the bill. On the very outside chance this bill ever actually reaches the Senate floor, I will work closely with Senator Crapo and others to defeat it and ensure that we protect private property owners, farmers, ranchers, and all those affected by the bill’s regulatory overreach.
“This bill is further proof that Washington doesn’t ’get’ rural America. The Democrats are moving a bill that amounts to the biggest bureaucratic power grab in a generation--and it’s directed right at America's heartland. In fact, this bill is a significant part of a hostile agenda—whether it’s new energy taxes from cap-and-trade or more unfunded mandates from Washington—aimed squarely at rural America.”
The bill is designed to clarify the Clean Water Act (CWA) in light of the Supreme Court decisions in the controversial decisions of, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006. The bill would eliminate the "navigable" water definition and replace it with "waters of the United States."
The hearing included a response from the legal councils for the Democrats and Republicans regarding what water bodies would be covered and not covered by the bill. The original bill was introduced by Senator Russ Feingold (D-WI) [See WIMS 4/13/09] and the Committee added and approved the so-called Baucus, Klobuchar , Boxer amendment. Republicans argue that the bill represents a "major expansion" of the CWA scope. Democrats argue that the bill only represents a return to the way the law was interpreted before the two Supreme Court decisions.
Access a release from Senator Inhofe (click here). Access an opening statement at the meeting from Senator Inhofe (click here). Access a webcast of the meeting (click here). Access legislative details for S. 787 (click here). Access the hearing website where additional information on the Committee action may be available (click here).
Wednesday, April 09, 2008
Senate Hearing On Clean Water Restoration Act
Apr 9: The Senate Environment and Pubic Works Committee, Chaired by Senator Barbara Boxer (D-CA), held a hearing entitled, “Legislative Hearing on S. 1870, the Clean Water Restoration Act of 2007 [See WIMS 5/22/07]." Witnesses testifying at the hearing included Carol Browner, former U.S. EPA Administrator and now a principal with The Albright Group, LLC; and representatives of the New York State Department of Environmental Conservation; Arizona Department of Environmental Quality; Madison County, State of Ohio; and Smith 6-S Livestock.
The original House bill, introduced by Representative Jim Oberstar (D-MN), Chair of the House Transportation and Infrastructure Committee along with 175 cosponsors (companion bill Senate bill S.1870), is regarded by proponents as a "fix" designed to restore the authority of the Clean Water Act so it has the same effect it had prior to the Supreme Court’s rulings in 2001 and 2006 that question the ability of U.S. EPA and the U.S. Army Corps of Engineers to enforce the Clean Water Act on wetlands, streams and ponds that are not part of a major “navigable” waterway [Access various posts on WIMS-eNewsUSA Blog and the WIMS-EcoBizPort Special Report on the Rapanos Supreme Court Decision & Related Activities]. The first sentence of the act reads, “The Purpose of this act is as follows: To reaffirm the original intent of Congress in enacting the Federal Water Pollution Control Act Amendments of 1972 (86 Stat. 816) to restore and maintain the chemical, physical, and biological integrity of the waters of the United States.” CWRA would also reaffirm exemptions for farming, mining, logging and other activities that are not regulated by the Clean Water Act.
Senator Boxer's opening statement was not readily available but she indicated that the CWA authorities should be increased -- not decreased. She said the current problems with the CWA are the result of "activist Justices" and their interpretation of the Act. In his opening statement, Senator James Inhofe (R-OK) said, "This bill, as currently written, will expand federal jurisdiction authority in a way that pushes the outer limits of Congress’s constitutional role. If Congress is to amend the Clean Water Act, any changes must provide clarity and reduce lawsuits. This bill does neither. It will not curtail litigation, but rather increase it, as stakeholders seek legal clarity on what exactly are the outer limits of Congressional authority. We should not propose and pass legislative language that increases uncertainty and increases an already litigious environment."
A number of major environmental and conservations organizations are supporting the act including: American Rivers; Clean Water Network; Earthjustice; Environment America; Izaak Walton League of America; League of Conservation Voters; National Wildlife Federation; Natural Resources Defense Council; Sierra Club; Southern Environmental Law Center; Theodore Roosevelt Conservation Partnership; and Trout Unlimited. The groups issued a joint release saying, “The Supreme Court and the Bush Administration have placed vital Clean Water Act protections in doubt for many important waters, making it easier to pollute and destroy these waters. Corporations and developers are spending millions to defeat this bill, because taking responsibility for safeguarding clean water cuts into company profits."
Access the hearing website for links to all testimony, opening statements and a webcast (click here). Access a release from environmental/conservation groups (click here). Access legislative details for S. 1870 (click here). Access legislative details for H.R. 2421 (click here). [*Water]
The original House bill, introduced by Representative Jim Oberstar (D-MN), Chair of the House Transportation and Infrastructure Committee along with 175 cosponsors (companion bill Senate bill S.1870), is regarded by proponents as a "fix" designed to restore the authority of the Clean Water Act so it has the same effect it had prior to the Supreme Court’s rulings in 2001 and 2006 that question the ability of U.S. EPA and the U.S. Army Corps of Engineers to enforce the Clean Water Act on wetlands, streams and ponds that are not part of a major “navigable” waterway [Access various posts on WIMS-eNewsUSA Blog and the WIMS-EcoBizPort Special Report on the Rapanos Supreme Court Decision & Related Activities]. The first sentence of the act reads, “The Purpose of this act is as follows: To reaffirm the original intent of Congress in enacting the Federal Water Pollution Control Act Amendments of 1972 (86 Stat. 816) to restore and maintain the chemical, physical, and biological integrity of the waters of the United States.” CWRA would also reaffirm exemptions for farming, mining, logging and other activities that are not regulated by the Clean Water Act.
Senator Boxer's opening statement was not readily available but she indicated that the CWA authorities should be increased -- not decreased. She said the current problems with the CWA are the result of "activist Justices" and their interpretation of the Act. In his opening statement, Senator James Inhofe (R-OK) said, "This bill, as currently written, will expand federal jurisdiction authority in a way that pushes the outer limits of Congress’s constitutional role. If Congress is to amend the Clean Water Act, any changes must provide clarity and reduce lawsuits. This bill does neither. It will not curtail litigation, but rather increase it, as stakeholders seek legal clarity on what exactly are the outer limits of Congressional authority. We should not propose and pass legislative language that increases uncertainty and increases an already litigious environment."
A number of major environmental and conservations organizations are supporting the act including: American Rivers; Clean Water Network; Earthjustice; Environment America; Izaak Walton League of America; League of Conservation Voters; National Wildlife Federation; Natural Resources Defense Council; Sierra Club; Southern Environmental Law Center; Theodore Roosevelt Conservation Partnership; and Trout Unlimited. The groups issued a joint release saying, “The Supreme Court and the Bush Administration have placed vital Clean Water Act protections in doubt for many important waters, making it easier to pollute and destroy these waters. Corporations and developers are spending millions to defeat this bill, because taking responsibility for safeguarding clean water cuts into company profits."
Access the hearing website for links to all testimony, opening statements and a webcast (click here). Access a release from environmental/conservation groups (click here). Access legislative details for S. 1870 (click here). Access legislative details for H.R. 2421 (click here). [*Water]
Tuesday, May 22, 2007
150 Reps Sponsor Bill To "Fix" Supreme Ct. CWA Decisions
May 22: Congressman Jim Oberstar (D-MN), Chair of the House Transportation and Infrastructure Committee, introduced legislation which he said is designed "to fix the Clean Water Act (CWA) after it was damaged by two U.S. Supreme Court rulings." The pair of rulings issued in 2001 and 2006 question the ability of the Environmental Protection Agency and the U.S. Army Corps of Engineers to enforce the Clean Water Act on wetlands, streams and ponds that are not part of a major “navigable” waterway [Access various posts on WIMS-eNewsUSA Blog and the WIMS-EcoBizPort Special Report on the Rapanos Supreme Court Decision & Related Activities]. Oberstar said, “These rulings ignore everything we have learned about water pollution and wetland conservation. You have to control pollution at its source. If you wait until it hits a major waterway, it is too late to deal with the problem effectively.”
The Clean Water Act has also helped stop the draining of wetlands across the country. Oberstar indicated, “You only have to look at the devastation caused by Hurricane Katrina and the flooding on the Mississippi River in the mid 1990s to see how wetlands protect us, holding back flood waters. Wetlands also filter ground water and allow it to recharge aquifers. The Ogallala Aquifer provides water to eight states from Nebraska to Texas, but many of the wetlands that filter and recharge it have lost their protection due to these Supreme Court rulings.”
Oberstar's Clean Water Restoration Act of 2007 (CWRA) was introduced along with Representatives John Dingell (D-MI) and Vernon Ehlers (R-MI). The bill has 150 co-sponsors. Additionally, CWRA is endorsed by 300 organizations representing the conservation community, family farmers, fishers, boaters, labor unions and civic associations. According to a release the bill would eliminate a complex new jurisdictional application that has been added to the Federal permitting process because of the two Supreme Court rulings. That paperwork adds up to three months of processing time to a wetlands permit.
The bill is designed to restore the authority of the Clean Water Act so it has the same effect it had prior to the Supreme Court’s rulings. It would not create new rules or regulations. The first sentence of the act reads, “The Purpose of this act is as follows: To reaffirm the original intent of Congress in enacting the Federal Water Pollution Control Act Amendments of 1972 (86 Stat. 816) to restore and maintain the chemical, physical, and biological integrity of the waters of the United States.” CWRA would also reaffirm exemptions for farming, mining, logging and other activities that are not regulated by the Clean Water Act.
The Natural Resources Defense Council (NRDC) Clean Water Project Senior Attorney Jon Devine issued a following statement saying, “We commend the introduction of this important bill and hope Congress will act quickly and decisively in passing it. For decades, the Clean Water Act has protected America’s water resources from industrial pollution, oil spills, sewage, and outright destruction. Recent interpretations of the law have placed many of the nation’s important water bodies in legal limbo, allowing polluters to discharge into water resources across the country without complying with the Clean Water Act’s intended safeguards. This legislation will end this uncertainty and ensure that all of America’s water resources remain protected for future generations.”
Access a release from Representative Oberstar (click here). Access a release from NRDC (click here). [*Water]
The Clean Water Act has also helped stop the draining of wetlands across the country. Oberstar indicated, “You only have to look at the devastation caused by Hurricane Katrina and the flooding on the Mississippi River in the mid 1990s to see how wetlands protect us, holding back flood waters. Wetlands also filter ground water and allow it to recharge aquifers. The Ogallala Aquifer provides water to eight states from Nebraska to Texas, but many of the wetlands that filter and recharge it have lost their protection due to these Supreme Court rulings.”
Oberstar's Clean Water Restoration Act of 2007 (CWRA) was introduced along with Representatives John Dingell (D-MI) and Vernon Ehlers (R-MI). The bill has 150 co-sponsors. Additionally, CWRA is endorsed by 300 organizations representing the conservation community, family farmers, fishers, boaters, labor unions and civic associations. According to a release the bill would eliminate a complex new jurisdictional application that has been added to the Federal permitting process because of the two Supreme Court rulings. That paperwork adds up to three months of processing time to a wetlands permit.
The bill is designed to restore the authority of the Clean Water Act so it has the same effect it had prior to the Supreme Court’s rulings. It would not create new rules or regulations. The first sentence of the act reads, “The Purpose of this act is as follows: To reaffirm the original intent of Congress in enacting the Federal Water Pollution Control Act Amendments of 1972 (86 Stat. 816) to restore and maintain the chemical, physical, and biological integrity of the waters of the United States.” CWRA would also reaffirm exemptions for farming, mining, logging and other activities that are not regulated by the Clean Water Act.
The Natural Resources Defense Council (NRDC) Clean Water Project Senior Attorney Jon Devine issued a following statement saying, “We commend the introduction of this important bill and hope Congress will act quickly and decisively in passing it. For decades, the Clean Water Act has protected America’s water resources from industrial pollution, oil spills, sewage, and outright destruction. Recent interpretations of the law have placed many of the nation’s important water bodies in legal limbo, allowing polluters to discharge into water resources across the country without complying with the Clean Water Act’s intended safeguards. This legislation will end this uncertainty and ensure that all of America’s water resources remain protected for future generations.”
Access a release from Representative Oberstar (click here). Access a release from NRDC (click here). [*Water]
Wednesday, May 27, 2015
[WIMS] Environmental HotSheet 5/27/15
| TO AVOID DISRUPTION IN YOUR SERVICE PLEASE RENEW BY JUNE 1st All Subscriptions Expire on June 1, 2015 |
| |
| National / International News |
| <> EPA Says: Clean Water Rule Protects Streams and Wetlands Critical to Public Health, Communities, and Economy – 5/27/15. In an historic step for the protection of clean water, the U.S. EPA and the U.S. Army finalized the Clean Water Rule today to clearly protect from pollution and degredation the streams and wetlands that form the foundation of the nation's water resources -- the Clean Water Rule will be effective 60 days after publication in the Federal Register.
|
| <> New report: The Role of the 2015 Agreement in Enhancing Adaptation to Climate Change - The document was prepared by the Organization for Economic Co-operation and Development (OECD) and the International Energy Agency (IEA) Secretariats in 2015 in response to a request from the Climate Change Expert Group (CCXG) on the United Nations Framework Convention on Climate Change (UNFCCC). |
| <> World Meteorological Congress opens with a tweet from space - The World Meteorological Congress has opened its quadrennial session which will decide on the Strategic Plan, budget and office holders to underpin the work of the World Meteorological Organization for the next four years -- shaping WMO's contribution to the U.N. climate change negotiations taking place in Paris in December which aim to reach a new agreement to cut greenhouse gas emissions and prevent climate change from reaching dangerous levels. |
| <> NRC Seeks Comment on Draft Environmental Study For Medical Radioisotope Production Facility - The Nuclear Regulatory Commission is seeking public comment on a draft study detailing environmental impacts for a proposed medical radioisotope production facility operated by SHINE Medical Technologies, Inc. for the production of molybdenum-99 and other radioisotopes at a facility located in Janesville, WI, approximately 40 miles southeast of Madison. |
| <> Energy Department Launches Better Buildings Alliance Indoor Lighting Campaign for Commercial Buildings - Through the Better Buildings Alliance, the Department is working with key stakeholders and end users in both the public and private sectors to install and demonstrate advanced technologies. |
| <> EPA Training Grants Create Job Opportunities Across the Country - U.S. EPA announced the selection of 19 communities in 17 states and territories for approximately $3.6 million in Environmental Workforce Development and Job Training (EWDJT) grants to receive up to $192,300 each to operate environmental training programs to clean up Brownfields sites in economically distressed communities. |
| <> Energy Department Announces $32 Million to Boost Solar Workforce Training, Drive Solar Energy Innovation - The Energy Department is announcing $32 million in funding to help train American workers for the solar energy workforce and to further drive down the cost of solar by developing innovative low-cost concentrating solar power collectors and increasing access to critical solar data. |
| <> Study highlights benefits of EV fleets - Electric vehicle fleets: the bigger, the better. And don't wait. Those are the two key take-aways from a new fleet-greening study commissioned by the State of |
| Federal Register Highlights The following is an alert of Environmental Federal Register announcements that may be of interest. (Click here to access today's complete Federal Register index with links to complete announcements). |
| <> Nothing We're Tracking Today (click for the complete Energy & EPA announcements) |
| |
| <> Great Lakes-St. Lawrence River Water Resources Regional Body and Compact Council Meetings – The Council of Great Lakes Governors announced that the Great Lakes-St. Lawrence River Water Resources Regional Body (Regional Body) and Water Resources Council (Compact Council) will meet on Thursday, June 25, 2015, at 2:00 p.m. EDT, and 2:45 p.m. EDT, respectively, via conference call. |
| <> MI Senators Stabenow, Peters Introduce Bill to Keep Plastic Beads out of Great Lakes - U.S. Senators Debbie Stabenow (D-MI) and Gary Peters (D-MI) introduced legislation to protect the Great Lakes from pollution caused by small, plastic microbeads that are ingredients in certain soaps and personal care products. [House companion bill, H.R.1321, introduced in March] |
| <> GLMRIS Brandon Road Study Stakeholders Call - The US Army Corps of Engineers (USACE) GLMRIS Brandon Road Study Team has released the GLMRIS - Brandon Road, EIS, Scoping Summary Report |
| <> Destructive zebra mussels resist eradication in Great Lakes despite local successes in controlling them - The EPA approved Zequanox for open water use to combat invasive zebra and quagga mussels in lakes, rivers, recreation areas and other open bodies of water. |
| |
| <> MDEQ Updates BEA & Due Care Guides - MDEQ has updated the Baseline Environmental Assessment (BEA) and Due Care Guides to reflect recent changes to the law. |
| <> Webinar: The State of Recycling in Michigan - June 11, 10:00 - 11:00 AM. MDEQ is hosting The State of Recycling in |
| <> Kalamazoo River Area 1 presentation available, public comment extended - EPA held a meeting to share plans to cleanup Area 1 of Operable Unit 5 (OU5) of the Kalamazoo River -- the public comment period is extended to July 3, 2015 |
| <> Experts Say High-Risk Mackinac Straits Pipeline Should be Shut Down - The 62-year-old Enbridge oil pipelines running through the Mackinac Straits should be shut down pending a full public review because of structural concerns, including the worry that waste excreted by zebra mussels may have corroded and dangerously weakened the steel pipes, according to a report released today by FLOW at a Mackinac Island press conference by a team of scientists and engineers. |
| <> New Analysis for House Bill 4449 (Substitute H-1 as passed by the House) - The bill would delay the sunset on the ROP program fees from October 1, 2015, for four years to October 1, 2019; and adjust and increase annual ROP fees for "major source" facilities.
|
| <> Michigan confirms first case of CWD in free-ranging white-tailed deer - MDNR and Agriculture and Rural Development (MDARD) confirmed that a free-ranging deer in Meridian Township (Ingham County) has tested positive for chronic wasting disease (CWD), a fatal neurological disease that affects white-tailed deer, mule deer, elk and moose. |
| <> Utility plans would further divide industrial, residential users - Michigan's two largest investor-owned utilities are seeking a change in the way electricity rates are set that would effectively raise rates on residential customers and decrease rates for industrial users. |
| <> Call for Abstracts! Upcoming Lake Michigan & Great Lakes Beach Conference - MDEQ has issued a call for abstracts for the 9th Biennial State of Lake Michigan/15th Annual Great Lakes Beach Association Joint Conference to be held at the Grand Traverse Resort and Spa near |
| <> Bringing Conservation to Cities: Lessons from Building the Detroit River International Wildlife Refuge - John Hartig lecture on June 10 at 7 PM at the Caroline Kennedy Library in |
| <> Air Quality in West Michigan: What Solutions are out there? - Thursday, June 4th, 2015, 6:30 pm - Booths, Demonstrations & Exhibits, 7:00 pm - Air Quality Forum followed by a Q & A, event at Loutit District Library in Grand Haven |
| Newly introduced bills and bills that are moving, if any, are listed below. Click on the bill number for complete status, full text, & analyses. Uppercase is Senate action; lowercase is House action. Otherwise, for a complete list of environmental legislation this session (click here). |
| Daily Activity (5/26/15) |
| IN THE SENATE |
| HB 4441 of 2015 Environmental protection; other; water pollution, sewerage, solid waste, and recycling fees; extend sunset. [POSTPONED FOR THE DAY] |
| IN THE HOUSE |
| HB 4448 of 2015 Natural resources; inland lakes; inland lakes and streams application fees; modify. [Enrolled] |
| SB 0217 of 2015 Property tax; classification; reference to qualified forest in qualified agriculture definition; remove. [2nd Read] |
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