Clean Water Act
Well, it’s been a while since we’ve written about the Waters of the United States (WOTUS), so everyone had to know we were overdue for WOTUS news!
On December 11, 2018, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced the Trump Administration’s so-called “straightforward” new definition of WOTUS under the Clean Water Act (CWA). Publication of the proposed rule was delayed due to the federal government shutdown in December and January. The proposed rule was finally published in the Federal Register on February 14, 2019. Interested parties can comment on the proposed WOTUS rule until April 15, 2019. Information on how to comment can be found here, and the proposed rule in its entirety can be found here.
Out with the old WOTUS…
The new definition would replace the 2015 definition of WOTUS promulgated under the Obama Administration. The 2015 definition is codified at 33 CFR 328. The 2015 definition defined waters of the United States as:
- All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
- Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
- From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
- Which are used or could be used for industrial purpose by industries in interstate commerce;
- All impoundments of waters otherwise defined as waters of the United States under the definition;
- Tributaries of waters identified in paragraphs (a) (1) through (4) of this section;
- The territorial seas;
- Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) (1) through (6) of this section.
- Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA.
The 2015 definition also noted that “[w]aste treatment systems, including treatment ponds or lagoons designed to meet requirements of CWA…are not waters of the United States” (emphasis added).
...In with the new WOTUS
The Trump Administration’s new proposed definition of WOTUS would make significant changes to the definition listed above. Under the new proposed rule, section (a) of §328.3 would define waters of the United States as:
- Waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide;
- Tributaries of waters identified in paragraph (a)(1) of this section;
- Ditches that satisfy any of the conditions identified in paragraph (a)(1) of this section, ditches constructed in a tributary or that relocate or alter a tributary as long as those ditches also satisfy the conditions of the tributary definition, and ditches constructed in an adjacent wetland as long as those ditches also satisfy the conditions of the tributary definition;
- Lakes and ponds that satisfy any of the conditions identified in paragraph (a)(1) of this section, lakes and ponds that contribute perennial or intermittent flow to a water identified in paragraph (a)(1) of this section in a typical year either directly or indirectly through a water(s) identified in paragraphs (a)(2) through (6) of this section or through water features identified in paragraph (b) of this section so long as those water features convey perennial or intermittent flow downstream, and lakes and ponds that are flooded by a water identified in paragraphs (a)(1) through (5) of this section in a typical year;
- Impoundments of waters identified in paragraphs (a)(1) through (4) and (6) of this section; and
- Adjacent wetlands to waters identified in paragraphs (a) (1) through (5) of this section.
Every other type of water in this proposed definition relates back to the waters described in (1), which the EPA describes as “traditional navigable waters.” For example, tributaries that are WOTUS would be those bodies of water that empty into or connect to traditional navigable waters. Similarly, lakes and ponds are WOTUS under the definition if they are traditional navigable waters themselves, or if they flow regularly into traditional navigable waters. An EPA fact sheet, available here, is very helpful in understanding what is included under the proposed WOTUS definition. It describes the six proposed categories of WOTUS in layman’s terms, and provides examples of bodies of water that fall under each category.
The newly proposed rule also greatly expands the list of waters that are not waters of the United States in section (b):
- Waters or water features that are not identified in paragraphs (a) through (6) of this section;
- Groundwater, including groundwater drained through subsurface drainage systems;
- Ephemeral features and diffuse stormwater run-off, including directional sheet flow over upland;
- Ditches that are not identified in paragraph (a)(3) of this section;
- Prior converted cropland;
- Artificially irrigated areas, including fields flooded for rice or cranberry growing, that would revert to upland should application of irrigation water to that area cease;
- Artificial lakes and ponds constructed in upland (including water storage reservoirs, farm and stock watering ponds, and log cleaning ponds) which are not identified in paragraph (a)(4) or (a)(5) of this section;
- Water-filled depressions created in upland incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel;
- Stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater run-off;
- Wastewater recycling structures constructed in upland, such as detention, retention and infiltration basins and ponds, and groundwater recharge basins; and
- Waste treatment systems.
Notable differences between 2015 rule and proposed rule
Just glancing at the two rules, it is obvious that there are major differences in how WOTUS is defined. EPA has a useful fact sheet (highly recommended reading) outlining the “key proposed changes” and how they compare to the 2015 WOTUS rule, as well as to the pre-2015 WOTUS rule. Overall, it appears that the number of water bodies considered WOTUS would decrease under the proposed rule. EPA argues that limiting the number of waters classified as WOTUS would give more power to the states to regulate waters as they see fit.
One major change is that under the proposed rule, tributaries that are “ephemeral” (meaning they’re not around for a great deal of time, and/or may be there because of rainfall or snowmelt, etc.), are not considered to be WOTUS. Similarly, the number of ditches considered to be WOTUS would decrease under the new rule. Upland ditches and ephemeral ditches would no longer fall under WOTUS. The number of wetlands considered WOTUS would also take a hit under the new rule. Wetlands would either have to “abut” other WOTUS or “have a direct hydrological surface connection” to WOTUS in a “typical year” to fall under the new definition. Furthermore, wetlands would no longer be considered to be “adjacent,” and therefore connected to WOTUS, if they are “physically separated from jurisdictional waters by a berm, dike, or other barrier.” Finally, you guessed it— the number of lakes and ponds considered WOTUS would also be reduced, since they would no longer connect through “adjacent” wetlands.
It’s important to remember that this new WOTUS rule is not currently effective—they are just proposed rules, open to public comment. In the meantime, due to litigation, what qualifies as WOTUS depends on which state you live in, as we discussed in Harvest posts here and here. EPA has a map depicting which definition of WOTUS currently applies where—in some states, the 2015 rule applies, and in others the pre-2015 rule applies. Obama’s 2015 rule applies in Ohio at this time. If the proposed rule makes it through the rulemaking process and goes into effect, it will replace the 2015 and pre-2015 rules, and barring any other lawsuits, will apply nationwide. The ultimate implementation of this rule is anything but certain; changes and challenges to the rule are likely to occur. The Ag Law Blog will keep readers updated on all the WOTUS discussion yet to come.
We can’t say that Lake Erie is back in the news, because lately it hasn’t left the news. However, there is a new lawsuit in federal court that seeks further action from either the U.S. Environmental Protection Agency (“EPA”) or the Ohio EPA regarding Lake Erie water quality. Filed on February 7, 2019 by the Environmental Law & Policy Center (“ELPC”) and the Toledo-based Advocates for a Clean Lake Erie, this new lawsuit alleges that the U.S. EPA improperly signed off on action taken by the Ohio EPA to designate Lake Erie as an impaired water body without implementing a Total Maximum Daily Load (“TMDL”) to restrict discharges such as agricultural runoff. The plaintiffs weren’t necessarily unhappy about the designation, but they were not happy about the lack of a TMDL.
Designating a waterway as impaired indicates low water quality, and triggers requirements to take action to improve water quality. A state must classify its waterways, and that classification guides the selection of which types of regulations to impose and the priority of fixing a waterway. The Ohio EPA’s designation of Lake Erie as impaired under the federal Clean Water Act was motivated by a previous lawsuit brought by the ELPC. In that lawsuit, a federal court ordered the U.S. EPA to review the Ohio EPA’s compliance with the federal Clean Water Act, which is something the plaintiffs in this new case want the court to order again. That case remains pending, and is cited as Environmental Law and Policy Center v. U.S. EPA, Case No. 17-cv-1514 (N.D. Ohio).
The plaintiffs allege that the new designation alone is not enough, and that the Ohio EPA must take more action. The complaint in the new lawsuit alleges that the Ohio EPA must establish a TMDL for western Lake Erie. Under the federal Clean Water Act, TMDLs identify the maximum amounts of a pollutant that a body of water can handle in order to meet water quality standards. The U.S. EPA describes these as a “starting point or planning tool for restoring water quality” that states often use as targets when crafting comprehensive plans to attain water quality. The complaint alleges that the Ohio EPA must prioritize creating a TMDL for western Lake Erie, but the Ohio EPA has said that it hopes to pursue an alternative approach to water quality attainment without the need for a TMDL. The plaintiffs do not believe that this is enough.
But why then is the new lawsuit against the U.S. EPA, and not the Ohio EPA? Congress granted the U.S. EPA oversight over water quality for federally navigable waters, or Waters of the United States, which include Lake Erie. The complaint alleges that by approving Ohio’s designation of Lake Erie without a plan and timeline to reach water quality standards, the U.S. EPA made an improper and arbitrary decision under the federal Clean Water Act. The plaintiffs want the U.S. EPA to rescind its approval of the Ohio EPA’s action. After this, the U.S. EPA would have to require the Ohio EPA to submit a new binding plan to bring Lake Erie into attainment with water quality standards, or the U.S. EPA can decide that Ohio has refused to submit a plan and exercise its authority to create its own plan for Ohio. The complaint also seeks an award of attorney’s fees and costs to cover the expenses incurred by the plaintiffs in bringing the lawsuit.
Click HERE to view the complaint. The case is cited as Environmental Law & Policy Center v. U.S. EPA, Case No. 3:19-cv-00295 (N.D. Ohio). Stay tuned to the Ag Law Blog for more updates on litigation involving Lake Erie.
The U.S. Supreme Court ruled earlier this week in National Association of Manufacturers v. Department of Defense that a federal district court is the proper forum for challenges to the substance of the “Waters of the United States” (WOTUS) rule. The holding brings clarification for parties raising similar types of challenges under the federal Clean Water Act, who often filed cases in both the district and appellate courts due to confusion over which court has jurisdiction over the cases. Litigants can now be sure that the case should originate with the federal district court, which provides greater access for similar challenges but could create more inconsistent rulings around the country. The court’s decision arrives at an odd time, with the evolving WOTUS landscape now focused on formulation of a new WOTUS rule to replace the rule that is under fire.
The court’s reasoning
The Supreme Court’s decision in this case is not surprising, a result of attention to the express language of the Clean Water Act rather than to several interpretations advanced by the government. The Clean Water Act places authority over Clean Water Act challenges in the federal district courts, with seven exceptions that are to be heard by the appellate courts. The federal government argued that two of those exceptions applied to its drafting of the WOTUS rule. The court disagreed, concluding that WOTUS does not establish an “effluent limitation” nor does it result in the issuance or denial of a permit as argued by the government. The court recognized that it would likely be more efficient and uniform for such challenges to be heard by an appellate court, but that would require a rewriting of the statute.
WOTUS uncertainty remains
The Supreme Court sent the case back to the Sixth Circuit Court of Appeals with an order to dismiss the WOTUS petitions before that court, which consisted of all appellate cases challenging the rule that were previously transferred to the Sixth Circuit by the Judicial Panel on Multidistrict Litigation. Note that the Sixth Circuit had issued a nationwide stay of the WOTUS rule in 2015 pending determination of whether the rule was a valid exercise of agency authority. That stay will presumably disappear with the Sixth Circuit’s dismissal of the case, but some claim that the Sixth Circuit could seek to continue to enforce the nationwide stay. A federal district court in North Dakota had previously issued an injunction against the WOTUS rule in North Dakota and a dozen other states, so that injunction would continue to prevent implementation of the rule in those states if the Sixth Circuit removes its stay.
Further complicating the status of the WOTUS rule are the actions taken by the Trump administration, which issued a proposed rule last November to delay the rule’s effective date to 2020 and a second proposal last February to replace WOTUS with the rule that was in place previously while the EPA develops a new definition of WOTUS. The EPA has not finalized either of those rules. The federal district courts with WOTUS cases currently before them could choose to stay their cases pending the current administration’s rulemaking process. Alternatively, one of the federal district courts could issue a nationwide injunction against the rule.
Consistent with its history, WOTUS remains unclear. Agricultural interests will have to continue to wait and see what happens next.
Written by: Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
The Board of Trustees of the Des Moines Water Works (DMWW) brought a lawsuit against thirteen Iowa drainage districts. DMWW is the biggest water provider in Iowa, serving the largest city, Des Moines, and the surrounding area. Drainage districts were first created in Iowa in the 1800s to drain wetlands and allow for agriculture in those areas. In Iowa, the counties are in charge of drainage districts. Individual landowners can tile their land so that it drains water to the ditches, pipes, etc. that make up the counties’ drainage districts. Eventually, that water ends up in Iowa’s rivers. The thirteen drainage districts being sued by DMWW are located in the Raccoon River watershed in Buena Vista, Sac, and Calhoun counties. DMWW is located downstream from the drainage districts in question.
Background of the Lawsuit
On March 16, 2015, the Board of Trustees for the DMWW filed a complaint against the thirteen drainage districts in the U.S. District Court for the Northern District of Iowa, Western Division. DMWW alleged that the drainage districts did not act in accordance with the federal Clean Water Act (CWA) and provisions of the Iowa Code because they did not secure the applicable permits to discharge nitrates into the Raccoon River. In order to serve its customers, DMWW uses the Raccoon River as part of its water supply.
DMWW has to meet maximum contaminant levels prescribed under the federal Safe Drinking Water Act. Nitrate is a contaminant with a maximum allowable level of 10 mg/L. In its complaint, DMWW cited record levels of nitrate in water from the Raccoon River watershed in recent years. DMWW alleged that the nitrate problem is exacerbated by the “artificial subsurface drainage system infrastructure…created, managed, maintained, owned and operated by” the thirteen drainage districts. DMWW alleged that the drainage district infrastructure—“pipes, ditches, and other conduits”—are point sources. DMWW points to agriculture—row crops, livestock production, and spreading of manure, as a major source of nitrate pollution.
DMWW also cited a number of costs associated with dealing with nitrates, including the construction of facilities that remove nitrates, the operation of those facilities, and the cost associated with acquiring permits to discharge the removed waste. In their complaint, they generally asked the court to make the drainage districts reimburse them for their cleanup costs, and to make the drainage districts stop discharging pollutants without permits.
All together, DMWW filed ten counts against the drainage districts. In addition to their claim that the drainage districts had violated the CWA and similarly, Iowa’s Chapter 455B, DMWW also alleged that the continued nitrate pollution violated a number of other state and federal laws. DMWW maintained that the pollution was a public, statutory, and private nuisance, trespassing, negligence, a taking without just compensation, and a violation of due process and equal protection under the U.S. and Iowa Constitutions. Finally, DMWW sought injunctive relief from the court to enjoin the drainage districts to lessen the amount of nitrates in the water. In many of the counts, DMWW asked the court for damages to reimburse them for their costs of dealing with the pollution.
On May 22, 2015, the defendants, the thirteen drainage districts, filed their amended answer with the court. On January 11, 2016, the district court filed an order certifying questions to the Iowa Supreme Court. In other words, the district court judge submitted four questions of state law to the Iowa Supreme Court to be answered before commencing the federal trial. The idea behind this move was that the highest court in Iowa would be better equipped to answer questions of state law than the district court.
Iowa Supreme Court Decision
The Iowa Supreme Court filed its opinion containing the answers to the four state law questions on January 27, 2017. All of the questions were decided in favor of the drainage districts. The court answered two questions related to whether the drainage districts had unqualified immunity (complete protection) from the money damages and equitable remedies (actions ordered by the court to be taken or avoided in order to make amends for the harm caused) requested by DMWW. Both were answered in the affirmative—the court said that Iowa legislation and court decisions have, throughout history, given drainage districts immunity. Iowa law has long found the service drainage districts provide—draining swampy land so that it could be farmed—to be of great value to the citizens of the state. To that end, the law has been “liberally construed” to promote the actions of drainage districts. What is more, judicial precedent in the state has repeatedly found that drainage districts are not entities that can be sued for money damages because they are not corporations, and they have such a limited purpose—to drain land and provide upkeep for that drainage. The law has further prohibited receiving injunctive relief (obtaining a court order to require an action to be taken or stopped), from drainage districts. Instead, the only remedy available to those “claim[ing] that a drainage district is violating a duty imposed by an Iowa statute” is mandamus. Mandamus allows the court to compel a party to carry out actions that are required by the law. In this case, those requirements would be draining land and the upkeep of the drainage system.
The second two questions considered by the court dealt with the Iowa Constitution. The court determined whether or not DMWW could claim the constitutional protections of due process, equal protection, and takings. They also answered whether DMWW’s property interest in the water could even be “the subject of a claim under...[the] takings clause.” The court answered “no” to both questions, and therefore against DMWW. Their reasoning was that both DMWW and the drainage districts are subdivisions of state government, and based on numerous decisions in Iowa courts, “one subdivision of state government cannot sue another…under these clauses.” Additionally, the court found that “political subdivisions, as creatures of statute, cannot sue to challenge the constitutionality of state statutes.” Consequently, they reasoned that the pollution of the water and the resulting need to remove that pollution did “not amount to a constitutional violation” under Iowa law. The court also found that since the water in question was not private property, the takings claim was not valid. A takings claim only applies to when the government takes private property. What is more, the court added that regardless of its status as a public or private body, DMWW was not actually deprived of any property—they still had the ability to use the water. Therefore, the Iowa Supreme Court answered all four state law questions in the drainage districts’ favor, and against DMWW.
The Iowa Supreme Court found that the questions of state law favored the drainage districts, but that is not necessarily the end of this lawsuit. Now that the questions of state law are answered, the U.S. District Court for the Northern District of Iowa, Western Division, can decide the questions of federal law. If any of the numerous motions for summary judgment are not granted to the drainage districts, a trial to decide the remaining questions is set for June 26, 2017. The questions left for the district court to decide include a number of U.S. Constitutional issues.
One of these issues is whether the drainage districts’ discharge of nitrates into the water constitutes a “taking” of DMWW’s private property for a public use under the Fifth and Fourteenth Amendments. Another issue is whether the drainage districts’ state-given immunity infringes upon DMWW’s constitutional rights of due process, equal protection, and just compensation. An important federal law question that also remains to be decided is whether the drainage districts are “point sources” that require a permit to discharge pollutants under the CWA.
How will the outcome affect other states?
Either outcome in this lawsuit will have implications for the rest of the country. For example, if the district court sides with DMWW on all of the questions, it could open the floodgates to potential lawsuits against drainage districts and other similar entities around the country for polluting water. Municipal and other users of the water could assert an infringement of their constitutional rights, including taking without just compensation. Furthermore, if drainage districts are found to be “point sources,” it could mean greater costs of permitting and cleanup for drainage districts and other state drainage entities. Those costs and additional regulations could be passed onto farmers within the watershed. As a result, farmers and water suppliers around the country will closely follow the district court’s decisions on the remaining questions in the case.
All of the court documents and decisions concerning this lawsuit, as well as additional articles and blog posts on the topic can be found here. Additional reading on the subject from the Des Moines Register can be found here and here.
A landowner may immediately appeal an agency’s determination that property contains “waters of the United States” that is subject to the federal Clean Water Act, according to a decision issued today by the United States Supreme Court.
The court’s holding in Army Corps of Engineers v. Hawkes Co. centered on a decision by the U.S. Army Corps of Engineers (the Corps) that property in Minnesota owned by the Hawkes Company (Hawkes) contained wetlands that were subject to the Clean Water Act. Hawkes planned to mine peat on the property, and would have to comply with Minnesota regulations. The Corps decided that Hawkes must also comply with federal Clean Water Act regulations, based on its “jurisdictional determination” that the property contained waters of the United States because its wetlands had a “significant nexus” to the Red River of the North, located 120 miles away.
Hawkes challenged the Corps’ jurisdictional determination in federal district court. The Corps requested dismissal of the case, arguing that its jurisdictional determination was not a "final agency action" that Hawkes could appeal in court. Rather, the Corps asserted that Hawkes should apply for a Clean Water Act permit and challenge the results of the permit request if dissatisfied or should proceed without a permit and challenge the jurisdictional determination in a likely enforcement action.
The federal district court agreed with the Corps and dismissed the case. Hawkes then appealed to the Eighth Circuit Court of Appeals, which reversed the district court’s decision. The Corps requested review of the appeal by the United States Supreme Court, which accepted the case.
The Supreme Court concluded that the Corps’ jurisdictional determination is appealable according to the federal Administrative Procedures Act, which allows an aggrieved party to appeal a “final” agency action. An action is final if it determines legal consequences,“marks the consummation of the agency’s decision making process,” and when there are no adequate alternatives for relief other than judicial review. All three circumstances existed in the Hawkes case, said the Court, stating that parties should not have to await enforcement proceedings that carry the risk of criminal and civil penalties before challenging a jurisdictional determination or be forced through a lengthy and costly permitting process before being able to challenge the Corps’ jurisdictional determination.
Read the decision in Army Corps of Engineers v. Hawkes Co. here.
A federal court has dismissed a lawsuit claiming that the Ohio Department of Agriculture (ODA) is improperly issuing National Pollutant Discharge Elimination System (NPDES) permits for concentrated animal feeding operations without authorization by the U.S. EPA. Two residents of northwest Ohio filed the suit last summer against the ODA, the Ohio EPA and the U.S. EPA. In a tenuous argument, they alleged that the Ohio EPA illegally delegated its authority over NPDES permits by allowing ODA to issue a manure management plan as a condition for obtaining an NPDES permit from the Ohio EPA, and by allowing ODA to “determine, collect and analyze” data required for an NPDES permit. The plaintiffs had also requested a preliminary injunction against ODA, which the court denied last December.
The lawsuit aims at the Ohio legislature's action in 2000 that transferred authority from the Ohio EPA to ODA for Ohio's state-based permitting program for concentrated animal feeding facilities. The state permit program is separate from, and in addition to, the NPDES permit program administered under the federal Clean Water Act by the Ohio EPA. Following the transfer of the state program to ODA, Ohio requested that the U.S. EPA approve a transfer of the NPDES permit authority for animal feeding operations from Ohio EPA to the ODA. The U.S. EPA has not yet approved the transfer, and the NPDES program remains with the Ohio EPA. If approved by the U.S. EPA, both the state and NPDES permit programs would be administered through ODA's Livestock Envrionmental Permitting program. Until that time, ODA administers the Livestock Environmental Permitting program according to Ohio law, while the Ohio EPA oversees NPDES permits for animal feeding operations that are also subject to the Clean Water Act due to potential discharges into waters of the United States.
The plaintiffs claimed that ODA is improperly administering NPDES permits because of the manure management plans required for both the state and federal permit programs. An applicant seeking both an Ohio and an NPDES permit can submit the same manure management plan to each agency. The standards for both programs are the same, because ODA followed the EPA's federal requirements for manure management plans when it developed Ohio's manure management plan standards. It is possible that a manure management plan approved by ODA could also be approved by the Ohio EPA in the NPDES permit program. Plaintiffs argued that by allowing a manure management plan that had been approved for ODA's permit program to be used in the application for an NPDES permit, the Ohio EPA was delegating its authority to ODA to review and approve manure management plans for the NPDES program.
Not surprisingly, the U.S. District Court disagreed. "Even though a permit applicant may submit to the Ohio EPA a manure management plan which was developed to satisfy Ohio’s permit to operate requirements, the plan is still reviewed by the Ohio EPA and will only be allowed to be used in the discharge elimination permit application if the plan satisfies federal regulations and the Clean Water Act," stated Judge David Katz.
Judge Katz proceeded to grant the agencies' motion to dismiss the case. "Plaintiffs’ assertion that the Ohio EPA improperly delegated its authority regarding concentrated feeding permits to the Ohio Department of Agriculture is completely devoid of merit. The facts simply do not show that Ohio’s EPA and Department of Agriculture have engaged in any conduct which violates a federal statute or regulation."
Read the decision in Askins v. Ohio Dept. of Agriculture here.