When It Reigns It Pours! Federal courts reign in EPA's Clean Water Act authority – a Recap of an Idaho Environmental Forum on April 5, 2012

When John Iani came to Idaho as the Environmental Protection Agency’s (EPA) administrator for Region 10, his first experience was a meeting with then governor Dirk Kempthorne about his agency’s presence in the Silver Valley.  Iani said the meeting was confrontational and illustrative of a common dilemma the regulated community faces when Congress passes laws and leaves them to agencies to implement as best they can.

When Congress doesn’t give enough direction, he said, the impact is felt by the communities and the courts are left to resolve issues.

The Clean Water Act (CWA) is an example of this problem.  The act calls out “water bodies of the United States,” without clearly defining them.  Certainly lakes, rivers, navigable waters would be considered such, but what about tributaries or bodies of water not connected to others?

The Sacketts are a couple who bought a .63-acre piece of property in a platted subdivision, with water and sewer hookups 500 feet west of Priest Lake in North Idaho.  They obtained all the necessary building permits, and had just started work on the house when EPA told them their land was considered a wetland.  The EPA issued an administrative compliance order saying the Sacketts were in violation of the CWA, and that they needed to restore the area to the way it was, and seek a permit to build their house.  They were fined $37,500 for every day that passed where they failed to do so. 

The Sacketts filed an action in federal district court to dispute the order, and lost.  They appealed to the 9^th Circuit Court, who agreed with the district court.  They then went to the Supreme Court which came to the unanimous decision that the compliance order was a final action and should have been open to judicial review.  The Court held that the Sackets were entitled to challenge the compliance order in court.  U.S. Supreme Court Justice Alito wrote a concurring opinion - rejecting the position that private property rights are at the mercy of EPA employees. 

Ultimately, Iani said, Congress needs to step up and clarify what is and is not a water body of the US.  Failing to do so will always leave the agency scratching its heads over what to do next.

Another example of EPA overreach is the case of Mingo Logan Coal.  A project seeking to deposit fill in a water body of the US needs to seek permission under the CWA, Section 404, sub-section C  which says "the Administrator is allowed to deny or restrict the use of any defined area as a disposal site whenever he determines that such deposits will have an adverse impact on water or populations.”  There are no regulations, nor process specified, but it's powerful and rarely used language, allowing the EPA to reverse a decision about a previously approved landfill site at any time.

In the Mingo Logan case, the Army Corps of Engineers issued a permit for the fill of two mines to be deposited into two river-beds.  Three years later, EPA decided it would, for the 13th time in its history, revoke the permit.  A court found against the EPA, where in all 12 previous court cases the court had ruled in favor of them.

"The EPA claimed that the status of a permit is not ever really final,” Iani said, “but what would be the point in requesting a permit if it isn't worth the paper it's printed on and commerce can be interrupted at any point?"

There is another major issue before EPA right now—a mining project in Alaska.  Groups opposed to the project have asked the EPA to allow no mining in that entire area forever.

Bad facts make bad law, Iani said. If the EPA continues to make mistakes under the 404 C clause, Congress will need to look at the CWA to clarify issues.

“I think EPA’s authority on the CWA is being looked at very carefully by the courts. It might be time for Congress to look at it, but that’s not likely now with the current gridlock we see Congress. 

Legislators assert states rights, encourage Sage Grouse Task Force as session winds down

Two other items of interest as this session of the legislature works toward adjourning sine die:

Senate Joint Memorial 105 has passed both houses.  It calls on Congress to reclaim its Constitutional role over the management of species and public lands. The memorial asks “that Congress re-examine, reform and reauthorize the Endangered Species Act, the National Environmental Policy Act, the Equal Access to Justice Act, and any other federal law that disrespects the role of states and local governments in land management decisions and leads to costly and frivolous lawsuits that strip authority from Congress and place it in the hands of the judiciary.”  It was adopted on a voice vote by the Senate and by a vote of 57-10-3 in the House.

Senate Concurrent Resolution 125 was introduced in the Senate on March 1st and adopted by voice vote on March 5^th.  The resolution endorses and encourages the Governor in his efforts “moving forward with the Governor’s Sage Grouse Task Force.”  It moved on to the House and on March 23^rd it was adopted there on a voice vote.

Representative chastises EPA for lack of action to protect salmon, but organization questions the data behind the threat

Representative chastises EPA for lack of action to protect salmon, but organization questions the data behind the threat

President Obama has issued an executive order for a retrospective review of existing regulations (including existing environmental regulations) that are unduly burdensome to industry. Section 5 of the order also says that “each agency shall ensure the objectivity of any scientific and technological information and processes used to support the agency's regulatory actions.” A review of the whole consultation process within the regulations governing the Endangered Species might be a great place to start.

Last month Rep. Edward Markey, a Democrat from Massachusetts and two representatives from California issued a press release about a letter they had sent to the Environmental Protection Agency (EPA) about its lack of action to protect endangered Northwest salmon from pesticides. While EPA has jurisdiction over registration of herbicides and pesticides, the National Marine Fisheries Service (NMFS) has jurisdiction over salmon recovery. And therein lies the problem.

Under ESA, EPA needs to consult with NMFS on the issue of the impact of herbicides and pesticides in salmon streams. NMFS, however, has no expertise with the products while EPA has been testing, studying and regulating them for decades.

A lawsuit was filed in 2002 against EPA by environmental and fishing groups, including the Washington Toxics Coalition. The U.S. District Court for the Western District of Washington at Seattle found that EPA had violated its obligations under the Endangered Species Act.

The court ordered EPA to review the effects of 54 pesticide active ingredients on threatened and endangered salmonids and to consult, as appropriate, with NMFS on any of the 54 pesticides that may affect salmon. In 2004, the court ordered protections—including buffer zones—to prevent the potential adverse effects of any of the 54 pesticides on threatened and endangered salmonids.

The letter from the three Congressman to the EPA Administrator says that it is time for EPA to take action and asking EPA for a progress report in protecting this “critically important species” and pointing out that restoring salmon “could yield annual economic benefits of over $5 billion.” According to the Congressmen from Massachusetts and California, “We have science on our side…It’s time for EPA to take action.”

There are a couple of problems with the assertions made in this letter. First, the data used to determine the pesticide threat to salmon looks to be inaccurate.

Washington Friends of Farms & Forests (WFFF) is an organization concerned with producing safe, abundant, economical food, fiber and landscaping and maintain a healthy, productive and safe environment for our agricultural and urban communities. They responded to the Congressmen, calling into question the facts, science and computer models that NMFS used in making the determination that these 54 pesticides posed a threat to salmon.

They pointed out that use of the pesticides listed is significantly lower than in the past, asserting that no fish kills have been reported from the legal use of these products. In fact many salmon runs have been at record high levels in recent years.

It seems NMFS created its own computer models rather than use the ones that EPA had developed to evaluate the safety of these products for decades. In addition, NMFS used a farm pond model which assumes stagnant water to predict the exposure levels of salmon, forgetting that juvenile salmon swim in fast moving waters and rest is in areas of moving water. One NMFS model included a use that was never labeled and modeled uses not currently on labels. The agency assumed amounts much higher than are actually used. The models were so inaccurate that the EPA, the California Department of Pesticide Regulation, the Oregon and Washington Departments of Agriculture were all critical. The National Association of State Departments of Agriculture has asked that the BiOps be redone.

In six years of monitoring surface water in agricultural areas, the Washington State Department of Agriculture has noted that these pesticides are at or below detection levels. NMFS did not to consider this data in their findings. They also left out the department’s database which helps determine the amount and locations of product used and correlates the location and timing of fish presence.

Next, with regard to the economics which the Congressmen raised in the letter to EPA: the NMFS outlined the economic cost to EPA to implement the BiOps, but not the costs to farmers and foresters. One farmer in Oregon estimated that if the buffer zones were enacted he would not be able to produce crops on 50% of his farm.

Rep. Markey estimated that full recovery of salmon would bring $5 billion in annul economic benefits to Oregon and Washington. A substantial figure, but compare it to agriculture production in Washington at $16 billion in economic impact; food processing and manufacturing, $17 billion in total economic impact; and agriculture and forestry support industries; $1.8 billion in total economic impact. These figures were compiled by Washington State University in November, 2010.An updated study based on 2009 figures shows that Oregon agriculture is directly and indirectly linked to $22 billion in sales of goods and services—15% of the statewide totals of sales in all industry sectors, and that’s during a recession year. Processing added $2.2 billion to the value of Oregon-grown food and fiber.

EPA presentation on draft permit for pesticide discharges met with spirited comments from water users, other stakeholders.

In a June 16, 2010, meeting in Boise, representatives from the US EPA presented information clarifying a draft NPDES General Permit for pesticide discharges that has been submitted for public comment.

While the meeting was presented as an opportunity to ask for clarification and pose questions in order to have a better understanding of the permit, EPA representatives noted that testimony on the permit would not be taken at the time. Testimony on the draft permit must be made in writing via hand delivery, US mail or online. The public comment on the draft permit extends through July 19.

Allison Wiedeman, Chief of the Rural Branch, Water Permits Division, noted that drafting this permit has been one of the most challenging issues in her 30 years with the EPA. The U.S. 6th Circuit Court of Appeals overturned EPA’s 2006 rule that said pesticides were not pollutants under the Clean Water Act and their application did not require NPDES permits. Rather than appeal the decision, EPA asked the court for time to develop a general NPDES permit.

Wiedeman says her department has talked with hundreds of groups including growers and applicators, manufacturers, NRCS, USDA and the state regulatory authorities as part of this process. This draft permit is, she says, the best shot at a balance between environmental protection and feasibility and practicality.

Presentation slides are available from the website: http://www.regulations.gov/, along with the 112-page fact sheet and FAQ.

Presentation Highlights:
The Sixth Circuit Court of Appeals determined that EPA’s interpretation of the Clean Water Act that said pesticides are not pollutants is wrong.

At the time of this decision, the EPA asked the court for two years to develop a general permit for which industry could apply. After the public comment period, the permit will be finalized in December. EPA has until April 9, 2011 for implementation. The 2006 regulation that determines that permits are not necessary is still in effect today, but only until next spring.

The permit EPA has proposed applies only to the 6 states that do not have primacy—Alaska, Idaho, New Mexico, Oklahoma, New Hampshire and Massachusetts. Forty-four states have their own state process for permitting. These states have some flexibility in developing their own permits, as long as they support the same kind of protection or are more stringent than the EPA’s permit.

EPA is proposing a structure whereby a general permit would be necessary if an entity is determined to be a point source, and is discharging into Waters of the US. Individual operators would apply for coverage under the general permit without going through their own, separate public process. EPA representatives hope this will cut down on the number of individual permit applications.

For the purpose of this draft, pesticide uses covered under the permit include:
- Mosquito and Other Flying Insect Control
- Aquatic Weed and Algae Control
- Aquatic Nuisance Animal Control
- Forest Canopy Pest Control

Some pesticide uses are not included:
- Terrestrial applications to control pests on agricultural crops or forest floors
- Off target spray drift

Activities exempt from permitting under the Clean Water Act:
- Irrigation Return Flow
- Agricultural Storm Water Runoff

The application of pesticides for control of terrestrial pests associated with crop production is not covered under EPA’s NPDES PGP.

In addition, discharges of pesticides to water bodies that are already considered impaired for the specific pesticide in question are not covered under the permit. It may be that in that instance, an operator would need to apply for an individual permit. EPA officials say they don’t anticipate this will happen very often.

Operators under this umbrella permit would be required to submit Notices of Intent (NOIs) to discharge pesticides.

Operators would be required to prepare plans for monitoring pesticide discharge. Monitoring should include visual monitoring for adverse incidents during and after application and monitoring of management practices.

Operators would also be required to provide:
- Annual documentation of pesticide application activities, and
- Adverse Incident reporting to help EPA identify possible permit violations where the permit may need modification to further protect water quality.

Questions and Comments reveal anxiety over costs, red tape, and lawsuits
Some audience members were undeterred by the fact that official public statements would not be recorded for consideration. Comments directed at the panel were prolific and largely critical of the draft EPA permit.

Norm Semanko with the Idaho Water Users Association asked why the EPA didn’t seek review of this court decision. In his mind, the EPA didn’t exhaust all avenues of appeal. EPA representatives noted that their legal counsel advised them that such efforts had little chance of success.

Scott Campbell, a water user attorney vented his frustration to the panel.

“This rule not only angers me to the depth of my soul, but it saddens me that people are being exposed to this kind of red tape and exposure to law suits and giving environmental terrorist ammunition to anyone who wants to file a notice of intent,” he said.

Other respondents commented that the record keeping and reporting requirements placed an undue burden on operators.

Roger Batt of the Idaho Weed Awareness Campaign asked about the relationship between the permit and the standards as outlined by FIFRA, which covers the correct application of pesticides. EPA representatives noted that the idea is to minimize the discharge of pollutants, but Batt noted that this can subject someone to the threat of third-party lawsuits.

Another audience member asked the panel if they had considered homeowners, who often overuse pesticides and other products on their lawns and gardens.

“The poor people who are feeding over 90 percent of the population are unduly burdened,” Campbell said of the impact of this permit to the agricultural industry.

Comments may be submitted online at http://www.regulations.gov/. Click the “submit a comment” link near the top of the page. Enter the key word: DPA-HQ-OW-2010-0257. Click the orange “search” link which will pull up one item: The PGP docket. Click the blue “submit a comment” link and complete the form provided and upload your file. For more information, visit: www.epa.gov/npdes/pesticides.

Newly appointed EPA Administrator gives overview of environmental issues

Dennis McLerran was appointed Administrator for EPA’s Region 10 in January. He spoke to the Idaho Environmental Forum on Tuesday, April 6, 2010.

McLerran noted that he has experience working in local government and has worked on air quality issues in a large urban area, Seattle, and in the smaller community of Port Townsend. He has been on the other side of the fence in private practice as an attorney. He has family ties to Mackay, Idaho, as well.

He voiced his admiration for EPA Administrator Lisa Jackson.

McLerran outlined the Obama administration’s priorities for the Environmental Protection Agency:

· Climate change: EPA announced its endangerment finding regarding carbon as a pollutant in the absence of any action by Congress to control carbon emissions. The agency put together tailpipe rules for automobiles using a collaboration that included the auto industry and the State of California. The rules will go into effect in January, 2011.

In addition, EPA is looking at regulating large sources of CO2 emissions first with a tailoring rule in January 2011. This will include power plants and very large emitters.

What Congress does in the next year or two will have an impact on what EPA will pursue.

· Air quality: EPA will be setting tighter standards for fine particulate like that found in wood smoke or diesel. New ozone standards will be coming out in late spring or early summer. It is possible that they will be set at .06 or .065 which would mean that the Treasure Valley will be classified as a non-attainment area. He did mention the state’s auto emissions programs for the area. There could also be new standards for sulfur dioxide and nitrogen oxides along freeways.

· Mercury: Idaho has been ground zero for impacts from surrounding states. He commended us for the work we are doing on mercury emissions. DEQ is collecting elemental mercury and EPA has funded mercury contamination cleanups in the last three years. There is still a ways to go in dealing with mercury, he said.

· Safety of chemicals: Work needs to be done to rewrite the toxic substances statute.

· Superfund communities: there is still cleaning up to be done. For Idaho, that means the Silver Valley, a massive superfund site on which a great deal of time, energy and dollars has been spent. Now blood levels in children are down to the national average rather than being way above it. This is still controversial but EPA is moving ahead.

· Protecting American waters: We need to make more progress on this, especially with nutrient loads and stormwater runoff. We need to do more than the traditional methods. We should be looking at trading schemes in Idaho and Washington. Nutrient problems in streams are a big issue. We need to develop innovative programs to deal with that. McLerran encouraged the group to look at innovation to improve water quality in the Boise River.

· Environmental justice: This is on Lisa Jackson’s list of priorities. EPA will be working with the tribes and low income populations to understand the needs of low income communities. The agency will be reaching out to these communities to help improve children’s health.

McLerran stressed that it is not EPA’s job to punish states for the economic crisis. The agency would like to figure out a way to make progress during these tough times. Water quality monitoring in Idaho has been suspended because of budget cuts at DEQ, but that cannot go on indefinitely. Perhaps a partnering program with EPA and the use of loaned employees might be a solution.

HUD, DoT and EPA are trying a partnership to drive highway and housing funds in ways that mutually re-enforce the missions of the three agencies.

During questioning, McLerran discussed the cement plant in eastern Oregon, saying that Oregon’s plan may not do enough to lower mercury emissions.

One audience member cited Industrial livestock (CAFO) operations as one of the biggest environmental problems. She said that antibiotics and endocrine disrupters are showing up in drinking water, and that sampling shows that 22% of homes have nitrates above safe drinking water levels. This, she says, is driving people to have to buy drinking water at Wal-Mart.

When asked if carbon trading in going to be included in the analysis of water quality issues. McLerran responded that EPA was in the formative stages on CO2 issues. Carbon trading is not on the radar screen right now. If Congress acts in that area, things would change. He is hoping that Congress will step in.

NPDES permitting, wastewater treatment and phosphate issues are among priorities in Idaho. EPA will be the point on NPDES permits. That is a priority for the region.

Another person asked about the proposed MACT standard for wood-fired boilers which would discourage the use woody biomass. McLerran responded that we would have to find a balance.

McLerran encouraged people to submit additional comments. With the increase in CAFÉ standards for automobiles, any insights in consumer innovative technologies would be welcome. These could include aerodynamic improvements, better fuel combustion, turbo charging and plug-in hybrids.