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Legislation Proposed to Study Barnegat Bay’s Water QualityFebruary 3, 2016

Senator Bob Smith proposed a new bill in an effort to help curb the pollution of Barnegat Bay. S765 would require the New Jersey Department of Environmental Protection (“DEP”) to conduct a study and prepare a report that evaluates the water quality of Barnegat Bay to determine whether the bay is impacted in violation of the Clean Water Act. The study shall further assess whether the waters of the bay meet New Jersey water quality standards and will focus on impairments from phosphorous, nitrogen and excessive sediment. The bill provides that DEP shall evaluate the efficacy of controls on point sources that discharge into the bay and tributaries and practices to control nonpoint source pollution in the watershed. DEP will make recommendations for Legislative action to restore the water quality of the bay. The study and report findings will be forwarded to the Legislature.

Governor Christie has vetoed similar legislation in the past and some claim that has resulted in deteriorating water quality in Barnegat Bay.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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EPA and US Army Corps of Engineers Finalize Clean Water RuleMay 28, 2015

Along with Assistant Secretary for the Army (Civil Works) Jo-Ellen Darcy, United States Environmental Protection Agency (“EPA”) Administrator Gina McCarthy announced the finalization of the Clean Water Rule, which is designed to protect the streams and wetlands that form the foundation of the country’s water resources from pollution and degredation. The Rule seeks to clarify and more fully define which water bodies are “waters of the United States” subject to the regulations under the Clean Water Act  and thus EPA’s jurisdiction. The final rule more fully defines water bodies such as  tributaries that impact the health of downstream waters, provides certainty in how far safeguards extend to nearby waters and protects prairie potholes, Carolina and Delmarva bays and other regional waterways that may impact downstream waters, among other highlights.  According to EPA, approximately 117 million Americans get drinking water from streams that lacked clear protections prior to this Rule.  The protections for streams and wetlands were confusing and complex following Court rulings in 2001 and 2006 and a lack of clear definition of navigable water subject to regulation by the EPA.  As Administrator McCarthy stated “protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms and warmer temperatures.”  The government agencies held more than 400 meetings with stakeholders across the country and reviewed over one million public comments, utilizing the latest science, including a report that summarized more than 1,200 peer-reviewed, published scientific studies, which supported the position that small streams and wetlands play an integral role in the health of larger downstream water bodies.

This Rule does not create any new permitting requirements and maintains all previous exemptions and exclusions.  The Rule only defines the types of water bodies that are deemed subject to regulatory scheme under  the Clean Water Act.  The Rule does not seek to regulate ditches, groundwater, shallow subsurface flows or tile drains.

The Clean Water Rule will become effective 60 days after publication in the Federal Register.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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U.S. Supreme Court Allows Judicial Review of EPA's CWA Order in Sackett, et. al. v. EPAMarch 29, 2012

In an unanimous opinion, the United States Supreme Court reversed and remanded the lower court’s decision and ruled that the petitioners may bring a civil action to challenge the United States Environmental Protection Agency’s compliance order pursuant to the Administrative Procedure Act (APA) and that the Clean Water Act (CWA) does not preclude review under the APA.

In this case, the EPA issued a compliance order to the Sacketts alleging that the land they purchased and filled in is a wetland and is subject to the CWA. The EPA ordered that the Sacketts remove the fill and restore the land or face civil penalties of up to $32,500 per day of violation, or administrative penalties of up to $11,000 per day of violation. The Sacketts requested a hearing with EPA to contest this order, but EPA denied them a hearing. The Sacketts filed an action with the United State District Court for the District of Idaho. The District Court granted EPA’s motion to dismiss for subject matter jurisdiction and held that the CWA precludes judicial review of compliance orders before EPA has started an enforcement action in federal court. The Ninth Circuit Court of Appeals held that the language and structure of the CWA is intended to preclude pre-enforcement of judicial review in administrative compliance orders. The Ninth Circuit also held that the CWA provides that penalties for noncompliance with a compliance order be assessed only after the EPA proves, in district court, and according to traditional rules of evidence and burdens of proof, that the defendants violated the CWA in the manner alleged in the compliance order.

The Supreme Court held that the EPA’s compliance order is a final agency decision for which there is no adequate remedy except APA review. Justice Scalia noted that the EPA’s decision had all of the hallmarks of finality and that EPA had “determined rights or obligations,” requiring the Sacketts to restore their property through the agency’s plan and to provide EPA with access. Justice Scalia also wrote that “legal consequences flow” from the compliance order, including severe financial penalties and the order “marks the consummation of EPA’s decisionmaking process.” Furthermore, Justice Scalia wrote that a civil action brought under the APA provides for judicial review, but only EPA can bring such an action, and until it does, the Sacketts were subject to financial penalties. Thus, the compliance order in this case is a final agency decision.

The Court then considered whether the CWA precludes judicial review such that the APA review would not apply. Justice Scalia noted that the CWA does not expressly preclude judicial review. The government argued that the review mechanisms of the CWA are open to the Sacketts and they do not need review under the APA. The Court held that the government’s arguments do not support an inference that the CWA’s statutory scheme precludes APA review.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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U.S. Supreme Court to hear Two Environmental Cases in 2011-2012 TermSeptember 28, 2011

PPL Montana, LLC v. State of Montana
PPL Montana, LLC (PPL) owns and operates dams licensed by the federal government by the Federal Energy Regulatory Commission (FERC) pursuant to its authority under the Federal Power Act (FPA) on the Missouri, Madison and Clark Fork rivers. PPL filed a declaratory judgment action in state court on November 12, 2004 against the State of Montana (State) contesting the State's ability to seek compensation for PPL's licenses user of its dams. The State filed a counterclaim and maintains that is has title to the riverbeds and has since Montana acquired statehood under the "equal footing doctrine", and that PPL is required to pay for the use of the riverbeds. Under this doctrine, at the time a new state entered the Union, the federal government passed trust ownership of the navigable waters and the underlying riverbeds to the state. Both parties presented experts and thousands of pages of evidence regarding the use of the rivers and whether they were "navigable" at the time that Montana entered the Union, in 1889. The trial court awarded damages in the amount of more than $40 million in back lease payments and future lease payments for the PPL to continue to use the waters.

The Montana Supreme Court upheld the lower court's decision that (1) title to the riverbeds of the Missouri, Clark Fork and Madison rivers transferred to Montana when it became a state in 1889: (2) the lower court's calculation of damages in the amount of $40,956,180 was supported by the facts; and (3) that the Land Board is responsible for the terms of any future lease.

The U.S. Supreme Court is asked to decide (1) if the constitutional test for determining whether a section of a river is navigable for title purposes is to require a trial court to determine, based on evidence, that the section of the river was navigable at the time the state joined the Union, or can the court deem the entire river navigable based upon present day recreational use: and (2) if a project licensed under the FPA, which requires economic analysis and state input, and for which easements have been obtained and substantial funds paid to private parties and the federal government having been told the riverbeds are owned by those parties, can the State retroactively claim title and impose millions of dollars of damages for back rent and future obligations?

Oral argument is scheduled for December 2, 2011.

Sackett, et al. v. EPA

Chantall and Michael Sackett own 0.63 acres of undeveloped land in Idaho, near Priet Lake. In 2007, the Sacketts filled in about one-half acre of the property with dirt and rock in preparation to build a house. On November 26, 2007, the United States Environmental Protection Agency (EPA) issued a compliance order alleging that the land is a wetland and is subject to the Clean Water Act (CWA) and that the Sacketts violated the CWA by filling in the land without first obtaining a permit. EPA ordered that the Sacketts remove the fill and restore the land or face civil penalties up to $32,500 per day of violation or administrative penalties up to $11,000 per day of violation. The Sacketts sought a hearing with EPA, but the request was denied. The Sacketts filed an action with the United States District Court for the District of Idaho arguing that the compliance order (1) was arbitrary and capricious under the Administrative Power Act (APA); (2) was issued without a hearing in violation of the Sacketts' procedural due process rights; and (3) was issued on an "any information available" basis which is unconstitutionally vague.

The District Court granted the EPA's motion to dismiss for subject matter jurisdiction and it concluded that the CWA precluded judicial review of compliance orders before the EPA has stated an enforcement action in federal court. The Sacketts appealed to the Circuit Court. The Ninth Circuit Court of Appeals held that the language and structure of the CWA is intended to preclude pre-enforcement of judicial review of administrative compliance orders. The Ninth Circuit also held that the CWA provides that penalties for noncompliance with a compliance order be assessed only after the EPA proves, in district court, and according to traditional rules of evidence and burdens of proof, that the defendants violated the CWA in the manner alleged in the compliance order.

The U.S. Supreme Court is asked to decide (1) whether petitioners can seek pre-enforcement judicial review of the administrative compliance order pursuant to the APA and, (2) if not, does the petitioners' inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?

Oral argument has not been scheduled yet.

The United States Supreme Court's 2011-2012 term opens on Monday, October 3, 2011.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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EPA and Army Corps Issue Draft Guidance on Clean Water ActMay 2, 2011

The United States Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("Army Corps") released draft guidance that is intended to describe the agencies' current understanding of which waters are covered by the Federal Water Pollution Control Act Amendments of 1972 ("Clean Water Act"). The draft guidance is not a rule and lacks the force of law. The EPA and Army Corps have presented its new guidance in this manner to allow all interested persons to provide comments and/or questions during the 60-day comment period.

The Clean Water Act was enacted by Congress in an effort to restore and maintain the nation's waters, but applies only to "waters of the United States." The identity of which waters are covered and how to make that determination has been the subject of litigation since its passage. There are regulations, as well as programs that involve local, state and federal funding when a body of water is identified as being covered by the Clean Water Act, making these matters highly contentious.

The guidance is in response to two United States Supreme Court decisions, which narrowed the scope of the Clean Water Act, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. United States. In SWANCC, the Army Corps denied a permit to site a solid waste landfill at land containing ponds used by migratory birds. The Supreme Court held that intrastate, non-navigable waters are not covered by the Clean Water Act based on use by migratory birds. In Rapanos v. United States, the Supreme Court held that the wetlands adjacent to a ditch that flowed into navigable waters extended beyond the traditional navigable waters and their adjacent wetlands and thus were not covered by the Clean Water Act. In Rapanos, four of the Justices agreed that the Clean Water Act covers relatively permanent waterbodies and wetlands with a continuous surface connection to them. Justice Kennedy concurred in the judgment but noted that waters should be covered if they have a "significant nexus" with traditional navigable waters. The United States has taken the view of Justice Stevens that either of these tests can be used to uphold jurisdiction of the Clean Water Act over bodies of water.

The draft guidance is divided into eight sections: Sections 1 and 2 address the classes of water subject to the Clean Water Act, traditional navigable waters and interstate waters. The third section provides guidance based upon Justice Kennedy's "significant nexus" standard. Sections 4, 5, and 6 describe whether certain types of waters: tributaries, adjacent wetlands, and other waters, are subject to Clean Water Act jurisdiction. Section 7 provides examples of waters that are generally not "waters of the United States." The last section provides guidance on the documentation necessary to support whether waters are protected by the Clean Water Act.

Comments are due July 25, 2011.

Following the comment period, the EPA and Army Corps will finalize the guidance and undertake rulemaking, which is expected to commence with a proposed rule.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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