By PEPPER BOWEN
The Environmental Protection Agency describes wetlands as those areas inundated or saturated by surface or groundwater and having a prevalence of vegetation typically adapted for life in saturated soil conditions. Those of us in South Louisiana can definitely agree on that assessment. Interestingly enough, the Clean Water Act identifies it navigable waters.
The recently released Clean Water Rule, has addressed the definition of navigable waters with a keen eye on what it means to be a wetland. The EPA says in the announcement that it is in part to refine the 3 Supreme Court decisions which have thrown wetland protections into question for 60 percent of the nation’s streams and millions of acres of wetlands. So what are those questions and how have they formed the bases for the Rule?
In the 1985 US v. Riverside Bayview Homes, 474 US 121 (Riverside) decision, the Court first entertained the idea of “significant nexus”. The case arose out of the Army Corps of Engineers filing suit under CWA to enjoin Riverside Bayview Homes from filling in wetlands, “characterized by the presence of vegetation that requires saturated soil conditions for growth and reproduction”. The 80 acres of marshy land was the property of Bayview Homes and was adjacent to a body of navigable water. The Corps used CWA’s clause prohibiting discharge of fill materials into “navigable waters” without a permit. The Court reasoned that adjacent wetlands are “inseparably bound up” with the waters to which they are adjacent because they blend into them. By doing so, the Court upheld the inclusion of adjacent wetlands in the regulatory definition of “waters of the United States” and deferred to the Corps’ ecological judgment.
Next came Solid Waste Agency of Northern Cook County v US Army Corps of Engineers, 531 US 159 (2001) (SWANCC). A consortium of Chicago municipalities chose an abandoned sand and gravel pit as a solid waste disposal site. Because the excavation trenches had become permanent and seasonal ponds, they contacted the Corps to determine whether a landfill permit was required. The Corps attempted to expand its jurisdiction over navigable waters under the “Migratory Bird Rule” which would extend intrastate wasters that provide habitat for migratory birds. The Court held that such an extension exceeded the authority granted to the Corps under CWA, but explained the concept of a “significant nexus” which had informed the Court’s decision in Riverside. The fact that the wetlands in Riverside were adjacent to open water was very different from the isolated ponds in SWANCC. And ultimately, the text of the statute would not support extending jurisdiction to ponds not adjacent to open water.
Finally, came the unanimous decision in Rapanos v United States, 547 US 715 (2006) (Rapanos). Rapanos involved four Michigan wetlands lying near ditches, man-made drains that eventually emptied into traditional navigable waters, defined in part as relatively permanent bodies of water. The Court determined that “waters of the United States” encompasses some waters that are not navigable in the traditional sense. This was based on Riverside’s rationale that “the evident breadth of congressional concern for protection of water quality and aquatic ecosystems.” However, the critical factor in determining the CWA’s coverage is whether a water has a “significant nexus” to downstream traditional navigable waters such that the water is important to protecting the chemical, physical, or biological integrity of the navigable water. As such, the Court rightly reasoned that the only plausible interpretation of “the waters of the United States” does not include channels through which water “flows intermittently or channels that periodically provide drainage for rainfall”. Thus any other definition would be arbitrary or capricious under Chevron and would not be permitted.
The new Clean Water Rule attempts to provide a cohesive rule consistent with the previous decisions and based on current science. It hinges on the concept of “significant nexus” and evaluates wetlands on an individual basis whether in- or outside of the floodplains.
Thursday, June 11, 2015
Wednesday, June 10, 2015
DECISIONS, DECISIONS… A NEW RULE TO CLARIFY THE PHRASE “WATERS OF THE UNITED STATES”
By PEPPER BOWEN
The Clean Water Rule is here! It arrived without much fanfare but carries with it clarity the Supreme Court has been trying to give the Clean Water Act’s (CWA) “waters of the United States” for years.
To give some perspective, CWA was passed in 1972 including the phrase “waters of the United States”. The phrase itself was last codified in 1986. The old definition was “as traditional navigable waters, interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, tributaries, the territorial seas, and adjacent wetlands.”. But no one is really even sure what all that means.
The Corps of Engineers has tried modifying its jurisdiction in order to address situations pertaining to the ’86 definition. However the Supreme Court has not been terribly lenient on that front.
The new the definition is a work of policy melding the existing CWA with the trifecta of Supreme Court precedent and Public Comments. The result is a simple definition of something that has proven incredibly complicated to define over the years. The Clean Water Rule gives meaning and scope to “waters of the United States” as “the process of identifying waters protected under the CWA easier to understand, more predictable, and consistent with the law and peer-reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.”
It is still a mouthful, but it makes the phrase itself more fluid and breaks the binds to a static view of what is and what will continue to be waterways. In an age of Climate Change, that is an incredibly important step in keeping our laws and governances relevant.
But how important is this definition really? Why does it even matter? How much and how often could such a thing possibly come up anyway?
To be honest, the “waters of the United States” doesn’t come up often in the CWA. What happens is this… §502(7) declares CWA’s jurisdictional scope to be the “navigable waters”. Navigable waters is then defined as “waters of the United States, including the territorial seas.” And it is “navigable waters” that is found sprinkled throughout multiple regulations, such as:
Each use comes with a different view, focus, and approach to water, pollution, and prevention. So it is easy to understand that depending upon the regulation, the idea of “waters” could become rather muddied since all of these agencies and regulations look back to a single CWA definition of “waters of the United States.”
All of that is why this updated rule is a big deal. It helps us move from the trudging through dense wording and open ended verbiage into the crystal clarity of what we now understand to be the “waters of the United States”.
The Clean Water Rule is here! It arrived without much fanfare but carries with it clarity the Supreme Court has been trying to give the Clean Water Act’s (CWA) “waters of the United States” for years.
To give some perspective, CWA was passed in 1972 including the phrase “waters of the United States”. The phrase itself was last codified in 1986. The old definition was “as traditional navigable waters, interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, tributaries, the territorial seas, and adjacent wetlands.”. But no one is really even sure what all that means.
The Corps of Engineers has tried modifying its jurisdiction in order to address situations pertaining to the ’86 definition. However the Supreme Court has not been terribly lenient on that front.
The new the definition is a work of policy melding the existing CWA with the trifecta of Supreme Court precedent and Public Comments. The result is a simple definition of something that has proven incredibly complicated to define over the years. The Clean Water Rule gives meaning and scope to “waters of the United States” as “the process of identifying waters protected under the CWA easier to understand, more predictable, and consistent with the law and peer-reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.”
It is still a mouthful, but it makes the phrase itself more fluid and breaks the binds to a static view of what is and what will continue to be waterways. In an age of Climate Change, that is an incredibly important step in keeping our laws and governances relevant.
But how important is this definition really? Why does it even matter? How much and how often could such a thing possibly come up anyway?
To be honest, the “waters of the United States” doesn’t come up often in the CWA. What happens is this… §502(7) declares CWA’s jurisdictional scope to be the “navigable waters”. Navigable waters is then defined as “waters of the United States, including the territorial seas.” And it is “navigable waters” that is found sprinkled throughout multiple regulations, such as:
- National Pollutant Discharge Elimination System (NPDES) permit programs §s 402 and 404
- oil spill prevention and response program § 311,
- water quality standards and total maximum daily load programs (TMDL) § 303, and
- state water quality certification process § 401.
Each use comes with a different view, focus, and approach to water, pollution, and prevention. So it is easy to understand that depending upon the regulation, the idea of “waters” could become rather muddied since all of these agencies and regulations look back to a single CWA definition of “waters of the United States.”
All of that is why this updated rule is a big deal. It helps us move from the trudging through dense wording and open ended verbiage into the crystal clarity of what we now understand to be the “waters of the United States”.
Friday, May 22, 2015
YOU NEVER MISS YOUR WATER UNTIL YOUR WELL PERMIT IS DENIED
By PEPPER BOWEN
Back in 1979 and 1983, Glenn and Jolynn Bragg bought pecan orchards for commercial production. The location was perfect - just north of Hondo, TX, in Medina County atop the Edwards Aquifer, one of the most prolific artesian aquifers and one of the greatest natural resources in the world. The Aquifer is a unique groundwater system that has supported the growth and prosperity of the surrounding region for over a century without the development of surface or other water resources because it discharges about 900,000 acre feet of water per year (that’s a lot). This volume allows it to serve the agricultural, industrial, recreational, and domestic needs of over 2M South Central Texans. To the Braggs, the Edwards Aquifer was simply the groundwater system that maintained their pecan groves in a semi-arid climate.
Initially the Braggs used the land’s old drip irrigation system from a well that provided insufficient water. They planned shortly after the 1983 purchase to dig an Edwards Aquifer well capable of dispensing more water to irrigate the crops. This irrigation system would be very important to their commercial investment because pecans are a somewhat water intensive and salt sensitive nut crop requiring 2" of rain or irrigation water per week. Still, the Braggs had a dedicated water source so they were unconcerned about the volume needed … that is until the Edwards Aquifer Authority (EAA) was created in 1995. The EAA established a permit allocation which was incongruent with the Braggs’ needs and that sparked a 20 year battle over the water resources that the Braggs have characterized as the unconstitutional taking of their water source.
EAA’s authority stems from the namesake Act passed by the Texas Legislature in 1993. The Act gives all powers, rights, and privileges to manage, conserve, preserve, and protect the aquifer to the EAA. This is accomplished largely by creating a process oriented system of meters and permits which manage water usage.
The Braggs applied for two permits to support their well, which was not completed until after the Act went into force. They were approved for volume less than requested for one and completely denied the other. As the result, the Braggs claim that by not granting the volume requested, the EAA adversely impacts their pecan business in what amounts to a taking of resources necessary for the commercial viability of their business.
Court documents beginning in 2007 cite the seminal case of Penn Central Transportation v New York (1978) which provides in pertinent part that except where a regulation physically invades a property, as in for public access, the test is whether the regulation unreasonably “interfered with distinct investment-backed expectations.” Under Penn the primary factors to be considered are “[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.”
The Braggs argued their orchards had been adversely impacted. The Authority countered with arguments including the Braggs benefited from the Aquifer and the permit system if for no other reason apportioned the volume and ensured they and others could continue to rely upon the Aquifer for years to come.
Ultimately, the Texas Court of Appeals concluded the permitting system resulted in a regulatory taking of both orchards based largely on application of the Penn factors. The Braggs believed they owned the water under their land. They had a reasonable expectation through their investment that they could support the orchards with water from wells from the Aquifer. And what may have been most compelling, lack of sufficient water for the crops not only impacts yields of the current crop, but also the quality and size of future crops. Damages were awarded; neither party was appeased; both appealed to the Texas Supreme Court; both were denied writ.
Back in 1979 and 1983, Glenn and Jolynn Bragg bought pecan orchards for commercial production. The location was perfect - just north of Hondo, TX, in Medina County atop the Edwards Aquifer, one of the most prolific artesian aquifers and one of the greatest natural resources in the world. The Aquifer is a unique groundwater system that has supported the growth and prosperity of the surrounding region for over a century without the development of surface or other water resources because it discharges about 900,000 acre feet of water per year (that’s a lot). This volume allows it to serve the agricultural, industrial, recreational, and domestic needs of over 2M South Central Texans. To the Braggs, the Edwards Aquifer was simply the groundwater system that maintained their pecan groves in a semi-arid climate.
Initially the Braggs used the land’s old drip irrigation system from a well that provided insufficient water. They planned shortly after the 1983 purchase to dig an Edwards Aquifer well capable of dispensing more water to irrigate the crops. This irrigation system would be very important to their commercial investment because pecans are a somewhat water intensive and salt sensitive nut crop requiring 2" of rain or irrigation water per week. Still, the Braggs had a dedicated water source so they were unconcerned about the volume needed … that is until the Edwards Aquifer Authority (EAA) was created in 1995. The EAA established a permit allocation which was incongruent with the Braggs’ needs and that sparked a 20 year battle over the water resources that the Braggs have characterized as the unconstitutional taking of their water source.
EAA’s authority stems from the namesake Act passed by the Texas Legislature in 1993. The Act gives all powers, rights, and privileges to manage, conserve, preserve, and protect the aquifer to the EAA. This is accomplished largely by creating a process oriented system of meters and permits which manage water usage.
The Braggs applied for two permits to support their well, which was not completed until after the Act went into force. They were approved for volume less than requested for one and completely denied the other. As the result, the Braggs claim that by not granting the volume requested, the EAA adversely impacts their pecan business in what amounts to a taking of resources necessary for the commercial viability of their business.
Court documents beginning in 2007 cite the seminal case of Penn Central Transportation v New York (1978) which provides in pertinent part that except where a regulation physically invades a property, as in for public access, the test is whether the regulation unreasonably “interfered with distinct investment-backed expectations.” Under Penn the primary factors to be considered are “[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.”
The Braggs argued their orchards had been adversely impacted. The Authority countered with arguments including the Braggs benefited from the Aquifer and the permit system if for no other reason apportioned the volume and ensured they and others could continue to rely upon the Aquifer for years to come.
Ultimately, the Texas Court of Appeals concluded the permitting system resulted in a regulatory taking of both orchards based largely on application of the Penn factors. The Braggs believed they owned the water under their land. They had a reasonable expectation through their investment that they could support the orchards with water from wells from the Aquifer. And what may have been most compelling, lack of sufficient water for the crops not only impacts yields of the current crop, but also the quality and size of future crops. Damages were awarded; neither party was appeased; both appealed to the Texas Supreme Court; both were denied writ.
Monday, May 18, 2015
DUKE ENERGY ACQUIRES STAKE IN PIPELINE
By TONI ELLINGTON
Duke Energy of Florida announced this week that it has purchased an ownership stake in the proposed Sabal Trail Pipeline Project. Duke Energy’s investment was estimated at $225 million.
The Sabal Trail Project is a joint venture of Spectra Energy and NextEra Energy, Inc. The pipeline will be operated by Sabal Trail Transmission, LLC. The cost of the pipeline is estimated at $3 billion. It will run approximately 500 miles from Alabama across the state of Georgia into Florida, where it is one of only two major pipelines supplying natural gas to Florida. Once constructed, the pipeline will be capable of carrying over one billion cubic feet of natural gas per day.
The pipeline is scheduled to begin service in 2017.
For information and updates, call (504) 599-8500.
Duke Energy of Florida announced this week that it has purchased an ownership stake in the proposed Sabal Trail Pipeline Project. Duke Energy’s investment was estimated at $225 million.
The Sabal Trail Project is a joint venture of Spectra Energy and NextEra Energy, Inc. The pipeline will be operated by Sabal Trail Transmission, LLC. The cost of the pipeline is estimated at $3 billion. It will run approximately 500 miles from Alabama across the state of Georgia into Florida, where it is one of only two major pipelines supplying natural gas to Florida. Once constructed, the pipeline will be capable of carrying over one billion cubic feet of natural gas per day.
The pipeline is scheduled to begin service in 2017.
For information and updates, call (504) 599-8500.
Friday, May 15, 2015
OKLAHOMA GROUPS SEEK MORATORIUM ON WELLS DUE TO EARTHQUAKES
By TONI ELLINGTON
A coalition of environmental and advocacy groups is calling for a moratorium on wastewater injection wells in Oklahoma due to recent reports that the wells may have triggered earthquakes.
Coalition members included Clean Energy Future Oklahoma, Oklahoma Sierra Club, Stop Fracking Payne County, the NAACP, and Peace House Oklahoma City. The groups traveled to the state capitol to deliver signed petitions to Oklahoma Governor Mary Fallin.
The Oklahoma Geological Survey (“OGS”) released a statement on April 21, 2015, that it was “very likely” that most of the recent earthquakes in the state were triggered by subsurface injection of wastewater from oil and gas drilling operations. According to the OGS, the hundreds of earthquakes which have occurred recently in central and north-central Oklahoma are not very likely to represent a naturally occurring process. The pace of oil and gas drilling has accelerated in these areas of the state.
Earthquake activity in Oklahoma in 2013 was 70 times greater than earthquake activity in 2008. Spokesmen for the coalition groups described damage to homes from recent earthquakes and urged the Governor and the Oklahoma legislature to act rather than wait for the oil and gas industry to propose a solution.
For updates, stay tuned to this blog, or call (504) 599-8500.
A coalition of environmental and advocacy groups is calling for a moratorium on wastewater injection wells in Oklahoma due to recent reports that the wells may have triggered earthquakes.
Coalition members included Clean Energy Future Oklahoma, Oklahoma Sierra Club, Stop Fracking Payne County, the NAACP, and Peace House Oklahoma City. The groups traveled to the state capitol to deliver signed petitions to Oklahoma Governor Mary Fallin.
The Oklahoma Geological Survey (“OGS”) released a statement on April 21, 2015, that it was “very likely” that most of the recent earthquakes in the state were triggered by subsurface injection of wastewater from oil and gas drilling operations. According to the OGS, the hundreds of earthquakes which have occurred recently in central and north-central Oklahoma are not very likely to represent a naturally occurring process. The pace of oil and gas drilling has accelerated in these areas of the state.
Earthquake activity in Oklahoma in 2013 was 70 times greater than earthquake activity in 2008. Spokesmen for the coalition groups described damage to homes from recent earthquakes and urged the Governor and the Oklahoma legislature to act rather than wait for the oil and gas industry to propose a solution.
For updates, stay tuned to this blog, or call (504) 599-8500.
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