Don’t step in that Puddle! The U.S. Army Corps of Engineers Adopts new Iowa Stream Mitigation Rules

Don’t walk in the rows during a rainstorm

Before someone decides to remove or alter “Waters of the United States” (“WOTUS”) through construction, plowing, grading or other similarly activities a 404(b) permit must be obtained. Part of the permitting process involves proving that the  “Least Damaging Practicable Alternative” has been chosen and also mitigating any loss of WOTUS.

On June 22, 2017, the U.S. Army Corps of Engineers adopted the “Iowa Stream Mitigation Method” to govern its review of 404(b) permits and to guide engineers, biologists, and environmental consultants on how to best mitigate destruction or damage to WOTUS.   This Iowa Method was approved despite the litigation surrounding the 2015 WOTUS rule. We must now apparently include stepping in puddles during rainstorms as an activity that may trigger felony arrest by the FBI (I’m stretching the argument just a bit to make my point).

There are both good and bad aspects to the rule.  A good aspect of the Method is that  it at least sets forth a clearer path that can be used to calculate mitigation efforts.  The bad aspect of the Method is that it adopts definitions that are currently stayed by a Federal Appeals Court. The 2015 regulation at 33 CFR section 328.3 defines WOTUS as “characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.” However, that definition has been stayed by a Federal Court in In re EPA, 803 F.3d 804 (6th Cir. 2015). In addition, the Trump Administration has proposed to abolish the new 2015 rule altogether. The old rule as enacted in 1986 is therefore in effect pending either abolition of the 2015 rule or further court action. That 1986 version of the rule does not contain the “bed and bank” language in the 2015 version and has a narrower definition of WOTUS streams, at least as it pertains to ephemeral streams.

What does this mean? Because the Iowa Mitigation Method adopts (see page 1) the stayed 2015 version of the regulation, it pushes federal jurisdiction past the currently enforceable limit to include any ephemeral stream with a defined bed and bank.  The 2015 rule that has been stayed further defines an ephemeral stream as any place where water runoff from precipitation occurs, even it that water is only visible in response to rainfall, the “streambed” is located above the water table year-round, there is no groundwater source, and there are no aquatic organisms.

Contrast this with the currently enforceable definition at 33 CFR section 328.3 from 1986:

For the purpose of this regulation these terms are defined as follows:

(a) The term waters of the United States means

(1) 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;

(2) All interstate waters including interstate wetlands;

(3) 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:

(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or

(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(iii) Which are used or could be used for industrial purpose by industries in interstate commerce;

33 CFR section 328.3 First, an ephemeral stream has none of the attributes listed at 33 CFR section 328.3(a)(3)(i)-(iii) (1986). An ephemeral stream has no recreational purpose, unless you count splashing in puddles recreational. Those types of streams have no fish or shellfish that can be taken and sold in interstate or foreign commerce, and they have no industrial purpose. In fact, the 1986 definition mentions only “intermittent streams” when expanding the definition, which certainly suggests that ephemeral streams were not intended to be covered in the 1986 version of WOTUS. Otherwise, the regulation would include both “intermittent and ephemeral streams.” By insisting on referencing the stayed 2015 rule, if a farm field has water running on it while it rains and there is a defined bed and bank, the U.S. Army Corps of Engineers may well deem that water to be jurisdictional and that any disturbance of the soil on that farm (by farming or development) will trigger penalties and potential criminal action if any disturbance of that water takes place without a 404(b) permit in hand. The U.S. Army Corps of Engineers has already implemented this interpretation and threats of enforcement action have been issued.

James Pray

BrownWinick Law Firm



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EPA and USACE Move to Rescind 2015 Waters of the U.S. Rule

crops (01328212x9F897)

Crops hiding US Waters

In a move that surprises nobody, the Environmental Protection Agency and the Department of Army, and Army Corps of Engineers (“USACE”) proposed on June 27, 2017 a new rule to rescind the 2015 Waters of the US Rule and re-codify the regulatory text that existed prior to 2015 defining “waters of the United States” or “WOTUS”. Rescinding the 2015 WOTUS Rule will likely moot existing litigation over the 2015 WOTUS Rule and undoubtedly spawn a new round of litigation over the replacement rule, which would be identical to the rules in place before the 2015 WOTUS Rule was approved.

The rule change is available at this link:

Definition of “Waters of the United States” – Recodification of Pre-existing Rules

The new rule reviews the U.S. Supreme Court decisions, Riverside, SWANCC, and Rapanos, that interpreted the existing statute and rule in effect prior to the 2015 WOTUS Rule and appears to endorse the definition in late Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). Justice Scalia interpreted the term “waters of the United States” as covering “relatively permanent, standing or continuously flowing bodies of water . . .,” id. at 739, that are connected to traditional navigable waters, id. at 742, as well as wetlands with a “continuous surface connection . . .” to such water bodies, id. (Scalia, J., plurality opinion) (quoting from the new 2017 Rule).

The new rule makes it clear that this is just the first of two steps, the first step to re-establish the regulatory status quo with all of its uncertainties and a second step that would  create a new definition of “waters of the United States” taking into consideration the principles that Justice Scalia outlined in the Rapanos plurality opinion.

Given that this second step would generate new challenges by environmental groups, the question that must be asked is whether the makeup of the U.S. Supreme Court has changed since 2006. Although Justice Scalia has now passed away, he has been replaced with Neil Garland, who most legal observers believe has a judicial perspective nearly identical to Justice Scalia.  David Souter and John Paul Stevens, who both dissented, have since retired but they have been replaced by Obama appointees Sonia Sotomayor and Elana Kagen, respectively. Therefore, the swing vote by Justice Anthony Kennedy who developed the incredibly murky “significant nexus” test in his concurring opinion in Rapanos, is the stumbling block to any judicial change. Justice Kennedy made a telling comment during oral arguments in Army Corps of Engineers v. Hawkes, 578 U.S. __ (2016), that the Clean Water Act was “arguably, unconstitutionally vague.”  Given Justice Kennedy’s doubts about the Clean Water Act, and speculation that the 80 year old Justice may retire, it may be possible for a new “second step” rule to pass muster in a future challenge.


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Board of Water Works Trustees of the City of Des Moines, Iowa v. Sac County Board of Supervisors, et al.

On March 16, 2015, Des Moines Waterworks (“DMWW”) filed a Complaint in the Federal District Court for Northern Iowa against several drainage districts in Calhoun, Buena Vista and Sac counties. A total of ten separate counts were alleged. Counts I and II alleged statutory violations of the Clean Water Act (I) and violations of Iowa Code section 455B.186 that prohibits the discharge of pollutants into waters of the state (II). The remaining Counts III-X in the federal complaint alleged claims counts alleged tort-based and constitutional causes of action against the districts: public nuisance (III), statutory nuisance (IV), private nuisance (V), trespass (VI), negligence (VII), takings under the Fifth Amendment (VIII), due process and equal protection under the Fourteenth Amendment (IX), and permanent injunction (X).  The claims essentially argued that the drainage districts had polluted the Raccoon River with nitrates and that the nitrates required DMWW to spend large sums of money to remove the nitrates so that the water was suitable for drinking.

At the urging of the federal district court, eight counts were certified to the Iowa Supreme Court so that the court could inform the federal district court what its ruling would be on those certified questions. The remaining two counts (I-II) are still awaiting further action in the federal district court.

On January 27, 2017 the Supreme Court ruled on all four questions in favor of the drainage districts. The decision was written by Justice Waterman and joined by Justices Mansfield and Zager. Justices Cady and Appel concurred in part and dissented in part. Justices Wiggins and Hecht took no part.

The certified questions and answers have been answered as follows:

Question 1: As a matter of Iowa law, does the doctrine of implied immunity of drainage districts as applied in cases such as Fisher v. Dallas County, 369 N.W.2d 426 (Iowa 1985), grant drainage districts unqualified immunity from all of the damage claims set forth in the complaint (docket no. 2)?

Answer: Yes.  As explained below, drainage districts have a limited, targeted role—to facilitate the drainage of farmland in order to make it more productive.  Accordingly, Iowa law has immunized drainage districts from damages claims for over a century.  This immunity was reaffirmed unanimously by our court just over four years ago.

Question 2: As a matter of Iowa law, does the doctrine of implied immunity grant drainage districts unqualified immunity from equitable remedies and claims other than mandamus?

Answer: Yes.  Again, Iowa precedent, reaffirmed unanimously by our court just four years ago, recognizes that drainage districts are immune from injunctive relief claims other than mandamus.

Question 3: As a matter of Iowa law, can the plaintiff assert protections afforded by the Iowa Constitution’s inalienable rights, due process, equal protection, and takings clauses against drainage districts as alleged in the complaint?

Answer: No.  Although these constitutional clauses are fundamental to our freedom in Iowa, they exist to protect citizens against overreaching government.  Generally, one subdivision of state government cannot sue another subdivision of state government under these clauses.  And even if they could, an increased need to treat nitrates drawn from river water to meet standards for kitchen tap water would not amount to a constitutional violation.

Question 4: As a matter of Iowa law, does the plaintiff have a property interest that may be the subject of a claim under the Iowa Constitution’s takings clause as alleged in the complaint?

Answer: No, for the reasons discussed in the answer to Question 3.

A. Existing Law is unfavorable to DMWW

The court’s opinion began by noting that the immunity of drainage districts from money damage claims is based on long-standing case law. “Our cases have consistently held that a drainage district is not susceptible to suit for money damages. It has no corporate existence for that purpose.”  The court noted that this has been the law for “over one hundred years.” In lieu of a suit for money damages, the court found that under its case law that mandamus is the proper remedy to adjudicate claims that a drainage district is violating a duty imposed by an Iowa statute.

Next, addressing the constitutional claims brought by DMWW, the court noted that another line of cases holds that political subdivisions, as creatures of statute, cannot sue to challenge the constitutionality of state statutes. The court held that this reasoning readily extends to a public utility such as the DMWW because it is also a creature of statute. Therefore, the law” precludes [DMWW’s] constitutional challenges to chapter 468.”

Based on existing law it was clear to the Supreme Court that DMWW’s arguments should be rejected. However, DMWW knew that the existing law was against it when it agreed to certify the questions to the Iowa Supreme Court. Therefore, DMWW argued that the Supreme Court should depart from precedent, citing cases that allow the court to depart from precedent when “continued vitality is questionable.” In response, the Iowa Supreme Court began its analysis by observing that “our prior holdings that the DMWW seeks to overturn were unanimously reaffirmed by our court in 1994 and 2012 without any intervening changes in the law underlying the immunity.” (emphasis supplied).

B. There is no reason to depart from precedent.

Nonetheless, the court went on to examine “whether DMWW has provided compelling reasons for overruling our century of precedent interpreting chapter 468 that the legislature has left intact.”  DMWW raised several arguments why the court should make new law:

  1. Immunity should not apply in a water pollution case in light of the evolution in the understanding of environmental contamination.
  2. The enactment of the home rule amendment to the state constitution in 1978 undermines the rationale for the immunity.
  3. The nitrate contamination at issue rebuts the public health rationale for drainage districts.
  4. Decisions of other states allowing tort claims against drainage districts.
  5. Immunity is unconstitutional as applied.

The court rejected DMWW’s first argument that immunity for drainage districts was established long before there was any desire to protect water quality. The court held that the law protected drainage districts from tort claims “under any state of facts” and that “[p]ollution claims do not present a stronger case to impose liability.” The court also noted that chapter 468 which governs drainage districts “imposes no duty on drainage districts to filter out nitrates.” In perhaps the most important statement in the entire opinion, the court observed that:

The defendants’ lack of statutory authority to regulate farmer nitrate use cuts against revisiting our longstanding precedent, which rests upon the limited existence and powers of drainage districts. “Liability follows control . . . .”

What is interesting about this statement is that it is an argument that the districts have also made in their motion for summary judgment in the federal district court on the first two statutory counts. Even Justice Appel in his partial concurrence (joined in by Justice Cady) noted that “the most valid rationale for the no-money damages approach – that a drainage district has limited powers—is a broad proposition that applies across the board.” A federal judge may be hard-pressed to ignore this unanimous opinion even if that judge considers it to be mere obiter dicta that was not necessary to the court’s conclusion.

The court listed several additional reasons to reject DMWW’s arguments:

  1. “While attitudes toward the environment may differ today from when the first drainage tiles were placed generations ago, tort claims based on alleged pollution are nothing new. “Tort claims challenging environmental pollution can be traced back to at least the seventeenth century . . . .”
  2. “Drainage districts and their trustees have presumably relied on our long-standing precedent recognizing their immunity. One practical result of that reliance is the lack of liability insurance to cover defense costs or indemnify judgments.”
  3. “The absence of any evidence or argument that drainage districts are the cheapest cost avoider for nitrate contamination. The drainage systems were not designed or intended to filter out nitrates.”

On the second argument by DMWW asking that the court deviate from existing law, DMWW argued that the enactment of the home rule amendment in 1978 broadened the police powers of county government. The court quickly disposed of this argument noting that “Home rule powers can only be exercised in a manner consistent with acts of the general assembly.” The court also found that “the home rule amendment prohibits local governments from assessing taxes without legislative authorization.” This is an important observation because drainage districts have no innate ability to raise the funds needed to build the nitrate treatment systems that DMWW is demanding. The court obviously recognized this problem. Justice Appel also agreed with this majority holding in his separate opinion.

DMWW next argued that its allegations of nitrate contamination should overwhelm the historical immunity of drainage districts because the purpose of drainage districts is to benefit “public health.” The court rejected this argument noting that although drainage districts are presumed to be conducive to the public health, they are also presumed to be conducive to “convenience and welfare” and that this would include converting “economically unproductive swamps into tillable farmland.” The court concluded by finding:

Ultimately, this case is about who pays for nitrate removal from the drinking water that reaches our kitchen faucets. The DMWW does not claim nitrate levels render the Raccoon River unsafe for swimming or fishing. The DMWW does not challenge that estimate. It is for the legislature to decide whether to reallocate the costs of nitrate reduction.

The court may be inferring that the Raccoon River’s purpose is not to provide water that is ready to drink and that this is a service that utilities are better positioned to provide.

DMWW next argued that a few other state courts have allowed private persons to sue drainage districts in tort. The court quickly rejected this argument finding first that none of those cases involved a suit filed by a water utility or public entity and finding second that Iowa law was unique.

Finally, the court addressed DMWW’s various constitutional arguments against drainage district immunity.  The court began by citing precedent upholding statutory immunity provisions against equal protection attacks. The court disposed of the “takings claim” by noting that the constitution only protected the taking of private property and that “no private property is involved in this case.” Instead, the Raccoon River was owned by the State of Iowa. The court also rejected the argument that a public utility could be involved in a “proprietary” as opposed to “governmental” function, entitling it to constitutional protection against a taking. The court cited a 1923 U.S. Supreme Court case to support its conclusion that neither the Iowa nor US Constitution protected DMWW from a taking regardless of whether its water activities were a proprietary or governmental function.  The court also cited an old Iowa Supreme Court case noting that downstream landowners are not entitled to recover eminent domain payments from a drainage district for harm to private property caused by water flow. The court next nixed DMWW’s argument that district immunity violated its due process. The court reasoned that governmental entities have no right to sue other governmental entities for due process violations. Otherwise, the court observed, tax payers would “foot the bill for both sides.” Justice Appel did not agree with the majority on the question of takings.

The court concluded that “Even if we regarded the DMWW as a private entity and accepted its factual allegations as true, no compensable takings claim is alleged under the Iowa Constitution.” The court added that “DMWW was not denied access to the Raccoon River; rather, it simply must expend additional funds for nitrate removal.”

C. The Partial Concurrence and Dissent

As noted above, Justice Appel agreed with the majority on several points, namely the unavailability of damages against a district, the inapplicability of the Home Rule statute on drainage districts, and the lack of equal protection, due process and inalienable rights claims attacking what Justice Appel refused to characterize as district “immunity.” Justice Appel did however, conclude that DMWW could raise a takings claim and that nuisance should be available. Justice Appel was joined by Justice Cady in his opinion. Justice Cady issued an additional very short opinion that appeared to be an appeal for legislative action.

James L. Pray

Brown Winick Law Firm


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Federal Court dismisses case against EPA in nutrient regulation suit

On December 15, 2015 the Federal District Court for the Eastern District of Louisiana dismissed a lawsuit by Gulf Restoration Network and other not-for-profit environmental organizations. Gulf Restoration Network v. Jackson (E.D. La. December 15, 2016) 12-677 Cross Motions for Summary Judgment post- remand. The case involved a petition by the environmental groups challenging a decision by the EPA not to even make a decision about rule making and asking that the court order the EPA to begin rule making to require numeric water quality standards for portions of the ocean protected by the Clean Water Act but outside the jurisdiction of any state.

The EPA refused to  the demand, stating that the Clean Water Act gave it discretion to work with the various states. The most recent decision follows a remand on an earlier appeal to the Fifth Circuit where the Appeals Court reversed an order by the same District Court on the issue of whether the EPA was required to make a 303(c)(4)(B) necessity determination in response to the plaintiffs’ petition for rule making. The EPA stated that the Clean Water Act clearly gave the EPA discretion to work with the states on water pollution issues and that it was within its rights to “refuse to decide to decide.”

On remand the District Court, its hands largely tied by the Court of Appeals, had before it a single issue: Was the explanation by the EPA for why it declined to make a necessity determination legally sufficient? The Court looked at the EPA’s argument that it disagreed that federal rule making would be the most effective or practical means of addressing nitrogen/phosphorous problems at that time. Instead, the EPA argued that it would be better to “build on its earlier efforts and to continue to work cooperatively with states” and that the plaintiffs’ proposed rule making was “unprecedented and complex.” Utilizing a “high deference” standard required by  Gulf Restoration Network v. McCarthy, 783 F.3d 227 (5th Cir. 2015), the Court agreed with the EPA that its explanation was sufficient.

The case is available here:

James Pray

BrownWinick Law Firm

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Donald Trump and his Administration’s Environmental and Energy Policy

01194576Now that we know we will have a Republican House, Senate, and President beginning in 2017, it is time to consider is what environmental and energy changes might take place during Donald Trump’s first term as President. I am neither supporting nor criticizing the possible actions that a Trump Presidency may entail. Instead, my goal is to lay out a possible roadmap of what may happen on the environmental and energy fronts during the next four years. I must also disclose that I have clients who may be affected adversely or positively by all of the matters discussed below.

Donald Trump’s website lists a number of goals that relate to energy:

  • Unleashing untapped shale, oil, and natural gas reserves;
  • Rescinding Obama executive actions;
  • Opening onshore and offshore leasing on federal lands; and
  • Rescinding moratoriums on coal leasing.

On the regulation front, Donald Trump’s environmental goals include:

  • Eliminating the Waters of the U.S. Rule; and
  • Scrapping the EPA Clean Power Plan

At various times Donald Trump has been quoted as wanting to:

  • Eliminate incentives for wind and solar power;
  • Eliminate the EPA;
  • Legalize the use of asbestos (Trump claims that asbestos is 100% safe, once applied and also claims that the rules against asbestos were led by the Mob, which runs asbestos removal)(I’ve never heard that one before);
  • Pull out of climate accords; and
  • Abolish the Renewable Fuel Standard (“RFS”) which supports the ethanol industry.

What will Donald Trump actually focus on and what are the low hanging fruit that he can grab?

Waters of the U.S. I think that the elimination of the Waters of the U.S. Rule will be a given. The proposed rule is extremely unpopular among the rural voters that delivered him to power. Rural senators and congressmen have likewise been among his most ardent supporters. Of course, the idea that the proposed rule is a real problem is something of a canard. The underlying law has never been clearly defined despite numerous U.S. Supreme Court decisions and the only way to solve the definitional question of what constitutes a “Waters of the U.S.” is to enact new legislation.  I view the chances of an elimination of the Waters of the U.S. Rule as 100%. I see the chance of a more effective definitional solution by Congress at 50%. I’d put the chances of legislation higher were it not for my belief that Congress will continue to show its inability to agree on anything other than recess dates.

Wind and Solar. Donald Trump may have to soften his antagonism against wind subsidies to get rural congressional support for legislative changes to the definition of “Waters of the U.S.”  I believe that there is only a small chance that existing  tax credits will be extended when they expire in 2020 during a Trump term unless there is a grand bargain with Midwest Senators. Solar power may well be the poor stepchild in this trade, though rapid reductions in the manufacturing costs of solar panels and batteries may allow solar to remain competitive regardless. I think that the utility industry has every reason to try to pass federal legislation similar to recent legislative efforts in Florida (failed) and Arizona (succeeded) aimed at preventing alleged “stranded costs” due to the private adoption of solar power.

Coal Mining. Resurrecting coal may be a case of too little too late. The biggest bar to coal mining is the Mine Safety and Health Administration on the extraction side, air emission standards for coal fired power plants (Maximum Achievable Control Technology “MACT” rules and Mercury and Air Toxics standards) on the combustion side and coal ash regulations on the disposal side. Without comprehensive new legislation it is unlikely that a President can have much success loosening the rules. Public interest attorneys will simply litigate any attempts at agency leniency. Changes to regulations on the combustion and disposal could make coal-based power more competitive with shale gas, but if President Trump has his way with the expansion of natural gas extraction then coal prices will be trying to meet a moving target. I think it is unlikely that a Trump Administration will be able to do much to resurrect the coal industry to its former strength. Competitively priced energy sources are just too abundant after eight years of incentives and expansion of natural gas production is likely to make new coal mining investment very challenging. 

Coal Fired Power Plants. Even if costly safety rules are relaxed and the cost of extracting coal goes down, it is also worth noting that it is practically too late to stop the shuttering of many coal fired power plants.  Two hundred and forty two plants have been retired or are being retired. Also, what do you do to create a level playing field for utilities that have already invested billions of dollars in upgrading the remaining newer plants? There could be modest improvements in utility costs through legislative changes, but it is hard to know what other special interests may get in the way of definitive legislative changes. That said, there is really little outside of a Senate minority standing in the way of passing some legislation attacking MACT and air toxics standards, so I give some changes to those laws a 25% chance of passage.  Those rules probably account for a majority of the spending by industry (either directly or through utility costs) that are related to environmental compliance (said to be $10 billion per year).

Clean Power Plan. Dead. 

Paris Climate Deal. Ignored for now and terminated in three years.

Unlocking Federal Lands. I think that there will be overwhelming support in Congress to force the federal agencies to make federal lands available for energy extraction. This will likely help fuel the boom in well construction, fracking, and pipeline construction in the U.S. I fully expect at least some statutory roadblocks to unlocking federal lands for energy exploitation to be removed with heavy support from the western governors and senators. 

Even if Donald Trump stalls out in his effort to enact a legislative agenda, Presidents wield enourmous power if they want to expand or contract agency action. They can starve agencies of employees and funds and slow walk regulatory changes or aggressively enforce even minor alleged violations or rewrite rules to the extreme limits (or past) what the legislative drafters intended. It is also quite likely that we will see unforeseen fractures in the political landscape as new allies are formed and old alliances are torn apart.

James L. Pray

James Pray has more than thirty years of experience assisting industry with environmental compliance issues, including industrial and municipal wastewater permitting, air permitting, RCRA and Superfund cleanups, brownfields development, wetlands, contaminated site cleanups, infrastructure development, renewable fuels, and wind and solar power development, regulation and construction.  He is a frequent speaker on environmental topics and has litigated environmental and energy issues in the Federal and State courts of Iowa, the Iowa Supreme Court, and the Federal Courts of Appeals.

Attorney, Brown Winick Law Firm
666 Grand Ave. Suite 2000
Des Moines, Iowa 50131

Note that this article does not necessarily represent the opinions or positions of Brown Winick Law Firm and only represents the speculation and opinions of the author.


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EPA’s New Kafkaesque Self-Disclosure Website

doorchainYou want to file something with the EPA. But in order to file it, you must first be registered with the EPA.  Can’t figure out how to get registered? No problem, enter your user name and password on the form and you will be allowed to see the instructions! What? You don’t have a user name and password already because you are not registered yet? Welcome to the EPA’s new CDX Self-Disclosure Policy website.

Many companies have utilized the EPA’s self-disclosure policy. This policy encourages companies to voluntarily self-disclose violations that they find during audits and under certain other circumstances. The system has worked for many years. However, on December 9, 2015, the EPA scrapped the old program and replaced it with a centralized web-based “eDisclosure” portal to “automatically process self-disclosed civil violations of environmental law.”  If attorneys and compliance professionals are not aware of this change and mail in their usual disclosure then they run a risk of missing the short 21-day disclosure deadline and being subject to the full weight of EPA’s penalty fury.

The barriers erected by the EPA to make it as difficult as possible to actually file a self-disclosure are immense.  Here are some steps that the EPA has taken:

  1. Require everyone to register through the EPA’s CDX Central Data Exchange. This is a classic federal system with the usual security protocols that make it take 10 times longer to do anything — great if you are getting paid by the government, but terrible if you are billing your poor client by the hour.
  2. Hide all registration question FAQs so that only those people who have already registered can see the FAQs. That is right. You need to already be registered before you can find the directions on how to get registered. Don’t have a user name and password in the system? Call the help line during regular office hours and have the contractor send you the information. The EPA did call me and tell me that a separate website does have training and background information.
  3. Require a user name in order to begin the registration. It turns out that you can pick any name you want, though “EPASucks” was already taken. My compliant is that the website does not tell you that you can pick your own name. I had to lose almost one day waiting for the help desk to call me back with the answer to that question.
  4. Require that your identity be verified by Lexis/Nexis. I flunked this test on the first try, so I started all over again and for some reason was verified. If you cannot be verified, then you have to fill out a form where you promise the EPA that you are who you say you are and then mail it in. If that is your situation, note that you can continue with the self-disclosure process. You will have to keep in mind that you need to get your identify verified before the next deadline, which is compliance.
  5. Have the shortest inactivity time out clock I’ve ever seen (five minutes). Here I am, trying to fill out a long complicated form, and everytime I went back to the form to click another box I found that the timer had expired and all of my previous work was gone! That is extremely frustrating. I’m sure that this is a feature of the CDX system that EPA won’t change. But I should not have to click on the site every five minutes in order to keep it active.
  6. There is no way to add any information regarding the alleged violation when you first file. Only after you file your disclosure are you allowed to provide some information regarding the circumstances.
  7. There is no way to upload any documents when you first file the disclosure.  Their website says you can, but the option did not appear until after the disclosure is made.


James Pray

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EPA releases video of the Animas River Disaster.

00969979An interesting video montage of the Animas River disaster. The first half is the EPA’s explanation of how they created this problem. The second half is the actual creation of the disaster filmed while it happened.

EPA’s data dump of videos:

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The EPA’s Epic Animas River Spill

00957918The August 5, 2015 Gold King Mine spill by the EPA created what has to be some of the most epic visuals in environmental history. That this spill was done by the EPA (or its contractor) is probably beyond belief by most citizens. After all, the EPA is supposed to clean things up, not make them worse. But beyond the cause of the accidental spill, the EPA’s lack of clarity in its disclosure to the public is also beyond belief. You can scour the EPA’s website on this disaster, and there is no yellow water to be seen. Just crystal clear mountain water. Of course, that water was anything but crystal clear when it charged down the hill and into the Animas river. Test results by the EPA disclose toxic levels of copper, arsenic, and antimony, to name but a few of the compounds. What is also interesting is that if you go to the EPA’s page with a summary of test results, they omit arsenic and antimony from their charts.  I understand that the EPA’s goal in the document linked below is not to disclose the actual threat posed by the contaminates but to explain that the levels have returned to their previous levels before the “blowout.”

Example of EPA test results.

The frequently asked questions page posted by the EPA downplays any real effect on the river or aquatic life.  Of course, if this yellow water was safe, then why was the EPA poking around the mine to begin with?

There are two additional issues that the EPA needs to address. First, there is the claim that the EPA waited a whole day before notifying downstream residents that the water was contaminated. If true, that is unforgivable.

Second, there is the question of financial responsibility. It is unlikely that the contractor that is reported as having actually caused the spill (Environmental Restoration, L.L.C. by some accounts) has enough insurance coverage to cover this claim. Some reports, probably sensationalist,  peg the cleanup in the billions.  I have information to lead me to believe that the contractor has at most $7M in total coverage. That may seem like a lot, but when the EPA conducts a removal action, its costs are usually astronomical, and several times higher than what a typical contractor would charge. I know that if one of my clients caused a spill of this magnitude the Justice Department would be all over this with indictments and subpoenas. Unless the individual states take action, I doubt that we will see the same level of concern or urgency by the Federal government that I see displayed when my own clients re accused of violating a law or permit. Who is to blame here? I have personally watched the EPA work with this particular contractor on a cleanup and I can assure you that Environmental Restoration L.L.C. does not do anything that the EPA project manager does not tell them to do.


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Supreme Court puts the brakes on the EPA’s Power Plant MACT rule in Michigan v. EPA

epalogo (00822922x9F897)The Clean Air Act that we know today was passed in 1970 during the Nixon administration. Since that time, the EPA has been hard at work passing regulations aimed at cleaning the nation’s air. Its efforts have been extremely successful. I recall living in the D.C. area in the early 1970s before most of those regulations really took effect and the air was so polluted that on some days you could see the smog just looking across the street. I can’t describe what it was like as a kid in a car while going through Newark in the 60s on the elevated turnpike and going straight through huge clouds of sulfur dioxide and other hazardous air pollutants being belched by smokestacks next to the turnpike.  I doubt that kids growing up today have any understanding how clean the air is now.

One problem, however, is that the Clean Air Act really does not have any brakes. The EPA continues to look for any potential effect on human health and passes regulations requiring that the emissions be eliminated, in some cases, even though the cost far outweighs the benefits. Today the United States Supreme Court dealt a rather stunning blow to the EPA’s rulemaking authority in its June 29, 2014 decision in Michigan v. EPA. At issue was whether the EPA had to consider the economic impact of its hazardous air pollutants (“HAP”) emission standard for mercury emitted by electric power plants. The EPA regulates HAPs for stationary sources. A source that emits more than 10 tons of a single HAP or 25 tons of HAPs in combination is a major source. Power plants are also required to meet additional requirements. One of those requirements directed the EPA to perform a study of the hazards to the public health reasonably anticipated to occur as a result of power plant emissions of HAPs. The rule at 42 USC § 7412(n)(1)(A) also provides that if the EPA finds that regulation is “appropriate and necessary” after considering the results of the study then it shall regulate the power plants.

Justice Scalia focused on the “appropriate and necessary” language and held that this means that the EPA must consider the economic impact before imposing certain new emission standards on power plants.  The EPA’s own regulatory impact analysis estimated that the cost of the new standard would be about $9.6 billion per year. I know that this is a laughably ridiculous underestimation of the actual economic costs. Even so, the benefit was estimated by the EPA to be no more than $6 million per year. Again, this is probably a gross overestimate by the EPA. Justice Scalia noted that using these figures the costs exceeded the benefits by at least 1,600 times.

A majority of the court agreed with Justice Scalia’s conclusion that the EPA is directed to engage in some sort of economic analysis before imposing the new standard on power plants.

What is the importance of the case? First, it may have application to other areas of air pollution regulation outside of HAPs for power plants. The majority opinion’s broad conclusion that the “appropriate and necessary” language sends a clear signal that attorneys should consider the fact that the Supreme Court is willing to read into the Clean Air Act requirements that the EPA act reasonably.  Second, the decision was reached after the EPA published the rule in 2012 after notice and comment. Challenging an EPA rule is a complicated process that actually starts at the Circuit Court level. It can be difficult to raise a challenge after the appeal period has expired.  In other words, this law may have more prospective effect on the EPA than retroactive effect. Third, it may be too late. Utilities have already shuttered plants based, in part, on the difficulty in retrofitting those plants with the necessary emission controls for mercury.

Copy of Supreme Court decision: HERE

James L. Pray

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Wikileaks: Environmental Implications of the TPP

Despite the Administration’s best efforts to keep the details of the Trans-Pacific Partnership secret, Wikileaks obtained and published several sections of the document several months ago. Because it now appears that the TPP will likely get passed into law, it is worth speculating about its potential implications in the field of environmental law.

In its press release trumpeting the release of a copy of the Investment section of the TPP, Wikileaks focuses on  what it calls “an unaccountable supranational court for multinationals to sue states.”  By signing the deal, the U.S. would agree to submit itself to the jurisdiction of this tribunal. Interestingly, Australia is listed in a footnote to the section as refusing to submit to the jurisdiction of the tribunal. Wikileaks goes on to report that this tribunal, which is called an “investor-state dispute settlement (ISDS) tribunal” overrides national court systems and that the ISDS tribunals introduce a mechanism by which a multinational corporation can force governments to pay those corporations. Australia lost a case filed against it by Philip Morris for tobacco packaging laws, which is one reason Australia may be bowing out of this section.

I reviewed the provisions and it does appear that the language says what Wikileaks says it says, though without the spin. There is a new tribunal that is set up. The legal process, though ponderous, is remarkably free of any reference to either the common or civil law. The arbitrators appear to be free to examine the dispute on their own terms, unhindered by precedent.

For lawyers (and especially environmental lawyers), passage of this section of TPP by the United States would certainly be interesting. Keep in mind that multinational corporations are not necessarily “American” and with the flight of companies to Ireland and other countries many are no longer as “American” as we may assume. Instead, any regulations that affected Sinopec, China Mobile, Roche, and other companies you may never heard of could seek compensation and other relief from the U.S.

Note that this leaked version may not bear any similarity to the version currently being considered.

You can download a copy here: Wikileaks Draft of TPP Investment Chapter

James Pray

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