The following articles are excerpts from the newsletter:

Standing Tall: Friends of the Earth V. Laidlaw Environmental Services,
Trenton H. Norris and Richard H. Acker, McCutchen, Doyle, Brown, and Enersen, LLP, San Francisco, California

CWA §404 "Fill": The Primary Purpose Test in Transition,
John P. Manard, Jr., Phelps Dunbar, New Orleans, Louisiana

The Third Wave: Multi-Objective Greenways,
Roger M. Williams

Proposed Changes to Pretreatment Regulations,
Beth Gotthelf, Seyburn, Kahn, Ginn, Southfield, Michigan

Corps of Engineers Proposes to Change the Nationwide Permit System Again: New "General Purpose" Permit Would Almost Be an Individual Permit,
James L. Koewler, Jr., Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A., Cleveland, Ohio

 

STANDING TALL: FRIENDS OF THE EARTH v. LAIDLAW ENVIRONMENTAL SERVICES

Trenton H. Norris
and
Richard H. Acker
McCutchen, Doyle, Brown, and Enersen, LLP
San Francisco, California

The U.S. Supreme Court recently handed environmentalists a victory in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 120 S. Ct. 693 (2000), a closely watched case addressing issues of federal standing and mootness. The 7-2 decision found that environmental groups had standing to sue Laidlaw for violations of the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., even though the environmental groups would not benefit directly from a favorable decision and even though Laidlaw had already ceased all alleged violations and even shut down its facility.

The decision has constitutional implications far beyond the CWA and is the latest in a line of Supreme Court standing decisions that have, until now, limited environmentalists' ability to sue in federal court. This article reviews those prior cases and discusses both Laidlaw's departures from their reasoning and the important principles articulated in Laidlaw.

Standing Before Laidlaw

Article III, Section 2, of the United States Constitution extends the authority of the federal courts only to "Cases" and "Controversies." The Supreme Court has interpreted this limitation as requiring a plaintiff to prove its "standing" for any case in federal court. Precisely what constitutes standing has been the subject of great debate, particularly in cases brought under environmental statutes that attempt to empower private citizens to sue for essentially public wrongs. See, e.g., Cass R. Sunstein, What's Standing after Lujan? Of Citizen Suits, 'Injuries,' and Article III, 91 Mich. L. Rev. 163 (1992). The Supreme Court's cases over the last ten years have enunciated important principles in making this determination.

Gwaltney of Smithfield v. Chesapeake Bay Foundation

Although it did not explicitly address a plaintiff's constitutional standing to bring suit, the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 487 U.S. 49 (1987), has often been cited in cases discussing constitutional standing. In Gwaltney, the plaintiff environmental groups sought civil penalties and injunctive relief under the CWA citizen suit provision, 33 U.S.C. § 1365(a)(1), for violations that had occurred over several years but had allegedly ceased one month before suit was filed. The Court held that plaintiffs could not sue for those violations that were wholly past because the language of the CWA - allowing citizen plaintiffs to sue any person "alleged to be in violation of" the CWA as opposed to persons "alleged to have been in violation of" the CWA - requires that such violations be ongoing at the time of the complaint. Gwaltney, 487 U.S. at 57, 64.

While finding that the plaintiffs lacked standing for past violations, the Court remanded the case to the district court to determine whether the plaintiffs could allege ongoing violations. Id. at 64. This remand appeared to imply that, if ongoing violations were found, the plaintiffs would have standing to sue for them. Indeed, the district court and appellate court did ultimately find that plaintiffs alleged ongoing violations, and levied a penalty accordingly. Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 693-95, 698 (4th Cir. 1989). This implicit holding of Gwaltney - that plaintiffs have constitutional standing to sue for civil penalties for ongoing violations - was not squarely addressed by the Court until Laidlaw.

Lujan v. Defenders of Wildlife

The Supreme Court comprehensively articulated its standing doctrine in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), a case in which environmental groups challenged a Department of the Interior ("DOI") rule that limited application of the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., in certain circumstances. The ESA requires federal agencies to ensure that actions they authorize, fund, or carry out do not jeopardize the continued existence of an endangered or threatened species or harm its habitat. 16 U.S.C. § 1536(a)(2). DOI interpreted this mandate as applying only to the United States and the high seas and not to federal agency actions taken in foreign countries. Id. at 558-59. Plaintiffs disagreed with this interpretation.

The Court found that plaintiffs had no standing, however, and dismissed the claim without reaching the merits. The Court began its analysis by enumerating the elements a plaintiff must prove to establish standing: (1) the plaintiff has suffered a concrete and particularized "injury in fact" that is actual or imminent; (2) the injury is fairly traceable to the defendant; and (3) the relief sought will likely redress the injury. Id. at 560-61. The Court then found that plaintiffs failed the first and third elements. The Court reasoned that plaintiffs had suffered no imminent injury in fact because, even though their members had traveled oversees to visit endangered animals in the past and expected to return to see such animals in the future, they presented no concrete evidence that such trips would be soon or even likely. Id. at 562-67. The Court also found plaintiffs showed no redressability because it was not clear that DOI's rule would actually bind any other federal agency; a victory against DOI might therefore not have had any legal effect on the actions of other federal agencies in foreign countries, thus failing to redress the alleged injuries. Id. at 568-71. The Court therefore dismissed the case.

Steel Co. v. Citizens for a Better Environment

The Supreme Court elaborated on the redressability element in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998). In Steel Co., the plaintiff sued the Chicago Steel and Pickling Co. for violations of the reporting requirements of the Emergency Planning and Community Right-to-Know Act ("EPCRA"), 42 U.S.C. § 11001 et seq. Steel Co.came into compliance after plaintiff had sent notice of its intent to sue, but before plaintiff filed suit.

The Court held that the plaintiff lacked standing to sue because none of the relief the plaintiff sought could redress its alleged injuries. One form of relief sought - and the relief of greatest interest in the subsequent Laidlaw decision - was civil penalties. The Court held that civil penalties could not redress plaintiff's injuries because the penalties were payable to the federal government, not to the plaintiff. Steel Co., 523 U.S. at 106-07. Justice Stevens' dissent argued that the penalties could in fact redress plaintiff's injuries because, even though the plaintiff did not itself receive the money, the penalties would deter the defendant from committing future violations and that deterrence would benefit the plaintiff. Id. at 127-29 (Stevens, dissenting). The Court cursorily rejected this reasoning, stating simply that "If that were so, our holdings in [earlier standing cases] are inexplicable. Obviously, such a principle would make the redressability requirement vanish." Id. at 107.

The Court then found that the other relief sought also would not redress any alleged injuries. Injunctive relief would provide no redress, because the violations had already ceased before the complaint was filed and there was no allegation of any future violations that an injunction could remedy. Id. at 108-09. Declaratory relief was similarly "worthless to all the world" because there was no controversy that defendant had committed violations in the past, and no allegation that it would do so in the future. Id. at 106. The Court dismissed the case.

The Court briefly addressed Gwaltney, but only in the context of whether a federal court may address statutory standing (i.e., does the statute allow plaintiff to sue) before establishing constitutional standing (i.e., does a federal court have jurisdiction under Article III). In the course of that discussion, the Steel Co. court stated that statutory jurisdiction existed in Gwaltney and that the Gwaltney court had found Article III standing. Id. at 91. Several courts have read this as an endorsement by Steel Co. of Gwaltney's implicit standing holding described above. See Old Timer, Inc. v. Blackhawk-Central City Sanitation Dist., 51 F. Supp. 2d 1109, 1117 (D. Colo. 1999); NRDC v. Southwest Marine, Inc., 39 F. Supp. 2d 1235, 1239-40 (S.D. Cal. 1999); San Francisco BayKeeper v. Vallejo Sanitation & Flood Control Dist., 36 F. Supp. 2d 1214, 1215 (E.D. Cal. 1999). That has been questioned, however, since the only discussion of Article III jurisdiction in Gwaltney focused on mootness (not on the plaintiff's initial standing to bring suit), and it is to this discussion that Steel Co. was referring when it said "Article III standing was in any event found." Moreover, to the extent Gwaltney assumed plaintiff's initial standing, Steel Co. explicitly criticized it, stating that plaintiff's standing "had been assumed by the parties, and was assumed without discussion by the Court. We have often said that drive-by jurisdictional rulings of this sort (if Gwaltney can even be called a ruling on the point rather than a dictum) have no precedential effect." Id. Therefore, while not addressing Gwaltney's implicit jurisdictional ruling head-on, Steel Co. appeared at least to deny it precedential effect.

Enter Laidlaw

Laidlaw offers the Court's first significant pronouncement on injury in fact since Lujan. It also finally resolves the issue implicit in Gwaltney and not fully resolved in Steel Co.: whether plaintiffs may seek civil penalties when ongoing violations are alleged.

In Laidlaw, the defendant owned a hazardous waste incinerator that included a wastewater treatment plant that discharged into a river. Laidlaw had a CWA permit for the discharge, but had difficulty meeting the permit's strict limits, especially for mercury. Plaintiffs sued Laidlaw under the CWA citizen suit provision, seeking injunctive relief and penalties, and Laidlaw committed approximately 36 CWA violations (about 13 of which were discharge violations) after the suit was filed. The district court found that Laidlaw's past and continuing violations had not caused any significant harm to the river, and denied plaintiffs' request for injunctive relief because, by the time of the penalties phase, Laidlaw had been in substantial compliance with the CWA for a long time. Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., 956 F. Supp. 588, 611 (D.S.C. 1997). However, the district court did levy a $405,800 penalty against Laidlaw. Plaintiffs did not appeal the denial of injunctive relief, but did appeal the penalty as impermissibly small, since the district court had also found that Laidlaw gained over $1 million in economic benefit by being out of compliance. Id. at 610-11; Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., 149 F.3d 303, 305 (4th Cir. 1998). After the district court's decision, the Supreme Court's Steel Co. opinion was issued. On appeal, the Fourth Circuit assumed without deciding that plaintiffs had initial standing to bring the suit, but, relying on Steel Co., dismissed the case as moot on the grounds that civil penalties could not redress any of the plaintiffs' injuries.

Before the Supreme Court, Laidlaw argued that the environmental groups did not show the first standing element - injury in fact - because the district court had explicitly found that the river Laidlaw allegedly polluted had suffered no harm. The Court rejected that argument, holding that the correct measure is injury to the environmental groups' members, not injury to the river. Laidlaw, 120 S. Ct. at 704. Justices Scalia and Thomas, in their dissent, stated that it was highly unlikely the environmental groups' members could be injured by the claimed pollution if the river itself were unharmed. Id. at 714. The Court, however, found that the environmental groups' members had shown sufficient injury because they stopped canoeing in, fishing in, swimming in, camping near, walking near, and birdwatching near the river because of Laidlaw's alleged pollution, and because one member who lived near the facility claimed the pollution lowered the value of her home. Id. at 704-06.

Laidlaw also argued that the environmental groups failed the third requirement - redressability - because the only remedy the groups sought on appeal was to have Laidlaw pay civil penalties to the government. Laidlaw, relying on Steel Co., argued that civil penalties cannot remedy the groups' claimed injuries because the groups would not get any of the money. Vindicating Justice Stevens' dissent in Steel Co., the Court found that such penalties can satisfy the redressability requirement. Id. at 706-08. The penalties would likely deter Laidlaw from polluting the river again, reasoned the Court, which would make the river cleaner in the future and thus redress the claimed injuries. The Court did acknowledge, however, that in some cases civil penalties provide so little deterrence as to offer no redressability. Id. at 707. In finding redressability in this case, the Court explicitly limited the Steel Co. decision to cases where a defendant's alleged violations have ceased before suit is filed. Id. at 708. The Court also cited Gwaltney briefly for the proposition that a CWA citizen suit addresses present and future harm. Id. at 707-08.

The Principles of Laidlaw

Laidlaw articulates important principles in the law of standing and mootness. These standards reflect constitutional jurisprudence and have implications far beyond the CWA.

The first principle is that a plaintiff's curtailment of an activity (in this case, recreation) due to the belief that a defendant's actions have made that activity more dangerous or undesirable may be enough to satisfy the injury-in-fact element of standing. Notably, the Court did not require the plaintiffs to show that Laidlaw's actions had in fact made the recreational activities more dangerous or undesirable. Indeed, the district court's finding that Laidlaw's discharges did not harm the environment would seem to indicate otherwise. That apparently did not negate, in the Court's eyes, the harm plaintiffs had already suffered in forgoing these activities - harm on which their standing was based. The Fourth Circuit's en banc decision in Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 2000 WL 204559, *11, *13 (4th Cir.) (Feb. 23, 2000), has already followed Laidlaw on this point. Several Fourth Circuit judges, however, stated that Laidlaw'sholding on injury in fact is a "sea change" in standing law that will "unnecessarily open [ ] the standing floodgates." See id. at *17-*18 (concurring opinions). Time will tell if this evaluation is accurate.

The second principle is that civil penalties can, in some circumstances, act as a deterrent against future violations and thus satisfy the redressability element of standing. This confirms Gwaltney's implicit jurisdictional ruling and limits Steel Co.'s analysis of civil penalties to cases in which no ongoing violations are occurring. Laidlaw's principle is not absolute, and the Court recognized that "there may be a point at which the deterrent effect of a claim for civil penalties becomes so insubstantial or so remote that it cannot support citizen standing." The Court did not opine on where that point might occur, however, and simply held that in the Laidlaw case, the penalties did in fact provide such deterrence.

The third principle is that mootness and standing, while both reflections of Article III's jurisdictional limitation to "Cases" and "Controversies," are not identical. Specifically, there may be circumstances that would have precluded standing had they existed when plaintiff filed suit, but that would not support mootness. Laidlaw, 120 S. Ct. at 709. Therefore, "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice," and defendant bears a "heavy burden" to show mootness. Id. at 708. Laidlaw had argued that the case should be thrown out as moot for two reasons. First, Laidlaw stopped most of its claimed violations soon after the environmental groups sued. Second, by the time the case reached the Supreme Court, Laidlaw had closed down, dismantled, and put up for sale the facility that had allegedly polluted the river. The Court (including Justices Scalia and Thomas) decided that those factors do not automatically moot the case, because Laidlaw's voluntary compliance with the permit and closure of the facility did not necessarily show that the CWA violations could not reasonably be expected to recur. Id. at 711. The Court noted that, despite the shutdown, Laidlaw had deliberately kept its CWA permit for the site. The Court remanded the mootness question back to the lower court for reconsideration.

Conclusion

Laidlaw represents an important victory for plaintiffs in federal court generally, and especially for plaintiffs (such as environmental groups) that rely heavily on citizen suit provisions. The decision marks the first time in over a decade of Article III jurisprudence that the Court has declined to further raise the barrier for such suits. Time - and the decisions of the district courts and courts of appeal - will tell just how far Laidlaw has lowered that barrier.

 

CWA §404 "FILL": THE PRIMARY PURPOSE TEST IN TRANSITION

John P. Manard, Jr.
Phelps Dunbar
New Orleans, Louisiana

On October 20, 1999 the United States District Court for the Southern District of West Virginia ruled in favor of the plaintiffs on a motion for summary judgment in Bragg v. Robertson, 72 F. Supp. 2d 642 (S.D.W. Va. 1999), granting a permanent injunction prohibiting West Virginia regulators from permitting a widely used mining practice known as "valley fill," itself the result of a mining practice known as "mountaintop mining." Central to the ruling was the holding that the "primary purpose" of mining waste disposal is not "fill" under Clean Water Act §404, 33 U.S.C. 1344, and related regulations, hence not subject to permitting by the Corps of Engineers. Instead, the Court ruled that such wastes are subject to CWA §402, 33 U.S.C. 1342, and, since the mining practice at issue effectively obliterates stream segments, the practice is not permissible under §402 and the approved state program in West Virginia. The decision has broad implications and consequently has received substantial attention in the press and the halls of government. The case itself is headed toward the Fourth Circuit. Meanwhile an environmental impact statement is being prepared, an amendment to the Clean Water Act has been proposed in Congress (though not acted on favorably yet), and the Corps of Engineers reportedly is considering revising its definition of "fill."

The suit was brought by property owners and environmental groups against regulators in West Virginia and at the Corps of Engineers. Mining interests intervened. The federal defendants settled, agreeing to prepare an environmental impact statement by approximately the end of 2000 and to more closely scrutinize mining waste disposal activities in the interim. The state defendants entered into a consent decree regarding revised reclamation regulations, but proceeded to trial on cross motions for summary judgment concerning the scope of permitting requirements for the mining practice at issue.

Mountaintop Mining And Valley Fill

The controversy arises out of a mining practice referred to as "mountaintop mining." In the mountainous coal fields of West Virginia coal is found in seams sandwiched between layers of earth and rock. This method of mining involves removing the earth and rock, beginning at the mountaintop and working down, thus exposing the seams of coal for surface removal until the entire process results in the removal of the mountaintop down to a level where deep mining becomes the practical method to employ. The Surface Mining Control and Reclamation Act of 1997 ("SMCRA"), 30 U.S.C. 1201 - 1328, requires that "the approximate original contour of the land" (the "AOC") be restored afterward, except in limited circumstances where waivers are granted, necessitating disposal of the earth and rock. But even when AOC restoration is required, breaking up the compacted mountaintop results in the phenomenon of "swell," where the excavated earth and rock occupy more space than they did when part of the mountaintop. Hence a large volume of "excess spoil" remains, even after the AOC is restored. In either situation it is the disposition of this "excess spoil" that presents the issues in this case.

The disposal practice at issue, referred to as "valley fill," involves just what the name would imply, placing the "excess spoil" into nearby valleys. Given the topography of the area, many such valleys contain perennial streams (streams or part of streams that run all year, 30 C.F.R. §701.5) and/or intermittent streams (streams or reaches of streams that (a) drain a watershed of at least one square mile or (b) are below the local water table for at least some part of the year and obtain their flow from both surface runoff and groundwater discharge, 30 C.F.R. §701.5). Consequently the "valley fill" process oftentimes requires that the "excess spoil" be placed directly into the perennial and intermittent streams, burying those portions of the streams. By all accounts this is not an issue of modest propositions, as valley fills already cover many miles of West Virginia.

The Buffer Zone

Regulations promulgated pursuant to SMCRA create a "buffer zone" on both sides of such streams, where special protection is required:

1. No land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining activities, unless the regulatory authority specifically authorizes surface mining activities closer to or through such a stream. The regulatory authority may authorize such activities only upon a finding that -
• (1) Surface mining activities will not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quality and quantity or other environmental resources of the stream.

30 C.F.R. §816.57.

As part of its approved state program West Virginia adopted "buffer zone" regulations, which track an earlier version of the Federal regulations (48 Fed. Reg. 30312, June 30, 1983), requiring specific findings by the State:

No land within one hundred feet (100') of an intermittent or perennial stream shall be disturbed by surface mining activities unless specifically authorized by the Director. The Director will authorize such operations only upon finding that surface mining activities will not adversely affect the normal flow or gradient of the stream, adversely affect fish migration or related environmental values, materially damage the water quantity or quality of the stream and will not cause or contribute to violations of applicable State or Federal water quality standards.

38 C.S.R.§2 - 5.2.

It was undisputed that West Virginia officials had not made the findings required by the West Virginia regulations in the course of granting valley fill permits. Instead they contended that the affected areas of the streams were not subject to that requirement for two principal reasons. First they contended that the stream protections at issue are applicable to the stream taken as a whole, so that valley fill is permissible, if stream quantity and quality downstream of the "footprint of the fill" are not adversely affected. Second, the defendants contended that if the Corps of Engineers granted §404 approval by virtue of a nationwide permit for the filling of the affected streams, the practice prior to the suit, then the SMCRA buffer zone requirements would not be applicable to that filled portion of the stream. That argument is based upon contentions that: (a) §404 is applicable to this type of activity (i.e. that valley fill is §404 "fill" and not §402 disposal of waste); and (b) the savings clause in SMCRA gives deference to the Clean Water Act, setting up an impermissible conflict between the statutes unless the §404 permit process primes the SMCRA buffer zone requirements in these circumstances. The court rejected both arguments, holding that the "valley fill' constitutes a §402 disposal of waste, not §404 "fill."

The Corps' Primary Purpose Test

The Court addressed the §404 issue on two levels, through its own interpretation of the statute and regulations and by evaluating an interpretation articulated by three Federal agencies in a Memorandum Of Understanding entered into during the course of the litigation. First, the Court looked to two Corps of Engineers regulations concerning the scope of the term "fill":

(e) The term "fill material" means any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of an [sic] waterbody. The term does not include any pollutant discharged into the water primarily to dispose of waste, as that activity is regulated under §402 of the Clean Water Act.

f. The term "discharge of fill material" means the addition of fill material into the waters of the United States. The term generally includes, without limitation, the following activities: Placement of fill that is necessary for the construction of any structure in a water of the United States; the building of any structure or impoundment requiring rock, sand, dirt, or other material for its construction; site-development fills for recreational, industrial, commercial, residential and other uses; causeways or road fills; dams and dikes; artificial islands; property protection and/or reclamation devices such as riprap, groins, seawalls, breakwaters, and revetments; beach nourishment; levees; fill for structures such as sewerage treatment facilities intake and outfall pipes associated with power plants and subaqueous utility lines; and artificial reefs.

33 C.F.R. §323.2.

The Court concluded that these regulations "are constructive and do not include any sort of waste disposal", 72 F. Supp. 2d at 656, and that the primary purpose of valley fills is the disposal of waste.

The EPA Definition of Fill

The defendants also suggested to the Court that it should look to EPA's regulatory definition of "fill" for guidance. That definition does not include the "primary purpose" concept. In the 404(b)(1) Guidelines, 40 C.F.R. §232.2, EPA provides this definition: "Fill material means any 'pollutant' which replaces any portions of the 'waters of the United States' with dry land or which changes the bottom elevation of a water body for any purpose." The conflicts between this definition and that of the Corps are substantial. In the place of "primary purpose" one finds "for any purpose." In place of "does not include any pollutant" one finds a provision that specifically embraces "any pollutant." Acknowledging the conflicts, the Court held that EPA only had authority to provide disposal site specifications for the Corps to use in the exercise of its primary jurisdiction under §404, not authority to expand that primary jurisdiction. And the Court declined the offer to be guided by the EPA definition. As noted below, the Corps, in consultation with EPA, reportedly is now considering amending its regulations to eliminate these conflicts, presumably by deleting the "primary purpose" test in favor of the "for all purposes" test and including "pollutants" specifically within the definition of "fill."

 

The Settlement and MOU

But the Court was also faced with an agency interpretation concerning the scope of §404, an interpretation that was embodied in a Memorandum Of Understanding ("MOU") that was prepared as part of the Federal defendants' (Corps of Engineers personnel) obligations under a settlement they reached with the plaintiffs on December 23, 1998. The settlement agreement provided for: (1) preparation of an environmental impact statement ("EIS") within two years regarding minimizing the adverse environmental effects of mountaintop mining; (2) participation by the plaintiffs and their experts in the EIS process; (3) preparation of a MOU between EPA, the Corps, the Office of Surface Mining ("OSM"), the Fish and Wildlife Service ("FWS") and the West Virginia Department of Environmental Protection ("WVDEP") providing for a coordination of actions on permits while the EIS is being prepared. The settlement agreement required that the MOU provide for individual §404 permit processing by the Corps on all valley fill applications regarding fills that will have more than minimal adverse effects (discharges into waters draining more than 250 acres are presumed to meet this test).

The EIS is referred to as the "long term approach" while the MOU is referred to as the "interim approach." The mining interest interveners unsuccessfully opposed approval of the settlement on the grounds that (1) the Corps' shift from the use of the nationwide permit to individual permit analysis constituted rule making without the requisite procedural steps and (2) that the inclusion of the plaintiffs' experts in the EIS process was not permissible under the National Environmental Policy Act ("NEPA").

In August of 1999, pursuant to the terms of the settlement agreement, EPA, the Corps, WVDEP and OSM entered into a MOU titled "For the Purpose of Clarifying the Application of Regulations Related to Stream Buffer Zones Under the Surface Mining Control and Reclamation Act for Surface Mining Operations That Result In Valley Fills" (the "MOU"). It provides that valley fills may be permitted and that the findings for the buffer zone rule shall be made by virtue of the §404 analysis and findings of the Corps. The Court concluded that the MOU was interpretive, accorded the agency interpretation in the MOU the added deference such status required and then found that "the MOU is a clearly erroneous interpretation of the CWA to the extent it proposes employing §404 or its disposal site specification guidelines to authorize fills with the primary purpose of waste disposal," 72 F. Supp.2d at 658. The Court, therefore, rejected the argument that the §404 analysis could serve as a substitute for the buffer zone findings.

In doing so the Court noted an interesting twist during the development of the MOU, which highlights another issue, whether the §404 standards, even if applicable, can be used to set a lower standard for buffer zone variances than the standard established directly in SMCRA. The Court noted that the FWS refused to sign the MOU.

In explaining why the Fish and Wildlife Service ("FWS") declined to sign the August MOU, David Densmore, FWS field office chief, succinctly compared the two standards:

The two regulations differ in both the degree of degradation allowed (significant under §404 and will not adversely affect under SMCRA regulations) and in the types of degradation considered. While §404 limits its analysis to aquatic impacts, SMCRA allows an evaluation of other environmental resources of the stream, in addition to water quantity and quality issues. According to the Federal Register announcement adopting SMCRA's regulations at 30 CFR 186.57, "the phrase 'and related environmental resources' has been added to the language of the final rule to indicate that regulatory authorities will be allowed to consider factors other than water quantity and quality in making buffer zone determinations."

72 F.Supp.2d at 659 - 660.

Resource Investments Case

While the Court did not find any of the jurisprudence cited by the parties to be directly on point, it did note that the Ninth Circuit in Resource Investments, Inc. v. United States Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998) held that the Corps lacks jurisdiction under §404 concerning construction of a municipal solid waste landfill on a wetlands site. There the Ninth Circuit concluded that the activity at issue, placing the gravel and low permeability soil under the landfill, did not constitute "fill" because " their primary purpose is not to replace an aquatic area with dry land or to change the bottom elevation of a waterbody .... but rather to serve as a leak detection and collection system", 151 F.3d at 1168. Instead the Court ruled that such activity was subject solely to regulation under RCRA or approved state programs under RCRA. It has been reported in the press that the government elected to address this ruling through amending the relevant regulations, rather than applying to the Supreme Court for writs.

Ruling on the Motions

Ruling on the cross motions for summary judgment in Bragg, the Court held that: (1) the State had a nondiscretionary duty to make the findings required by the buffer zone rule before allowing valley fill within 100 feet of intermittent or perennial streams; (2) as valley fill covers over and destroys the streams in question the State cannot in good faith make the findings that allow for valley fill; and (3) as valley fill constitutes degrading the streams and using them for waste assimilation the State cannot make a finding that valley fill will not cause or contribute to violations of State or Federal water quality standards. The Court ruled: "The Court grants Plaintiff's motion for a permanent injunction enjoining the Director from further violations of the nondiscretionary duties discussed above and from approving any further surface mining permits under current law that would authorize placement of excess spoil in intermittent and perennial streams for the primary purpose of waste disposal." 

Post Ruling Reactions

The reactions to the October 20, 1999 ruling were swift. Three days later West Virginia Governor Cecil Underwood issued a three-page statement ending with: "I shall not waver in my efforts to right this enormous wrong. It shall be the top priority of my administration. I pledge that I shall exhaust every means to seek relief from this perplexing decision." Noting his belief that the ruling applied to both existing and future mining operations, the Governor also instituted a hiring and spending freeze for state government. WARN Act notices reportedly were sent to a substantial number of mining employees by their employers, notifying them of impending layoffs.

The state and the mining interests filed notices of appeal and requests for a stay. Even the federal defendants filed a notice of appeal, though noting their rather unusual posture in light of their earlier settlement with the plaintiffs. A spokesman for the Department of Justice was quoted as saying: "By filing this notice we are preserving our options. A notice of appeal isn't necessarily saying we think this was a bad ruling and that it should be overturned." It is interesting to note, however, that the settlement agreement approved by the Court on June 17, 1999, Bragg v. Robertson, 54 F. Supp. 2d 653 (S. D. W. Va. 1999), contains a requirement that the regulators (through the required MOU) utilize §404 as the "interim approach", a process seemingly at odds with the foundation for the subsequent October 20, 1999 ruling.

On October 29, 1999 the Court granted the stay, noting: "Since the Order including the permanent injunction of October 20, 1999 issued, a firestorm of reaction has come forth from Defendants and state government officials, predicting that the Court's injunction will cause unprecedented economic and social dislocation throughout West Virginia." Noting that he had no means of assessing the accuracy of the predictions, Judge Haden went on to hold: "In short, the Court believes it preferable to attempt to defuse invective and diminish irrational fears so that reasoned decisions can be made with all deliberate speed, but with distractions minimized."

In November 1999 Senator Robert Byrd unsuccessfully pressed Congress for passage of legislation aimed at overturning the effect of the ruling, an effort that drew the threat of a veto from President Clinton. Fifteen national organizations, including Friends of the Earth, the Earthjustice Legal Defense Fund and the National Wildlife Federation, wrote to the President with thanks for the veto threat and predictions that similar legislation would be introduced when Congress reconvened. Senator Byrd reportedly has stated that he will do just that.

Amendment Of Corps Regulations - The Primary Purpose Test

It also has been reported that the Corps of Engineers has prepared revisions to its regulations defining "fill," presumably deleting the "primary purpose" test (See, Army Corps Drafts New Regulatory Definition For Wetlands Fill, Inside EPA. January 7, 2000, at 24 and Corps, EPA Seek to Revise "Fill" Definition In Wake of Mountaintop Mining Decision, Daily Environment (BNA), January 31, 2000, at A-3). The draft language reportedly is being reviewed for comment by EPA, with the formal rule making process to begin shortly. Presumably this revision to the regulations is aimed at the rulings adverse to the government's position in both Bragg and Investment Resources. A Corps spokesman stated that the Corps and EPA have been considering such regulatory revisions for some years as a means of eliminating the inconsistency between the Corps language and that of the EPA. Environmental groups are already quoted as predicting that such a regulatory definition change would have significant adverse effects on the environment.

The BNA article reports that "a Corps source says the agency believes the regulatory change would supercede a 1986 memorandum of understanding." It seems likely that this is a reference to a January 1986 document titled "Memorandum of Agreement Between the Assistant Administrator for External Affairs and Water U.S. Environmental Protection Agency and the Assistant Secretary of the Army for Civil Works Concerning Regulation of Discharges of Solid Waste Under the Clean Water Act" (the "MOA"). Discussing the regulations promulgated pursuant to CWA §§402 and 404, the MOA articulates the problem:

Whereas the definitions of the term "fill material" contained the aforementioned regulations have created uncertainty as to whether Section 402 of the Act or Section 404 is intended to regulate discharges of solid waste material into waters of the United States for the purpose disposal of waste; and

Whereas the Resource, Conservation and Recovery Act Amendments of 1984 (RCRA) require that certain steps be taken to improve the control of solid waste;

MOA at §A.

The MOA then goes on to address its solution. In discussing this regulatory "uncertainty" in the context of enforcement actions, the MOA counsels remaining vague as to which permit the alleged violator should have sought until pressed by the court or the defendant. But if the court or defendant presses for clarity, it suggests:

To avoid any impediment to prompt resolution of the enforcement action, if such a question arises, a discharge normally will be considered to meet the definition of "fill material" in 33 CFR 323.2 (k) for each specific case by consideration of the following factors:

The discharge has as its primary purpose or has one [sic] principle purpose of multi-purposes to replace a portion of the waters of the United States with dry land or to raise the bottom elevation.

[sic] (a) The discharge results from activity such as road construction or other activities where the material to be discharged is generally identified with construction-type activities.

A principal effect of the discharge is physical loss or physical modification of the waters of the United States, including smothering of aquatic life or habitat.

The discharge is heterogeneous in nature and of the type normally associated with sanitary landfill discharges.

MOA at §B.3.

On the other hand, in the situation in Paragraph B.3., a pollutant (other than dredged material) will normally be considered by EPA and the Corps to be subject to Section 402 if it is a discharge in liquid, semi-liquid or suspended form or if it is a discharge of solid material of homogenous nature normally associated with single industry wastes, and form a mixed conveyance, or if trucked, from a single site and set of known processes. These materials include placer mining wastes, phosphate mining wastes, titanium mining wastes, sand and gravel wastes, fly ash, and drilling muds. As appropriate EPA and the Corps will identify additional such materials.

MOA at §B.4.

The apparent conflict between MOA §B.4 and the position of the government in Braggare not addressed in the case. Indeed the MOA is not mentioned.

CWA §404 itself seems to give limited guidance, though it does address itself to "disposal sites," 33 U.S.C. 1344 (a). Therefore, the statutory scope of authority of the Corps to make such a regulatory change could prove to be a lively topic for debate as that process commences.

It is also interesting to note that EPA defines the term "discharge of fill material" with the same language utilized by the Corps of Engineers (compare 40 C.F.R. §232.2 to the 33 C.F.R. §323.2(f)). Each contains the list of activities that Judge Haden characterized as "constructive" in contracting them with "disposal of waste." Therefore, the proposed regulatory changes may need to cover more than the wording in 33 C.F.R. §323.2(e).

Next Steps

The issues presented by the case are now proceeding down multiple tracks: (1) the appeal to the Fourth Circuit of the ruling on the motion for summary judgment; (2) continuing conflict over the new AOC restoration rules in the District Court as it sorts out the consent decree; (3) the Corps' consideration of an amendment to its regulations, eliminating the "primary purpose" test; (4) the EIS process, where hearings and activity have been ongoing throughout 1999; and (5) potentially in the political arena. Surely there will be substantial developments this year. In some respects this may prove to be nothing more than a report on the beginning of the story.

 

THE THIRD WAVE: MULTI-OBJECTIVE GREENWAYS

Roger M. Williams

Greenway is a curiously vague term. Defined by one expert as a "linear corridor of open space with trees and other vegetation that connects people and places," a greenway can be as broad as New York's Prospect Park or as narrow as a thread, a lush forest or - if neglected - a barren landscape. And these days, a greenway doesn't just look pretty. It works hard.

Landscape architect Frederic Law Olmsted was one of the first to weave greenways into urban settings. His 19th-century designs for the Emerald Necklace in Boston and Central Park in New York City are still considered masterpieces. After the flowering of such scenic, recreational parklands and boulevards, greenways entered a new phase early this century, says Robert M. Searns, whose Denver-based company, Urban Edges (303-904-9415), is one of the leading greenways planning firms. The emphasis shifted to trails and linear parks. Still, though, the main focus was recreation and transportation.

Now a third wave of greenways is washing across the country. The new-generation landscapes, called multi-objective greenways ("MOGs"), provide recreation, natural beauty--and a lot more. Depending on the needs of the area, they are being used as vehicles for flood plain management, storm water storage, water quality improvement and abatement of industrial pollution. They often are nurtured as corridors for wildlife habitat migration and preservation. And because of their potential to accomplish so much, multi-objective greenways attract a remarkably rich mix of advocates.

The greenways movement is as dynamic as the ecosystems it supports. Greenways have been created in all 50 states and more than 1,000 communities. Altogether they contribute an estimated 20,000 miles of natural refuge. At any given time, a dozen or more new greenways - manyof them MOGs - are in the planning stage. Some "greenway grandfathers," like Denver's quarter-century-old Platte River Greenway, are being transformed into multi-objective systems.

MOGs made their debut in the 1970s. Severe flooding in urban centers such as Denver, Raleigh and Portland, Ore., hastened their arrival. It was clear that patches of natural landscape in heavily developed areas could play an important role. To environmentalists, expanding the role of greenways made simple good sense. Chuck Flink, whose Cary, N.C.-based Greenways Incorporated (919-380-0127) is another leading greenways design firm, says "people who liked the idea of greenways" saw that these natural sites could provide trails and parkland while playing an important role in environmental management.

Updating the greenway concept was a natural progression, says Searns. Where trails and greenways have often served multiple purposes, planners could now more consciously plan for and integrate new functions into projects. To Searns, the MOG concept "offers a way to articulate in a single word a range of complex and diverse objectives. More than a label, the term greenway is a first step in popularizing and making comprehensible the notion of holistic thinking when it comes to the stewardship" of urban environments.

MOGs were a "master stroke from a political as well as a practical standpoint," Searns adds. When the original greenway backers told scientists, engineers, water-quality and flood-control people, 'You've got to look at all the problems in this corridor,' it had a galvanizing effect." The range and number of greenway supporters grew. So did access to funding sources--and the prospects for exercising leverage, if need be, on potential funders and decision makers.

Denver's Platte River Greenway project has been a pathfinder among greenways and MOGs. It's a creature of tens: 10 years in original development (1974-84), 10 miles of greenway, a $10 million price tag. Originally, Searns says, "It was largely a trail movement stemming from a sort of rebellion against the increase in automobile congestion." A broad environmentalism took hold, with a goal of infusing new life into the South Platte River, which had been heavily polluted by waste dumps, abandoned vehicles and other urban debris.

Today the Platte River Greenway is being reborn as a MOG. The $45 million undertaking has the enthusiastic backing of the mayor's office. The trail at the heart of the greenway remains "in wonderful shape," says Sarah Rapalyea, communications director for the project. "Now we're focusing on five mixed-use tributary trails," some of which were railroad corridors. The new goals include riparian restoration, removing dams from the river to improve its suitability for boating, building two new parks and expanding the parks already in place.

The term multi-objective sounds sensible, but making the leap from rhetoric to reality for a greenway can be a challenge. Searns says, "There are issues of hydrology, hydraulics, fluvial geomorphology, biology, aquatics and ecology, not to mention economics, politics and cultural concerns." The political hurdles often include overcoming resistance from owners of land - including would-be developers - along the path of a proposed greenway. "It usually gets down to the impact on their privacy and their economic interests," explains Flink.

Yet Searns perceives "a distinct change of attitude" among some developers. "They've become inspired by greenways' possibilities, so that, in many cases, you can put together win-win partnerships with business and landowners."

Greenway planners are, in fact, among the most aggressive and imaginative promoters of public-private partnerships. Working with developers of the Ken Caryl Ranch near the South Platte greenway project, planners forged a plan that benefited everyone. The developers agreed to set aside 6,000 acres of mountainside and riparian areas for a greenway, clustering homes where they would have minimal environmental impact. The developers' payback: substantial premiums on lots overlooking the preserved wild areas.

Multi-objective greenways also provide prime opportunities for nonstructural environmental solutions that can save communities millions - sometimes billions - of dollars in flood control and water quality costs. For example, a few years ago New York City chose to spend $1.5 billion to protect open space and manage development in the Catskill/Delaware watershed rather than spend $4 billion to $5 billion on a new water treatment and filtration system.

In Tulsa, Okla., repeated flooding of Mingo Creek in the early 1990s confirmed the need for a MOG. Greenway advocates and municipal officials worked out a plan. The city bought the creek-side houses of flood victims, and converted flood plain back to park space for the benefit of the entire community.

And a Blountstown, Fla., railroad corridor slated for trail conversion has served the city's utility and water needs for years. The five-mile right-of-way through the flood plains of the Apalachicola River is owned by Rails-to-Trails Conservancy ("RTC"). In addition to connecting several community parks, a baseball field, city hall and the historic Blountstown Depot, the corridor features a raised berm and side ditches that play a significant role in handling storm water for the residential area. The city of Blountstown has maintained the corridor for drainage purposes for the last decade.

Laura Cohen, policy director for RTC's California field office, says such "hybrid projects are what we try to encourage. They enable you to solve multiple problems with an integrated approach, and that opens up access to new funding sources. Also, because the projects appeal to a broader constituency, they have more political support and leverage." Recently the California RTC office worked with the Environmental Protection Agency (EPA) to produce a report on funding sources in California for innovative proposals that incorporate water quality, wetlands protection and habitat conservation into trail projects. EPA and RTC are considering expanding the collaboration to a national level.

While greenway professionals clearly see the value of MOGs, they do not minimize the difficulties of making them work. "These are very tough projects," says Chuck Flink. "They cut across traditional jurisdictions - such as private land, sewer district, public works, parks and recreation - and across economic cost-benefit issues. The landscapes are complex and normally filled with environmental, economic and social problems."

Nonetheless, Flink says, and other pros agree, MOGs have become "the foundation for the future of the greenways movement. Although you'll still see a lot of recreational greenways being built, the MOGs make more sense to more people. They give more bang for the buck."

Says Cohen of the Rails-to-Trails Conservancy, "As a national trails organization we are committed to catalyzing this movement toward third-generation greenways. In our role as educators, advocates and facilitators, we can help develop trail projects that deliver benefits to communities on multiple levels. Those trail projects will be the hallmark of the next century."

Restoring Mill Creek

As multi-objective hybrids go, Cincinnati's Mill Creek Restoration Project ("MCRP") is setting new standards with its complexity and the determination of its supporters. The name evokes an idyllic scene: a gurgling stream with a small stone mill sitting demurely on one bank. But the Mill Creek that wanders through 23 miles of metropolitan Cincinnati earned its description as one of the nation's most polluted rivers in 1997.

Robin Corathers, MCRP executive director, recites a litany of degradation in and along Mill Creek: "Old brownfields and vacant and abandoned property that, out of fear of contamination, has been left as is; buildings with industrial trash, plus lots of smashed windows and graffiti - evidence of gang activity - rundown housing, concrete troughs that channel the creek for long stretches."

MCRP leaders anticipate that restoring the creek to health and establishing a watershed greenway along its banks will take two decades and cost $14.3 million. Among the objectives: reduced erosion of stream banks and siltation of the 14 streams involved; improved access - particularly for bicyclists and hikers - to adjoining land areas; and, of course, a massive cleanup of litter and rubble. A seldom-used railway track along the creek belongs to a line about to be taken over by the huge CSX company; MCRP hopes to share the right-of-way, and has included a rail-trail in the plan.

The project, Corathers emphasizes, is addressing practical as well as aesthetic issues. "There's a big quality-of-life issue here - some of the people in areas adjacent to the creek have very low incomes. We want our plans to take account of that and, wherever possible, to improve their situation."

That's not just talk. For each of MCRP's capital projects within Cincinnati "we're committed to putting 20 percent of the construction cost into on-the-job training for low-income residents," Corathers says.

That's not all. To add value to the entire enterprise, MCRP has been looking for ways to recycle the trash found in and along the creek. Waste aluminum will be refashioned into signs. Still in need of a new use: four truckloads of discarded tires pulled from the water.

MCRP embraces a large number of local, regional and national partners and has solicited an unusual amount of community participation. The partners range from a vocational school to the Southwest Ohio Trails Association to national foundations. Community participation has already generated more than 100 meetings open to citizens and public-interest groups.

"The people who are active in this project have come to it for a wide variety of reasons," says Corathers. John Hunter, a retired Procter & Gamble scientist, became interested in the Mill Creek project because "one of the little, unnamed tributaries goes through my backyard, and I'm fighting the erosion it's caused for 35 years," he says. Hunter joined the project as a volunteer and now serves on its board. He helped draft the master plan and, as an avid canoeist, has paddled many an official and observer down Mill Creek to publicize the problems and the work being done to solve them.

Hunter invests about three days a month working on behalf of the Mill Creek project. It's an investment that will yield years of enjoyment of a healthy and scenic multi-objective greenway.

 

PROPOSED CHANGES TO PRETREATMENT REGULATIONS

Beth Gotthelf
Seyburn, Kahn, Ginn
Southfield, Michigan

The United States Environmental Protection Agency ("USEPA") recently proposed a number of changes to the federal regulations concerning the general pretreatment rules for discharging wastewater into a sewer system. In general, the rules are favorable to industry in that they streamline many of the processes. Altogether, there were approximately thirteen (13) proposed changes. Below is a summary of the most significant proposed changes:

(a) Sampling for Pollutants Not Present. Currently, Significant Industrial Users ("SIUs") subject to categorical pretreatment standards are required to monitor for certain regulated pollutants irrespective of whether those pollutants are expected to be present in the categorical industrial users waste stream. USEPA is proposing to authorize a Public-owned Treatment Works ("POTW") to allow an SIU subject to categorical pretreatment standards to exclude monitoring certain pollutants if the pollutant is not expected to be present in the SIU's waste stream in a quantity greater than the background level present in its water supply. An SIU can demonstrate that a pollutant is not present five (5) different ways, including its review of raw materials, industrial processes, and potential by-products. USEPA is proposing that the SIU submit, as part of its six (6)-month monitoring report, certification that its activities have not increased the pollutant in its wastewater. USEPA is not proposing to eliminate the limits. The limits will still be in place, however, the SIU would not be required to monitor for the pollutant. USEPA is also proposing that the POTW still be required to sample all pollutants regulated by the applicable categorical standard at least once during the term of the categorical industrial user's permit. This is one of the most important proposals to industry because, if promulgated and the local POTW is willing to implement it, the reduced monitoring will save SIUs considerable amounts of money and time.

(b) Significant Non-Compliance Criteria. Currently, significant non-compliance ("SNC") is defined to include violations that meet a number of different criteria, including chronic violations of discharge limits, failure to accurately report a non-compliance and failure to provide a required report within thirty (30) days after the due date. If a facility is determined to be in SNC, its name is published in the area's largest daily newspaper. USEPA is proposing a number of changes in response to these concerns. Specifically, USEPA is proposing to amend the regulations to allow publication of the SNC list in any paper with general circulation within the jurisdiction served by the POTW that provides meaningful public notice. Some commenters believe that publishing in large daily newspapers is not necessarily meaningful and is quite expensive. Further, if the publication is not in a meaningful paper, it may not be a deterrent. Under the existing regulations, SNC can apply to any industrial user. USEPA is proposing to modify the regulation so that SNC only applies to SIUs. USEPA is also seeking comments on whether SNC criteria should apply to any SIU irrespective of unique facts of the case. To that end, it was suggested that POTWs be given a reviewable option of not including an SIU as being in SNC even if the SIU meets the SNC criteria. For example, the current regulations require that SIUs who submit reports thirty (30) days late be consider an SNC. This seems unfair for companies who have been in consistent compliance, or if the report does not show any violations. Under the proposed regulations, the POTW would have the option of not publishing the SIU's name.

(c) Best Management Practices. Best Management Practices ("BMPs") are defined as practices that are intended to keep pollutants out of the facility's waste stream or from reaching a discharge point. The regulations for direct discharge permits, also known as NPDES permits, contain BMP requirements. BMPs include schedules of activities, prohibitions of practices, maintenance procedures and other management practices. BMPs also include treatment requirements, operating procedures and practices to control releases. The pretreatment regulations do not specifically address the use of BMPs for local limits. However, they are used in some instances. For example, metal finishers may develop a toxic organic management plan in lieu of sampling for total toxic organic. USEPA is proposing to clearly state that BMPs developed by POTWs may serve as local limits and that the BMPs would be enforceable under the pretreatment regulations.

(d) Specific Prohibition Regarding pH. USEPA is proposing to allow POTWs to accept temporary discharges with a pH below 5.0 to the extent that the POTW can document that the discharges will not damage their system.

(e) Equivalent Mass Limits for Concentration Limits. As you know, many national categorical pretreatment standards establish specific limits on discharges into a POTW. These limits are often concentration-based standards. However, some limits include: (i) mass limits based on production rates; (ii) both concentration-based and production-based limits; (iii) or mass limits based on concentration standards multiplied by the facility process wastewater flow. The problem with mass-based limits is that it fails to promote water conservation because in many cases, when the quantity of wastewater discharged decreases, the concentrations of contaminants in the wastewater increase. USEPA is proposing to allow POTWs to set equivalent mass limits as an alternative to concentration limits to meet concentration-based categorical pretreatment limits where the industrial user has installed best available technology ("BAT") treatment or a treatment technology that yields removal efficiencies that are equivalent to BAT and the industrial user is employing water conservation methods.

(f) Oversight of Categorical Industrial Users. Currently, POTWs are required to provide certain minimum oversight to SIUs. For example, POTWs are required to inspect and sample each SIU annually, review the need for a sludge control plan every two (2) years, and issue a permit at least every five (5) years. There are some small facilities that are subject to categorical pretreatment standards, but have very little impact on the POTW. There seems to be little need for the oversight of these facilities required under the federal regulation. Therefore, USEPA is recommending that POTWs be allowed to exempt the following facilities from the definition of SIUs: (i) facilities that do not discharge untreated concentrated wastewater subject to categorical pretreatment standards and discharge less than 100 gallons per day of other process wastewater; and (ii) for industrial users subject only to certain certification requirements (e.g. pharmaceutical manufacturers).

(g) Categorical Industrial User Monitoring. Currently, pretreatment regulations require that all facilities subject to National Categorical Pretreatment Standards submit to the POTW twice (2) per year a report on the pollutants in their effluent stream, known as the six-month report. The regulations also require the POTW to sample all SIUs at least once (1) per year. The regulations do allow the POTW to perform the sampling required of the categorical industrial user. However, some POTWs specifically do not allow this type of sampling (e.g. DWSD). It has been stated that it is unclear, when the POTWs sampling detects a violation, if the POTW or the SIU is required to re-sample within thirty (30) days of detection of the violation. Under the proposed rule, the POTW would be allowed to establish the appropriate level of inspection and sampling for facilities that are "non-significant categorical industrial users." USEPA is proposing that at a minimum, non-significant industrial users would be required to annually submit a report certifying its status as a non-significant industrial user, and certify that it is in compliance with the applicable pretreatment standards. USEPA is also proposing that if its sampling indicates a violation, the POTW must re-sample unless it requires the user to perform repeat sampling.

(h) Sludge Control Plan. Currently, SIUs are required to have policies and procedures in place to prevent or mitigate the effects of any sludge discharges. Additionally, POTWs must evaluate at least once (1) every two (2) years whether such SIUs needs a plan to control sludge discharges. USEPA is proposing to eliminate the requirement that POTWs evaluate for need for a sludge control plan for each SIUs every two (2) years. Rather, USEPA is proposing to give the POTWs flexibility to review the need for sludge control plans. It is anticipated that this will save quite a bit of time and money because often sludge control plans do not have to be revised as frequently as once (1) every two (2) years.

(i) Use of Grab and Composite Samples. Currently, whether grab or composite samples are required can be confusing. USEPA is proposing clarifying the sampling requirement by eliminating the requirement for a minimum of four (4) grab samples be taken in all instances to measure pH, cyanide, total phenols, oil and grease, sulfides and volatile organic compounds. POTWs will have the flexibility to determine the appropriate number of grab samples required for determining compliance. USEPA is also proposing other language to clarify flow proportional and composite sampling.

(j) General Permits. Currently, POTWs tend to issue separate permits for each facility. USEPA is exploring the idea of specifically allowing general permits to control certain non-significant industrial users. The use of a general permit for similar industries would facilitate the permitting process and would provide for more consistent permits. USEPA is proposing to allow the use of general permits to regulate SIUs with concentration-based standards or best management practices. Facilities covered under the general permit must employ the same or substantially similar types of industrial processes, discharge the same types of waste, require the same effluent limits, and require the same or similar monitoring. For various specific types of industries this may bring about a faster and easier permitting process.

Above are just a few of the proposed changes to the rules. Needless to say we will keep you posted on the status of this proposed rule.

 

CORPS OF ENGINEERS PROPOSES TO CHANGE THE NATIONWIDE PERMIT SYSTEM AGAIN: NEW "GENERAL PURPOSE" PERMIT WOULD ALMOST BE AN INDIVIDUAL PERMIT

James L. Koewler, Jr.
Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A.
Cleveland, Ohio

The U.S. Army Corps of Engineers plans to issue several new Nationwide Permits ("NWPs") on Valentines Day 2000. At the same time, the Corps plans to finalize changes to several existing NWPs. Sixty days after publication in the Federal Register, the new permits and revisions to prior permits will take effect. The Corps has targeted April 15, 2000 as the effective date.

The Corps proposed the five new NWPs on July 21, 1999 (64 Fed. Reg. 39251-39371). The proposed new NWPs would replace current NWP 26. Most of these replacements have rather limited purposes. Proposed NWP 41 provides for reshaping drainage ditches. Proposed NWP 42 provides for the development or expansion of recreational facilities, but is limited to recreational facilities with minimal impacts on wetland and on the landscape. Proposed NWP 43 provides for storm water management facilities. Proposed NWP 44 allows certain mining activities. Finally, proposed NWP 39 is almost a "general purpose" permit because it provides for the development of residential, commercial and institutional facilities.

Recent History of the "General Purpose" Nationwide Permit

In December 1996, the Corps adopted a new NWP 26, greatly restricting the terms and applicability of this permit from its prior incarnation. Before 1996, developers could use NWP 26 to impact up to ten acres of isolated wetlands or wetlands above the headwaters of a stream. After December 1996, developers could use NWP 26 for only three acres of such isolated or headwaters wetlands. In addition, when it issued the 1996 version, the Corps made NWP 26 valid for only two years, promising to issue activity-specific replacements.

In July 1998, the Corps released a "trial balloon" of six draft "not officially proposed" supposedly activity-specific replacements for NWP 26, at the time designated 26A through 26F. These drafts clearly foreshadowed the July 1999 proposed NWPs. Draft NWPs 26C, 26D, 26E and 26F could fairly be called "activity-specific." Draft 26C would have allowed wetland impacts for storm water management, 26D for passive recreational facilities, 26E for mining, and 26F for existing drainage ditches. Lawyers, consultants, conservationists and regulators could (and did), argue whether draft 26B was activity-specific. Draft NWP 26B allowed impacts up to ten acres for Master Planned Developments. Responding to a hail of shots at this trial balloon, the Corps (with President Clinton's involvement) withdrew draft 26B. Draft NWP 26A clearly was "activity-specific" only in comparison to its NWP 26 predecessor. Draft 26A would have allowed impacts to a small area while "limiting" the purpose to the broad activities of residential, commercial and institutional development.

Opposition to a "General Purpose" NWP

Activity-specificity is an issue for NWP 26 and its replacements because all the other Nationwide Permits are, in fact, limited to a rather specific activity. For example, NWP 14 sets out conditions for wetland impact resulting from a construction of a bridge or road across a stream. Similarly, NWP 12 sets out conditions for placing utility structures in wetlands.

Permit number 26, however, has always allowed wetland impacts to a small area, generally considered too small to warrant the time and expense of an individual permit application. Conservationists and some regulators oppose the continued availability of such a General Purpose Permit because they fear the cumulative losses of a great number of small wetland areas without stringent Corps oversight.

Activity-specificity recognizes certain high-priority development needs while minimizing the wetland impact. For example, (assuming no inappropriate disposal of debris or spoils) a bridge contractor will not fill a wetland or stream much more than necessary to build a bridge, in part, because extra fill could add expense to the project.

Current NWP 26 has no self-limiting activity-specificity, so permit opponents fear its widespread use for projects they consider undesirable or low priority. Draft NWP 26A added some activity-specificity. For example, larger bridge projects that must exceed the limitations of NWP 14 (stream crossings) might fit under the current NWP 26, but would not fit under draft 26A. Draft NWP 26A's applicability to residential, commercial (including industrial) and institutional projects, however, is still rather broad.

Proposed NWP 39

Proposed NWP 39, like draft NWP 26A, applies to residential, commercial and institutional development. This NWP includes both single unit and multiple unit developments within residential uses. It includes retail stores, shopping centers, restaurants and even industrial facilities within the definition of "commercial uses." It includes government buildings, hospitals and places of worship within "institutional uses." Finally, the permit also allows for the construction of "attendant features," like garages and parking lots. Proposed NWP 39 cannot be used for tidal waters or for non-tidal wetlands adjacent to tidal waters.

Perhaps most significantly, proposed NWP 39 does not allow for impacts to "isolated" wetlands. Proposed NWP 39 may be used only above the headwaters of a stream, where the flow does not exceed one cubic foot per second.

Because of its applicability to a broad range of projects, proposed NWP 39 is the heir apparent to the "general purpose" of NWP 26. Like its predecessor, proposed NWP 39 can apply only to a small area, three acres. Unlike earlier permits, however, proposed NWP 39 has a sliding scale of permitted wetland impact based upon the size of the project. If a project can qualify for proposed NWP 39, the permittee automatically gets one-quarter acre of wetland impact. Above one-quarter of an acre, the permittee may impact wetland area constituting two percent of the total project area. For example, if a developer has a one-acre area, proposed NWP 39 allows 0.27 acres of wetland impact, the 0.25 acre "default area" plus 0.02 acres of additional wetland impact (two percent of one acre). For a 50-acre project, a developer may have 1.25 acres of wetland impact, the 0.25-acre "default area" plus one acre of additional wetland impact (two percent of 50 acres). Thus, to qualify for the three-acre maximum wetland impact, the project must include 137.5 total acres. (Please note: if the water body to be impacted is considered "impaired," no NWP may authorize impacts greater than one acre).

NWP 39 Conditions

Where proposed NWP 39 will apply, its stringent requirements bring it very close to an Individual Permit. To satisfy the NWP 39's notification and application requirements, the applicant must obtain a very detailed delineation, including perennial and intermittent streams (in other words, streams that do not have water very often).

Any projected impact above one-quarter acre requires the applicant to submit a Pre-Construction Notification ("PCN"). The PCN must include a description of any open waters (including perennial and intermittent streams likely to be impacted by the project). It also must include an explanation of the applicant's efforts to avoid wetlands impacts and, failing avoidance, to minimize such impacts. Finally, the PCN must include the mitigation proposal or an explanation of minimal impacts. If the project impacts less than one-quarter acre, the developer must submit a Post-Construction Notification within thirty (30) days after the impact.

The Corps' proposal also has an unusual condition reaching outside the actual wetland. Condition i of NWP 39 and General Condition 19 of the NWPs now require a vegetated upland buffer around open waters and streams. This buffer must be 50 to 125 feet in width, presumably at the Corps discretion. A permittee must also have a water quality management plan, which can be a very stringent requirement for a one-quarter acre impact.

In another new twist, regional Corps offices may add their own conditions to NWP 39 (as well as the other NWPs). Some regions have not made yet their local conditions available to the public. Others have published their conditions, but despite the publication, the local conditions are hard to find. All in all, the local conditions will defeat the uniformity of the nationwide permits, thus robbing the NWPs of a good bit of their usefulness.

Opening "Pandora's Box" on public comments, General Condition 13(d) allows a permit application to be rejected as "contrary to the public interest," separate from any other regulatory requirement. Such a broad test for rejecting a permit application could certainly give anti-development groups great leverage in opposing, and therefore negotiating, the terms of wetland permits. Since people in opposition to a proposal are generally more vocal than those in favor, the Corps may have trouble discerning what actually is the "public interest."

Proposed NWP 39 may not be used in Designated Critical Resource Waters or in wetlands adjacent to them. Further, it may not be used to fill any part of the 100-year flood plain that drains more than one acre.

Finally, proposed NWP 39 may not be used for agricultural purposes. Where a farm has previously used NWP 40, a subsequent developer must reduce the acreage of impact under proposed NWP 39 by the acreage already filled under NWP 40.

Likely Future Directions

As this article is written, the Corps has not yet issued its final NWP 39. By the time the article is published, the Corps may have finalized the permit and printed it in the Federal Register. For the near term, NWP 39 could look very much like the proposal from July 1999.

The July proposal would have NWP 39, and the other new NWPs, last for five years. With the tightening of requirements from NWP 26 to new NWP 39, wetland conservationist have gotten great limitations on the usefulness of NWP 39. Developers and other builders may have a difficult time fitting their projects in NWP 39, forcing the preparation of more individual permit applications. As NWP 39 nears its expiration date, the Corps may close the "general purpose" NWP window even further.