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EPA's Inspector General is urging the agency to craft a model agreement between the agency and states for implementing and enforcing the Clean Water Act as a way to bolster lackluster state enforcement of federally approved permits.

Environmentalists are urging EPA to set pollutant-specific standards to define impaired waters and strictly oversee state antidegradation plans for addressing pristine waters as part of a pending rule to revise the agency's regulation governing water quality standards. Activists are also headed to court to force EPA to decide whether to approve Kentucky's antidegradation plan, a decision that could set a precedent for how other states are required to act.

The mining industry is asking a federal court to block EPA's controversial guidance governing water permits for mountaintop mining operations, a suit that faces a high legal bar as the plaintiffs must show the document has the effect of a rulemaking.

In This Issue . . .

IG Suggests EPA National Model To Boost Water Permit Enforcement Pacts
EPA's Inspector General (IG) is suggesting that the agency craft a national model for a memorandum of agreement (MOA) between states and EPA on implementing and enforcing delegated Clean Water Act (CWA) permitting authority, which could address the IG's findings that most MOAs are out of date and hinder effective permitting oversight.

EPA Looks To New 'Urban Waters' Framework To Bolster Redevelopment
EPA is slated to soon unveil its draft framework for implementing the agency's new urban waters initiative, a plan that could use metrics like waterfront redevelopment to measure the initiative's success in improving water quality and economic conditions in environmental justice communities near urban waters, a key agency official says.

EPA Faces Legal Pressures To Make Decision On Landmark Antidegradation Plan
Environmentalists are asking a federal court to force EPA to finalize its review of an antidegredation implementation plan submitted nearly a year ago by the state of Kentucky, a move that could eventually set a precedent for what the agency requires in other state programs to protect pristine waters.

Activists Seek Pollutant-Specific Limits In New EPA Water Antidegradation Rules
Environmentalists are outlining a series of new antidegradation requirements they want to see as part of EPA’s revision to its water quality standards rule, including pollutant-specific standards to define impaired waters, stricter oversight of antidegradation implementation plans and more public participation in state regulatory efforts.

Despite High Legal Bar, Industry Seeks To Block EPA's Mining Guidance
Despite a high legal bar, the mining industry is seeking to block EPA's mountaintop mining guidance, charging it has the effect of a regulation but has not been subject to a proper rulemaking procedure -- the latest effort by both industry and environmental groups who are challenging EPA's growing use of guidance and other “interim” approaches.

Expecting Pact With States, Activists, EPA Faces Industry Suit On Ballast Permit
A pending industry lawsuit challenging EPA's commercial ship discharge permit appears set to move forward later this year, after EPA finalizes an expected settlement with state and environmentalist petitioners who had challenged the permit covering discharges of ballast water and other pollutants on separate grounds, according to new court filings.

Utilities Looking To Include Water Projects In Infrastructure Bank Proposal
Water utility industry sources say they are looking for an opportunity to make the case for including water projects in President Obama's proposal for a transportation infrastructure bank, arguing that water projects will more readily be able to pay back their loans and thus have a lesser impact on the deficit than transportation projects.

IG Suggests EPA National Model To Boost Water Permit Enforcement Pacts

EPA's Inspector General (IG) is suggesting that the agency craft a national model for a memorandum of agreement (MOA) between states and EPA on implementing and enforcing delegated Clean Water Act (CWA) permitting authority, which could address the IG's findings that most MOAs are out of date and hinder effective permitting oversight.

While EPA says it agrees many of the existing state-EPA MOAs are outdated, agency officials stress that the agreements are not the only method for ensuring effective state implementation of the CWA National Pollutant Discharge Elimination System (NPDES) permitting program. The agency also says it could update an existing MOA template from 1986 as part of its broader ongoing action plan effort to improve CWA enforcement. EPA recently updated state officials on the Clean Water Act Action Plan, saying they have developed four priority focus areas.

States cannot operate delegated NPDES programs without an authorizing MOA. The agreements aim to establish how EPA will oversee the permitting program in states to ensure national consistency, the IG says.

The IG outlined its concerns with the MOAs in a Sept. 14 report, “EPA Should Revise Outdated or Inconsistent EPA-State Clean Water Act Memoranda of Agreement.” The IG reviewed 46 MOAs as part of an ongoing series the Office of Inspector General is conducting of EPA oversight of state enforcement programs.

MOAs are “critical because they are the common denominator for state-authorized programs and should represent a common baseline,” the IG says. Outdated agreements, or agreements that are not adhered to, reduce EPA's ability to maintain a uniform NPDES program with consistent oversight, according to the report.

The IG found that the MOAs do not “ensure agency management control and effective oversight over a national program administered by states that is capable of providing equal protection to all Americans.” EPA headquarters also does not hold agency regional or state offices accountable for updating MOAs when necessary and relies on other tools to oversee state programs, an approach that may further hinder the NPDES program, the IG said.

The report highlights existing concerns raised by EPA officials, the IG, and the Government Accountability Office about inconsistent CWA enforcement. For example, it notes a 2004 IG report that found that the MOAs between EPA Region III and the states it covers were all more than 10 years old and included outdated requirements.

Outdated agreements hinder EPA oversight and the ability to ensure consistent NPDES permitting, the IG says in the new report, but there is no requirement law for states or EPA to update the MOAs.

The IG says many of the agreements lack key regulatory requirements, including the establishment of data management systems to support compliance evaluation activities. Fifty-four percent of MOAs lacked policies for minimum civil penalties -- despite these being a requirement under federal regulations.

Further, the report says that few MOAs have been updated to address increasing state responsibilities under the CWA, including new NPDES programs and the “expanding CWA universe.”

Some MOAs are inconsistent with the water law, the IG says, with 17 percent of agreements containing language worded to limit EPA's authority to conduct inspection and enforcement activities in the states. “In a number of cases, this type of language has led to disagreements between EPA and states,” the IG says.

For example, although the Code of Federal Regulations says the regional EPA administrator will normally notify a state at least seven days before an inspection, South Carolina's 1994 MOA says EPA shall provide at least 30 days notice before a joint or independent inspection. An EPA Region IV enforcement manager told the IG that this provision in the state's MOA “limited EPA's enforcement authority,” according to the report.

Establishing National Baseline

To address the IG's broad concerns about the quality of the agreements, coupled with the fact that some EPA regions do not use the MOAs to manage state enforcement programs, the IG says EPA could establish a national baseline for CWA implementation with an MOA template. Through this template the agency should identify the key requirements for an MOA, which would help to establish a national consistency for the pacts.

The IG notes that state and EPA officials said that updating the MOAs could face state resistance due to the “considerable” resources it might require. Enforcement officials in two EPA regions indicated that MOA renegotiation would be a low priority because it would otherwise divert enforcement resources, according to the report.

Nevertheless, staff from each region and other stakeholders interviewed by the IG agreed that a model MOA would be beneficial in determining the adequacy of the state-EPA NPDES agreements.

While EPA agreed with many of the report's findings, the agency notes that MOAs are not the only method EPA uses for tracking the effectiveness of delegated state NPDES programs.

EPA Deputy Administrator Bob Perciasepe wrote in July 27 comments on the draft IG report that while the agency agrees that inadequate MOAs “may not support our efforts to ensure an effective state program, there are multiple layers of management controls and oversight programs that address the implementation and performance of the NPDES program but were not included in is review.” For example, the agency's Office of Water tracks implementation of the NPDES permitting program through permit quality reviews and other measures.

Perciasepe also says that renegotiating and updating MOAs is not the only way to address an inadequate state program. Renegotiating can be “time-consuming and unpredictable,” and EPA therefore should have flexibility to use other tools such as enforcement agreements to supplement MOAs, Perciasepe says.

Perciasepe also notes that EPA established a national MOA template in 1986, “but we agree that it could be updated to be more useful.” EPA is in the midst of implementing its Clean Water Act Action Plan -- a broad effort to revamp the agency's CWA enforcement and compliance program -- and therefore Perciasepe suggests that any changes to the MOA template take place in coordination with other approaches under the action plan.

Update On CWA Action Plan

EPA recently updated the Environmental Council of the States (ECOS) on its action plan efforts at ECOS' annual meeting Aug. 30 in Whitefield, NH. Lisa Lund of EPA's Office of Enforcement & Compliance Assurance said that the agency has narrowed roughly 50 recommendations for improving CWA enforcement down to 11 “concepts.”

The agency is pursuing these concepts in four key areas: improving water quality, such as focusing on serious violations; improving compliance, which could include prioritizing responses to violations; strengthening state and EPA performance, for example through permitting and enforcement efforts; and increasing transparency.

Jeanne Christie, executive director of the Association of State Wetland Managers, wrote in an Aug. 31 blog post on the action plan that although EPA is working on its action plan, “The underlying problem is in part that Congress has not provided the agency or anyone else with the tools to address the current problems plaguing the nation’s waters. This is because there is no consensus nationally that 1) there is a problem to solve or 2) how to solve it.”

Christie says the primary water pollution problem is nonpoint source runoff, but the CWA is “a point source statute designed to regulate discharges at the end of a pipe or at a specific fill site. Meanwhile states are barely keeping up with existing programs to protect water and the environment.” State budgets are expected to decline through 2012, and perhaps through 2014, even though states will undertake most work to implement the CWA, she writes.

One solution is to comment on the CWA action plan to try and “help shape future policy,” Christie says, adding that states should “help the public understand what is at stake and why it should be fixed.” -- Anthony Lacey

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EPA Looks To New 'Urban Waters' Framework To Bolster Redevelopment

EPA is slated to soon unveil its draft framework for implementing the agency's new urban waters initiative, a plan that could use metrics like waterfront redevelopment to measure the initiative's success in improving water quality and economic conditions in environmental justice communities near urban waters, a key agency official says.

But environmentalists are raising concerns that some EPA regulatory efforts -- such as permits to control urban stormwater runoff from new and existing developments -- are not strict enough to address persistent urban water pollution problems.

And some community activists are raising concerns the redevelopment aspect of its urban waters initiative could gentrify poor and minority neighborhoods that are revitalized under the program -- an issue that EPA officials argue is beyond their authority.

EPA Administrator Lisa Jackson announced plans to develop the urban waters initiative last year as part of the agency's work with the administration's Interagency Partnership for Sustainable Communities, and she later integrated the initiative into the agency's broader work on water quality, one of the administrator's seven priorities for the agency.

At a recent meeting of the agency's National Environmental Justice Advisory Council (NEJAC), EPA's deputy water chief Michael Shapiro said that the agency planned to soon release a framework outlining the agency's goals for the initiative. The White House Domestic Policy Council has also identified the initiative as an important new program and EPA has created a task force on the issue with representatives from 12 federal agencies, he said.

The draft framework will outline the goals of the initiative, which include promoting an understanding of urban waters and their potential, promoting community connection and ownership of urban waters -- including safe and legal access to the water -- and promoting community revitalization through urban waters, Shapiro said. He added that the goals of the interagency task force include focusing on reversing past neglect in distressed communities and encouraging community improvement through partnerships.

One informed source says senior agency officials on the interagency task force have been meeting weekly since April to develop the framework, which could be released as soon as this month.

In addition to the framework, EPA has also been directing grant money toward urban waters. EPA earlier this year offered $600,000 in grants for urban watershed technical services to bolster the initiative and is seeking $5.5 million in new funding in fiscal year 2011 for the program. The agency's budget request says the "Community Water Priorities" program will use federal technical support grants to states to advance water improvements in urban watersheds through "targeted implementation of core water programs."

Shapiro said EPA does not know how the initiative "will fare" in the budget process this year, but said EPA is committed to the initiative with or without the funding.

The agencies on the task force are EPA, the Department of Transportation, the Department of Agriculture, the Department of Interior, the National Institute of Environmental Health Sciences, the Army Corps of Engineers, the Department of Housing and Urban Development, the Economic Development Administration, the National Oceanic and Atmospheric Administration, the Corporation for National and Community Service and the Centers for Disease Control, Shapiro said at the NEJAC meeting

Los Angeles River

Jackson highlighted the initiative and its focus on redevelopment earlier this summer when the agency announced that it was designating the Los Angeles River as a "traditionally navigable water," a designation that ensures the entire 51-mile stretch of the urban water is eligible for federal protection under the Clean Water Act.

"Right now EPA is developing a comprehensive and collaborative Urban Waters program to help urban communities reconnect with and revitalize the waters that are an important part of their health and prosperity," she said July 7, noting that the L.A. River presents a "great example" of a degraded urban river that could benefit from federal protection. "Because we all know the value of this river and its watershed, we're working to transform it. We want this to be a place where people can walk, bike or picnic. We want it to be an asset that can help attract new businesses -- revitalizing the community and creating local jobs," she said.

To bolster the program's efforts, the agency's Office of Solid Waste and Emergency Response -- which oversees EPA's brownfields program for remediating and redeveloping contaminated sites -- is a "co-partner" in the initiative, Shapiro said.

"We are certainly not starting from scratch," Shapiro said, adding that the agency has tried to identify ongoing work that could be adapted to the initiative.

As one indication of the role redevelopment could play in the program, Shapiro said that the number of restored acres of urban waterfront is one metric the agency is considering to measure the success of the initiative. Other possible measures are improved water quality conditions, dollars leveraged for community investment, the number of urban water improvement projects initiated with EPA support and pounds of trash collected, Shapiro said.

The informed source says that addressing environmental justice is closely linked with the addressing the economic concerns of the community. "I just think there are communities across our nation that have suffered more environmental injustice than others. There are Superfund sites that need to be cleaned up, there is environmental restoration that can occur . . . I think addressing the economic concerns of a community go hand in hand with addressing the environmental concerns of that community," the source says.

However, some members of the NEJAC raised concern that past efforts to revitalize urban waterfronts has led to gentrification that forces out the environmental justice community the effort was supposed to help. Elizabeth Yeampierre, the chair of NEJAC, said that once waterfronts are cleaned up, the community -- and often the nearby manufacturing jobs -- are pushed out by luxury development.

Shapiro said that the community planning process must anticipate retaining the community. However, he noted that EPA does not have direct authority over land use and that the issue is better addressed through other agencies partnering with EPA on the effort.

Environmentalists are welcoming EPA efforts to clean up and redevelop urban waters but are concerned that EPA is not doing enough in its regulatory programs to limit harmful runoff. David Beckman, senior attorney with the Natural Resources Defense Council, recently welcomed Jackson's efforts to revitalize urban waters but questioned why the agency's draft stormwater permit for the District of Columbia -- considered a model for other urban areas -- was not strict enough.

"EPA's much-awaited regulatory blueprint for controlling polluted runoff in the nation's capitol--billed by EPA, itself, as a new, twenty-first century effort--is so perplexing," Beckman wrote in a recent blog post. "Washington, D.C. area waters, such as the Anacostia, are heavily polluted and have been, until recently, neglected and overlooked. There can be no more fitting place to make an Urban Waters Initiative real by effectively controlling the pollution source that often makes such rivers foul." -- Kate Winston.

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EPA Faces Legal Pressures To Make Decision On Landmark Antidegradation Plan

Environmentalists are asking a federal court to force EPA to finalize its review of an antidegredation implementation plan submitted nearly a year ago by the state of Kentucky, a move that could eventually set a precedent for what the agency requires in other state programs to protect pristine waters.

The environmentalists’ suit could also have key regional impacts as activists hope the agency’s review will result in a re-write of the state’s antidegredation rules to remove loopholes they say allow coal mining companies to dodge oversight.

But they fear the suit is more likely to result in further procedural fights and litigation over the state’s plan that has been in limbo for more than a decade.

In a Sept. 10 lawsuit, groups Kentucky Waterways Alliance (KWA), Kentuckians for the Commonwealth and the Sierra Club say EPA has waited too long to approve or disapprove Kentucky’s most recent antidegredation plan, which the state submitted for agency review last November. It’s the latest version of a plan that has been proposed, disapproved, overturned in court or otherwise remained unfinalized since 1995, activists say.

Antidegredation policies require states to ensure that pristine waterways are not degraded, even if they exceed Clean Water Act (CWA) water-quality standards and to ensure that waters’ designated uses, such as fishable and swimable, are not degraded.

But there is little if any case law on the scope of the authorities and none on how the requirements must be implemented. In one of the first appellate rulings on the scope of EPA’s authorities, the U.S. Court of Appeals for the 6th Circuit in a 2008 ruling, Kentucky Waterways Alliance, et al. v. Stephen Johnson, et al., partially upheld EPA’s approval of Kentucky’s antidegradation program but remanded portions of the agency’s decision to EPA.

Activists say Kentucky’s plan does not live up to these standards and is riddled with loopholes that allow activities such as coal mining, road construction and stormwater runoff to proceed without effective oversight.

In the lawsuit, filed in the U.S. District Court for the Western District of Kentucky, activists say EPA “has failed to perform a mandatory duty” under the CWA by failing to rule within 90 days on whether it approves or disapproves of Kentucky’s antidegredation plan. It asks the court to declare EPA in violation of the act and issue an injunction requiring the agency to decide on the antidegredation plan within 30 days.

Waiting For Policy

“We are tired of waiting for a properly protective policy,” KWA executive director Judith Petersen said during a Sept. 10 conference call. “And subsequently, we are filing this action today to urge US EPA to do what is actually their mandatory duty under the Clean Water Act, and that is to rule on the Kentucky regulations.”

EPA has said it hopes to complete its review of the antidegradation plan by this fall.

The agency also is currently considering changing its rules governing how states set and implement water quality standards, including antidegradation requirements. According to an agency presentation from a meeting last month on the proposed rule changes, EPA believes there is confusion concerning what implementation methods states must include in their antidegradation plans and EPA’s oversight authority.

To address this, EPA is suggesting that it could require antidegradation implementation methods to meet certain minimum requirements and to submit them to EPA for review and approval.

Despite EPA efforts to clarify its rules, the activists say Kentucky’s proposed antidgredation plan is inconsistent with the 6th Circuit’s ruling that remanded the rule to EPA and continues to be inconsistent with the requirements of the water act.

EPA is expected to object to at least some of the Kentucky plan and require state regulators to revise it. While EPA could step in and rewrite the Kentucky plan itself, environmentalists seem skeptical that will happen, instead predicting that disputes over the plan will continue with weak proposed revisions from the state, complaints from environmentalists in public comments and potential further rejection by EPA and continuing lawsuits.

“We find ourselves . . . waiting for the umpire to make a call so we can start the next inning,” said Albert Ettinger, a senior attorney with the Environmental Law & Policy Center.

At issue in the lawsuit is the lack of a so-called Tier II standard for waterbodies that would require maintenance of water quality in excess of a level “necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water,” a standard typically referred to as maintaining fishable and swimable waters.

“The antidegradation requirements of the federal water quality standards are essential to the maintenance and enhancement of the water quality of the Commonwealth of Kentucky,” the activists argue in their lawsuit. “Kentucky has consistently failed and continues to fail to adopt Tier II criteria and implementation procedures that are sufficiently broad, protective, and consistent with federal water quality standards.”

Kentucky’s Plan Is Flawed

Environmentalists say Kentucky’s antidegredation plan is flawed in several ways and does not provide proper protections to high-quality waters in the Commonwealth that are capable of supporting aquatic life. A key concern for the groups is that the plan exempts from antidegredation reviews mining activities authorized under the state’s general National Pollutant Discharge Elimination System (NPDES) permit for the sector.

EPA just last year approved the five-year general NPDES permit for surface mines and has acknowledged that it is does not have authority to change the permit until it expires, upsetting environmentalists who fret that the vast majority of coal mining in the commonwealth is covered by the general permit, hindering other EPA efforts to crack down on the controversial practice of mountaintop mining in Kentucky and other Appalachian states.

However, if EPA were to reject Kentucky’s antidegredation plan and write a stricter replacement that eliminated the general permit exemption, it could force companies to perform more thorough antidegredation reviews to ensure that pristine waters are not being polluted and that there is a socioeconomic justification for any pollution they will create. Requiring antidegredation analyses would provide a fuller “opportunity for somebody to look at the permit carefully because that’s not what’s happening now,” Ettinger said during the conference call.

Petersen said that under the general permit mining companies only have to submit a superficial impact analysis that typically is the same from site to site and does not account for whether discharges will affect higher quality streams or have other localized impacts. She also said the public only gets 15 days to comment on those submissions, compared to 30-day comment periods that are more typical under federal law.

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Activists Seek Pollutant-Specific Limits In New EPA Water Antidegradation Rules

Environmentalists are outlining a series of new antidegradation requirements they want to see as part of EPA’s revision to its water quality standards rule, including pollutant-specific standards to define impaired waters, stricter oversight of antidegradation implementation plans and more public participation in state regulatory efforts.

In recent comments submitted to EPA, environmentalists also seek broader requirements for states to include so-called Tier I implementation methods in antidegradation regulations. Activists say that explicit Tier I requirements are necessary to immediately provide minimum protection to all waters, even if more stringent rules are being developed, and to set controls for nonpoint sources of water pollution that are left out of other requirements.

Antidegradation policies require states to ensure high-quality waters are not degraded, even if they exceed Clean Water Act (CWA) standards, and to maintain waterbodies’ designated uses, such as fishing or recreation. Activists in their comments are focusing most heavily on proposed revisions to antidegradation requirements.

EPA last year formally launched a rulemaking to revise its water quality standards regulations, and in recent months has started reaching out to stakeholders for input. Among the updates the agency is considering are measures to tighten state antidegradation programs, which aim to maintain pristine waters; clarify how states designate particular uses for waterbodies; and limit the use of variances, which allow states to waive water quality standards.

As part of the antidegradation planning process, states establish a three-tiered system to define waterbody uses and the level of protection they need. Tier 3 standards are assigned to outstanding waters whose quality exceeds existing standards; Tier 2 standards are assigned to high quality waters that can support recreation and wildlife; and Tier 1 standards apply to all other uses of a waterbody, such as industrial or agricultural.

In comments filed Sept. 3 on the upcoming water quality standards rule, several environmental groups note that existing policy allows a state to avoid assigning Tier 2 standards if they identify just a single pollutant that impairs a waterbody, thereby lowering the threshold to contribute additional pollutants to the waterbody. The groups, including Clean Water Network, Mississippi River Collaborative and Environmental Law & Policy Center (ELPC), say states should apply Tier 2 antidegredation standards based on particular pollutants.

“It is contrary to the basic policy of the Clean Water Act . . . to allow a water body to be unnecessarily degraded as to a pollutant for which it is meeting standards because it is not meeting standards as to another pollutant or pollutant parameter,” the groups say, adding that EPA should require Tier 2 protection for “all water bodies that support any significant recreational and aquatic life.”

Tier 2 protections are intended to prevent anything beyond a de minimis degradation in water quality without a demonstration that the proposed discharge of pollutants is necessary and important for broader social and economic goals. But activists say states can avoid applying those standards if a waterbody exceeds applicable criteria for just a single pollutant.

For example, activists in Kentucky, who are challenging the state’s antidegradation implementation plan, say the state could define a waterbody as impaired because it exceeds criteria for pathogen pollution and avoid strict oversight for permits seeking to contribute additional pollution. “What Kentucky is saying in these cases is that because you have fungal foot you might as well have cancer,” said ELPC’s Albert Ettinger during a Sept. 10 press call on environmentalists’ efforts to force EPA to rule on the state’s antidegradation implementation plan.

State Implementation Methods

The environmentalists also say EPA should “require states to more explicitly set forth their implementation methods” to maintain antidegradation plans. EPA is required to approve implementation plans, but there is relatively little case law covering the scope of its authorities and how the requirements must be implemented. In one of the first appellate rulings on the scope of EPA’s authorities, the U.S. Court of Appeals for the 6th Circuit in a 2008 ruling, Kentucky Waterways Alliance, et al. v. Stephen Johnson, et al., partially upheld EPA’s approval of Kentucky’s antidegradation program but remanded portions of the agency’s decision to EPA.

Environmentalists have returned to court asking for a decision from EPA on the Kentucky program, arguing it has exceeded CWA deadlines to approve or disapprove of it.

Meanwhile, another environmental group, Northwest Environmental Advocates (NWEA), in Sept. 8 comments is urging EPA to make a number of changes to its water quality standard program, including revamping its so-called Tier I requirements to fill regulatory gaps and require states to address nonpoint sources of water pollution. The group also backs using a parameter-by-parameter approach to protecting higher quality waters.

States’ implementation of this antidegradation program has failed so far, especially regarding Tier I protections, NWEA says. “[D]espite its importance to water quality protection and restoration, and EPA’s clarity that antidegradation is a part of water quality standards, antidegradation policies are routinely ignored by states,” the group says.

To address these problems, EPA should require states to set explicit Tier I implementation methods in regulations -- including controls for nonpoint sources -- to set minimum protections that would immediately apply to all waters, NWEA says. The requirements would also apply to other agencies that establish management practices for nonpoint sources, the group says.

Implementation methods could range from narrative requirements and performance expectations to specific numeric provisions, the group says.

For example, states could require forested riparian buffers to prevent excess sedimentation and toxics, or require a variety of baseline nonpoint source controls.

These requirements would fill several regulatory gaps, NWEA says. Tier I requirements could provide minimum protection during the often lengthy process of adopting a total maximum daily load (TMDL), which creates a pollution budget to restore water quality. The implementation methods would also protect waters that violate narrative criteria but have not yet been scheduled for a TMDL or waters that have criteria for toxic pollutants are set below levels that can be detected, NWEA says. The requirements could also fill gaps in Tier II requirements, which have no mechanism to prevent nonpoint sources from lowering water quality that currently meets water quality criteria, the group says.

Explicit Tier I protections “would be the minimum and . . . would not be sufficient in all cases, to ensure protection (and restoration) of existing uses and the water quality necessary to support them. However, such protections would go a long way to improving and preserving water quality,” NWEA says.

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Despite High Legal Bar, Industry Seeks To Block EPA's Mining Guidance

Despite a high legal bar, the mining industry is seeking to block EPA's mountaintop mining guidance, charging it has the effect of a regulation but has not been subject to a proper rulemaking procedure -- the latest effort by both industry and environmental groups who are challenging EPA's growing use of guidance and other “interim” approaches.

The National Mining Association (NMA) Sept. 17 asked a federal district court in Washington, DC, to block EPA from imposing new requirements on Clean Water Act (CWA) permits because the “interim” guidance document and a separate agreement with other federal agencies have the effect of new rulemaking efforts that were not implemented through formal procedures outlined in the Administrative Procedure Act (APA) and violate the water law.

The industry strategy seems aimed at heading off expected arguments from EPA that its new requirements are not yet ripe for judicial review because the agency has largely avoided taking “final” action to prevent mining permits from being issued.

Drawing heavily from the landmark ruling in Appalachian Power v. EPA, a 2000 federal appeals court decision that rejected EPA efforts to impose new requirements through a guidance document, NMA argues that EPA's surface mining guidance is having a similar effect and should be thrown out.

NMA's challenge to the mining guidance mirrors arguments raised by environmentalists in a separate case pending before the U.S. Court of Appeals for the D.C. Circuit -- Natural Resources Defense Council v. EPA -- that argues EPA guidance to states on imposing fees for ozone emissions is subject to court review because it reinterprets requirements of the Clean Air Act.

State officials are also increasingly concerned about EPA's mechanisms for implementing guidance and other informal requirements and recently began considering their options to counteract EPA's growing efforts to object to state-issued permits as a way of forcing adoption of "interim" policy guidance and strict new pollution limits in a number of different environmental media.

Tough Legal Tests

But winning such legal arguments can be difficult as key courts have generally resisted challenges from private parties, finding that the agency documents are not “final” decisions subject to judicial review.

The fundamental question in cases challenging guidance documents and similar products is whether the documents have the effect of rulemaking, sources who have worked on similar cases say.

“If the agency is telling you what they're likely to do in the future in this type of situation, then it's a guidance and it doesn't have any immediate impact. But if the agency is saying 'here's what we will do' . . . and it has an immediate impact then [courts are] going to hold that that's a rule,” says one lawyer who has represented other industries on similar challenges but is not involved in either pending case.

The lawyer notes that challenges to guidance documents tend to be “highly fact-specific,” meaning that plaintiffs or petitioners need to demonstrate that the particular document being challenged is actually affecting regulatory policy.

Some legal commentators, however, have noted that the Appalachian Power ruling is one of the few instances where courts have found guidance documents have legal force. "Unfortunately for those who liked the outcome in Appalachian Power, it seems to have been the high-water mark for those wanting to circumscribe agency use of guidance," Seth Jaffe, a partner at Foley Hoag, noted in a 2009 posting on the firm's blog.

Jaffe noted that in a 2007 ruling, Cement Kiln Recycling Coalition v. EPA, the agency successfully staved off an industry challenge to a risk assessment guidance protocol for hazardous waste combustion units by taking into account the standard the court set in Appalachian Power. "In response to Appalachian Power, EPA had edited the guidance to make it look less binding," he wrote.

In a Sept. 17 filing, NMA asks the U.S. District Court for the District of Columbia to issue a preliminary injunction against EPA to prevent the agency from applying new standards for review of CWA section 402 and 404 permits it has outlined since the Obama administration took office.

NMA is primarily targeting two documents in which EPA seeks to impose new standards for CWA permits, the April 1 guidance on “Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order” and a June 11, 2009, memorandum of understanding (MOU) between EPA and the Army Corps of Engineers establishing an “Enhanced Coordination Process” for issuing CWA section 404 permits. Dozens of pending 404 permits are being held up as they are subjected to the process called for in the MOU.

Permitting System

The group says its members are being denied their right to a consistent, predictable permitting system through the imposition of new requirements via the guidance and MOU and expected or proposed EPA objections to state- or Corps-issued permits. “This is all about [EPA] delaying ever saying yes or no,” a second industry source says. “We don't have a right to a permit, but we do have a right to a timely yes or no. . . . And we're being denied that.”

NMA says in a 53-page memo filed in support of its injunction request that EPA is immediately applying new criteria in the guidance, despite the fact that it is still in “interim” form, undergoing public comment and based on science that has not yet been peer reviewed, and that the agency through the MOU is encroaching on the Corps' permitting role as defined by the CWA.

The group says it has tried to work cooperatively with EPA and the Corps' to understand the new requirements, “despite NMA's belief that the agencies were subverting federal law. What has evolved however, is an unduly prohibitive and dramatically lengthened permitting process that is having immediate and irreparable effects” on its members, NMA argues in the memo.

NMA argues that EPA is overstepping its statutorily defined role in reviewing 404 permits by redefining the various roles played by EPA and the Corps in the process. The MOU lays out new review criteria EPA will apply to proposed 404 permits, which are issued by the Corps, to determine what permits should be subject to increased scrutiny. Previously, EPA could just comment on proposed permits and had the option of “vetoing” selected sites for the construction of valley fills, which mining companies use to dispose of excess spoil in streams.

NMA also argues EPA is violating CWA statute and regulation covering issuance of section 402 National Pollutant Discharge Elimination System (NPDES) permits, which states issue with oversight of EPA. Through the guidance, EPA says 402 permits should adhere to a benchmark value for conductivity, which measure salinity in water. NMA says that requirement amounts to an establishment of a regional water quality standard for conductivity, in violation of the CWA, which says states need to establish their own waterbody-specific quality standards.

EPA's guidance and MOU should be considered “legislative rules” promulgated in violation of the APA and do not fall into categories for which Congress has created exceptions from notice-and-comment requirements, such as “interpretive rules [or] general statements of policy,” NMA argues. It also cites Appalachian Power to argue that an “agency's characterization of its own actions is not controlling.”

In response to the injunction request, an EPA spokeswoman says, “EPA issued this sensible guidance - which companies, stakeholders and elected officials all requested - because the agency believes Americans living in coal country should not have to choose between the economic benefits of coal mining and a way of life in the Appalachian mountains that depends on clean water and healthy watersheds -- we can provide both. . . . The guidance is based on emerging science and the law and sends a strong message that we are willing to work with companies to figure out how to mine coal while reducing the environmental and health impacts.”

The EPA spokeswoman says of the 79 permits that were originally subject to the enhanced review outlined by the MOU, “only 36 remain pending a final decision and EPA is working to review these permits as expeditiously as possible. All of these remaining applications were filed during the previous administration and were delayed by lawsuits filed by coalfield citizens seeking to protect their communities.” -- Nick Juliano

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Expecting Pact With States, Activists, EPA Faces Industry Suit On Ballast Permit

A pending industry lawsuit challenging EPA's commercial ship discharge permit appears set to move forward later this year, after EPA finalizes an expected settlement with state and environmentalist petitioners who had challenged the permit covering discharges of ballast water and other pollutants on separate grounds, according to new court filings.

The case at issue, Lake Carriers Association v. EPA, pending in the U.S. Court of Appeals for the District of Columbia Circuit, consolidated several review petitions filed by industry, environmental and state petitioners challenging on various grounds the Bush administration's first-time National Pollutant Discharge Elimination System (NPDES) permit for vessels that was finalized in December 2008.

Environmentalists assailed the permit as being too lenient while industry officials have focused their criticism on an extensive list of state-specific requirements that were included in the permit's appendix under section 401 of the Clean Water Act (CWA), which allows states to set conditions on federal actions to ensure their water quality standards are met.

In the wake of the litigation, EPA pursued two tracks of settlement talks. Efforts to reach a settlement with industry petitioners collapsed earlier this year, while talks with environmentalist and state petitioners were more fruitful.

In a joint Sept. 8 filing, EPA and the environmentalist/state petitioners say they "have reached a tentative settlement encompassing virtually all issues" and ask to sever their part of the case from the industry challenges and keep it on hold for another 75 days while they finalize a settlement. The settlement will be between EPA and petitioners Natural Resources Defense Council, National Wildlife Federation, Northwest Environmental Advocates and the state of Michigan.

Details of the settlement remain unclear, but environmentalists have previously complained that the existing permit puts too little emphasis on implementing water-quality-based requirements, in favor of technology-based standards. EPA already has convened two scientific panels to provide recommendations for its next ship discharge permit, which will be finalized by 2013, and the early efforts to set strict standards for the next permit indicate that the existing permit is unlikely to be revised as part of a settlement agreement, contrary to earlier expectations.

EPA says the next five-year general NPDES ship permit likely will include numeric limits for ballast water discharges, which the agency is regulating to control the spread of invasive species that can be transported between ports via ballast water. EPA has asked a panel of the National Academies of Science to examine water-quality based limits and a Science Advisory Board panel to examine available treatment technology in preparation for its next ship permit.

Industry Challenge

Industry petitioners Lake Carriers Association, American Waterways Operators and the Canadian Shipowners Association concur that the cases should be severed, so long as EPA does not use any settlement it reaches with the other petitioners "as a basis for opposing or seeking dismissal of Industry Petitioners cases," according to a separate industry filing.

Industry challenged the permit over its inclusion of the state-specific discharge standards, which industry says were added to the permit after its proposal and notice-and-comment period without the proper time for review. Industry wants the permit to set a single national standard for discharges, saying the myriad state-by-state requirements complicate implementation.

But states have generally argued that CWA section 401 allows them to attach conditions to federal decisions, such as the vessel permit, to ensure they are able to maintain water quality standards.

EPA proposes a briefing schedule, with which industry concurs, that would have industry petitioners file an opening brief Nov. 1, to which EPA would respond by Jan. 31, 2011, and industry petitioners would file a reply by Feb. 21, 2011. The environmentalist and state petitioners will be allowed to intervene on EPA's behalf in the case, with their brief expected by Feb. 7 under EPA's proposed schedule.

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Utilities Looking To Include Water Projects In Infrastructure Bank Proposal

Water utility industry sources say they are looking for an opportunity to make the case for including water projects in President Obama's proposal for a transportation infrastructure bank, arguing that water projects will more readily be able to pay back their loans and thus have a lesser impact on the deficit than transportation projects.

President Obama announced on Sept. 6 that he would push Congress to pass a $50 billion initiative aimed at rebuilding the nation's transportation infrastructure -- including highways, airport runways and rail projects -- through an "infrastructure bank" model, which would allow states and municipalities to apply for low-interest loans to finance projects rather than have individual projects financed through earmarks or other means.

The proposal is expected to be introduced as a prelude to a more comprehensive transportation bill, but several water utility sources say they are eager to convince Congress to broaden the scope of the infrastructure bank to allow it to include water infrastructure as well.

One water industry source says it is not surprising that the Obama proposal is focused solely on transportation because such projects are highly visible -- a bonus in a highly contentious midterm election season. But the source says the fact the president is making a high-profile pitch to establish an infrastructure bank at all opens the possibility of developing the kind of proposal that water utilities can take advantage of.

"We're a little disappointed that there was no mention of water, but we weren't really surprised," the source says. "But we very much believe that water projects are strong candidates" for federal support.

Unlike most transportation projects, water projects have an inherent revenue stream from utility rate payers, another industry source says. That means the loans have a higher probability of being paid back, thereby keeping the bank's budget impact to a minimum and making the idea "more palatable for Congress and [the White house Office of Management & Budget]," the source says.

One water utility group is already publicly calling for the inclusion of water projects in the infrastructure bank proposal. The American Water Works Association (AWWA), which represents drinking water utilities and has long been a supporter of the infrastructure bank idea, praised the Obama proposal in a Sept. 8 statement and strongly urged the inclusion of water systems in any such funding mechanism.

"Because the bank would issue loans -- not grants -- it would have minimal impact on the federal budget and would require no new taxes," AWWA Executive Director David LaFrance said. "It's a fresh, sustainable approach to financing our nation's aging water infrastructure problem that strikes just the right balance between federal assistance and local responsibility."

Dim Prospects

Sources say that the omission of water infrastructure from the president's proposal is also less of a blow because of the initiative's dim prospects of passage this year, given the dwindling number of legislative days left in the 111th Congress and the Republican party's immediate and scathing criticism of the plan as a replay of the 2009 American Reinvestment & Recovery Act, known as the stimulus bill, which they say has failed to generate jobs or stimulate the economy.

House Minority Leader John Boehner (R-OH) dismissed the plan as "more government stimulus spending" after the president's speech Sept. 6, while Rep. John Mica (R-FL), ranking member of the House Transportation & Infrastructure Committee, said the administration should take steps to streamline the funds appropriated under the 2009 stimulus bill rather than call for still more spending. Sen Jim Inhofe (R-OK), ranking member of the Senate Environment & Public Works committee and frequent advocate for the need for additional resources for infrastructure, called the initiative "all show for the election" in a Sept. 6 interview with the Tulsa World.

A second industry source says the discussion of an infrastructure bank may in fact be little more than a campaign exercise, but that the issue may well be taken up in the next Congress and so industry is working on preliminary efforts to include water projects as part of that ongoing dialogue in the next Congress. "It may be a campaign talking point, but if that's the case, it may be looked at next year," the source says. "So preliminary work can be done to sort out what [a more comprehensive] infrastructure bank would look like."

The source went on to say the question of whether it would be possible to get water projects into an infrastructure bank bill depends in large part on what legislation Congress takes up as a model. If such legislation is modeled on a bill that Rep. Rosa DeLauro (D-CT) introduced last year or a bill outgoing Sen. Chris Dodd (D-CT) introduced in the 110th Congress, then water projects would have an easier opportunity to apply for loans from an infrastructure bank. But if the bill is a strict transportation measure, the prospects for including water projects would be unlikely.

"If they use existing bills, they're much wider -- they cover transportation, water, energy, public buildings," the source says. "If they're talking only about transportation infrastructure, it's hard to see how that would work.."