Environmental and Water Law Updateswisconsin.apwa.net/Content/Chapters/wisconsin.apwa.net...2019/05/08 · 2019 APWA – WI Spring Conference - Oshkosh Environmental and Water Law

2019 APWA – WI Spring Conference - Oshkosh

Environmental and Water Law Updates

AXLEY BRYNELSON, LLP N20W22961 Watertown Road Waukesha, WI 53186 Office: 262/524-8500 www.axley.com

AXLEY BRYNELSON, LLP 2 East Mifflin Street, Suite 200 Madison, WI 53703 Office: 608/257-5661 www.axley.com

By: Donald P. Gallo Patrick K. Stevens Sean W. Frye, P.E. Environmental Attorneys Axley Brynelson, LLP

[email protected] Office: 262/409-2283 Cell: 414/507-6350



L AW @ A X L E Y. C O M A X L E Y. C O M

© 2019 Axley Brynelson, LLP -3-

Topics • Emerging State Water Issues

▪ Gov. Evers Water Quality Initiative ◦ 2019 declared the Year of Clean Drinking Water in Wisconsin.

▪ Legislative Water Quality Initiative ◦ 2019 Assembly Speaker Vos formed the Joint Task Force on Water Quality

to make recommendations on assessing and improving the quality of surface water and groundwater.

▪ Proposed Legislation ◦ PFAS Bill ◦ Buying & Selling Water Pollution Credits ◦ Testing & Compensation for Contaminated Private Wells

▪ Wisconsin Recent Water-related Litigation ◦ High-Capacity Wells Cases ◦ Tetra Tech Case & State Agency Deference


Topics • Emerging Federal Water Issues

▪ EPA – Clean Water Act: Waters of the United States Rule ◦ Update to federal jurisdiction over “Waters of the United States” (WOTUS)

under the Clean Water Act ▪ EPA – Clean Water Act: Groundwater

◦ County of Maui Case: Whether jurisdiction under the Clean Water Act extends to discharges of pollutants made to groundwater that are conveyed to navigable waters.

◦ EPA Interpretive Statement ◦ 2015 Coal Ash Rule

▪ Recent Federal Executive Orders related to Energy and Infrastructure ◦ Order: Clean Water Action Section 401- Balancing States' Rights and the

Nation's Need for Energy Infrastructure ▪ EPA – Clean Water Act: SPCC Regulations

◦ Hazardous Substance SPCC Plan Regulations & Litigation ▪ EPA – Emerging Groundwater Contaminants

◦ PFAS Action Plan / Proposed Senate Bill: PFAS Action Act of 2019


Topics • Environmental Law Update

▪ WI PSC – Two Utility-Scale Solar Projects Approved by Public Service Commission ◦ Two Creeks solar generation facility in Two Rivers, Manitowoc/Kewaunee

Counties. ◦ Badger Hollow solar generation facility located near Cobb, in Iowa County

▪ EPA – New Asbestos Rule ◦ EPA’s April 2019 final rule builds upon EPA’s regulations on asbestos

products.

▪ U.S. Supreme Court – Agency Deference ◦ In Kisor v. Wilkie, the Court is reviewing deference to a Federal Agency’s

interpretation of its own regulation – a doctrine sometimes known as “Auer deference.”

▪ Other Recent Federal Court Decisions ◦ RCRA – Citizen Suit Cases ◦ Oil/Gas Drilling, Electrical Utility Case Decisions

https://www.scotusblog.com/case-files/cases/kisor-v-wilkie/


Emerging Issues - State Water Law • Gov. Evers Water Quality Initiative

▪ In his January “State of the State” address, Gov. Evers declared 2019 the Year of Clean Drinking Water in Wisconsin.

▪ Gov. Evers called for nearly $70M over 2 years in bonding to address water quality


Gov. Evers Water Quality Initiative • Budget Proposal:

▪ Replacing Lead Service Lines: ◦ Authorize $40 million in GPR-supported bonding for the replacement of up to 50 percent of the cost to

replace lead service lines through the Safe Drinking Water Loan Program, a forgivable loan. ◦ Estimated 170,000 lead service lines in Wisconsin.

▪ Cleanup Contaminated Sediment: ◦ $25 million in bonding authority for five areas of concern in the Great Lakes

Basin. ◦ Primarily the Milwaukee River and St. Louis River.

▪ Targeted Runoff Management (TRM) program: ◦ $6.5 million in bonding authority for the TRM Program. ◦ provides financial assistance to municipalities for infrastructure projects to

reduce nonpoint source pollution.

▪ Urban Nonpoint Source & Storm Water Grant Program: ◦ $4 million in bonding for municipal flood control program.

▪ Total Maximum Daily Load Areas: ◦ $4 million in bonding to provide grants to implement pollution control measures.


Gov. Evers Water Quality Initiative • Budget Proposal (cont.):

▪ Soil and Water Resource Management (SWRM) Program: ◦ $10 million in bonding authority for the SWRM Program through DATCP.

▪ New DNR Positions ◦ Positions to research water contamination: 5 for CAFOs; 4 positions for Total

Maximum Daily Load (TMDL) coordination.

▪ PFAS funding to: ◦ Develop a model to identify and prioritize sites with likely PFAS contamination ◦ Conduct a survey of local and state emergency responders on the use of PFAS-

containing firefighting foam. ◦ Dedicate 2 of the 5 WDNR positions (above) to research water contamination to

researching issues related to PFAS contamination.

▪ Private well contamination compensation program: ◦ Increased funding.


WI Legislature Water Quality Initiative • “Speaker’s Task Force on Water Quality”

▪ In February, WI Assembly Speaker Robin Vos created the bipartisan committee whose goal it is to make recommendations on assessing and improving the quality of surface water and groundwater.


Speaker’s Task Force on Water Quality • Speaker Vos outlined five specific areas to examine:

1. Identifying best practices for testing and data collection,

measuring water quality in different parts of the state, and types of soil.

2. Determining the sources and causes of contaminants impacting water quality.

3. Consulting with stakeholders to assess current practices to manage runoff as well as suggestions to improve these efforts.

4. Investigating remedies that will protect a healthy and stable supply of water for residents and industry.

5. Studying best practices for designing and constructing wells and septic systems to safeguard a healthy water supply.


Speaker’s Task Force on Water Quality • The first Committee meetings have been held in

Madison, with future meetings to be held throughout the state.

• Next Meeting: 10:30 am, Wed, May 8, Lancaster, WI


WI Proposed Water-related Regulation NR 102, 104, 219 Rule Changes (NRB Order #: WY-17-15) Revising Wisconsin's recreational water quality criteria for pathogens (the rule now open for public comment until 5/15/19 [Rule #: CR 19-014])

▪ Revise Chapters NR 102, NR 104, NR 219 and others to update Wisconsin’s water quality criteria for pathogens and recreational uses; &

▪ Updating related WPDES permit implementation procedures for the revised water quality standards to be consistent with EPA’s recreational water quality criteria.

▪ Rule Objective: revise Wisconsin’s recreational use categories & water quality criteria based on the federal recommendations published in 2012. Recreational water quality criteria (RWQC) protect people from waterborne illnesses that may be caused by human fecal contamination while recreating in and on the water.


WI Proposed Water-related Regulation NR 812 Rule Changes (NRB Order #: DG-16-16) • Well Construction and Pump Installation

▪ Scope Statement (authorizing DNR to work on revisions) was approved in October 2016.

▪ There are over 800,000 wells in WI & about ¼ residents get drinking water from private wells.

▪ Rules changes intended to: ◦ Correct errors & clarify language ◦ Streamline existing procedures ◦ Update well and heat exchange construction

standards. ◦ Make rules consistent with federal and state laws ◦ Update construction standards which have not been

revised for over 20 years. ▪ Scheduled for adoption by NRB on May 22, 2019. ▪ Expected to be effective in 2020 (Rule #: CR 18-

095).


WI Proposed Water-related Legislation 2019-20 Legislative Session • Assembly Bill 21: Testing of private wells; compensation for well contamination and

abandonment, etc. ▪ Under current law: a well that is contaminated only by nitrates is

eligible for a grant only if the well is: ◦ a water supply for livestock, ◦ is used at least three months in each year, and ◦ contains nitrates in excess of 40 PPM.

▪ This bill: ◦ Eliminates these requirements and requires DNR to prioritize grants for wells with

nitrate contamination above specified levels. ◦ Requires the DNR to administer a program to provide grants to counties, cities,

villages, towns, and American Indian tribes and bands (i.e. local units of government) for the testing of privately owned wells.

◦ Makes changes to the well compensation grant program currently administered by DNR.


WI Proposed Water-related Legislation 2019-20 Legislative Session • Senate Bill 137: Nitrate testing pilot program, granting rule-

making authority, and making an appropriation. ▪ Requires the Department of Health Services (DHS) to award grants of

up to $2,500 to eligible private well owners, which recipients must use to cover remediation costs with a primary purpose of providing potable water for human consumption to either a residential or nonprofit business property if the owner has a well that has nitrate levels exceeding ten parts per million.


WI Proposed Water-related Legislation 2019-20 Legislative • Senate Bill 91 / Assembly Bill 113: This bill creates

a system for buying and selling water pollution credits through a central clearinghouse. ▪ Current law: the DNR administers a program for

trading water pollution credits between sources of water pollution. ◦ DNR may authorize a permit holder (WPDES permit or a

storm water discharge permit) to discharge a pollutant above the levels authorized in the permit if the permit holder enters into an agreement with another party, under which the other party will reduce water pollution.

◦ The agreement must result in an improvement in water quality, and the increase and reduction in pollutants under the agreement must involve the same pollutant or the same water quality standard and occur within the same water basin.


WI Proposed Water-related Legislation 2019-20 Legislative Session Senate Bill 91 / Assembly Bill 113 (cont.): • This bill: DNR may authorize a permit holder to discharge a

pollutant above the levels authorized in the permit if the permit holder purchases credits from a clearinghouse that has contracted with the Department of Administration.

◦ The agreement must involve the same pollutant or the same water quality standard and occur within the same area

◦ The area must be the largest area possible within this state to facilitate implementation of the water pollution trading program while achieving water quality standards and any federally approved total maximum daily load allocations.


WI Proposed Water-related Legislation 2019-20 Legislative Session – Proposed PFAS Legislation • Senate Bill 109 / Assembly Bill 85: State health-based

groundwater quality standards for certain groundwater contaminants. ▪ This bill requires the Department of Health Services to establish

state health-based groundwater quality standards for PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonate).


PFAS – “The Forever Chemical” PFAS – What are they?

▪ Per- and polyfluoroalkyl substances (PFAS) are a group of man-made chemicals that includes ◦ PFOA, ◦ PFOS, ◦ GenX, and many other chemicals.

▪ PFAS have been manufactured and used in a variety of

industries around the globe, including in the United States since the 1940s.

▪ PFOA and PFOS have been the most extensively produced and studied of these chemicals. Both chemicals are very persistent in the environment and in the human body – meaning they don’t break down and they can accumulate over time.

▪ There is evidence that exposure to PFAS can lead to adverse human health effects.


PFAS – “The Forever Chemical” PFAS – Where are they found? (1)

▪ PFAS can be found in many products: ◦ Commercial household products, including:

▫ stain- and water-repellent fabrics (e.g., Scotch Guard); ▫ nonstick products (e.g., Teflon); ▫ polishes, waxes, paints, cleaning products, and fire-fighting

foams (which is a major source of groundwater contamination at airports and military bases where firefighting training occurs).

◦ Food: packaged in PFAS-containing materials (e.g. microwave popcorn bags, pizza boxes), processed with equipment that used PFAS, or grown in PFAS-contaminated soil or water.

◦ Workplace: including production facilities or industries (e.g., chrome plating, electronics manufacturing or oil recovery) that use PFAS.



▪ PFAS can be found in many products:



▪ PFAS can also be found in our environment: ◦ Drinking water: typically localized and associated with a

specific facility (e.g., manufacturer, landfill, wastewater treatment plant, firefighter training facility).

◦ Living Organisms: including fish, animals and humans, where PFAS have the ability to build up and persist over time.


PFAS – “The Forever Chemical” PFAS – Why are they important?

▪ Most people have been exposed to PFAS (it is estimated that PFOA/PFOS is found in the blood of over 95% of the U.S. population at various (generally low) levels.

▪ Certain PFAS can accumulate and stay in the human body for long periods of time.

▪ Studies indicate that PFOA and PFOS can cause: ◦ reproductive and developmental, ◦ liver and kidney, and ◦ immunological effects in laboratory animals.


PFAS – “The Forever Chemical” PFAS – Why are they important?

▪ Both chemicals have caused tumors in animals. ▪ The most consistent findings are increased cholesterol

levels among exposed populations, with more limited findings related to: ◦ low infant birth weights, ◦ effects on the immune system, ◦ cancer (for PFOA), and ◦ thyroid hormone disruption (for PFOS).


PFAS – “The Forever Chemical” Proposed Federal Regulation

• The EPA also released its PFAS Action Plan in February, which outlines the EPA plan for investigating and developing cleanup standards and maximum contaminant levels, etc.


PFAS – “The Forever Chemical” EPA’s PFAS Action Plan Strategies:

• Drinking Water ▪ EPA is moving forward with the Maximum Contaminant Level (MCL) process for PFOA

and PFOS, but no standard has been set yet. ▪ The next step in the Safe Drinking Water Act process for issuing drinking water

standards is to propose a regulatory determination. This provides the opportunity for the public to contribute to the information the EPA will consider.

• Cleanups ▪ EPA working on designating PFOA and PFOS as hazardous substances and developing

interim groundwater cleanup recommendations. • Toxics

▪ EPA is considering the addition of PFAS chemicals to the Toxics Release Inventory and rules to prohibit the uses of certain PFAS chemicals.

• Monitoring ▪ EPA will propose nationwide drinking water monitoring for PFAS under the next UCMR

monitoring cycle. • Research

▪ Additional work is necessary for improved detection and measurement methods, and ▪ Better understanding of toxicity and effective treatment and remediation methods.

• Enforcement ▪ Applicable for Polyurethane processes – possible wastewater/storm water sampling (?)

• Risk Communication


PFAS – “The Forever Chemical” EPA’s PFAS Action Plan Goals:

• Evaluating need for “Maximum Contaminant Level” for PFOA/PFOS

• Beginning steps to designate PFOA/PFOS a “Hazardous Substance” under federal laws

• Developing GW Cleanup Recommendations ▪ Draft Interim Recommendations to address PFOA/PFOS GW

Contamination Out (taking comments until 6/10/19)

• Developing additional toxicity data • Evaluating clean approaches • Use legal tools to prevent future contamination (TSCA)


PFAS – “The Forever Chemical” EPA’s PFAS Draft Interim Guidance:

▪ On April 25, 2019, EPA released the “Draft Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS”

▪ Recommends using EPA’s Lifetime Drinking Water Health Advisory level of 70 ng/L (or parts per trillion) as the recommended Preliminary Remediation Goal for groundwater, but is accepting public comments (through 6/10/19) about whether higher or lower values would be supported (See Docket No. EPA-HQ-OLEM-2019-0229).


PFAS – “The Forever Chemical” Proposed Federal Legislation • Congressional Proposed Bill

▪ “PFAS Action Act of 2019” ▪ H.R. 535 / S. 638:

◦ “Not later than 1 year after the date of enactment of this Act, the Administrator of the Environmental Protection Agency shall designate all per- and polyfluoroalkyl substances as hazardous substances under section 102(a)6 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA - 42 U.S.C. 9602(a)).”

▪ This bill has recently been introduced in Congress, so it’s not clear whether this has enough support to move forward.


PFAS – “The Forever Chemical” What Are the States Doing w/ PFAS? (1) • New Jersey:

▪ Adopted a maximum contaminant level (MCL) of 13 parts per trillion for PFNA in drinking water, the strictest such standard in the nation.”

▪ Earlier this month, the DEP established interim specific groundwater quality standards for both PFOA and PFOS, at 10 parts per trillion.

• New Hampshire: Proposed Regulations ▪ Proposed drinking water MCLs of 23, 38, or 70 ppt for different PFAS

compounds


PFAS – “The Forever Chemical” What Are the States Doing w/ PFAS? (2) • New York: Proposed Regulations

▪ On December 18, the New York Drinking Water Quality Council (DWQC) provided MCL recommendations for PFOA and PFOS are 10 parts per trillion for each compound individually, and for 1,4-dioxane is 1 part per billion.

• Michigan: ▪ In 2017 the Michigan PFAS Action Response Team (MPART) was created

as a temporary body by executive directive to investigate numerous sources and locations of PFAS contamination and protect drinking water and public health. Michigan is estimated to have 192 PFAS-contaminated sites.

▪ Combined 70 ppt for PFOA/PFOS concentration in drinking water. • California:

▪ Cal. Division of Drinking Water established interim Notification Levels (NLs) at 13 ppt for PFOS and 14 ppt for PFOA, but drinking water systems are not currently required by state regulations to monitor for PFOA and/or PFOS.

• Several other states have proposed or developing regulations.


PFAS – “The Forever Chemical” What Are the States Doing w/ PFAS? (3)


PFAS – “The Forever Chemical” What Are the States Doing w/ PFAS? (3)


WI Recent Legislative Update • 2017 Wisconsin Act 369

▪ Acts 368 – 370: Enacted as part of “Extraordinary Session” in December, 2018.

▪ The laws were wide-ranging, covering topics from highway funding, taxes, voting, administrative rules and powers, etc.

▪ Created Wis. Stat. § 227.112 Guidance Documents: ◦ The act specifies that every agency publication, including guidance documents,

must include citations to the provisions of the statutes or administrative code, or both, that support any statement or interpretation of law contained in the publication.

◦ This provision of the act applies to agency publications in print as well as on an agency’s internet site.

◦ § 227.112(7)(a): Any guidance document that has not been adopted in accordance with these requirements by July 1, 2019, shall be considered rescinded.


WI Recent Legislative Update • 2017 Wisconsin Act 369 (cont.)

▪ The act codifies the standard ending agency deference from the WI Supreme Court Tetra Tech case (2018) with respect to judicial review under Ch. 227, Stats.

▪ It also specifies that an agency may not seek deference in any proceeding based on the agency’s interpretation of any law.

▪ Two Dane County Circuit Court decisions recently blocked these “Extraordinary Session” laws in late March, 2019, but the Court of Appeals lifted the stay on one of the cases on March 27. However, the status of these laws is in question, as the cases are still pending further appeal.


WI Recent Courts & Cases Update • Combined Water Cases - Clean Wisconsin v. DNR

▪ Certified by the Court of Appeals for review by the Wisconsin Supreme Court on January 16, 2019.

▪ This is actually a number of consolidated companion cases, as all address 2011 Wis. Act 21 and its application to the regulatory permit approval process relating to “waters of the state.”

▪ These cases have constitutional (public trust doctrine) and statutory (who is the “trustee” over the waters of the state) implications that should be answered by the Wis. Supreme Court.


WI Recent Courts & Cases Update • Combined Water Cases - Clean Wisconsin v. DNR

▪ Case 1: High Capacity Wells Case: ◦ Clean Wisconsin challenged a DNR decision to issue eight high-

capacity well approvals. A circuit court vacated seven of the eight well approvals and remanded the other approval to DNR for additional evaluation.

▪ Case 2: Concentrated Animal Feeding Operation (CAFO) Case: ◦ Clean Wisconsin challenged a DNR decision to issue a WPDES permit to

Kinnard Farms, a CAFO in Kewaunee County. In particular, the challengers claimed that the permit issued to the farm should have: ▫ (1) included a maximum number of animal units; and ▫ (2) required that Kinnard install groundwater monitoring wells, if

practicable, on or near the fields where manure is land-spread. ◦ A circuit court agreed with the challengers, holding that DNR had

authority to impose the conditions in Kinnard Farms’ permit. The court also awarded attorney fees to the challengers.


WI Recent Courts & Cases Update • High Capacity Wells Case - Clean Wisconsin v. DNR

▪ The State argued that Act 21 was “designed to confine agencies’ authority to authority ‘explicitly permitted by statute,’” and prohibit agencies from “implement[ing] or enforce[ing] any standard, requirement, or threshold … unless … explicitly permitted by statute or by a rule.”

▪ Petitioners responded that Lake Beulah Mgmt. Dist. v. DNR., 2011 WI 54, is factually on point, has not been overruled, and holds that the DNR has the authority and general duty to preserve the waters of the state and has the discretion to undertake the review it deems necessary for all proposed high capacity wells.


WI Recent Courts & Cases Update • High Capacity Wells Case - Clean Wisconsin, Inc. v. DNR

(cont.) ▪ Former AG Opinion: in May 2016, the Wisconsin Attorney General

issued an opinion that Act 21 “precluded” “any type of environmental review” for wells outside the limited “types of wells” specified in §§ 281.34 and 281.35.

▪ The Opinion further stated that the Wisconsin Supreme Court did not “address” Act 21 in Lake Beulah, and to the extent that it did address Act 21, “Lake Beulah … is no longer controlling,” so any residual duty to act under the public trust doctrine reverts “back to the Legislature” (and not the DNR).

▪ UPDATE: ◦ (1) High Capacity Wells Case - AG Kaul: filed motions with the WI Supreme Court

that the DNR has authority to consider environmental impacts of high capacity wells in issuing permits, and so the lower court judgment should be affirmed.

◦ (2) CAFOs Case – AG Kaul: DNR position is that the DNR has authority to include conditions in WPDES permits to ensure groundwater standards are met, and so the lower court judgment should be affirmed.


WI Recent Courts & Cases Update • Tetra Tech EC, Inc. v. Wisc. Dep’t of Revenue, 2018 WI

75 (June 26, 2018) ▪ Litigation involved whether a sales tax applied when

one company purchased environmental remediation services from another. ◦ Following a federal order to remove industrial pollutants from

the Fox River, several paper companies created an LLC to carry out the work. That LLC hired Tetra Tech EC which, in turn, subcontracted with Stuyvesant Dredging, Inc.

▪ However, the primary focus of the case became the question of whether “the practice of deferring to agency interpretations of statutes comport[s] with Article VII, Section 2 of the Wisconsin Constitution,” not the underlying propriety of Tetra Tech’s tax bill.


WI Recent Courts & Cases Update • Tetra Tech EC, Inc. v. Wisc. Dep’t of Revenue

(cont.) ▪ A majority ruled that the Wisconsin Department of

Revenue (DOR) could impose a tax on Tetra Tech EC Inc. for the “processing” of river sediments into reusable sand and water.

▪ Most importantly, the Court also decided to end its practice of deferring to administrative agencies’ conclusions of law.


Other Emerging Issues - State Water Law • Nutrients (Nitrates, Phosphorus)

▪ The relationship between agriculture and water quality is complex and challenging.

• Great Lakes Water Diversions. ▪ Southeastern Wisconsin has been a hotbed for

controversy over diversions from the Great Lakes approved under the Great Lakes Compact.

• Water Infrastructure. ▪ In 2017 the American Society of Civil Engineers

projected that Wisconsin would have $1 billion in drinking water infrastructure needs and over $6 billion in wastewater infrastructure needs over the next 20 years.



Clean Water Act – WOTUS Rule • 2018/19: years of continuous changes for:

▪ EPA / US Army Corps of Engineers - Waters of the United Jurisdiction Rules

▪ EPA - Regulation of discharges of pollutants to groundwater that have a “direct hydrological connection” to surface waters of the United States.


Clean Water Act – WOTUS Rule • Waters of the United States Jurisdiction – Clean

Water Act History ▪ The objective of the CWA was “to restore and

maintain the chemical, physical, and biological integrity of the nation’s waters.” 33 U.S.C. § 1251(a).

▪ The CWA made it unlawful for any person to discharge any pollutant from a point source into waters of the United States, unless either an NPDES permit (or the state equivalent - i.e. Wisconsin WPDES permits) or a Section 404 dredge and fill permit was obtained. 33 U.S.C. §§ 1342 and 1344.


Clean Water Act – WOTUS Rule • Waters of the United States Jurisdiction – Clean

Water Act History ▪ Section 301 of the CWA prohibits the addition of a

pollutant from a point source into the navigable waters by a person.

▪ The CWA defines "navigable waters" as “waters of the United States.” 33 U.S.C. § 1362(7).

▪ However, the term "waters of the United States" is not explicitly defined under the statute, and this missing definition has been the cause of significant rulemaking, disagreement, and litigation ever since.


Clean Water Act – WOTUS Rule • Waters of the United States Jurisdiction – Supreme

Court CWA/Wetlands Case History ▪ 1985 – United States v. Riverside Bayview Homes, Inc.

[474 U.S. 121]. ◦ Supreme Court ruled unanimously that the government does

have the power to control intrastate wetlands as waters of the United States.

▪ 2001 – Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers [531 U.S. 159]. ◦ CWA provision, requiring permit from Army Corps of Engineers

for discharge of fill material into navigable waters, held not to extend to isolated, abandoned sand and gravel pit with seasonal ponds which provided migratory bird habitat.

◦ Section 404(a) of the CWA did not support the Corps' promulgation of the Migratory Bird Rule and that the CWA did not reach an abandoned sand and gravel pit, even one that provided habitat for migratory birds under the Migratory Bird Rule.


Clean Water Act – WOTUS Rule • Waters of the United States Jurisdiction –

Significant Supreme Court Cases ▪ 2006 – Rapanos v. United States [547 U.S. 715].

◦ Two cases involved questions whether some Michigan wetlands, which generally lay near ditches or human made drains that eventually emptied into traditional navigable waters, fell within the CWA's scope.

◦ In these cases, the United States brought civil enforcement proceedings against some defendants who had deposited fill material without a permit into some wetlands.

◦ Plurality decision and different definitions provided led to confusion by the Army Corps of Engineers and the lower courts on which standard to apply.


Clean Water Act – WOTUS Rule • Waters of the United States Jurisdiction – Significant

Supreme Court Cases ▪ 2006 – Rapanos v. United States [547 U.S. 715].

◦ Scalia, J., Continuous Surface Connection to WOTUS Test –

- Navigable Waters: includes something more than traditional

navigable waters. The term - (a) includes only relatively permanent, standing or flowing bodies of

water, and - (b) does not include channels through which water flows intermittently or

ephemerally, or channels that periodically provide drainage for rainfall.

- Only those wetlands with a Continuous Surface Connection to bodies that are “waters of the United States” in their own right, so that there is no clear demarcation between “waters” and wetlands, are “adjacent to” such waters and covered by the CWA


Clean Water Act – WOTUS Rule • 2006 – Rapanos v. United States [547 U.S. 715].

◦ Kennedy, J., Significant Nexus Test: - Issued Opinion concurring in the judgment, expressing the view that:

- Under the CWA, a water or wetland, in order to constitute “navigable waters” under the CWA, must possess a significant nexus to waters that are or were navigable in fact or that could reasonably be so made.

▪ After this case, because of the confusion among lower courts on which rule to apply, there were different rules enforced for wetlands jurisdictional determinations in different parts of the country.


Clean Water Act – WOTUS Rule • WOTUS Jurisdiction – Competing Regulations

▪ 2015 – Obama Adm. Clean Water Rule (or “WOTUS” Rule) [33 CFR Part 328 (EPA-HQ-OW-2011-0880) – 80 FED. REG. 37,054 (JUNE 29, 2015)]. ◦ This is a definitional rule that attempted to clarify the scope of

“waters of the United States.” ▪ Obama Rule – 8 types of jurisdictional waters are:

1. Traditional navigable waters, 2. Interstate waters, and 3. The territorial seas; 4. Impoundments of jurisdictional waters; 5. Tributaries; 6. Adjacent waters; and 7. Waters found after a case-specific analysis to have a significant nexus

to traditional navigable waters, interstate waters, or the territorial seas, either alone or

8. in combination with similarly situated waters in the region.


Clean Water Act – WOTUS Rule • 2017 – Pres. Trump Executive Order: Restoring the

Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule ▪ [EO 13778 of February 28, 2017]. ▪ Executive Order directs agencies to define Waters

of the United States in accordance with Justice Scalia’s opinion in Rapanos.


Clean Water Act – WOTUS Rule • Waters of the United States Jurisdiction – 2018

▪ 2019 (Feb) – Trump Administration released new proposed rule, “Revised Definition of “Waters of the United States”

▪ Current Status: Rule has been published and was open for public comment (Regulations.gov – Docket #: EPA-HQ-OW-2018-0149-0003) until April 15th. ◦ Final Rule may not be issued until 2020 or later ◦ Legal challenges are almost certain


2015 WOTUS Rule • Traditionally navigable waters: Same scope as 1980s regulations • Connected/nearby waters

▪ Tributaries: Same scope as 1980s regulations, with definition that includes any tributary that “contributes flow” to a downstream water and includes some ditches

▪ Impoundments: Same scope as 1980s regulations ▪ Adjacent waters: Expands scope from “adjacent wetlands” to “adjacent waters,” and

defines “adjacent” to include waters at a greater distance • Interstate Waters: Same scope as 1980s regulations • Waters which may affect interstate commerce: Provision eliminated, replaced

with provisions regarding waters with a “significant nexus” to jurisdictional waters that would include large numbers of waters

• Exclusions ▪ Prior converted croplands: Same as 1980s regulations ▪ Waste treatment systems: Same as 1980s regulations ▪ Certain ditches: New/revision of preexisting guidance ▪ Certain artificial water features: New/revision of preexisting guidance ▪ Groundwater: New/statement of preexisting guidance ▪ Stormwater treatment features: New ▪ Wastewater recycling features: New

Clean Water Act – WOTUS Rule


2019 Revised WOTUS Rule • Traditionally navigable waters: Same scope as 1980s and Obama regulations • Connected/nearby waters

▪ Tributaries: More limited scope than 1980s and Obama regulations, as it would exclude most ditches and include only tributaries with perennial or intermittent flow

▪ Impoundments: Same scope as 1980s and Obama regulations ▪ Adjacent waters: More limited scope than 1980s and Obama regulations, as it would

only include wetlands with a surface connection to a jurisdictional water • Interstate waters: Provision eliminated • Waters which may affect interstate commerce: Provision from 1980s

regulations eliminated, and Obama provisions regarding “significant nexus” also eliminated

• Exclusions ▪ Prior converted croplands: Expands scope ▪ Waste treatment systems: Same scope as 1980s and Obama regulations ▪ Certain ditches: Expands scope ▪ Certain artificial water features: Same scope as Obama regulations ▪ Groundwater: Same scope as Obama regulations ▪ Stormwater treatment features: Same scope as Obama regulations ▪ Wastewater recycling features: Same scope as Obama regulations



2019 Regulations: Summary of Key Changes • Removing “ephemeral” waters features; only including rivers and

streams with yearly perennial or intermittent flow to downstream navigable waters;

• Removing jurisdictional coverage of all interstate waters. ▪ Under the revised definition, interstate waters are no longer an

independent category of jurisdictional waters. ▪ Instead, the proposed rule requires that an interstate water separately

meet the definition of WOTUS under another jurisdictional category (such as being tributary to a navigable water or being a navigable water);

• Removing upland and ephemeral ditches from definitional WOTUS; • Only including lakes or ponds that are traditional navigable waters or

connected to traditional navigable waters through tributaries; and • Wetlands: only include wetlands that abut jurisdictional waters or

that have a direct hydrologic surface water connection to jurisdictional waters ▪ (thus removing wetlands separated by a berm, dike, or other barrier that

were previously considered jurisdictional).



CWA - WOTUS Jurisdiction – 2019


CWA - 2019 Clean Water Rule Summary


CWA - 2019 Clean Water Rule Protections


CWA - 2019 Clean Water Rule Exclusions


CWA - 2019 Clean Water Rule Affected Areas


Clean Water Act - Groundwater Groundwater Cases

• There is disagreement in the different federal Courts of Appeals throughout the country how these discharges should be regulated.

• The U.S. Supreme Court has two groundwater discharge cases under consideration for review, but it has granted Cert. on only the Hawaii case at this point.



• County of Maui, Hawaii v. Hawaii Wildlife Fund (Docket # 18-260; appeal from the 9th Circuit Court of Appeals – western United States) ▪ (1) Whether the Clean Water Act requires a permit when

pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater; and

▪ (2) whether the County of Maui had fair notice that a Clean Water Act permit was required for its underground injection control wells (this issue will not be reviewed by the Court).



• Kinder Morgan Energy Partners, L.P. v. Upstate Forever [Docket # 18-268; appeal from the 4th Circuit – (mid-Atlantic states)] ▪ (1) Whether the CWA’s permitting requirement is confined to

discharges from a point source to navigable waters, or whether it also applies to discharges into soil or groundwater whenever there is a “direct hydrological connection” between the groundwater and nearby navigable waters; and

▪ (2) whether an “ongoing violation” of the CWA exists for purposes of the act’s citizen-suit provision when a point source has permanently ceased discharging pollutants, but some of the pollutants are still reaching navigable water through groundwater.


Clean Water Act - Groundwater Groundwater Cases - Other Circuits?

▪ 6th Circuit ◦ Kentucky Waterways Alliance v. Kentucky Utilities Co.

[905 F.3d 925 (6th Cir. 2018)] ◦ Tennessee Clean Water Network v. Tennessee Valley

Authority [905 F.3d 436 (6th Cir. 2018)] ◦ The 6th Circuit held that these cases were not subject to the

CWA, but mainly because they dealt with Coal Ash discharge/settling ponds in which pollutants were seeping from the ponds to nearby waters, but the court held that these types of ponds were already regulated under RCRA.

▪ 7th Circuit (includes Wis.) – case pending ◦ Prairie Rivers Network v. Dynegy Midwest Generation

LLC [No. 18-3644] – (coal ash case)


Clean Water Act - Groundwater Groundwater Cases – EPA Interpretive Statement

▪ On April 15, 2019, EPA released an interpretive statement on Releases of Pollutants from Point Sources to Groundwater.

▪ “EPA concluded that releases of pollutants to groundwater are categorically excluded from the Act’s permitting requirements because Congress explicitly left regulation of discharges to groundwater to the states and to EPA under other statutory authorities.”

However, it appears that the Supreme Court will have the final word on this issue in the Maui case.



Clean Water Act – Coal Ash Rule 2015 Coal Ash Rule Updates • March 13: The D.C. Circuit agrees to leave an extension

provided by the Trump EPA in place for closing unlined coal ash ponds. The 2015 Coal Ash Rule gave power producers six months to close or retrofit unlined ash ponds if they exceed certain pollution limits and the Trump administration's phase one rule (finalized July 30, 2018) provides an extension until late 2020 for closure or retrofitting.

• March 20: Virginia adopts new laws that require the state's largest electric utility, Dominion Energy Inc., to clean up unlined coal ash pits holding 27 million cubic yards of coal ash across the state. Dominion is required to excavate the coal ash and then recycle it or store it in lined landfills.


Clean Water Act – Coal Ash Rule 2015 Coal Ash Rule Updates • March 25: Missouri is moving forward with developing its own

coal ash management program, even though EPA warned the Missouri Department of Natural Resources that several provisions in its plan are weaker than EPA's 2015 Coal Ash Rule. Missouri is still accepting comments on its plan and expects its regulations to be effective by Sept. 30, 2019.

• April 1 North Carolina orders Duke Energy to excavate all remaining coal ash impoundments in the state and store the coal ash in lined landfills. The North Carolina Department of Environmental Quality reviewed proposals for managing the coal ash and determined that "...the science points us clearly to excavation as the only way to protect public health and the environment.” Duke Energy must submit final excavation closure plans for all six remaining sites by August 1, 2019.


Clean Water Act – SPCC Regulations (1) ▪ The CWA directed the President to

establish a National Response System for spills of pollutants. ◦ This requires President (through the

EPA) to establish “procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances from vessels and from onshore facilities and offshore facilities, and to contain such discharges.”

▪ The EPA developed the Spill Prevention, Control, and Countermeasure (SPCC) Regulations beginning in 1973 to prevent and contain oil spills.


Clean Water Act – SPCC Regulations (2) • The Oil Pollution Act of 1990 (OPA) amended and expanded the

requirements of the CWA to mandate additional procedures addressing oil and hazardous substance spill responses. ▪ Required plans for certain higher-risk facilities to develop Facility Response

Plans (FRP) for worst-case oil and hazardous substance spills. ▪ The OPA specifically required these regulations by 1992.

• Again, the EPA promulgated a rule to address the oil part of the OPA/CWA,

but did not address hazardous substances. • Now, over 27 years later, the EPA still has not promulgated a rule

addressing the prevention and containment of hazardous substance spills.


Clean Water Act – SPCC Regulations SPCC Regulations Recent Court History

• Consequently, environmental groups have gone to the Courts to enforce this requirement and direct the EPA to develop such regulations.

• In 2016, a New York federal district court agreed, and the EPA then entered into a Consent Decree with the environmental groups to develop a final rule no later than 28 months.

• However, the EPA published a proposed rule last year indicating that it would not develop any further rulemaking at this time, stating that this issue was already covered under other statutes.


Clean Water Act – SPCC Regulations SPCC Regulations

• A policy statement went through notice and comment, but a final rule has not yet been published.

• Environmental Groups filed a new lawsuit in federal court (Southern District of New York) on March 21, 2019 (Environmental Justice Health Alliance v. US EPA) seeking declaratory and injunctive relief on this issue.


SPCC – Potential Hazardous Substance Regulations SPCC Regulations

• The lawsuit focuses on damage caused from hazardous substance storage tanks along waterways and coastal areas by Hurricane Harvey in the Houston, TX – area in 2017.

• It refers to the “tens of thousands of pounds of harmful chemicals, including benzene, butadiene, and other human carcinogens that were released in spills, explosions, fires, and catastrophic failures.”


Executive Orders: Energy and Infrastructure (1) 1) EO 13868: Promoting Energy Infrastructure & Economic Growth

▪ Signed: 4/10/19 • Policy Statement: to promote private investment in the Nation's

energy infrastructure through ▪ (a) efficient permitting processes and procedures that employ a

single point of accountability, avoid duplicative and redundant studies and reviews, and establish clear and reasonable timetables;

▪ (b) regulations that reflect best practices and best-available technologies;

▪ (c) timely action on infrastructure projects that advance America's interests and ability to participate in global energy markets;

▪ (d) increased regulatory certainty regarding the development of new energy infrastructure;

▪ (e) effective stewardship of America's natural resources; and ▪ (f) support for American ingenuity, the free market, and capitalism.


Executive Orders: Energy and Infrastructure (2) 1) EO 13868: Promoting Energy Infrastructure &

Economic Growth (cont.) • Main Issue: Section 3 - Water Quality Certifications:

▪ Section 401 of the Clean Water Act : ◦ “Any applicant for a Federal permit …, which may result in any discharge

into the navigable waters, shall provide … a certification from the State ....”

▪ This gives states and tribes authority over whether to permit facilities that release pollution into federally protected waters within their borders, and states have used this authority to stall or block various projects, such as interstate pipelines.

▪ Pres. Trump’s directive declares that the current process “cause(s) confusion and uncertainty, leading to project delays, lost jobs, and reduced economic performance.”


Executive Orders: Energy and Infrastructure (3) 2) EO 13867: Issuance of Permits With Respect to

Facilities and Land Transportation Crossings at the International Boundaries of the United States

◦ This order establishes a new process for issuing Presidential permits for cross-border infrastructure, including pipelines. It revokes previous executive orders 11423 and 13337 that provided a process for approving such projects and makes it clear that the president is the final decision-maker on whether or not to issue a permit.

◦ The President has the authority to grant transboundary permits for

projects that cross international borders based on the inherent foreign affairs power the President holds by virtue of Art. II of the U.S. Constitution. The President can delegate some or all of this power to an agency.


Executive Orders: Energy and Infrastructure (4) 2) EO 13867: Issuance of Permits With Respect to Facilities and

Land Transportation Crossings at the International Boundaries of the United States (cont.) ▪ If the President delegates the entire process to an agency, the permitting

decision arguably becomes a final agency action, rather than a Presidential action. This is important because final agency actions are subject to judicial review under the Administrative Procedure Act (APA) and must comply with statutes like the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA).

▪ Alternatively, the President is not an agency for purposes of the APA, so his decisions are not subject to judicial review, except for constitutionality, and his decisions do not need to comply with NEPA, ESA or other statutes.

▪ This means that the President could, for example, potentially unilaterally approve the Keystone XL pipeline without NEPA and ESA review.

© 2019 Axley Brynelson, LLP


Environmental Law Update WI Public Service Commission – Solar Projects

• Two Utility-Scale Solar Projects were approved by PSC on April 11, 2019 unanimously (2-0). ▪ The Two Creeks solar generation facility will have a capacity of

150 MW, and will be located near Two Rivers, in Manitowoc and Kewaunee Counties.

▪ The Badger Hollow solar generation facility will have a capacity of 300 MW, and will be located near Cobb, in Iowa County

▪ Once completed, the two projects will produce enough renewable energy to be equivalent to what 120,000 Wisconsin households use in a typical year.


Environmental Law Update EPA New Asbestos Rule

• April 2019 final rule is the first time in 30 years EPA is taking action under the Toxic Substances Control Act (TSCA) on products that contain asbestos. ▪ The April 2019 final rule prevents these discontinued uses from

re-entering the market before EPA has the opportunity to restrict them:

• Adhesives, sealants,

roof and non-roof coatings

• Arc chutes

• Beater-add gaskets

• Cement products

• Extruded sealant tape and other tape

• Filler for acetylene cylinders

• Friction materials

• High grade electrical paper

• Millboard

• Missile liner

• Packings

• Pipeline wrap

• Reinforced plastics

• Roofing felt

• Separators in fuel cells and batteries

• Vinyl-asbestos floor tile

• Woven products

• Other building products



• The following Asbestos Uses were already Banned ▪ Corrugated paper ▪ Roll-board ▪ Commercial paper ▪ Specialty paper ▪ Flooring felt ▪ New commercial uses that begin after August 25, 1989




U.S. Supreme Court Federal Agency Deference • The U.S. Supreme Court heard Oral Arguments on

3/27/19 in Kisor v. Wilkie, ▪ In this case, the Court is reviewing deference to a Federal

Agency’s interpretation of its own regulations – a doctrine sometimes known as “Auer Deference.”

▪ While not a water or environmental case, the case will review the Court’s interpretation of Auer Deference.

▪ If Auer Deference is overturned by the Court, this could have a significant effect on the interpretation of regulations promulgated by the EPA.

https://www.scotusblog.com/case-files/cases/kisor-v-wilkie/


U.S. Federal Courts Other Noteworthy Recent Federal Decisions

• RCRA – Citizen Suit Cases ▪ Liebhart v. SPX Corp.

◦ Former factory in Watertown, WI manufactured power transformers containing polychlorinated biphenyls (PCBs), a carcinogenic chemical banned by the EPA in 1979.

◦ In 2014, SPX demolished the building with the assistance of the defendants. The Liebharts sued, alleging that dust and debris containing toxic chemicals migrated onto their properties, contaminating their yards and jeopardizing their health and the health of their tenants.

◦ The 7th Circuit Vacated. The district court had set the bar unnecessarily high for the plaintiffs to show a violation of the RCRA and TSCA. RCRA requires only that harm “may” be imminent; similarly, TSCA does not impose a heightened standard.

◦ HOLDING: The parties should have another opportunity to litigate whether ANY substantial and imminent endangerment to health exists.


U.S. Federal Courts Other Noteworthy Recent Federal Decisions

• RCRA – Citizen Suit Cases ▪ LAJIM LLC v. General Electric Co.

◦ The district court found GE liable for its contamination (PCE/TCE, etc.) that affected LAJIM’s property (residence & golf course) on summary judgment but denied injunctive relief because, despite the many opportunities, plaintiffs did not offer evidence establishing a need for injunctive relief beyond what the company had already done in the state action.

◦ The State of Illinois had already been involved in administering the cleanup for several years.

◦ The Seventh Circuit affirmed. The district court had the discretion to award injunctive relief under the RCRA but was not required to order relief after a finding of liability.


U.S. Federal Courts Other Noteworthy Recent Federal Decisions • Oil/Gas Drilling Cases

▪ Offshore Drilling will be delayed indefinitely due to a recent federal appeals court decision. ◦ Last month, the D.C. Circuit had reinstated the Obama

administration's restrictions on offshore drilling in parts of the Arctic and Atlantic oceans

◦ On Mar. 29, a U.S. District Court struck down President Trump’s attempt to undo a ban on oil and gas drilling in the vast majority of the Arctic Ocean and important areas of the Atlantic Ocean, including the Arctic National Wildlife Refuge.


Other Potential Changes on the Horizon 1) Dep’t. of the Interior's blowout preventer and

well-control rule 2) White House guidance on greenhouse gas

emissions. 3) EPA's 'once in, always in' proposal 4) EPA and the Department of Transportation's

clean car rule 5) EPA's Affordable Clean Energy rule

A X L E Y. C O M

Donald P. Gallo [email protected] (262) 409-2283

Questions/Comments?

Sean W. Frye, P.E. [email protected]

(262) 409-2287

Thank You!

Patrick K. Stevens [email protected] (262) 409-2296