SandBar 9.4

Legal Reporter for the National Sea Grant College Program

Rrrrr TheyPirates?Court says no

Cape Wind KeepsSpinningUpdates on the offshorewind project

Volume 9:4,October 2010

THE SANDBAR is a quarterly publication report-ing on legal issues affecting the U.S. oceansand coasts. Its goal is to in crease awarenessand understanding of coastal problems andissues. To subscribe to THE SANDBAR, contact:

Sea Grant Law Center, Kinard Hall, Wing E,Room 258, P.O. Box 1848, University, MS,38677-1848, phone: (662) 915-7775, or con-tact us via e-mail at: [email protected] . Wewelcome suggestions for topics you wouldlike to see covered in THE SANDBAR.

THE SANDBAR is a result of research spon-sored in part by the National Oceanic andAtmospheric Administration, U.S. Depar -t m e n t o f C o m m e rc e , u n d e r a w a rdNA090AR4170200, the Sea Grant LawCenter, Mississippi Law Research Institute,and University of Mississippi Law Center.The U.S. Government and the Sea GrantCollege Program are authorized to produceand distribute reprints notwithstandingany copyright notation that may appearhereon.

This newsletter was prepared by the SeaG r a n t L a w C e n t e r u n d e r a w a r dNA090AR4170200 from NOAA, U.S .Department of Commerce. The state-ments, findings, conclusions, and recom-mendations are those of the author(s) anddo not necessarily reflect the views of theS e a G r a n t L a w C e n t e r o r t h e U . S .Department of Commerce.

Recommended citation: Author’s Name,Title of Article, 9.4 SANDBAR [Page Number](2010).

Cover photograph of US Navy Fifth Fleetinspecting fishing boats off the Somaliancoast courtesy of US. Navy.

Contents page photo of beach renour-ishment courtesy of FEMA, photogra-pher Andrea Booher.

2 • The SandBar • October 2010

Our Staff

F r o m t h e E d i t o r

Fall brings exciting change at the National Sea Grant Law Center. InSeptember, we welcomed Nicholas Lund as our first Ocean andCoastal Law Fellow. The fellowship program is the only one in thenation focused exclusively on ocean and coastal legal issues. Whilehere for the one-year fellowship, Nick will perform legal researchand write other materials for the Law Center. In this issue of TheSandBar, he looks at the current status of the Cape Wind Project.The project has recently cleared several regulatory hurdles andanother round of litigation, bringing the project closer to fruition.

This issue of The SandBar also examines a U.S. court’s first opinionon piracy since 1820. The district court dismissed piracy chargesagainst six Somali nationals who had fired on a U.S. Naval Ship.

In other articles, Niki Pace examines EPA regulation of cooling waterintake structures. Our research associate, Mary McKenna, takes alook at a court case considering whether privately-owned wetlandssubject to the Clean Water Act are “areas under Federal jurisdiction”for purposes of the Endangered Species Act. And finally, we reviewthe New Jersey Supreme Court’s examination of whether dry beachproduced by a government-funded beach replenishment program isproperty of the upland owners.

Thanks for reading The SandBar!

Terra

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The University of Mississippi complies with all applicable lawsregarding affirmative action and equal opportunity in all its activ-ities and programs and does not discriminate against anyoneprotected by law because of age, creed, color, national origin,race, religion, sex, handicap, veteran or other status.

ISSN 1947-3966 NSGLC-10-02-04 October 2010ISSN 1947-3974

Editor:Terra Bowling, J.D.

Production & Design:Waurene Roberson

Research Associate:Mary McKenna

Ocean & Coastal Law Fellow:Nicholas Lund, J.D.

Contributor:Niki L. Pace, J.D., L.L.M.

October 2010 • The SandBar • 3

C O N T E N T S

Cape Wind Keeps SpinningUpdates on the offshore wind project .................................. 4

Rrrrr They Pirates? Court says no .......................................................................... 6

Cooling Water Intake StructuresA look at EPA’s regulation and a recent lawsuit ......................8

Privately-Owned Wetlands and the ESAWetlands at issue not “areas under Federal jurisdiction”.... 12

Who Owns Jersey Shore .................................. 14


More than nine years after it was originallyproposed, an offshore wind projectplanned for Massachusetts’ Nantucket

Sound has cleared several more regulatory hurdlesand won another round of litigation, bringing it clos-er than ever to the start of construction. Cape WindAssociates, LLC (Cape Wind) won final approvalfrom the Department of the Interior in April andfrom the Federal Aviation Administration a monthlater. In August, the Mass. Supreme Judicial Courtruled 4-2 that the state’s Energy Facilities SitingBoard (EFSB) can authorize local permits despiteopposition from local groups. If Cape Wind can winfinal approval from the state Department of PublicUtilities (DPU), construction on the 130-turbine off-shore farm could begin before the year is out.

BackgroundIn July 2001, Cape Wind Associates announced itsintention to construct the country’s first offshorewind farm on Horseshoe Shoal, in federal waters sur-rounded by Cape Cod, Nantucket, and Martha’sVineyard. Cape Wind would generate more than 420megawatts, enough to provide nearly half the electric-ity needs for Cape Cod and the islands. Cape Wind’slarge footprint - plans originally called for 170 tur-bines covering 25 square miles of ocean - and uniquecoastal location have resulted in fierce oppositionfrom some local groups. Environmental groups claimthe project will harm the Sound’s environment andwildlife. Coastal towns and citizens (most famouslythe late Sen. Ted Kennedy) take issue with the poten-tial aesthetic impacts of the farm. Several local Indiantribes claim that Horseshoe Shoal is sacred groundand that the project would obscure their view of therising sun during ceremonies.

However, with support from an equally variedbase including Massachusetts Governor DevalPatrick and groups like the Massachusetts AudubonSociety and the American Lung Association, CapeWind has survived numerous lawsuits and regulatoryhurdles. In the first round of litigation, in August2003, the First Circuit determined that because Cape

Wind could bec o n s t r u c t e dmore than threemiles offshore thefederal government,not the Com mon -wealth of Massachusetts,had exclusive jurisdic-tion to permit the con-struction of a data tower.1Later that year, Cape Windwon again when the U.S.District Court for theDistrict of Massachusettsdenied an attempt by CapeWind’s most active opponent,The Alliance to Pro tectNantucket Sound (Alliance),to challenge the U.S. ArmyCor ps o f Eng inee r s ’(Corps) author ity to issue apermit under § 10 of theRivers and Harbors Act.2The Dis trict Court’s deci-sion was affirmed by theFirst Circuit in 2005.3

Green Light from theInterior DepartmentIn April 2010, Cape Windscored another majorvictory when In teriorSecretary Salazar an -nounc ed tha t theMinerals Manage mentService (MMS)4 wouldoffer a commercial leaseand associated easement toCape Wind Associates for the con-struction of the wind farm. The deci-sion marked the end of nearly a decadeof environmental review requiredunder the National Environ mental

Cape Wind Keeps SpinningNicholas Lund, J.D.


Policy Act (NEPA), which requires impact state-ments whenever a “major Federal action significant-ly affecting the quality of the human environment”is proposed.5 Triggered by federal in volvement in thepermitting of Cape Wind, NEPA required first theCorps then the MMS6 to create a comprehensiveEnvironmental Impact Statement (EIS) outliningthe various environmental impacts of Cape Wind,as well as several alternative projects. The EIS wasfinalized in January of 2009, and the MMS nextdecided whether to issue a final approval.

That approval came with the issuance of aRecord of Decision in April. The MMS decided toapprove the project with a few modifications.Secretary Salazar ordered the number of turbinesreduced from 170 to 130, reconfigured the layoutso the turbines were further away from Nantucket,and required new color-schemes and lightingschedules to improve visibility for humans andbirds. The announcement from Secretary Salazar isconsidered “by far the most important decision for[Cape Wind].”7

FAA ApprovalLess than a month later, Cape Wind cleared anotherhurdle when the FAA declared that the project will notsignificantly interfere with planes or radar. The Maydecision was the fourth time the FAA had ruled on theproject, the first three decisions lapsing after 18-monthdelays. The FAA changed its rating from “presumedhazard” to “no hazard” after Cape Wind agreed to pay$1.5 million to the agency for radar modificationsmade to ensure that radar connections between planesand the FAA will not be disrupted by the turbines.

MA Court CaseCape Wind’s most recent victory came in the court-room, where Massachusetts’ highest court ruledthat the EFSB could issue nine important local andstate permits. The decision allows Cape Wind toacquire the permits in one stop from the EFSBrather than dealing individually with local govern-ments and organizations, some of which arestaunchly opposed to the project. The issue came toa head in 2007, when the Cape Cod Commission(Commission) denied approval of Cape Wind’sdevelopment of regional impact (DRI) report onthe two transmission lines needed to connect thewind farm to the mainland. Instead of appealing

that decision, Cape Wind applied to the EFSBunder a state law allowing that group to issue com-posite local permits when an electric company can-not meet standards set by a local agency.8 TheCommission and the Alliance (Plaintiffs) suedwhen the EFSB approved the project in May 2009,and the suit was joined with an appeal from a stateSuperior Court decision affirming EFSB’s jurisdic-tion over the project.9

The plaintiffs relied on the public trust doctrinefor their first major argument, claiming that theEFSB could not authorize transmission lines acrossstate tidelands held in trust for the public withoutexpress authority from the legislature. The court dis-agreed, however, ruling that EFSB’s enabling legisla-tion gave them proper authority to act in place of thestate Department of Environmental Protection andadminister public trust rights.

Next, the plaintiffs argued that the EFSB erred inlimiting its focus to the impacts of the transmissionlines rather than the entire project. Again the majori-ty sided with Cape Wind, ruling that the EFSB couldonly consider impacts of facilities to be located with-in state waters. To allow the EFSB to considerimpacts of the wind farm itself and therefore poten-tially deny a necessary permit based on those impacts,the court ruled, would give the state agency improp-er authority over a primarily federal project.Regardless of any local opposition to Cape Wind, themajority ruled, local groups cannot control the fate ofthe project by denying a minor, related permit.

Two judges dissented on these points. JusticesMarshall and Spina wrote that allowing the EFSB togrant transmission lines across state tidelands with-out what they saw as legislative authority sets “adangerous and unwise precedent” with “far-reach-ing consequences.”10 Finding a lack of expressauthority for the siting board to exercise suchauthority, the dissenters wrote that they wouldreverse on this point alone. Next, using the recentBP oil spill in the Gulf of Mexico as an example,the dissenting justices warned that a state’s failure toconsider all the impacts of an offshore energy pro-ject, even if located in federal waters, can have “cat-astrophic effects.”11

An End in Sight?Potentially, few hurdles remain before Cape Windcan become the nation’s first offshore wind farm.

See Cape Wind, page 7


For the first time since 1820, a U.S. court has issuedan opinion on piracy. The U.S. District Court forthe Eastern District of Virginia dismissed piracy

charges against six Somali nationals who had fired on theUSS Ashland in the Gulf of Aden.1 The court found thatbecause the men did not rob the ship or its crew, theiracts did not constitute piracy under U.S. law. The courtreasoned that due process prevented the court fromapplying a new definition of piracy referencing custom-ary international law.

BackgroundAt around 5:00 a.m. on April 10, 2010, the defendantsapproached the USS Ashland in a small skiff. As the skiffdrew even with the ship, at least one person on the skiffshot a firearm at the Navy ship. The crew returned fire,which destroyed the skiff and killed one of the passen-gers. The rest of the crew members were taken into cus-tody. Upon inspection of the burning skiff, crew mem-bers noted an AK-47 style firearm.

The pirates were indicted by a federal grand jury forpiracy, attack to plunder a vessel, assault with a danger-ous weapon, conspiracy to use firearms during a crime ofviolence, and use of a firearm during a crime of vio-lence.2 The defendants argued that the piracy chargeshould be dismissed, because they never boarded or tookcontrol of the ship or took anything of value from it.The government countered, arguing that “piracy, asdefined by the law of nations, does not require the actu-al taking of property; rather, any unauthorized armedassault or directed violent act on the high seas is suffi-cient to constitute piracy.”3

Piracy, DefinedThe defendants were charged with piracy under 18U.S.C. § 1651, which states “Whoever, on the high seas,commits the crime of piracy as defined by the law ofnations, and is afterwards brought into or found in theUnited States, shall be imprisoned for life.” The statutedoes not specifically identify what qualifies as “piracy asdefined by the law of nations.”

In interpreting the statute, the court turned to theonly case to ever directly examine the definition of pira-cy under § 1651, U.S. v. Smith, 18 U.S. 153 (1820). InSmith, the Supreme Court found that piracy, under thelaw of nations, was robbery on the sea. The court found“that the discernable definition of piracy as ‘robbery orforcible depredations committed on the high seas’ under§ 1651 has remained consistent and has reached a levelof concrete consensus in United States law since its pro-nouncement in 1820.” The government failed to provethat U.S. case law showed that “piracy in violation of thelaw of nations” included conduct outside of robbery orseizure of a ship.

The court also dismissed the government’s argumentthat the court should look to contemporary internation-al law to define piracy. The court noted that internation-al law is unsettled on the definition of piracy.

Finally, the court examined the due process implica-tions of its interpretation. The court noted that in inter-preting piracy under the law of nations “‘courts mustproceed with extraordinary care and restraint,’ as there isno single, definitive source on what constitutes custom-ary international law.”4 The requirement of due process“bars enforcement of ‘a statute which either forbids or

Rrrrr TheyRrrrr TheyPirates?Pirates?

Court Says NoCourt Says NoTerra Bowling, J.D.Terra Bowling, J.D.


requires the doing of an act in terms so vague that menof common intelligence must necessarily guess at itsmeaning and differ as to its application.’”5 The Smithcourt found that piracy under the law of nations specifi-cally meant robbery at sea. “If the Court accepted theGovernment’s request to adopt the definition of piracyfrom these debatable international sources whose pro-mulgations evolve over time, defendants in United Statescourts would be required to constantly guess whethertheir conduct is proscribed by § 1651. This would renderthe statute unconstitutionally vague.”6

The court granted the motion to dismiss the piracycharges; however, other charges against the men, in -

cluding attack to plunder a vessel, acts of violenceagainst persons on a vessel, assault with a dangerousweapon on fed eral of ficers and employees, conspiracyinvolving firearms during a crime of violence, and useof a firearm during a crime of violence, were undis-turbed by the court’s ruling. The U.S government hasalready signaled their intent to appeal the dismissal ofthe piracy charges.7

Endnotes1. United States v. Said, No. 2:10cr57 (E.D. Va., August

17, 2010).2. Press Release, U.S. Attorney’s Office, Eastern District

of Virginia, Alleged Somali Pirates Indicted forAttacks on Navy Ships (Apr. 23, 2010).

3. Said, at *2.4. Id. at *3.5. Id. at *4.6. Id. at *19.7. Steve Szkotak, US Appealing Dismissal of Piracy

Indictment, THE WASHINGTON EXAMINER, Sept. 11,2010, available at http://www.washingtonexaminer -.com/breaking/us-appealing-dismissal-of-piracy -indictment-102693934.html.

What may be the final regulatory battle is being foughtthis fall as the state DPU determines whether a pending15-year deal between Cape Wind and utility companyNational Grid would result in acceptable electric rates forconsumers. Opposition groups including the Alliancevow to challenge a positive DPU ruling in court and havealready sued to challenge other aspects of the project,hoping to keep the project delayed. The DPU is expect-ed to make a ruling in November.

Endnotes1. Ten Taxpayers Citizen Group v. Cape Wind

Associates, LLC, 278 F.Supp.2d 98 (1st Cir. 2003).2. Alliance to Protect Nantucket Sound, Inc. v. United

States Dept. of the Army, 288 F.Supp.2d 64 (D. Ma.2003). For a detailed analysis of the District Courtopinion, see Stephanie Showalter, Cape Wind AssociatesWind Round Two, THE SANDBAR 2:4, 1 (2004) availableat: http://nslgc.olemiss.edu/SandBar%20PDF/sandbar2.4.pdf.

3. Alliance to Protect Nantucket Sound, Inc. v. UnitedStates Dept. of the Army, 398 F.3d 105 (1st Cir.2005). For more on the First Circuit opinion, see

Jeffrey Schiffman, Wind Farm Survives AnotherChallenge, THE SANDBAR 4:1, 1 (2005) available at:http://nsglc.olemiss.edu/SandBar%20PDF/sand -bar4.1.pdf.

4. The agency has since changed its name to the Bureauof Ocean Energy Management, Regulation andEnforcement (BOEMRE).

5. National Environmental Policy Act, 42 U.S.C. §4332(C) (2010).

6. The Energy Policy Act of 2005 clarified that theMMS has regulatory authority over offshore windprojects.

7. Beth Daley, FAA Determines Wind Farm Is ‘NoHazard,’ BOSTON GLOBE, May 18, 2010.

8. MASS. GEN. LAWS ch. 164, § 69K (2010).9. Town of Barnstable v. Massachusetts Energy

Facilities Siting Board, 25 Mass. L. Rept. 375 (Mass.Super., May 4, 2009).

10. Alliance to Protect Nantucket Sound, Inc. v. EnergyFacilities Siting Board, 457 Mass. 663, 702 (Mass.August 31, 2010).

11. Id.

Cape Wind, from page 5


Many industrial systems, such as power plantsand offshore oil rigs, rely on circulatingwater for cooling. The water, often sourced

from nearby waterways, contains numerous fish andother aquatic organisms that become mired in theintake system and eventually die. To address thisproblem, Congress authorized the Environ mentalProtection Agency (EPA) to regulate cooling waterintake structures under the Clean Water Act. Sincethat time, an ongoing battle has ensued between EPA,industry, and environmentalists over how EPAshould regulate the structures. In July, the U.S. Courtof Appeals for the Fifth Circuit weighed in on thecontroversy.1

BackgroundThe use of cooling water intake structures (CWIS) byindustrial facilities accounts for an aggregate with-drawal of billions of gallons of water per day fromthe nation’s waterbodies. The process also results inthe impingement and entrainment of aquatic life.(Impingement refers to organisms trapped againstthe intake structure while entrainment refers to theuptaking of organisms into the cooling system).Recognizing the detrimental effects of impingementand entrainment on ecosystem health, the CleanWater Act authorizes the regulation of CWIS byrequiring “the location, design, construction, andcapacity of cooling water intake structures reflect thebest technology available for minimizing adverseenvironmental impact.”2

As characterized by the Fifth Circuit, “Despitethe seemingly straightforward mandate of § 316(b),successful and effective rule making under this sec-tion has been elusive.”3 The initial rule promulgatedin 1976 was successfully challenged for proceduraldefects under the Administrative Procedure Act(APA), resulting in EPA’s withdrawal of the remand-ed portions of the rule. This remained the status quountil 1995 when EPA entered into a consent decreewith Riverkeeper and others wherein EPA agreed toissue permanent regulations under § 316(b).

EPA proceeded with the new rulemaking in threephases: Phase I (all new CWIS facilities above a setintake threshold, except new offshore oil rigs); PhaseII (existing large power plants taking in more than 50million gallons of water a day); and Phase III (existingfacilities, new offshore oil rigs, new offshore liquefiednatural gas facilities, and new seafood processing ves-sels). In this case, the legal challenges, discussed inmore detail below, center around the EPA’s use ofcost-benefit analysis during the rulemaking process.Among other things, ConocoPhillips argued thatEPA’s rulemaking was arbitrary and capricious underthe APA because the national standards for new facil-ities do not consider the facility location and becausethe EPA failed to conduct cost-benefit analyses.

Phase III RuleDuring the Phase III rulemaking process, EPA dis-tinguished between new and existing facilities. Forexisting facilities, EPA conducted a cost-benefitanalysis of the three gallons-per-day CWIS category.However, for new facilities, EPA determined thatcomparing the costs to individual facilities to thebenefits was impossible because the facilities had notyet been built.4 Since a cost-benefit analysis was notfeasible, the EPA instead examined the expectedcosts of compliance with uniform national standardsand whether the industry could reasonably bearthose costs.5

EPA focused its environmental impact analysison the Gulf of Mexico, as this is the anticipated loca-tion for most new rig construction over the next 20years.6 As no studies specifically addressed entrain-ment or impingement for new rigs, EPA relied on theSoutheast Area Monitoring and Assessment Program(SEAMAP) for information regarding icthyoplanktondensities in the Gulf, which EPA observed, “were thesame range of densities observed in the inland andcoastal waters addressed in the Phase I rule making.”7

Under the new rule, existing facilities’ CWISrequirements are established on a case-by-case basisunder the NPDES program;8 individual permit writers

REGULATING COOLING WANiki L. Pace, J.D., L.L.M.

must use their best professional judgment in deter-mining the requirements needed for each facility to“achieve the best technology available for minimizingadverse environmental impact at that facility.”9 Newoffshore facilities must apply national performancestandards for 1) any rig considered a “point source”under the Clean Water Act’s NPDES permitting pro-gram, 2) has a CWIS that uses at least 25% of intakewater for cooling only, and 3) withdraws a minimumof two million gallons of water per day.10 This nation-al standard extends to all coastal and offshore oil andgas extraction facilities.

All facilities must minimize impingement wherethe permitting authority finds that endangered, migra-tory, sport or commercial species are threatened.Finally, a variance is available for any offshore facilitythat can show that compliance would result in “com-pliance costs wholly out of proportion to the coststhe EPA considered in establishing the requirement… or would result in significant adverse impacts onlocal water resources other than impingement andentrainment, or significant adverse impacts on energymarkets.”11

Entergy Corp. v. RiverkeeperWhile the Phase III rulemaking was occurring, a legalbattle over the Phase II Rule made its way to the U.S.Supreme Court. In Entergy Corp. v. Riverkeeper, theSupreme Court considered whether § 316(b)’s statu-tory requirement for “best technology available forminimizing adverse environmental impact” preclud-ed a cost-benefit analysis.12 In the appealed decision,the Second Circuit had interpreted this language tomean the “technology that achieves the greatestreduction in adverse environmental impacts.”13

Although the Court considered this reading “plausi-ble,” the Court reasoned that the language could alsomean “technology that most efficiently produces somegood.”14

The Court found that the statutory languageallowed the EPA some discretion in determiningwhat extent of reduction is necessary under the cir-

cumstances; the language did not preclude a cost-benefit analysis. The Court concluded that while theEPA may use a cost-benefit analysis in rulemaking,the EPA is not required to do so. The EPA “isafforded discretion to consider to what degree, ifany, costs and benefits should be weighted in deter-mining the ‘best technology available for minimizingadverse environmental impact.’”15 The SupremeCourt remanded the Phase II Rule for existing facili-ties to the EPA.

In light of the Entergy Corp. decision, the EPAsought remand of the Phase III Rule pertaining toexisting CWIS in the instant case. The remand wouldallow EPA to reevaluate its Phase III Rule on existingfacilities in conjunction with the EPA’s review of thePhase II Rule on existing facilities (as remanded bythe U.S. Supreme Court in Entergy Corp.). The FifthCircuit found this request “imminently reasonable”and non-prejudicial to the other parties and thereforegranted the motion.

Economic AchievabilityBefore addressing ConocoPhillips’ substantive chal-lenges to the EPA’s Phase III Rule, the Fifth Circuitfirst addressed ConocoPhillips’ claim that EPA vio-lated the APA notice provisions by advancing a dif-ferent interpretation of § 316(b) at the litigationstage. In other words, the court asked “whether theEPA’s interpretation of § 316(b) … is sufficiently dif-ferent from the interpretation it proffered in theProposed Rule to constitute a violation of the noticeprovision for informal rule making set forth in § 4 ofthe APA.”16 According to ConocoPhillips, the EPAgave notice that it would employ a cost-benefit analy-sis for new CWIS in its rulemaking but later aban-doned that rationale during the appeal in favor of an“economic achievability” analysis. Further,ConocoPhillips maintained that the EPA’s economicachievability test “is sufficiently different from the‘cost-benefit’ test announced during rule making thatit amounts to a mere ‘litigation position’ and theagency’s justifications for its Phase III Rule that


ATER INTAKE STRUCTURES

rest on the ‘economic achievability’ argumentshould be ignored.”17

The court disagreed, first noting that the EPA’schanged terminology does not necessarily denotechanged methodology. Rather, “[t]he crux of thequestion is whether the EPA’s justification argumenton appeal so differs from the justification articulatedduring the rule making process to have deprivedinterested parties of the notice required by theAPA.”18 The court reviewed the preamble of both theProposed and Final Rules concluding that both pre-ambles articulated EPA’s interpretation of § 316(b) asallowing for a cost-benefit analysis but not requiringsuch analysis. In the Final Rule, EPA acknowledgesthat it lacked sufficient information to conduct cost-benefit analysis for new facilities; EPA therefore esti-mated compliance costs under national categoricalstandards for new CWIS and compared those costs tobaseline benefits for existing facilities. After reviewingthe language of the rules and EPA’s statements attrial, the court concluded that the differences cited byConocoPhillips represented “no material difference”in EPA’s interpretation of its rulemak-ing authority.

Arbitrary Rulemaking?Having lost on the economic achiev-ability argument, ConocoPhillipsadditionally asserted that EPA’s FinalPhase III Rule was arbitrary and capri-cious. These allegations rested at leastpartially on the contention that §316(b) mandated EPA engage in acost-benefit analysis. The court sum-marily rejected these assertions inlight of the U.S. Supreme Court’sdecision in Entergy Corp v. Riverkeeper,as laid out above, which made clearthat “the EPA may but is not required toengage in cost-benefit analyses forCWIS r u le making.” 1 9 After dis-pensing with that element of the argu-ment, the court went on to addressConocoPhillips’ two remaining argu-ments: “1) It is arbitrary and capriciousfor the EPA to fail to conduct a bene-fits analysis for specific facility loca-tions, and 2) it is arbitrary and capri-

cious for the EPA to rely on the general ‘qualitative’SEAMAP study, rather than on site-specific quantita-tive studies, to estimate the environmental impact ofnew CWIS.”20

While regulations established under § 316(b)“require that the location, design, construction, andcapacity of cooling water intake structures reflect thebest technology available for minimizing adverse envi-ronmental impacts,”21 EPA and ConocoPhillips’offered differing interpretations of the statute.ConocoPhillips argued that this language requiredEPA to consider the facility’s physical location. On theother hand, EPA maintained the language applied tothe CWIS’s physical location.

To resolve the matter, the court employed thetwo-part analysis laid out in Chevron, U.S.A. v. NaturalResources Defense Council 22 (commonly referred to asChevron deference). The first step of Chevron requiresthe court to determine whether the statute is silent orambiguous on the issue. If so, the court would thenconduct step two of Chevron whereby the court woulddefer to the agency’s interpretation so long as the


Power Plant photograph courtesy of Arnoldius, Wikimedia Commons.


interpretation is based on a permissible constructionof the statute. The court found that the statute clear-ly required that EPA consider the location of theCWIS, not the facility. In rejecting ConocoPhillips’interpretation, the court pointed out the illogical sce-nario under that interpretation wherein EPA would berequired to consider the location of a terrestrial facil-ity but not the location of the facility’s remote CWIS.

Because the statute does not require considera-tions of the facility location, the court, considering therecord as a whole, rejected ConocoPhillips’ assertionthat EPA’s failure to conduct a benefits analysis forspecific new facility locations was arbitrary and capri-cious. Rather, the court found that EPA’s decision torely upon economic achievability grounds was at least“minimally related to rationality”23 in light of theinformation available to EPA during the rulemaking.

Turning finally to EPA’s reliance on the SEAMAPdata, ConocoPhillips criticized EPA’s usage of theSEAMAP data in promulgating national categoricalstandards for new facilities. Rather, Conoco -Phillips felt that EPA must either employ a case-by-case permitting regime or distinguish between deepwa-ter and shallow water facilities in the rulemaking. Againrejecting ConocoPhillips’ assertions, the courtnoted that “[c]onducting precise ‘quantitative benefitsstudies’ for facilities that have yet to be built is impos-sible, and there are no existing quantitative studies ofimpingement and entrainment for new facilities.”24

Reliance on the SEAMAP data was further bolsteredby fact that most new offshore facilities will be locatedin the Gulf of Mexico (where the SEAMAP studytook place). Returning once again to the location ofthe CWIS versus the facility, the court also noted thatwhile offshore facilities may be located at varyingdepths, the CWIS will almost always be located nearthe surface of the water column. Therefore, EPA rea-sonably relied on the SEAMAP study to evaluate theadverse environmental impact of CWIS on offshorefacilities located near the surface of the water column.

ConclusionUltimately, the court upheld EPA’s Final Phase III Rulepertaining to new CWIS but remanded the portion ofthe Rule that regulated existing CWIS (as requested byEPA). Notably, the decision came on the heels ofEPA’s announcement of a planned survey intended toevaluate what the public is willing to pay to protect

aquatic organisms from CWIS, a move some say showssupport for a new cost-benefit analysis under theupcoming proposal.25 The proposal was open for pub-lic comment through September 20, 2010.26

Endnotes1. ConocoPhillips v. EPA, —- F.3d —-, 2010 WL

2880144 (5th Cir. July 23, 2010).2. 33 U.S.C. § 1326(b).3. ConocoPhillips, 2010 WL 2880144 at *2.4. 71 Fed.Reg. 35,034.5. Id. at 35,025-29.6. ConocoPhillips, 2010 WL 2880144 at *5.7. Id. at *4.8. The NPDES program regulates the discharge of

pollutants from a point source under the CleanWater Act. Any point source discharging a regulat-ed pollutant is subject to this provision and mustobtain a permit for the discharge from EPA. 33U.S.C. § 1342.

9. ConocoPhillips, 2010 WL 2880144 at *5 (citing 71Fed. Reg. 35,015).

10. 40 C.F.R. § 125.131(a).11. Id. § 125.135.12. Entergy Corp. v. Riverkeeper, 129 S.Ct. 1498

(2009).13. Id. at 1506.14. Id. (emphasis in original).15. ConocoPhillips, 2010 WL 2880144 at *4. 16. Id. at *8.17. Id. at *9.18. Id.19. Id. at *13 (emphasis in original).20. Id.21. 33 U.S.C. § 1326(b).22. 467 U.S. 837, 842-43 (1984).23. ConocoPhillips, 2010 WL 2880144 at *15.24. Id.25. Russell Prugh, Sparks Continue to Fly Over Cooling

Water Intake Structures as Fifth Circuit Approves Oil andGas Phase III Rule and EPA Issues Contingent ValuationSurvey, Marten Law News, August 12, 2010 (avail-able at http://www.martenlaw.com/newsletter/20100812 -cooling-water-intake-structures).

26. EPA, Cooling Water Intake Structures – CWA §316(b), http://water.epa.gov/lawsregs/lawsguid-ance /cwa/316b/index.cfm .


Recently, after an endangered plant species wasdiscovered on and removed from privately-owned wetlands, the Ninth Circuit considered

whether privately-owned wetlands situated adjacent tonavigable waters and their tributaries were considered“areas under Federal jurisdiction” for the purposes ofthe Endangered Species Act regulation.1 Although thecourt found the term “areas under Federal jurisdiction”ambiguous, it was unconvinced that the U.S. Fish andWildlife Service (FWS) had interpreted the term, ulti-mately holding that “areas under Federal jurisdiction”did not include the privately-owned land at issue, there-by affirming the district court’s ruling and the granting ofsummary judgment to the defendants.

BackgroundWilliam and Frank Schellinger own 21 acres of privateproperty comprised of grasslands containing seasonalvernal pools, wetlands, seasonal creeks, and vernal swalesin Sebastopol, California. Their 21 acres (the Site) areadjacent to the Laguna de Santa Rosa, a tributary of theRussian River, which is a navigable water of the UnitedStates under the Clean Water Act (CWA).2

When the Schellingers began to develop the Site in2003, the U.S. Army Corps of Engineers (Corps) desig-nated 1.84 acres of the Site adjacent to the Laguna deSanta Rosa as wetlands subject to the CWA. In so doing,the Corps qualified that particular portion of theSchellingers’ wetlands as “navigable waters” and there-fore, “waters of the United States” under the CWA.

In 2005, while on a walk along the Site’s wetlands,Robert Evans, an amateur naturalist, discovered whathe believed to be the endangered plant speciesSebastopol meadowfoam.3 After this discovery, theCalifornia Department of Fish and Game Habitat(CDFG) Conservation Manager Carl Wilcox, CDFGbiologist Gene Cooley, and Project Manager for the Site’sdevelopment Scott Schellinger, visited the Site to further

investigate, at which time Wilcox confirmed the presenceof Sebastopol meadowfoam on the Site’s wetlands.Wilcox lifted the plants and their substrates out of thewetland to determine whether the plants were rooted inthe soil and thus naturally occurring. Because the CDFGemployees suspected that the plants were not naturallyoccurring, Cooley later returned to the Site to gather evi-dence, whereupon he removed the Sebastopol meadow-foam plants, placed them in plastic bags, and transportedthem to the local CDFG office.

In 2006, Evans and Northern California River Watch(collectively River Watch) filed a complaint againstWilcox and Cooley4 (collectively Wilcox) in the NorthernDistrict of California, alleging that the CDFG employ-ees’ treatment and removal of the plants violated ESA §9(a)(2)(B), which makes it unlawful to remove, damage,or destroy an endangered plant species in “areas underFederal jurisdiction.”5 Although the Site is privatelyowned, River Watch argued that because the area wasregulated wetlands under the CWA, the area was underfederal jurisdiction and thus subject to the ESA prohibi-tion.6 Wilcox argued that the term “areas under Federaljurisdiction” only applied to land owned by the Federalgovernment. The district court granted Wilcox’s motionfor summary judgment, concluding that River Watchcould not prevail on its § 9(a)(2)(B) claims because, as amatter of law, River Watch could not establish that thewetlands qualified as “areas under Federal jurisdiction.”7

River Watch appealed.

DiscussionIn reviewing an agency’s interpretation of a statute, acourt performs a two step analysis outlined in a U.S.Supreme Court case, Chevron v. Natural Resources DefenseCouncil.8 First, a court looks at whether Congress’s intentis clear from the statutory language. If not, the next stepis to consider whether the agency permissibly interpret-ed the statute.

Privately-Owned Wetlands and the ESA

Mary McKenna, 2011 J.D. Candidate, University of Mississippi School of Law


River Watch and Wilcox argued that the text of §9(a)(2)(B) was clear and plainly supported their respec-tive positions. The United States, as amicus curiae,9 urgedthe court to conclude that the text was ambiguous andthat FWS’s construction of the ESA was entitled toChevron deference.10 Under step one of Chevron’s analyti-cal framework, determining whether the intent ofCongress is clear, the court turned to statutory construc-tion, engaging first in a textual analysis and second in areview of legislative history. In its textual analysis, thecourt determined that the meaning of “areas underFederal jurisdiction” was not immediately clear, norexplicitly defined in the ESA.

Turning to legislative history, the court reviewed twocommittee reports that discussed the extension of theESA’s protection to plants.11 The court concluded thatthe committee reports did not necessarily aid its inter-pretation because the reports used the term “federalland” in lieu of the statutory text “areas under Federaljurisdiction” and failed to define “federal lands.” Inshort, the court concluded that the meaning of the term“areas under Federal jurisdiction” was not plainly clearfrom the text of the ESA nor was Congress’s intent withregard to that term clear in the ESA’s legislative history.The court, therefore, agreed with the United States thatthe term was ambiguous.

As the agency responsible for the protection andrecovery of endangered plant species, the FWS “has theauthority to interpret the ESA in rulescarrying the force of law.”12 Understep two of the Chevron analysis,determining if an agency’s interpreta-tion of a statute is a reasonable con-struction of the law at issue, the courtdetermined that the FWS had notexplicitly interpreted the term “areasunder Federal jurisdiction” and there-fore no agency interpretation existedto which the court must defer underChevron.13 In other words, the courtheld that although the FWS had theauthority to interpret the ESAthrough the promulgation of rulesand regulations, the FWS had not yetdone so, making the application ofChevron deference inappropriate.

Lacking any agency interpretationof “areas under Federal jurisdiction,”the court proceeded to interpret the

term. The court held River Watch’s proposed construc-tion of § 9(a)(2)(B) to be untenable because of potentialoverbreadth, arguing that River Watch’s reading could be“expanded to apply to private lands which are subject toany sort of federal regulatory jurisdiction by any federalstatute, i.e. everywhere.”14 Furthermore, River Watchhad not established that the plain language of the ESAmandated that “waters of the United States” were “areasunder Federal jurisdiction,” and ultimately interpreted“areas of Federal jurisdiction” as not including all of the“waters of the United States” as defined by the CWAand its regulations. Therefore, the court affirmed the dis-trict court’s ruling and granted summary judgment toWilcox.

ConclusionThe court reiterated that while its decision was bindinglaw, the agency remains the authoritative interpreter ofthe term “areas under Federal jurisdiction.” In ruling that“areas under Federal jurisdiction” do not include all ofthe “waters of the United States” as defined by theCWA, the court is inviting the FWS to issue regulationsor guidance specifically addressing the interpretation ofthe term, especially to achieve the objective of theESA—protecting and conserving endangered speciesand their ecosystems. Until the FWS does interpret theterm through the promulgation of rules and regulations

Photograph of Sebastopol meadowfoam courtesy of Stan Shebs.

See Clean Water Act, page 15


On the heels of the U.S. Supreme Court’sdecision in Stop the Beach Renourishment, theNew Jersey Supreme Court has ruled that

dry beach produced by a government-funded beachreplenishment program is not the property of theupland owners.1 The court ruled that the expandeddry beach fell within the public trust doctrine and,therefore, the owners were not entitled to compen-sation for that land in eminent domain proceedings.

BackgroundAs part of a redevelopment plan for beachfrontareas the City of Long Branch (the City) sought toacquire oceanfront property, including the Liu fami-ly’s commercial building. The building contained sev-eral businesses run by the Lius, as well as businessesleased to commercial tenants. After the Lius rejectedan offer to purchase the property for $900,000, theCity filed an eminent domain action to take littoralproperty owned by the Liu family.

In its complaint, the city described the Liu prop-erty according to a 1977 deed; however, due to abeach renourishment project in the 1990s, the Lius’beachfront had increased by more than two acresfrom the description given in their 1977 deed. Themulti-million dollar beach renourishment project,funded by federal, state, and several municipal gov-ernments, produced approximately 225 additionalfeet of dry land seaward from the mean high watermark described in the deed. In the eminent domainproceedings, the Lius claimed that they should becompensated for the loss of the dry land added as aresult of the beach renourishment.

The trial court denied the Lius’ claim. The courtnoted that generally, the state holds in trust for the

public land covered by tidal waters up to the meanhigh watermark. Several common law principles gov-ern property rights of the upland owner and thestate when the shoreline is altered. Under the com-mon law principle of avulsion, a sudden addition toland caused by either natural or manmade forces,does not result in change of title to the land. Theland seaward of the previous high water markremains with the state. However, under the commonlaw principle of accretion, which is the slow, imper-ceptible addition of sand, the upland owner gainstitle to the addition of dry beach. The trial court rea-soned that the two-week beach renourishment pro-ject resulted in avulsion and ruled that the Lius didnot gain title to the new dry land added to the shore-line. On appeal, an appellate court affirmed thatdecision but on different grounds. Instead of look-ing at common law principles, the panel found thatpolicy reasons precluded the Lius from benefitingfrom the public renourishment project in the beachrenourishment action. The Lius appealed.

Common Law On appeal, the New Jersey Supreme Court turned tocommon law principles in making its decision. Thecourt reiterated the fact that the State of New Jersey“owns in fee simple all lands that are flowed by thetide up to the highwater mark … and the owner ofoceanfront property holds title to the propertyupland of the high water mark.”2 The court noted,however, that the shoreline “is in a constant state offlux” changing either imperceptibly over the years orswiftly due to natural causes or acts such as the beachrenourishment program. The court reiterated thatunder common law, upland owners are entitled todry land added by accretion, but lose land as a resultof erosion. Under avulsion, however, the boundaryline does not shift. “The prior mean high water markremains the demarcation line between the propertyrights of the oceanfront owner and the state.”3

Further, the court recognized that “the law, general-ly, makes no distinction between whether an accre-tion or avulsion is the product of natural forces ormanmade efforts.

The court next looked at the Lius’ claim that thecourt should disregard the common law distinctionsbetween accretion/erosion and avulsion and find a“natural equity” as a basis for giving littoral ownersdirect contact with the water. The court declared that

Who OwnsJersey Shore?

Terra Bowling, J.D.

this approach would be contrary to the public trust doc-trine. “Moreover, natural equity is hardly a concept to beinvoked by a property owner who is asking to be com-pensated in a condemnation action for new beachfrontproperty created by a taxpayer-funded beach replenish-

ment program. The primary purpose of the program is toprotect the shoreline – public beaches and private beaches– from erosion.” The court reasoned that the renourish-ment project protected the Lius’ property from erosion.

Ultimately, the court rejected the Lius’ claims. “Inthe end, under the public trust doctrine, the people ofNew Jersey are the beneficiaries of the lengthening ofthe dry beach created by this government funded pro-gram. Because the mean high water mark remains theboundary line between private and public property,there was no true loss of land to the Lius or gain tothe state. In the context of this eminent domainaction, the Lius cannot be recompensed for the takingof property they never owned.”

Endnotes1. City of Long Branch v. Jui Yung Liu, 2010 N.J.

LEXIS 910 (N.J. Sept. 21, 2010).2. Id. at *22.3. Id. at *27.

or guidance materials, however, those privately-ownedwetlands subject to the CWA are not susceptible to theauthority of ESA § 9(a)(2)(B).

Endnotes1. Northern Cal. River Watch v. Wilcox, —- F.3d —-

2010 WL 3329681 (9th Cir. 2010). 2. 33 C.F.R. § 328.3(a)(7). Further, the CWA prohibits

discharges of pollutants—including dredged soil,rock, sand, and cellar dirt—into the “navigable watersof the United States” without a special permit. 33U.S.C. §§ 1311(a), 1344, 1362(6). Because their devel-opment plans of the Site included filling in andpaving over parts of the Site designated as wetlands,the Shellingers applied for a special permit. NorthernCal. River Watch, 2010 WL at *2.

3. Northern Cal. River Watch, 2010 WL at *2. Evans noti-fied a local biology professor who determined that,while Evans had identified only the common mead-owfoam, Sebastopol meadowfoam plants were on theSite’s wetlands. Id.

4. River Watch also named Robert Floerke, anotherCDFG employee as a defendant, and in 2007, filed asecond amended complaint adding the Schellingers asdefendants in violation of ESA § 9(g). Id. at *12, n. 7.

5. Northern Cal. River Watch, 2010 WL at *3. See also 16U.S.C. § 1538(a)(2)(B).

6. Northern Cal. River Watch, 2010 WL at *5. 7. Id. at *3. 8. 467 U.S. 837 (1984).9. Amicus curiae is literally “a friend of the court,” a

person or entity who is not a party to a lawsuit butmay file a brief due to a strong interest in the subjectmatter.

10. Id. The United States argued that “areas under Federaljurisdiction” does not include privately-owned landsthat are merely subject to regulatory jurisdictionunder a federal statute. Id.

11. Northern Cal. River Watch, 2010 WL at *6. The twocommittee reports were (1) a House ConferenceReport that preceded the passage of the 1982Amendments to the ESA, and (2) a Senate Reportthat preceded the passage of the 1988 Amendmentsto the ESA. Id.

12. Northern Cal. River Watch, 2010 WL at *7.13. Id. at *8. The United States argued that three FWS

rules and a guidance manual provided an interpreta-tion of “areas under Federal jurisdiction,” triggeringChevron deference. The court was not persuaded, con-vinced that the rules did not address the issue and thatthe handbook lacked the force of law. Id. at 8-9.

14. Id. at *11.


Clean Water Act, from page 13

Winslow Homer painting of Long Branch beach scene circa 1869.

Sea Grant Law CenterKinard Hall, Wing E, Room 258P.O. Box 1848University, MS 38677-1848

The University of Mississippi

THE SANDBAR

Littoral EventsShape of the Coast 2010

New Bern, North CarolinaNovember 5, 2010

The 2010 Shape of the Coast programwill focus on the changing demo-graphics and land-use patterns ofcoastal North Carolina. Other programhighlights include an update from thechair of the N.C. Coastal ResourcesCom mission (CRC); a panel discussionon appearing before CRC and chal-lenging its decisions; an examinationof the legal issues that arise when acoastal development fails; and a lookat re cent significant federal and statecoastal cases and legislation. The pro-gram is co-sponsored by NorthCarolina Sea Grant, the North CarolinaCoastal Resources Law, Planning andPolicy Center, and the University ofNorth Carolina School of Law. Registeronline at: http://www.nccoastallaw -.org/events.htm.

Environmental Law Fall Forum

Mobile, AlabamaDecember 3, 2010

The Mississippi-Alabama Sea GrantLegal Program’s Environ mentalLaw Fall Forum will look at FEMA’sobligations under the ESA; tak-ings and the Stop the BeachRenourishment decision; the cur-rent state of common-law cli-mate change litigation; ethical con-siderations for attorneys and publicofficials; a look at regional waterquantity issues; and CERCLA liabilityafter Burlington Northern decision.The Legal Program has appliedfor 6 hours of continuing legaleducation credit in Mississippi andAlabama. Please visit:http://masglp.olemiss.edu/envi-ronmental_law_forum.htm .

National Conference on Science, Policy

and the Environment

Washington, D.C.January 19-21, 2011

The 11th Annual conference will fea-ture the theme, “Our ChangingOceans.” A number of symposia andbreakout sessions will discussaspects of marine spatial planning;The Role of Coastal Marine SpatialPlanning in Stabilizing Food Security;Improving Ocean Gov ernancethrough Multi-scale Ocean andCoastal Management; Ecosystem-Based Marine Spatial Planning in U.S.Waters; and From Policy to Practice– Creating the Will to Make MarineSpatial Planning Succeed. For moreinformation, visit: http://ncseonline.org/conference/Oceans/cms.cfm?id=4028

Documents

SandBar 9.4