The following article appeared in the February 2009 issue of the Bay Journal of the Alliance for the Chesapeake Bay. It is reprinted here with permission from the Alliance for the Chesapeake Bay.
Top Court won't review ban on new discharges to polluted waters
The action could potentially prohibit a variety of permits that fall under the Clean Water Act
By Karl Blankenship
In an action that could have ramifications for the Chesapeake Bay and other impaired waterways, the U.S. Supreme Court in January declined to review an appeals court decision that prohibits new discharges into waterways that do not have cleanup schedules.
The court, without comment, refused to hear the appeal by Carlota Copper Co. which will be barred from getting a permit for stormwater discharges from a new mine into Arizona's Pinto Creek because the stream is impaired by excess copper.
The EPA had originally issued a permit for the discharge, but required Carlota to offset the increase by reducing pollution from an abandoned upstream mine. Nonetheless, the U.S. Ninth Circuit Court of Appeals in 2007 ruled that the permit violated the Clean Water Act because it would "cause or contribute" to the impairment of the waterway, which is not allowed by the agency's regulations.
The appeals court said the goal of the Clean Water Act, "is not simply to show a lessening of pollution, but to show how the water quality standard will be met if Carlota is allowed to discharge pollutants into the impaired waters."
The court ruled that permits could not be issued for new discharges into impaired waterways unless there is a cleanup plan and compliance schedule showing when the waterway would be removed from the impaired waters list. If pollution reductions from dischargers alone will not clean up the waterway, a plan must be developed to reduce enough pollution from nonpoint sources to achieve the goal.
The decision could potentially prohibit a variety of permits that fall under the Clean Water Act, including traditional dischargers, as well as permits for construction sites larger than one acre, large animal feedlots and stormwater systems.
Carlota, in its appeal to the Supreme Court, said the decision was a "de facto moratorium" on new permits for impaired waters. The National Association of Homebuilders and other trade organizations expressed similar concerts.
Nonetheless, the Supreme Court gave the Friends of Pinto Creek, who challenged the permit, a victory when it declined to hear the case Jan. 12 without comment.
That means the ruling is in effect for the 11 western states in the Ninth Circuit, and it could serve as a precedent for similar permit challenges across the country.
"It's a very important ruling on an issue that is precedent-setting because it had not been squarely addressed by federal courts," said Roger Flynn, an attorney handling the case for the environmental group, "We'll see if individual cases come up around the country where people argue that the permit can't be issued because of the Friends of Pinto Creek case."
It's up to the EPA to provide guidance about how to comply with the court decision. As the law was interpreted by the Ninth Circuit, the EPA would gain significant new leverage in forcing the cleanup of waters nationwide, where more than 40 percent do not meet their water quality standards 37 years after the Clean Water Act became law and promised to make all waterways "fishable and swimmable."
If applied to the Bay watershed, it's possible that new permits could be denied until a cleanup plan with compliance time frames were developed. While the states have developed "tributary strategies" in the past to guide cleanup efforts, they did not contain specific time frames for implementation.
But it's possible that the EPA could, as some observers have suggested, effectively reject the added authority by rewriting its regulations.
"My thought was the Bush EPA would consider-they sort of hinted at this-that they may try to change the regulation," Flynn said. That's possible if the case is viewed as a violation of EPA regulations, but not of the Clean Water Act itself.
"We argued that it violated the Clean Water Act, the statute, as well as the regulation," Flynn said. "Agencies can change their regulations, but those regulations can't violate the statute. The statute trumps the regulation every time. Whether the incoming EPA will follow through on that veiled implication from the Bush administration EPA, I don't know."
John Mueller, an attorney with the Chesapeake Bay Foundation, said the ruling bolsters his organization's claim in a separate suit that the EPA has not exercised its full authority to clean up the Bay. In the Bay watershed, he said, some dischargers have already begun objecting to nutrient discharge limits set in their permits by the states, and are seeking increases.
"I think that's where you apply the Pinto Creek principle that you can't continue to pollute into already impaired waters," Mueller said. "And we've got major tributaries that are impaired by nutrients, and where the heck is EPA?"
Karl is the Editor of the Bay Journal.
