The Future of the Clean Water Act

Passed by Congress in 1972, the Clean Water Act (“CWA”) was designed to fill the perceived void in state and local protection of the nation’s waters. It has had two major amendments, the Clean Water Act of 1977 and the Water Quality Act of 1987 and is primarily enforced through regulatory authority granted to the Environmental Protection Agency (“EPA”) and Army Corp of Engineers (“ACE”). The CWA is somewhat unique in that its implementation is achieved through partnerships with the states; many of which are responsible for, among other examples, development of pollution control standards and total maximum daily load allowances – the levels of pollutants that a given water system can contain but still meet water quality standards. Further, EPA has authorized 46 states to directly issue National Pollution Discharge Elimination System (“NPDES”) permits to discharging facilities within their borders.

The scope of federal legislation and regulation and systematic partnership with the states has created a structure whereby the CWA is the primary and in some instances the only method of protecting water quality and integrity in the United States. The strength of the CWA has been weakened dramatically this decade, in large part because of two Supreme Court decisions that narrow applicability of the Act. These decisions have created uncertainty as to scope of federal jurisdiction and the ability of federal and state agencies to utilize their legal and regulatory tools to protect the nation’s waters.

In Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, 121 S. Ct. 675 (2001), the Supreme Court limited ACE’s authority to regulate discharges into “isolated waters” and dramatically redefined the extent of CWA jurisdiction over “navigable waters.” In denying CWA section 404 jurisdiction over these “isolated waters,” Chief Justice Rehnquist, writing for the majority, suggested that congressional intent as to the scope of federal jurisdiction was unclear and that ACE’s interpretation invoked “the outer limit of Congress’s power” and was not within the text of the CWA.

Rapanos v. United States, 126 S. Ct. 2208 (2006) took another bite out of federal regulation, severely reducing federal jurisdiction over wetlands by limiting the definition of “waters of the United States.” Most troubling, Rapanos provides little in the way of precedent to guide both regulators and the regulated community on the reach of the CWA as applied to wetlands and other smaller bodies of water such as intermittent and ephemeral streams. Five justices denied federal jurisdiction over the Michigan wetland, but only four joined the majority opinion – leading to a 4-4-1 decision with Justice Kennedy and his concurring opinion proposing a “significant nexus” test forming a majority decision.

In the aftermath of these two decisions challenges by the regulated community abound and the federal courts are confused as to how to apply the Rapanos opinion; with a split among the Eleventh, Seventh, and First and Eighth Circuits. These decisions have caused the federal agencies to expend massive resources to address court challenges and to wrestle internally and among each other as to the scope of federal jurisdiction. Countless projects are delayed and by one estimate, more than 40% of facilities (14,800) with current NPDES permits to discharge into small or intermittent streams are arguing that because of the Supreme Court decisions they are no longer subject to limits on their pollution levels. The Department of Justice estimates that in the Eleventh Circuit alone, compliance with Justice Kennedy’s “significant nexus” test would require the federal government to allocate an additional 28,000 employee hours to complete the intense factual and evidentiary analysis required to determine whether there is CWA jurisdiction over projects and facilities.

The massive scope of the CWA and its structure of federal / state partnerships mean that many bodies of water may be left completely unprotected; re-creating the problem that CWA was specifically designed to address. EPA estimates that up to 20 million acres of isolated wetlands are no longer subject to their protection and approximately 60% of stream miles that lead to watersheds may no longer be protected. According to the National Wildlife Federation, these decisions have left surface waters in many western states almost completely unprotected because intermittent streams and related wetlands make up most of their surface water supply. Before Congress, the Arizona Department of Environmental Quality testified that nearly 90% of their water is likely unprotected after these two decisions. In a Texas oil spill case, US v. Chevron, a U.S. District Court ruled that a seasonal creek was not protected by CWA and there was no enforcement jurisdiction to require clean-up even though the creek (and its pollution) flows into larger, navigable waters.

More than just wildlife issues are at stake. Dredging or filling streams, and draining and filling wetlands, can cause or exacerbate flooding downstream with significant public safety and economic implications. According to the non-profit American Rivers a single acre of wetland can store 1 to 1.5 million gallons of flood water and it is estimated that wetlands in the continental United States save over $30 billion in annual flood damage costs. The Sierra Club estimates that no longer protected waters supply drinking water to over 5,000 public water systems, serving over 100 million Americans. Many groups and the EPA recognize that given these recent decisions there may be little that can be done to enforce water quality and integrity provisions of these waters.

The current situation requires Congressional action. Further litigation, although increasing significantly, is unlikely to efficiently or accurately give effect to Congresses original intent. There are two measures currently in Congress. Representative Frank Pallone introduced the Clean Water Protection Act in March 2009 with the primary purpose being the return of some pre-2001 protections with a focus on restricting the incredibly destructive, unsustainable, and polluting practice of mountaintop removal mining. The other and more comprehensive bill is the Clean Water Restoration Act, approved by the Senate Environment and Public Works Committee on June 18, 2009.

The Clean Water Restoration Act (the “Act”) seeks to restore the protections of the CWA to those that existed before 2001. It accomplishes this by clarifying and defining waters of the United States and clearly providing the scope and jurisdiction of the CWA. By detailing CWA jurisdiction, the Act also re-establishes, and provides strong support, for state programs. This is evidenced by the more than 40 states that support the Act. If implemented thoughtfully, the Act can clarify the pre-SWANCC status of water protection. As suggested by the SWANCC case and other litigation matters, there was disagreement and conflict over jurisdiction of the CWA and no one piece of legislation will be a panacea of clarity avoiding all future ambiguity. However, a strong statement of legislative intent and scope can provide the agencies with the necessary legal structure to add more clarity than existed even in 2001. By incorporating the concerns of the regulated community and the federal courts, the agencies can seek to minimize vagueness and uncertainty. The Act presents a real opportunity for federal resources to be spent protecting the nation’s waters instead of litigating about it. This can ultimately benefit all parties involved; should eliminate delay; and should restore water quality, environmental protection, and economic predictability to the management of the country’s water supply.

Congratulations Richard! Your blawgging was discussed on "Blawg Review!"

Congratulations to Richard!(!*&# He is the first Author from this blawg to be discussed on the well-known Blawg Review. Last week's Host has her write-up here. She devotes a full paragraph to Richard's post last week on the Waxman-Markey legislation. (Richard was written-up before Althouse, Co-Op, and ATL!!).

Well done, Richard!

Green Building Provisions in Waxman-Markey

At a recent cocktail party I found myself discussing the environmental and economic benefits of green buildings with someone who owns and manages a small portfolio of commercial properties. As we discussed these benefits and how they were relevant, particularly within the economic realities of today’s commercial property market, I pointed out the connection between our built environment and climate change – more specifically how increasing energy efficiency in buildings can have a tremendous impact on reducing greenhouse gas emissions. As an attorney certified by the U.S. Green Building Council as a LEED Accredited Professional, in my practice I am beginning to have discussions regarding the interconnection between green buildings, sustainability and climate change and see these issues continuing to increase as climate change legislation comes closer to reality.

Globally, buildings are responsible for more carbon dioxide emissions than any other sector, higher than transportation and industry. According to a 2008 Environmental Information Administration report, buildings in the United States account for 72% of electricity consumption and nearly 40% of primary energy use and carbon dioxide emissions. Meanwhile, buildings gaining certification through the Leadership in Energy and Environmental Design (LEED) process can reduce energy use up to 50%, decrease carbon dioxide emissions by 40%, and dramatically reduce water consumption and solid waste. These key statistics combined with the recognition that energy efficiency is one of the cheapest and most important methods of reducing energy consumption and greenhouse gases has led to building efficiency provisions being included in the Waxman-Markey bill, the bill that establishes a plan to address greenhouse gases and combat climate change in the United States.

Currently the House and Senate have two separate versions of the Waxman-Markey bill and both contain green building provisions related to energy efficiency. The House bill, the American Clean Energy and Security Act (ACESA), and the Senate Energy and Natural Resources Committee markup entitled the American Clean Energy Leadership Act (ACELA), establish a national building code addressing energy efficiency. The energy efficiency standards of both versions represent significant energy efficiency improvements over established baseline codes - the 2006 International Energy Conservation Code (“IECC”), a model code already adopted by many state and municipal governments throughout the United States to establish minimum design and construction requirements for energy efficiency, for residential buildings and ASHRAE Standard 90.1-2004 for commercial buildings.

Implementation of a national building code for energy efficiency is somewhat different in each of the two versions of Waxman-Markey, with ACELA representing a lower requirement that is also not as strict as ACESA in its implementation requirements. As provided in ACESA, buildings built to code within one year of enactment would need to meet national energy efficiency targets that achieve 30 percent reduction in energy use as compared to the baseline codes. Buildings would then be required to achieve 50% reduction by 2014 for residential and 2015 for commercial. ACESA adds an additional 5% reduction in energy use for each year thereafter until 2029 for residential buildings and 2030 for commercial buildings.

ACELA’s target reductions are at least 30% by 2010, similar to the House version. However, ACELA does not increase efficiency to at least a 50% reduction in energy use until 2016, and does not include additional, incremental increases in efficiency (though the Secretary of Energy would have discretion to set standards above the minim reduction, provided there is at least 3 years notice to aid in implementation).

Under ACESA, within one year of establishment of the national building energy efficiency code, states must certify that their building codes meet or exceed the national standard or the national code applies. Alternatively, states could certify that local building codes for governments representing 80% of the state’s urban population meet or exceed the national standard. Further, states and/or local governments have two years to demonstrate compliance with ACESA. Compliance is defined as demonstrating that at least 90% of new construction and substantial renovations in the previous year met the code provisions for energy efficiency. If compliance cannot be immediately demonstrated, states have seven years after enactment to exhibit “significant progress” towards compliance. Significant progress is defined as developing a plan for enforcement of the national building code standard, taking steps towards implementing the plan, maintaining funding for enforcement, and showing that at least 50% of new and significant renovations meet or exceed the national code requirements.

The certification and compliance provisions of ACELA, in comparison, are less stringent. Under ACELA, states have two years to certify they are working to update the energy efficiency of their building codes. States also have three years to confirm they have achieved compliance or are making “significant progress” towards compliance. Significant progress under ACELA is achieved if a state is implementing a plan for achieving compliance within 8 years of the enactment. A state may also petition the Secretary of Energy to have their target lowered to the highest achievable level.

The environmental benefits of green buildings are well established and some states and many municipalities are already incorporating green building design and construction techniques into their building codes. Energy efficiency provisions included in both versions of Waxman-Markey signifies that these benefits are entering the mainstream – not just in design and construction of buildings, but in an overhaul of how this country consumes energy. Energy efficiency represents one of the most important, and arguably cheapest, options for reducing greenhouse gas emissions, decreasing dependence on fossil fuels, and combating climate change and Waxman-Markey incorporates this into building codes on a national level.

Introducing Guest Blawger, Richard Kuhn

I am quite happy to introduce Mr. Richard Kuhn, who will be blawging here for the next four weeks on matters of Environmental Law. He is the first blawger here to take-on the subject in fact, and I am particularly excited as he is LEED AP qualified.

Prior to law school, Richard invested several years with the EPA working on matters such as Superfund Redevelopment and Brownfield Reuse. Following law school, his professional experience included matters of telecommunications, energy, and private equity at the law firm Dickstein Shapiro LLP. He is currently working at Amplitude Energy Analytics as a Senior Policy and Renewable Energy and Sustainability Analyst. His professional affiliations include membership and participation with: the Pennsylvania Bar, the Environmental Law Institute, the Delaware Valley Green Building Counsel, the Greater Philadelphia Sustainable Business Network, and Net Impact.

Richard is a graduate of both the College of Mount St. Joseph and the University of Maryland School of Law. He currently lives and practices in Philadelphia, admitted to state Bars in Pennsylvania, Ohio, and Maryland, and admitted to the U.S. District Court of Maryland.

Welcome Richard! Am glad you are able to join us over the next four weeks.