Transcript Iowa Soil and Water Conservation District Commissioners 69th

Iowa Soil and Water
Conservation District Commissioners
69th Annual Conference:
Iowa’s Water Quality
September 1, 2015
1
Contact Information
• Kristine A. Tidgren, Staff Attorney
– [email protected]
– 515-294-6365
• www.calt.iastate.edu
• @CALT_IowaState
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WATER QUALITY ISSUES
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Contentious Subject Objective Information
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CLEAN WATER RULE
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Clean Water Rule
• On March 25, 2014, the Environmental Protection Agency
(EPA) and the U.S. Army Corps of Engineers (Corps)
released a proposed rule defining “waters of the United
States” under the Clean Water Act (CWA).
• Defines “waters of the United States” subject to jurisdiction
of the CWA.
• The Corps issues permits for the discharge of fill material,
and the EPA issues permits for the discharge of pollutants.
• Big deal because permits are expensive and time
consuming. Fines for noncompliance are steep.
– includes fines up to $37,500 per day per violation, in addition to
criminal penalties
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Clean Water Rule
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Clean Water Rule
• Agencies have continually urged that rule
would not expand the scope of waters
“historically protected under the Clean Water
Act.” The rules, they say, just “clarify” which
waters are covered.
• Opponents say Rule vastly expands
jurisdiction of agencies.
• Received more than 1 million comments.
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Clean Water Rule
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Final rule was released May 27, 2015.
Did address some agricultural concerns.
Still much uncertainty as to impact.
Still much controversy.
Agencies’ economic analysis says jurisdiction
will expand 2.84% to 4.65%.
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Clean Water Rule Categories
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Traditional navigable waters
Interstate waters
Territorial seas
Impoundments of jurisdictional waters
Tributaries
Adjacent Waters
Specific Waters Subject to Case-Specific
Significant Nexus Analysis
• Other Waters Subject to Case-Specific Significant
Nexus Determinations
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Tributaries
• The final rule retains the general definition of
tributary offered by the proposed rule.
• .
– natural or man-made waters, wetlands, lakes,
ponds, canals, streams, and ditches if they
contribute flow directly or indirectly to interstate
waters.
– Must be characterized by the presence of the
physical indicators of a bed and banks and an
ordinary high water mark.
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Tributaries
• Bed and Banks and Ordinary High Water Mark
broadly defined.
– Difficult to interpret.
• Flow may be intermittent or ephemeral.
– Could cover creek beds that are usually dry
– Must just flow to the jurisdictional water
eventually.
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Adjacent Waters
• Under proposed rule, “adjacent” was defined to include
“bordering, contiguous or neighboring” waters.
• Final Rule adds a definition for “neighboring,” which includes:
– Waters located within 100 feet of the ordinary high water
mark of navigable waters, interstate waters, territorial
seas, impoundments, or tributaries
– Waters located within the 100-year floodplain of navigable
waters, interstate waters, territorial seas, impoundments,
or tributaries and not more than 1,500 feet from the
ordinary high water mark of such water
– Waters located within 1,500 feet of the high tide line of
navigable waters or a territorial sea and all waters located
within 1,500 feet of the ordinary high water mark of the
Great Lakes
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Adjacent Waters
• Concern over link to tributaries.
• Concern that definitions extend federal
jurisdiction to a “large variety of waters within
floodplains, including lands that are dry most of
the year.”
• Categorical inclusion of “waters” as far as 1,500
feet from dry creek beds (beyond historical
wetlands).
• Concern that definition of neighboring is not a
logical outgrowth of the proposed rule.
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Clean Water Rule Exclusions
• Prior converted cropland
• Artificially irrigated areas that would revert to dry land
should application of water to that area cease
• Artificial, constructed lakes and ponds created in dry
land such as farm and stock watering ponds irrigation
ponds, settling basins, fields flooded for rice growing,
log cleaning ponds, or cooling ponds
• Artificial reflecting pools or swimming pools created in
dry land
• Small ornamental waters created in dry land
• Ditches with ephemeral flow that are not a relocated
tributary or excavated in a tributary
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Clean Water Rule Exclusions
• Ditches with intermittent flow that are not a relocated tributary,
excavated in a tributary, or drain wetlands
• Ditches that do not flow, either directly or through another water,
into a Traditional Navigable Water, Interstate Water, or Territorial
Sea
• Water-filled depressions created in dry land incidental to mining or
construction activity
• Erosional features, including gullies, rills, and other ephemeral
features that do not meet the definition of tributary, non-wetland
swales, and lawfully constructed grassed waterways
• Puddles
• Groundwater, including groundwater drained through subsurface
drainage systems
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Legislative Response
• In May, House voted 261-155 to force agencies to
withdraw the rule and start over.
– H.R. 1732, the Regulatory Integrity Protection Act of 2015.
• Senate Bill S. 1140, the Federal Water Quality
Protection Act
– Hearings held 5/19/2015 in Committee on Environment
and Public Works Subcommittee on Fisheries, Water, and
Wildlife.
– 6/10/2015 Committee ordered that the bill be reported.
– 07/16/2015 Placed on Senate Legislative Calendar under
General Orders.
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Litigation Response
Four lawsuits involving 27 states filed as soon as Rule
was published (June 29). Oklahoma filed later.
• * U.S. District Court for Southern District of Ohio: Ohio and
Michigan
• * U.S. District Court for the District of North Dakota: North Dakota,
Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana,
Nebraska, Nevada, South Dakota and Wyoming. Also, includes New
Mexico Environment Department and New Mexico state engineer
• * U.S. District Court for Southern District of Texas: Texas, Louisiana
and Mississippi
• * U.S. District Court for Southern District of Georgia: Georgia, West
Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah
and Wisconsin
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Litigation
Now 10 similar lawsuits pending.
Although the complaints seek multiple forms of relief,
they generally ask the courts to declare that the rule is
unlawful because it:
1) exceeds the agencies’ statutory authority under the CWA;
2) violates the U.S. Constitution and other federal law;
3) constitutes an arbitrary and capricious “abuse of
discretion.”
Specifically, the states ask the court to vacate the rule and
prevent its enforcement (Effective August 28).
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Big Deal to States
• Under CWA, states are generally the primary administrators of
the permitting process for pollutants and are authorized to
assume responsibility for the dredge-and-fill permitting
process as well.
• In passing CWA, Congress acknowledged the states retained
the primary responsibility and right to prevent, reduce and
eliminate pollution of their water resources.
• Most of the states believe that the new Rule strips them of
much of that authority by granting the federal agencies
jurisdiction over “extremely wide swaths of intrastate waters
and lands.”
• States allege this violates the Tenth Amendment, reserving all
powers not delegated to the federal government, to the
states.
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Litigation
• MDL No. 2663 - IN RE: CLEAN WATER RULE:
DEFINITION OF "WATERS OF THE
UNITED STATES" LITIGATION
• EPA has filed a motion to transfer all actions to
United States District Court for the District of
Columbia (MDL).
• Hearing October 2, 2015.
• Also concern that only appellate court has
jurisdiction to hear complaints. That issue has
been consolidated in Sixth Circuit.
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Preliminary Injunction
• August 28 was the effective date of the Clean
Water Rule.
• United States District Court for North Dakota
issued preliminary injunction late Thursday.
• Judge said that the States are likely to succeed on
their claim because:
– it appears likely that the EPA has violated its
Congressional grant of authority in its promulgation of
the Rule at issue, and
– it appears likely the EPA failed to comply with APA
requirements when promulgating the Rule.
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EPA Says Now In Effect for 37 States
• EPA says injunction applies only to states involved
in that lawsuit: North Dakota, Alaska, Arizona,
Arkansas, Colorado, Idaho, Missouri, Montana,
Nebraska, Nevada, South Dakota, and Wyoming,
and the New Mexico Environment Department.
• Plaintiffs say injunction applies nationwide.
• ND Judge has asked for briefing on topic by 5 pm
today.
• Georgia and West Virginia courts declined
injunction, saying they did not have jurisdiction.
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Outlook
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DES MOINES WATER WORKS
LAWSUIT
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Timeline
• May 29, 2013: Iowa Nutrient Reduction Strategy Unveiled
• March 2014: Governor vetoed supplemental appropriation
for NRS
• March 2014: DMWW began sampling waters from drainage
district outflows
• January 8, 2015: DMWW voted to proceed with lawsuit
• January 9, 2015: 60-day Notice of Intent to Sue under the
Clean Water Act issued
• March 16, 2015: Complaint Filed in United States District
Court for the Northern District of Iowa
• Defendants filed answer on May 21.
• Trial date scheduled for August 8, 2016 in Sioux City, Iowa.
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Federal Complaint
• Filed in United States District Court for the Northern
District of Iowa (Sioux City) on March 16, 2015
• Filed as a citizen suit under the federal Clean Water
Act, 33 U.S.C. § 1251 et seq. and Iowa Code Chapter
455B.111.
• 52 pages long, plus attachments
• Contains 10 “Counts”
• Filed against Sac County, Buena Vista County, and
Calhoun County Supervisors (in their roles as trustees
of drainage districts).
• Filed against 13 separately numbered districts (often
cited as 10 because of joint management)
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Federal Complaint
• Alleges that ag drainage is significant
contributor to hypoxia in Gulf of Mexico.
• Scientific research demonstrates that ag
drainage has caused high levels of nitrate in
Raccoon River water supply.
• Alleges $7,000/day nitrate removal system.
$500,000 in summer of 2013 alone.
• Longest period of continuous operation:
winter of 2014-2015
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Federal and State Water Quality Laws
• Primary claim is that drainage districts are
“point sources” or nitrate pollution that must
comply with federal CWA and NPDES
permitting process (administered by IDNR)
• Asks court to enjoin all discharges not
authorized by permit
• Seeks civil penalties for each day of continuing
violation
30
Point Source
• Alleges that agricultural drainage tiles are
“point sources” of pollution.
• Only “point sources” are subject to NPDES
permit requirements under Clean Water Act.
• CWA offers two ag exemptions from “point
source” definition:
– Ag stormwater
– Irrigation return flows
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Are drain tiles point sources?
• DMWW says ag stormwater exemption does
not apply because drainage from the tile
system is polluted groundwater, not
stormwater runoff.
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Are Drain Tiles Point Sources
• EPA has said “no.”
– Note that final Clean Water Rule specifically
exempts “groundwater, including groundwater
drained through subsurface drainage systems.”
• IDNR has not sought to regulate.
– No permitting system in place for drain tile
• No federal court has declared farm drain tile
“point source.”
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Related Federal Case
• Pacific Coast Federation of Fishermen’s Associations, et al.
v. Glaser, et al., No. CIV S-2:11-2980-KJM-CKD, 2013 U.S.
Dist. LEXIS 132240 (E.D. Cal. Sept. 16, 2013).
– Plaintiff said farm drain tile carried polluted groundwater.
– Court said farm drain tile not “point source.”
– Under irrigation return flows exception: Congress intended to
exempt drainage from farms practicing crop-production
agriculture facilitated by irrigation, rather than focusing on the
components of a particular flow on any day.
– Same reasoning likely applies here: Inseparable interconnection
between groundwater and stormwater that seeps into it.
– Congress intended to exempt drainage from farms practicing
crop-production agriculture from the permitting requirements
of the CWA.
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Other Claims
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Trespass
Negligence
Nuisance
Property Taken Without Due Process
Injunctive Relief
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Specific Assertions
• Conduct of the drainage districts together
with the conduct of similarly situated districts
contributes to a single, indivisible harm
(jointly and severally liable).
• Harm to DMWW was a reasonable
foreseeable consequence of the districts’
“normal and intended operation.”
• Drainage tiles are a nuisance in their “normal
and intended operation.”
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Can DMWW Sue Districts?
• Iowa case law is clear: drainage districts are not
subject to lawsuit for tort money damages under
any state of facts. Fisher v. Dallas County, 369
N.W.2d 426 (Iowa 1985).
• Districts have only those powers granted by
legislation (Iowa Code 468) and Iowa Constitution
(special and limited powers).
– The drainage of surface waters from agricultural lands
and all other lands or the protection of such lands
from overflow shall be presumed to be a public
benefit and conducive to the public health,
convenience, and welfare.
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Powers Granted to Districts
• The board of supervisors of any county shall have
jurisdiction, power, and authority at any regular,
special, or adjourned session, to establish a
drainage district or districts, and to locate and
establish levees, and cause to be constructed as
hereinafter provided any levee, ditch, drain, or
watercourse, or settling basins in connection
therewith, or to straighten, widen, deepen, or
change any natural watercourse, in such county,
whenever the same will be of public utility or
conducive to the public health, convenience or
welfare.
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Can DMWW Sue Districts?
• Only have power to create and maintain drainage
system.
– Eminent domain (and pay damages)
– Assessments
• A drainage district is “merely an area of land, not
an entity subject to judgment for tort damages.”
• Can only be sued to do what they are required by
law to do: create and maintain. (i.e. must fix
broken tile)
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Can DMWW Sue Districts?
• DMWW acknowledges this law, but says it
violates equal protection and due process.
• DMWW calls it immunity.
• Iowa Supreme Court says drainage districts
are not municipal corporations.
• They only have the powers the statute gives
them.
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Can DMWW Sue Districts?
• This suit asks for abatement of nitrate or
permit:
– What power would district have to do this?
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power to regulate land use
power to dictate farming practices
authority to require buffer zones, etc.
power to seek and obtain permit
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Final Thoughts
• Drainage districts are “areas of land.” All activities of
drainage districts are funded by owners of that land.
Bottom line: This is really an action against the owners.
– Pollution exclusions prevent insurance coverage
• This suit involves districts in three counties but alleges
claims against all similarly situated districts…joint and
several liability. Suggests impleader may be required.
• Frustrated with lack of legislative or administrative action,
so looking to the third branch of government. “It is because
the Governor and his administration have failed to act.”
• Lawsuit will demand significant time, attention, and
resources. DMWW just authorized $700,000 for legal fees.
• Potential for wide-ranging impact.
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Thank You
[email protected]
www.calt.iastate.edu
@CALT_IowaState