Clean Water Act 2011-2012 Update OSB Environment & Natural Resources Section Annual CLE October 5, 2012 Laura Maffei, R.G. Schwabe Williamson & Wyatt Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 1
Presentation Outline Update to last year s presentation US S. Ct. Oregon Rulemaking New 9 th Circuit Oregon Administrative Actions Oregon Temperature Standard Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 2
Updates US Supreme Court Sackett v. EPA Pre-enforcement review is not precluded by the Clean Water Act Compliance order is a final agency action Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 3
Updates US Supreme Court Decker v. NEDC (forest road case) S. Ct. accepted case in June 2012, petitioners and amicus briefs submitted September 2012, oral argument December 3, 2012 Issues Are stormwater discharges from forest roads industrial activity? Can a rule be challenged/invalidated in a citizen s suit? Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 4
Updates US Supreme Court Decker v. NEDC (con t) Rule Revision by EPA Proposed revision to 40 CFR 122.26 to explicitly exclude silvicultural activities Comments due October 4, 2012 Does rule revision address 9 th Circuit s ruling? Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 5
Updates Oregon Rulemaking Oregon Toxics Water Quality Standard EPA Approval October 17, 2011 Draft TMDL IMD revision (June 2011) Final Variance IMD (February 2012) Aquatic Life BiOp (August 2012) Jeopardy determination for several species RPA for Copper, Ammonia, Cadmium, Aluminum, Pesticide General Permit Issued October 2011 Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 6
Ninth Circuit Snoqualmie Valley Preservation Alliance v. US Army Corps of Engineers & Puget Sound Energy Section 404 review associated with FERC relicensing of hydro plant at Snoqualmie Falls in WA Corps Nationwide Permits: Corps approval of dam replacement under NWP 3 upheld NWPs do not need separate Corps approval if not required by the permit Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 7
Oregon Administrative Actions Pesticide Petition for Rulemaking Petition to EQC for rule revision Focus on nonpoint sources that discharge pesticides Klamath TMDL Challenge Petitions for reconsideration TMDL revision in progress Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 8
OR Temp Std: How did we get here? Timeline: 1996: OR s Triennial Review 1999: EPA approval/disapproval of std. 2001: Northwest Environmental Advocates (NWEA) sues EPA 2003: NWEA v. EPA (NWEA I) decision 2003: Regional Temperature Guidance 2004: Oregon adopts new temperature std 2005: NWEA challenges new standard (NWEA II) 2012: Judge rules in NWEA II Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 9
NWEA II in a Nutshell Clean Water Act allegations: Challenge to EPA s actions Should have disapproved Should have reviewed Oregon s standard illegal under the CWA Oregon s standard not supported by the Administrative Record Endangered Species Act allegations NMFS s & FWS s BiOps no jeopardy determinations not supported by the Record Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 10
NWEA II What did the Judge Decide? Non-point sources: EPA must conduct review Broad application to provisions that have the potential to interfere with attainment of WQSs Numeric Biological Criteria: Upheld: supported by the Administrative Record But, see ESA rulings Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 11
NWEA II What did the Judge Decide? Natural Conditions Criteria Illegal under the Clean Water Act s federal regulations (Technically, it does not meet the requirements of the CWA and EPA should have disapproved it) HUA not discussed Use Designations: Upheld: supported by the Administrative Record Antidegradation Policy and Implementation Plan: Approval of Tier 1 provision upheld EPA has a duty to review the Antideg IMD and approve or disapprove Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 12
NWEA II What did the Judge Decide? NMFS s No Jeopardy determination arbitrary and capricious: NMFS did not analyze impact of WQSs on each ESU NMFS did not provide a thorough recovery analysis for each ESU NMFS did not adequately evaluate the environmental baseline NMFS did not fully evaluate cumulative impacts FWS s No Jeopardy determination for bull trout numeric criteria arbitrary and capricious Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 13
NWEA II What s Next? Judge Acosta has not issued a judgment in the case Appeal period does not start until judgment is entered The Judge asked the Parties to confer and propose remedies Next Filing = October 19, 2012 Proposed stipulated order on remedies for which the parties have reached agreement Briefing schedule for unresolved remedy issues Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 14
Oregon Temperature TMDLs 60-day notice by NWEA on September 21, 2012 Alleges EPA illegally approved a number of temperature TMDLs developed by DEQ between 2006 and 2010 Alleges EPA required to either approve or disapprove the Klamath/Lost River temperature TMDL Alleges EPA failed to conduct Section 7 consultation under the ESA when it approved the temperature TMDLs NWEA v. EPA filed September 27, 2012 Alleges EPA s approval of Oregon s temperature TMDLs was arbitrary and capricious (APA claims) Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 15
Contact Information LAURA MAFFEI, R.G. Attorney SCHWABE, WILLIAMSON & WYATT 1211 SW 5th Ave., Ste. 1900 Portland, OR 97204 Direct: 503-796-2953 Cell: 503-737-4476 Email: lmaffei@schwabe.com Legal advisors for the future of your business Bend, OR Portland, OR Salem, OR Seattle, WA Vancouver, WA 16