<h4><em>Under review</em></h4>
<p>Water pollution in the United States is <a href="http://www.epa.gov/lawsregs/topics/water.html&quot; target="_blank">regulated</a> through a number of statutes and regulations and overseen by a combination of federal agencies and states. The <a href="#clean-water-act">Federal Water Pollution Control Act</a> (now commonly known as the Clean Water Act), first passed in 1948, was substantially amended in 1972, 1977, and 1987. It puts forward a system to regulate direct and indirect discharges of pollutants in the “waters of the United States” and <a href="#" title="CWA§20101(a), 33 U.S.C. 20 §201251(a).">intends to</a> “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The <a href="#safe-drinking-water-act">Safe Drinking Water Act</a> regulates public water systems and sets national drinking water regulations. <a href="#water-use">Water use</a> —the supply of water, its ownership and allocation among various users—is largely governed by the states.</p>
<p>Listen to and download materials from the ELI Summer School Seminar on <a href="http://www.eli.org/events/eli-summer-school-series-2014-clean-water">Cl… Water</a> for a general overview of how water regulations work. For a discussion on current topics in the Clean Water Act, listen to the <a href="http://www.law.gwu.edu/News/newsstories/Pages/TheCleanWaterActat40.aspx…; target="_blank">Clean Water Act at 40</a> seminar co-sponsored with George Washington Law School.</p>
<p>For a thorough overview of the Clean Water Act, see Ann Powers, <a href="http://www.eli.org/eli-press-books/introduction-to-environmental-law%3A… to Environmental Law: Cases &amp; Materials on Water Pollution Control</a>.</p>
<h3><a name="clean-water-act"></a>Clean Water Act</h3>
<p>The <a href="http://elr.info/legislative/federal-laws/federal-water-pollution-contro… Water Act</a> was substantially amended in 1972 to create the regulatory system that is known today. It regulates the discharge of pollutants through two permitting systems, the National Pollutant Discharge Elimination System (<a href="#npdes-program">NPDES</a>) program and the <a href="#wetlands">Section 404</a> wetlands program, through effluent limitations applicable to types of direct discharges to water, and by setting standards for water quality known as <a href="#water-quality-standards">water quality standards</a> and total maximum daily loads.</p>
<p>Over the years, there has been a question over the scope of federal <a href="http://www.eli.org/freshwater-ocean/clean-water-act-jurisdiction">juris…; under the Clean Water Act. In <em><a href="http://elr.info/litigation/%5Bfield_article_volume-raw%5D/20161/solid-w… Waste Agency of Northern Cook County v. Corps of Engineers</a> </em>and <em><a href="http://elr.info/litigation/36/20116/rapanos-v-united-states">Rapanos v. United States</a></em>, the Supreme Court found that not all wetlands and waters in the United States fall under the jurisdiction of the Clean Water Act, resulting in <a href="http://www.eli.org/freshwater-ocean/clean-water-act-jurisdiction">signi… uncertainly</a> as to just how far federal power extends over water pollution.</p>
<p>For a discussion of the uncertainty around the scope of federal water jurisdiction, download the ELI Research Report <a href="http://www.eli.org/research-report/clean-water-act-jurisdictional-handb… Water Act Jurisdictional Handbook, 2d ed.</a> ELI members may listen to and download materials from the ELI Seminar <a href="http://www.eli.org/events/assessing-jurisdiction-under-new-clean-water-… Jurisdiction under the New Clean Water Act Guidance</a>. See also the ELR article, Jon Devine, <a href="http://elr.info/news-analysis/41/11118/intended-scope-clean-water-act-j… Intended Scope of Clean Water Act Jurisdiction</a>.</p>
<h5><a name="water-quality-standards"></a>Water Quality Standards</h5>
<p>The Clean Water Act requires that <a href="http://water.epa.gov/scitech/swguidance/standards/&quot; target="_blank">water quality standards</a> be established by EPA or states, territories or tribes authorized by EPA to implement the program. To determine what the water quality standards should be, the waterbody must be given a “<a href="http://water.epa.gov/scitech/swguidance/standards/uses.cfm&quot; target="_blank">designated use</a>.” This depends on how the public uses the waterbody, such as drinking water, water-based recreation, or fishing. <a href="http://water.epa.gov/scitech/swguidance/standards/crit.cfm&quot; target="_blank">Water quality criteria</a>, which can be <a href="#" title="Numeric criteria require that the water be free of a certain level of pollutants.">numeric</a> or <a href="#" title="Narrative criteria require the water to be “free from” certain pollutants.">narrative</a><a href="#_msocom_9"></a>, are then assigned to protect that designated use.</p>
<p>Authorized states, territories and tribes monitor waterbodies to determine whether they meet the water quality standards. If the WQS are met, then <a href="http://water.epa.gov/scitech/swguidance/standards/adeg.cfm&quot; target="_blank">antidegradation</a> policies are employed so that the water quality is kept at an acceptable level. If the WQS are not met, the most common tool to use is to establish <a href="http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/index.cfm&quot; target="_blank">total maximum daily loads</a> (TMDL), which are the pollutant load the water can withstand and be in compliance with the water quality standards.</p>
<p>For a thorough discussion of the TMDL program, see Oliver Houck, <a href="http://www.eli.org/eli-press-books/clean-water-act-tmdl-program%253A-la… Water Act TMDL Program: Law, Policy, and Implementation</a> and <a href="http://elr.info/news-analysis/41/10208/clean-water-act-returns-again-pa… Clean Water Act Returns (Again): Part I, TMDLs and the Chesapeake Bay</a>. See materials from the ELI-lead State TMDL conferences <a href="http://www.eli.org/freshwater-ocean/state-tmdl-program-resource-center"…;
<h5><a name="npdes-program"></a>NPDES Program</h5>
<p>Section 402 of CWA creates the National Pollution Discharge Elimination System (NPDES) program, which <a href="http://cfpub.epa.gov/npdes/home.cfm?program_id=45&quot; target="_blank">authorizes</a> permits for point sources that are going to discharge into surface waters. A “<a href="#" title="33 U.S.C. §502(13).">point source</a>” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” The permit puts a limit on the amount that a point source may discharge. Most states and some territories and tribes have been <a href="http://cfpub.epa.gov/npdes/statestribes/astatus.cfm&quot; target="_blank">authorized</a> by EPA to issue NPDES permits; EPA remains the permitting authority in non-authorized states.</p>
<p>For a discussion of the requirement to get an NPDES permit for application of pesticides, ELI members may listen to the ELI Seminar <a href="http://www.eli.org/events/clean-water-act-endangered-species-act-and-fe… Clean Water Act, the Endangered Species Act, and the Federal Insecticide, Fungicide, and Rodenticide Act Collide, But With What Result?</a></p>
<p>The NPDES program is structured to either provide <a href="http://cfpub.epa.gov/npdes/permitissuance/genpermits.cfm&quot; target="_blank">permits</a> by developing a unique permit for each discharger (individual permits) or by developing a single permit that covers a large number of similar dischargers (general permits). The individual permit sets specific limits on the amount of pollutants that can be discharged from the facility. The limits can be either <a href="http://cfpub.epa.gov/npdes/generalissues/watertechnology.cfm&quot; target="_blank">technology-based or water quality-based</a>.</p>
<p>The effluent limits on pollutants are performance standards, meaning that the discharging facility can use a combination of processes to meet the permit limits. EPA also sets <a href="http://cfpub.epa.gov/npdes/techbasedpermitting/effguide.cfm&quot; target="_blank">effluent limitation standards</a> that apply to types of industrial discharge sources that are then applied in individual permits.</p>
<p>For an ELR article on effluent limitation standards, see Melissa Thorme, “<a href="http://elr.info/news-analysis/31/10322/antibacksliding-understanding-on… Understanding One of the Most Misunderstood Provision in the Clean Water Act</a>.</p>
<p>The NPDES program also covers discharges of <a href="http://cfpub.epa.gov/npdes/home.cfm?program_id=6&quot; target="_blank">stormwater</a> from construction or industrial activity and from municipal separate storm sewers. Stormwater is rain or snowmelt that flows over the ground or impervious surfaces, like roads and parking lots, that may collect contaminants and debris harmful to water quality if discharged. Most stormwater <a href="http://cfpub.epa.gov/npdes/stormwater/swbasicinfo.cfm&quot; target="_blank">permits</a> require best management plans and occasional testing.</p>
<p>EPA also allows <a href="http://cfpub.epa.gov/npdes/wqbasedpermitting/wspermitting.cfm&quot; target="_blank">watershed-based permitting</a>, in which NPDES permits are issued in order to achieve <a href="#" title="“A watershed is the area of land where all of the water that is under it or drains off of it goes into the same place.” See water.epa.gov/type/watersheds/whatis.cfm.">watershed-wide</a> water quality standards. Such programs may incorporate <a href="http://water.epa.gov/type/watersheds/trading.cfm&quot; target="_blank">water quality trading</a>, where various sources trade the ability to pollute because some may be able to reduce discharges more cost-effectively.</p>
<p>Find resources and further information at <a href="http://www.eli.org/freshwater-ocean/background-information-water-qualit… Information on Water Quality Trading and Wetland Mitigation Banking</a>.</p>
<p>Facilities are in violation of the CWA if they discharge without a permit or discharge more than allowed by their permit. Facilities are also in violation if they do not comply with extensive <a href="#" title="EPA has an online presentation discussing NPDES monitoring and reporting requirements. See cfpub.epa.gov/npdes/outreach/training/monitoringandreporting.cfm.">monitoring and reporting</a> requirements. States, territories, and tribes that are delegated authority to oversee the NPDES program are responsible for <a href="http://www.epa.gov/compliance/monitoring/programs/cwa/npdes.html&quot; target="_blank">enforcing</a> the NPDES permits. EPA will take action if necessary, but must first give notice to the authorized agency if it believes enforcement is necessary and must give the agency time to act. Enforcement actions include injunctions, fines, imprisonment if criminal violation, and supplemental environmental projects. <a href="http://www.epa.gov/environmentaljustice/resources/reports/annual-projec…; target="_blank">Citizens</a> can bring a <a href="http://www.eli.org/keywords/governance#citizen-suits">suit</a><a href="#_msocom_13"> </a>against a violator if an agency is not pursuing a violation, but they must give 60-day notice to EPA and the authorized agency so that they have time to act against the violator instead.</p>
<h5>Nonpoint Source Program</h5>
<p>Because the NDPES program largely regulates only direct discharges from point sources, section 319, added in 1987, focuses on <a href="http://www.epa.gov/owow_keep/NPS/whatis.html&quot; target="_blank">nonpoint sources</a>, which are anything that is not a point source. Common nonpoint sources are runoff from precipitation over and through the ground and from atmospheric deposition. <a href="#" title="CWA §319.">Section 319</a> implements a <a href="http://www.epa.gov/owow_keep/NPS/cwact.html&quot; target="_blank">federal grant program</a> that gives money to <a href="http://www.epa.gov/owow_keep/NPS/where.html&quot; target="_blank">states, territories and tribes</a> for the development and implementation of nonpoint source management programs. Each entity receiving funding must create and update a nonpoint source management plan and must identify waters that are impaired or threatened by nonpoint sources, develop goals for cleaning those waters and identify the best management practices that will be used to clean up the waters.</p>
<p>For a discussion of ways to address nonpoint source pollution, download the ELI Research Report <a href="http://www.eli.org/research-report/enforceable-state-mechanisms-control… State Mechanisms for the Control of Nonpoint Source Water Pollution</a> and investigate the various ELI research materials on nonpoint source issues <a href="http://www.eli.org/freshwater-ocean/non-point-source-pollution-research…;. See also John Carter, <a href="http://elr.info/news-analysis/33/10876/control-nonpoint-pollution-throu… of Nonpoint Pollution Through Citizen Enforcement of Unpermitted Stormwater Discharges: A Proposal for Bottom-Up Litigation</a>.</p>
<h5><a name="wetlands"></a>Wetlands</h5>
<p>The <a href="#" title="CWA§ 404, 33 U.S.C. §201344.">Section 404</a> program <a href="http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/index.cfm&quot; target="_blank">regulates</a> the placement of dredged or fill material into the “waters of the United States,” which includes <a href="#" title="Federal regulations define wetlands as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil.” 40 C.F.R. 232.2(r).">wetlands</a>. The 404 permit program is administered jointly by EPA and <a href="http://www.usace.army.mil/&quot; target="_blank">U.S. Army Corps of Engineers</a>. The Corps handles the issuance of the <a href="http://www.usace.army.mil/cecw/pages/reg_permit.aspx">permits</a&gt; and determines whether the area in question is a wetland subject to federal jurisdiction. The Corps also has primary responsibility for ensuring compliance. EPA issues <a href="http://water.epa.gov/lawsregs/lawsguidance/cwa/wetlands/index.cfm&quot; target="_blank">guidelines and policies</a>, and can veto a Corps-issued permit. EPA is responsible for deciding whether states, territories, or tribes should be <a href="http://water.epa.gov/type/wetlands/outreach/fact23.cfm&quot; target="_blank">authorized</a> to <a href="http://www.eli.org/keywords/governance#role-of-states-and-tribes">imple… href="#_msocom_17"> </a>the 404 program.</p>
<p>ELI has an extensive <a href="http://www.eli.org/freshwater-ocean/wetlands">wetlands program</a> with many reports and resources to draw upon. The <a href="http://www.wetlandsnewsletter.org">National Wetlands Newsletter</a> provides in-depth policy and science coverage of wetlands issues as well. For a general overview of wetlands issues, see Margaret Strand, <a href="http://www.eli.org/eli-press-books/wetlands-deskbook-4th-edition">Wetla… Deskbook, 3<sup>rd</sup> ed</a>.</p>
<h3><a name="safe-drinking-water-act"></a>Safe Drinking Water Act</h3>
<p>The <a href="http://elr.info/legislative/federal-laws/safe-drinking-water-act">Safe Drinking Water Act</a> seeks to maintain the quality of public drinking water supplies largely by <a href="http://water.epa.gov/lawsregs/rulesregs/sdwa/index.cfm&quot; target="_blank">regulating</a> <a href="#" title="A public water system is “a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals.” 42 U.S.C. 300f(4)(A). See water.epa.gov/infrastructure/drinkingwater/pws/pwsdef2.cfm.">public water systems</a>. EPA publishes <a href="http://water.epa.gov/lawsregs/rulesregs/regulatingcontaminants/basicinf…; target="_blank">health-based levels</a> of contaminants that can appear in drinking water. The <a href="#" title="SDWA §1412(b)(1)(A); 42 U.S.C. §20300g-1(b)(1)(A).">maximum contaminant level goal</a><a href="#_msocom_20"> </a>(MCLG) is the level at which there are no known or anticipated adverse health effects on the health of persons and that allows an adequate margin of safety. The <a href="http://water.epa.gov/drink/contaminants/index.cfm&quot; target="_blank">national primary drinking water regulations</a> specify the <a href="#" title="SDWA §201412(b)(4)(A), 42 U.S.C. §20300g-1(b)(4)(A).">maximum contaminant level</a> (MCL) that is as close as feasible to the MCLG. The MCL does not specify a particular treatment technique, but EPA may, in lieu of setting an MCL, require the use of a treatment technique. Like most other environmental programs, EPA may give authority to states, territories and tribes to adopt and enforce these drinking water standards.</p>
<p>For an overview of the Safe Drinking Water Act and its 1986 revisions, see Kenneth Gray, <a href="http://elr.info/news-analysis/16/10338/safe-drinking-water-act-amendmen… Safe Drinking Water Act Amendments of 1986: Now a Tougher Act to Follow</a> and Steven Koorse, <a href="http://elr.info/news-analysis/18/10422/new-safe-drinking-water-act-liab… Safe Drinking Water Act Liability for Corporate America</a>.</p>
<p>Public water systems must <a href="#" title="SDWA §201414(c)(4), 42 U.S.C. §%20300g-3(c)(4).">notify</a> their customers if they do not comply with any applicable MCLs, if they fail to monitor, if they have a variance exemption, or if they fail to comply with any exemption. The public water system must <a href="#" title="SDWA §201414(c)(4), 42 U.S.C. §20300g-3(c)(4).">give</a> each customer an annual report that includes the quality of the water and includes information on any violations or contaminants in the water.</p>
<p>The Safe Drinking Water Act also regulates the <a href="http://water.epa.gov/type/groundwater/uic/index.cfm&quot; target="_blank">underground injection</a> of substances for storage and disposal, including the subsurface <a href="http://www.epa.gov/climatechange/ccs/index.html&quot; target="_blank">injection of the greenhouse gas carbon dioxide</a> for storage, enhancing oil production, or other purposes. The underground injection control program <a href="http://water.epa.gov/type/groundwater/uic/regulations.cfm&quot; target="_blank">regulations</a> mainly seek to prevent the contamination of underground drinking water supplies.</p>
<h3><a name="water-use"></a>Water Use</h3>
<p>Listen to and download materials from the ELI seminar <a href="http://www.eli.org/events/uncertainty-and-risk-securing-adequate-water-… and Risk in Securing Adequate Water Supplies: Challenges and Opportunities</a>. See Hunton &amp; Williams’ <a href="http://www.waterpolicyinstitute.com/&quot; target="_blank">Water Policy Institute</a> page for a helpful list of links and many discussions of current issues.</p>
<p>The legal framework for the provision of water, its ownership, its allocation to various users, and its use are different from water pollution law. In general, water ownership and use are governed by <a href="#" title="A good explanation of water law and settling disputes between states is provided here masglp.olemiss.edu/acf.htm. Washington State’s Department of Ecology has a good page describing that state’s water use laws and regulations.">state law</a>, which largely grew from judge-made <a href="http://www.eli.org/keywords/governance#evolution-environmental-law-poli… law</a>. Issues around water quantity between states are largely managed by <a href="#" title="Such compacts need congressional approval. For a list of such compacts, see http://www.fws.gov/laws/lawsdigest/compact.html.">inter-state compacts</a> and river management boards set up across states. The federal government mostly serves a referee role for allocation between and disputes among states.</p>
<p>For a discussion of how the prior appropriation doctrine can function with modern water demands, download the ELI Research Report, <a href="http://www.eli.org/research-report/western-water-21st-century-policies-… Water in the 21st Century Policies and Programs that Stretch Supplies in a Prior Appropriation World</a>. See also Robert Abrams, <a href="http://elr.info/news-analysis/42/10433/water-climate-change-and-law-int…, Climate Change, and the Law: Integrated Eastern States Water Management Founded on a New Cooperative Federalism</a>.</p>
<p>Surface water ownership law follows various <a href="#" title="For definitions of various terms used in water use law, see http://www.fws.gov/mountain-prairie/wtr/water_rights_def.htm.">models</… href="#_msocom_27"></a>, predominantly the <a href="http://www.law.cornell.edu/wex/riparian_doctrine&quot; target="_blank">riparian doctrine</a> in the eastern United States and the <a href="http://www.law.cornell.edu/wex/prior_appropriation_doctrine&quot; target="_blank">prior appropriation doctrine</a> in the western United States. Riparian rights generally allow a landowner whose land abuts a waterbody to use that water. This system often is used in areas where water is plentiful. The prior appropriation doctrine, in contrast, allows the first user of the water who puts it to beneficial use to have ownership of that water right, a system adopted in drier areas. Many states’ laws combine elements of both doctrines in practice. <a href="http://en.wikipedia.org/wiki/United_States_groundwater_law&quot; target="_blank">Ground water law</a> also generally follows these doctrines and is implemented on a statewide basis.</p>

ELI Report
Laura Frederick - Environmental Law Institute
Environmental Law Institute
Current Issue

Now in their 29th year, ELI’s National Wetland Awards are presented to individuals who have excelled in wetlands protection, restoration, and education.

“These men and women are on the forefront of protecting wetland resources in the face of development and climate impacts,” said ELI President Scott Fulton. “Through their dedication and achievements, they inspire wetlands protection across the country and worldwide.”

The ceremony kicked off with a keynote speech from Leah Krider, senior counsel, environment, health, and safety, at the Boeing Company, who described its expansion and mitigation efforts in South Carolina.

“Conservation and economic growth are not mutually exclusive. Conservation is not only good for the environment, for the communities. It makes good economic sense,” Krider said.

Awardees were recognized for their individual achievements in six categories:

Landowner Stewardship: For 28 years, William and Jeanette Gibbons and their family have devoted their time and financial resources to restoring degraded land and water on their property at Cedar Breaks Ranch in Brookings, South Dakota. They developed their property into a showcase of how various conservation practices can be seamlessly and profitably integrated into a working farm. They also use their land to further research and education on natural resource management approaches.

Science Research: Kerstin Wasson is the research coordinator at the Elkhorn Slough National Estuarine Research Reserve in Watsonville, California. She engages citizen scientists in collecting water quality data and counting migratory shorebirds. She launched an ecosystem-based management initiative that brought together stakeholders to develop a shared vision for restoration of the estuary’s wetlands. Kerstin has led collaborative projects across the network of National Estuarine Reserves.

Education and Outreach: Mark D. Sees has served as the manager of Florida’s Orlando Wetlands Park for over 20 years. In addition to managing the wetland treatment system, he has evolved the park into a center of public recreation and wetlands education and research. He initiated the annual Orlando Wetlands Festival to provide 5,000 local children and adults an opportunity to tour the wetlands to understand their ecological importance.

State, Tribal, and Local Program Development: Maryann M. McGraw, wetland program coordinator for the New Mexico Environment Department, initiated the state’s wetlands program and continues to provide vision and guidance to ensure the program reflects the importance of wetlands and riparian areas in the arid west. She developed rapid assessment methods for montane and lowland riverine wetlands, confined valleys, and playas of the Southern High Plains, which provides data needed to underscore state wetlands water quality standards and anti-degradation policies.

Conservation and Restoration: Latimore M. Smith is a retired restoration ecologist with The Nature Conservancy in Covington, Louisiana. A botanist and plant community ecologist, he spent over 15 years with the Louisiana Natural Heritage Program, documenting the ecology of habitats across the state. He was the first to formally describe a variety of previously undocumented natural wetland communities, including rare longleaf pine flatwood wetlands.

Wetlands Business Leader: Roy R. “Robin” Lewis III of Salt Springs, Florida, was the winner of this new award. For more than four decades, Lewis has been at the vanguard of wetland restoration and creation, designing or assisting in the design of over 200 projects around the world. He founded two environmental consulting companies and is president of Coastal Resource Group, Inc., a nonprofit educational and scientific organization. He also works with the Association of State Wetland Managers to provide education opportunities and resources.

Ramsar Convention event presages 13th conference of parties

Before the 29th Annual National Wetlands Awards ceremony — see facing page — ELI hosted a panel discussion on the Ramsar Convention on Wetlands of International Importance.

The treaty calls attention to the rate at which wetland habitats are disappearing, in part due to a lack of understanding of their importance. The convention provides an international framework for action and cooperation to promote “the conservation and wise use of all wetlands through local and national actions and international cooperation.”

The United States became a party to the convention in 1986 and has since designated 38 sites covering 4.5 million acres nationwide.

Attendees of the program, An Introduction to the Ramsar Convention, learned about efforts at the local, national, and international level to implement the accord.

Panelists included Cade London, Fish and Wildlife Service; Maryann M. McGraw, New Mexico Environment Department; and Barbara De Rosa-Joynt of the State Department.

After receiving an overview of the evolution of the convention and insight into the international community, the audience heard about the primary goals of Ramsar at the domestic level.

The convention covers a broad range of ecosystems considered as natural and man-made. The final presentation focused on one Ramsar site in New Mexico. The Roswell Artesian Wetlands is a desert ecosystem made up of a complex of springs, lakes, sinkholes and saline wetlands situated along the Pecos River. These wetlands support over 360 species of waterfowl as well as other animals and plants, including a number of rare, endemic, and endangered species.

As panelist De Rosa-Joynt explained, wetlands knowledge and science is consistently evolving and informing the future goals of the convention.

The 13th conference of the parties will be held this fall in Dubai. Themed “Wetlands for a Sustainable Urban Future,” the conference is expected to draw over 1,200 representatives from the parties. On the agenda are climate change; agriculture; so-called “blue carbon”; and polar wetlands.

Aiding China in coming to grips with country’s excessive pollution

In March, ELI, with the assistance of the Pillsbury law firm, prepared a report, Managing Environmental Protection and Economic Considerations Under Select U.S. Environmental Laws and Permitting Systems, for China’s Ministry of Environmental Protection. The study explains how the United States has balanced economic considerations and environmental protection through the Clean Air Act, Clean Water Act, the Resource Conservation and Recovery Act, and the Endangered Species Act.

ELI and the China Environmental Protection Foundation then held capacity building workshops at the Tianjin University Law School on environmental public interest litigation. While the focus was on participation of Chinese NGOs, other entities involved included Supreme People’s Court judges and prosecutors from the Supreme People’s Procuratorate.

Reforms to China’s Environmental Protection Law establish authorities for the government and the public alike, with the added ability of authorized civil society groups to file citizen suits. However, the success of these improved systems relies on a multifaceted system of accountability, with both the government and civil society playing roles. ELI is providing technical assistance, capacity building, and legal training to NGOs that have been approved by the civil authorities to engage in civil environmental litigation.

ELI staff attorney Zhuoshi Liu has been a leader in this public interest environmental litigation capacity building work, and in developing and hosting the workshops. A China native, Liu brings a wealth of knowledge to ELI’s China Program and the Institute as a whole.

Participants also benefitted from the expertise of ELI faculty from the Institute’s extended community.

Jeff Gracer of Sive, Paget & Riesel P.C., a member of ELI’s Leadership Council, traveled to China for January’s conference. The conferences included presentations from Leadership Council members Robert (Buzz) Hines of Farella Braun + Martel LLP, and former ELI President Leslie Carothers as well as longtime member Dan Guttman of New York University Shanghai.

Field Notes: ELI on the scene in flooded Ohio, polluted Gulf

In summer 2017, ELI Senior Science and Policy Analyst, Rebecca Kihslinger, and ELI’s partners at the University of North Carolina’s Institute for the Environment, traveled to Ottawa, Ohio, where state and village officials and residents and business owners came together to brainstorm on uses for flood buyout properties during the Making the Most of Ottawa’s Floodplain Buyouts Workshop.

Ottawa had purchased 55 floodplain properties since 2008, totaling 25 acres, using funding from government grants, Hazard Mitigation Grants, and Hazard Mitigation Assistance grants. Recently, the Federal Emergency Management Agency approved the first of three major projects planned to utilize these buyout properties by the Greenspace Development Committee. A once vacant lot will become Rex Center Park.

In continuation of ELI’s work in the Gulf of Mexico since the BP oil spill eight years ago, ELI traveled to Gulfport, Mississippi, to encourage public engagement efforts. To help members of the public better understand how to get involved, ELI, along with Environmental Management Services, Mississippi Commercial Fisheries United, and Public Lab, co-sponsored an event on Engaging in the Gulf Restoration Processes: How the Public Can Help Shape Restoration. The goal of this event was to provide participants with tools and information that they can use to more effectively take part in and understand the restoration and recovery efforts.

On April 16, ELI and co-sponsors convened a panel of environmental justice leaders, including keynote speaker Rep. Raul Ruiz, co-author of the proposed Environmental Justice Act of 2017.

Continuing discussions from a panel held last November, speakers explored climate justice, siting issues, ramifications of extreme weather events on marginalized communities, and ways in which practitioners can empower and support environmental justice communities through their own work.

A networking reception followed to further conversation and discussion of key topics at the forefront of environmental justice. On display was the newly released book from ELI Press Environmental Justice: Legal Theory and Practice, 4th Edition.

After announcing his $1.5 trillion infrastructure plan, President Trump has sought to streamline and expedite the environmental review and permitting process for projects under multiple environmental laws, ranging from the National Environmental Policy Act, Endangered Species Act, and Migratory Bird Treaty Act to the Clean Air and Clean Water acts.

Trump submitted to Congress an ambitious legislative “roadmap,” which proposes a number of far-reaching changes to the environmental review framework with a goal of shortening the process for approving projects to two years or less.

To examine these developments ELI and Arnold & Porter cohosted a conference entitled Infrastructure Review and Permitting: Is Change in the Wind? High-level government officials, practitioners representing industry and environmental NGOs, and congressional representatives were present to address the wide range of environmental permitting and review challenges across sectors, including transportation, energy, transmission, renewables, and more.

Panelists discussed the role of policy and litigation in shaping these developments over the next years and beyond.

Latest flock of National Wetlands Awards winners.

Going Against the Flow
Talia Ogliore - Washington University in St. Louis
Washington University in St. Louis
Current Issue
Going Against the Flow

The Missouri River is the longest and, by some accounts, most heavily engineered river in the United States. From its headwaters in the Rocky Mountains in western Montana, it stretches for more than 2,300 miles through a massive system of dams, reservoirs, and levees before emptying into the Mississippi River just north of St. Louis.

Tim Briscoe is a brand new associate attorney in the environmental law practice group of Thompson Coburn LLP, having just received his juris doctor degree from Washington University in St. Louis, a campus not far from the confluence. For him the Missouri River is more than an overbuilt local waterway. It is the scene of a battle with an unlikely set of protagonists: the Army Corps of Engineers, the U.S. Fish and Wildlife Service, and two birds and a fish.

Before he found himself evaluating the Corps’ ambitious management plan for the Missouri River, Briscoe did not know about the interior least tern, the Northern Great Plains piping plover, or the pallid sturgeon. He didn’t know about engineered sandbars and flow rates or what they mean for the animals’ survival. He had never even heard of these species, let alone encountered one in person —though he later was delighted to stumble upon a fine example of the prehistoric-looking sturgeon at the Saint Louis Zoo.

But he had always loved water. Briscoe, 25, played competitive men’s water polo as an undergraduate at the University of Illinois, where his thesis focused on jurisdictional challenges of the Clean Water Act. He swam breaststroke on his high school swim team, and he still swims recreationally at Millstone Pool a few times each week. “There’s a connection between my interest in water law and growing up swimming in the water — literally,” Briscoe says today. He grew up in northwestern Illinois near the Fox River, which has its own complicated history of pollution and environmental cleanup.

His early introduction to environmental issues came with swimming and boating in and on the Fox. Briscoe frequently saw oil slicks and dead fish floating along. They made an impression. At Washington University, Briscoe declared his interest in environmental law from the start. During his first summer, he interned at the Great Rivers Environmental Law Center in St. Louis, and he worked at the EPA Office of Regional Counsel in Chicago during his second summer. In fall 2017, he served as a law clerk at the Environmental Law Institute in Washington, D.C.

Then in spring 2017, Briscoe rolled up his sleeves for the Missouri River, under the auspices of Washington University’s Interdisciplinary Environmental Clinic. The IEC represents nonprofit groups, communities, and individuals who are pursuing legal action to protect the environment and community health but who cannot afford the legal representation and scientific expertise this requires. Working as a student attorney for the IEC, Briscoe represented the Missouri Coalition for the Environment in preparing and delivering a formal comment on the Corps’ Draft Missouri River Recovery Management Plan and Environmental Impact Statement. The draft EIS describes management actions intended to ensure that operations of the Missouri River system will not jeopardize the sturgeon, tern, and plover, three species listed under the Endangered Species Act. It was prepared by the Kansas City and Omaha Districts, in cooperation with FWS.

When the comment was submitted, it was endorsed by seven nonprofit environmental organizations. “The proposal itself was massive, containing thousands of pages of statistics, scientific studies, economic projections, and other analysis designed to support the Corps’ vision,” says Elizabeth Hubertz, lecturer in law, who oversaw Briscoe’s work with the IEC and, subsequently, his pretrial procedure course at the law school.

“Tim’s role was to evaluate the proposal and determine whether it was protective of the environment and met the requirements of the Endangered Species Act,” she said. “This was a daunting challenge, in terms of the size and complexity of the undertaking,” Hubertz says. “One of the first things Tim worked on was convincing the Corps to allow the clinic’s clients more time to prepare a response in light of the project’s sheer immensity. Tim then prepared and gave oral testimony at a hearing held by the Corps, challenging landowners and barge traffickers who hoped to persuade the Corps that ‘two birds and a fish’ were not worth saving.”

“This is a big project, a very expensive one,” Briscoe says. “It’s very important from an environmental perspective. The health of the Missouri River is important, and there’s all kinds of impacts related to flooding, channelization, and shipping.” The Missouri hosts a wide variety of interests and uses today, all of which the Corps says it considered in the river’s recovery program. These uses include fish and wildlife habitat, flood control, hydropower, irrigation, navigation, recreation, and water supply and water quality applications. The Corps also cites other important considerations for the river including tribal interests, cultural resources, and ecosystem services. But a river can only take so much “use.”

Across the Missouri River ecosystem, the Corps acknowledges that 3 million acres of natural river habitat have been altered; 51 of 67 native fish species are now rare, uncommon, or decreasing; reproduction of cottonwoods, historically the dominant floodplain tree, has largely ceased; and aquatic insects, a key link in the food chain, have been reduced by 70 percent. In the formal administrative comment on the draft EIS that he prepared, Briscoe argued that the Corps is using an outdated biological assessment as a snapshot of the health of the species in question. He and Gabby Riek, a 2017 graduate of Washington University’s engineering school, who also worked with the IEC, determined that the science behind the Corps’ plan to build engineered sandbars as habitat was debatable — and that there was reason to suspect that they might never pile up the way the Corps said they would.

“The Corps said that they would release water from dams that would theoretically create sandbar habitat,” Briscoe says. “The sandbar habitat is used by endangered birds during breeding and migration. Riek did some really good research and found out that the science behind these flow releases was actually highly uncertain. And the Corps even acknowledged in some of its prior publications that it was inconclusive — that they did not have conclusions about the effectiveness of this method to create sandbar habitat.” Finally and most importantly, Briscoe says, the Corps presented a loaded set of “alternatives” for mechanical sandbar habitat construction that it represented as the full range of possible management actions — despite being heavily weighted toward one particular solution.

“We call this an unreasonable range of alternatives,” Briscoe says. “They should have presented a solution that offered a middle ground. Even if the flows had more scientific basis, why not create a more middle-ground alternative? Like, let’s build 1,500 — or 1,000 — or 500 acres of sandbar habitat. Why not?

“The best legal arguments are often the most clear,” he continues. “And that’s what we’ve tried to do here. We said, ‘You have inflated the cost of the most environmentally beneficial alternative, and it’s massively different than all of the others. And you simply do not explain why you cannot choose middle-ground alternatives.’” In all, the Corps received approximately 450 comments on the draft EIS via public meetings, mail, and online comment forms.

“Public comments are a crucial element in developing the final EIS and record of decision,” says Major General Scott A. Spellmon, commanding general of the Corps’ Northwestern Division. “We want to know the Missouri River Basin residents’ thoughts and concerns about our preferred alternative. We take all the comments we received seriously and will use them in shaping the final EIS and record of decision.”

Briscoe’s instructors commended him for his approach to the public comment effort. “Tim’s work on the Missouri River Recovery Project required not only extensive legal skills and knowledge, but the willingness and capability to understand many areas of expertise outside of the law entirely,” says Hubertz. “Many law students approach these interdisciplinary problems with the understanding that they are ‘the lawyer’ and that a legal solution is the best, if not the only, solution,” Hubertz says. “Tim had the intelligence to see that the question presented here required an answer that incorporated biology and economics as well as legal reasoning, and had the patience and skill to learn the science and work with his teammate to present the best of all worlds.”

As an environmentalist, Briscoe is less crunchy granola, and more clean-cut and practical. He has kind blue eyes, but his gaze is unflinching. His family has always valued life in public service, with all of its sacrifices: his dad was a police officer in the Chicago area for more than 30 years, and his mom has worked for Big Brothers Big Sisters of America for two decades.

“The important part of useful environmental advocacy is that you need to have good arguments!” Briscoe laughs. “Abstract philosophical arguments are not the types of things that resonate in the legal world.” He continues, “I call myself an environmentalist, and I do share the philosophy behind it. But given my legal training, I know that a judge doesn’t want to hear about how much I love the river. They want to hear about how the law was broken, and whether the agency did something that is actionable or in violation of law.”

Now Briscoe is set on litigation as a career path, having snagged a desirable position as an associate in the environmental law practice group with Thompson Coburn, one of the top law firms in St. Louis. “It involves a lot of work, but it’s rewarding work,” Briscoe says. “I’m practicing the type of law that I have been preparing to do for years — all of college, and all of law school. So it’s worked out great.”

At press time, the jury was still out for the pallid sturgeon and its feathered friends. As a result of his and other public comments, Briscoe hopes that the Corps will reformulate its recovery alternatives to present additional middle-ground options, and that they will focus less on economic impacts to stakeholders. Briscoe recognizes the enormousness of the Missouri River management challenges, and the subtlety required to get to a solution that the affected parties can support, his instructors say today. And he’s done it all with a smile.

“In his three years here, Tim seized every possible opportunity to develop both personally and professionally,” says Maxine Lipeles, the director of the IEC. “He embodies the perfect balance between taking his work with utmost seriousness while always having a quick smile and genuine warmth for everyone around him. I look forward to following his legal career, and am confident he’ll be a wonderful ambassador for WashU.”

For Briscoe, his experience managing the flow of a challenging law degree program while targeting his energy and skills in support of water, environment, and sustainability causes has led him to the career opportunity he always wanted. “I’ve kept my interest in policy and economics,” Briscoe says. His words slow down as he thinks about how to phrase it best. “Law is a unique — and potent — tool to influence the direction of policy, and to check various forms of power, both public and private. And it’s very exciting.” TEF

A freshly fledged lawyer, Tim Briscoe has already gotten his feet wet in ecological policy. He has become a champion for riparian species in the complicated legal environment governing the Missouri River and its human and wildlife dependents.

The Debate: Chesapeake Bay Getting Healthier But New Gains Face Funding Cuts, Policy Challenges
Nick DiPasquale - U.S. Environmental Protection Agency Chesapeake Bay Program (2011-17)
Dena Leibman - Chesapeake Alliance for Sustainable Agriculture
Ben Grumbles - Maryland Department of the Environment
Cindy Adams Dunn - Pa. Department of Conservation and Natural Resources
Verna Harrison - Verna Harrison, LLC
Jon Mueller - Chesapeake Bay Foundation
U.S. Environmental Protection Agency Chesapeake Bay Program (2011-17)
Chesapeake Alliance for Sustainable Agriculture
Maryland Department of the Environment
Pa. Department of Conservation and Natural Resources
Verna Harrison, LLC
Chesapeake Bay Foundation
Current Issue
The Debate: Chesapeake Bay Getting Healthier But New Gains Face Funding Cuts, Po

The Environmental Protection Agency’s Chesapeake Bay Program announced in December that almost 40 percent of the bay meets standards for oxygen, water clarity, and algae growth. Progress toward restoration is impressive, but getting the remaining 60 percent of the waters into alignment will be difficult.

In 2010, after years of halting restoration efforts, EPA established enforceable pollution limits for the Chesapeake — known as the Total Maximum Daily Load — covering nitrogen, phosphorus, and sediment pollution. The six bay states — Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia — and the District of Columbia later released their plans to meet those limits by 2025. This ambitious Clean Water Blueprint survived a legal challenge, and in recent years federal, state, and local governments have pressed ahead with their plans to achieve pollution reductions. 

As we reach the midway point for the 2025 deadline, it is clear that progress is being made across the watershed. Water quality and clarity have improved, the acreage of underwater bay grasses has increased, crab harvests are rebounding, and efforts to restore oyster populations are accelerating. Just as important, an outdoor recreational economy (exclusive of recreational fishing) is valued at as much as a quarter billion dollars per year and is growing. 

But despite recent progress, most notably in reducing pollution from wastewater treatment plants, significant challenges remain across the watershed in meeting nonpoint source pollution reductions from agriculture and urban and suburban runoff whose controls are more difficult. 

This Debate in Print occurs as there is a standoff in Washington about future funding for bay restoration, a minor item in the struggle to pass a measure funding the government. The Trump administration has proposed dramatic funding cuts for the Chesapeake Bay Program and other federal initiatives that support restoration efforts. The House is considering less severe cuts, but so far the Senate recommends full funding. Without adequate federal funding, the initiative to save the bay is in jeopardy. 

Recognizing the significant progress that has been made and the important challenges that remain, the Forum asks our panel for their views on what must happen in the years ahead if the goal of restoring the Chesapeake is to succeed.

THE DEBATE ❧ EPA’s Chesapeake Bay Program has produced impressive results. The bay states’ ambitious Clean Water Blueprint survived a legal challenge, and federal, state, and local governments have achieved impressive pollution reductions. But as the states ramp up their efforts, there is a standoff in Washington about funding.

Climate Canaries
Barry E. Hill - Vermont Law School
Caitlin O'Sullivan -
Vermont Law School
Current Issue

The people of Bangladesh are already suffering from the effects of global warming, serving as an early-warning indicator of its ultimate imprint on humanity as a whole. But for right now, the developed world owes the poor countries assistance in their struggle.