On November 9, 2017, on the heels of New Jersey’s move to set a maximum contaminant level for certain perfluoroalkyl substances, California’s Office of Environmental Health Hazard Assessment (OEHHA) added perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) to the list of chemicals known to the state of California to cause reproductive toxicity (also known as the Prop 65 list).
On November 1, 2017, New Jersey officials announced that they would set Maximum Contaminant Levels (MCLs) for public drinking water systems for PFOA and PFNA, making the Garden State the first in the nation to do so.
A new chapter opened last week in the perennial water wars between Georgia and Florida. After briefing by both sides, including amici, relative to whether Special Master Ralph Lancaster correctly decided that Florida had failed to carry its burden in this original jurisdiction action, the Supreme Court in an October 10, 2017 Order granted oral argument in the case to be heard “in due course.” Presumably, that will yield an argument during the Court’s October Term which usually completes in June or July. Spokesmen for Georgia and Florida welcomed the opportunity to address the Court on the merits.
The dispute involves the water of the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”), a network of rivers, dams, and reservoirs that begins in northern Georgia and ends in the Florida panhandle. Georgia and Florida have been disputing the extent of each state’s use of the ACF Basin waters for years but recently, in 2014, the dispute made its way to the United States Supreme Court. There, Florida argued that overconsumption of waters in Georgia, particularly in connection with agribusiness uses on the Flint River, have led to dangerously low flows of waters into Florida from the ACF Basin and the downfall of the Apalachicola Bay’s oyster fishery. Florida requested that the Court cap the amount of water Georgia can use at levels that existed in 1992. Continue Reading Supreme Court Orders Oral Argument On GA-FL Water Wars
A key brief from the United States has set the United States Supreme Court on a path towards finally resolving the original jurisdiction dispute between Georgia and Florida over the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”). On August 7, 2017, the Trump Administration filed a brief in the United Stated Supreme Court as an Amicus Curiae in the disputed “water wars” case between Georgia and Florida. Postured where Florida is asking the Court to set aside the ruling of the Special Master who found that it had stated no redressable injury, the government brief sided with the Special Master’s ruling.
On July 14, 2017, three environmental groups (Environmental Integrity Project, Sierra Club, and Earth Justice) petitioned the Court of Appeals for the D.C. Circuit for a full review of its May decision that the EPA properly withheld testing data in response to a Freedom of Information Act (“FOIA”) request. The petition for rehearing en banc asks that the full Court of Appeals for the D.C. Circuit reconsider the environmental groups’ arguments as opposed to the three judge panel that originally heard the case.
In a seventy page opinion, Special Master Ralph Lancaster issued his recommendation to the Supreme Court today concluding that Florida had not met its burden of demonstrating by clear and convincing evidence that Georgia should be burdened with a consumption cap on its water use. Key to the Special Master’s ruling was a finding that because the U.S. Army Corps of Engineers would not be controlled by any decree of Court, a consumption cap remedy would be ineffectual. The Apalachicola-Chattahoochee-Flint (ACF) river basin is composed of two major forks, the Apalachicola-Chattahoochee fork that is highly regulated by the Corps in terms of streamflows, and the Flint fork for which there is little to no regulation.
Applying Chevron deference, the U.S. Court of Appeals for the Second Circuit on January 18, 2017, reversed the Southern District of New York by a 2-1 margin and concluded that the United States Environmental Protection Agency’s (the “EPA”) Water Transfers Rule that permits transfers between waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit was sound. (Catskill Mountains Chapter of Trout Unlimited, Inc. et al. v. USEPA, et al., U.S. Court of Appeals, Second Circuit, Docket Nos. 14-1823, 14-1909, 14-1991, 14-1997, 14-2003, 2017 U.S. App. LEXIS 914). The controversy stemmed from the transfer of water from the Schoharie Reservoir through the Shandaken Tunnel into the Esopus Creek in New York. Historically, the EPA has taken a hands-off approach to water transfers, choosing not to subject them to the requirements of the NPDES permitting program established by the Clean Water Act (“CWA”) in 1972.
The Supreme Court granted certiorari today in the long running dispute as to whether the federal district courts or appellate courts have jurisdiction to decide the viability of the Waters of the U.S. (WOTUS) Rule under the Clean Water Act. The controversial definitional section proposed for the CWA would expand federal jurisdiction for waterways and wetlands. Set for review is the U.S. Circuit Court of Appeals for the Sixth Circuit’s decision to hear legal challenges over the rule in lieu of district courts who are considered to be a potentially more favorable venue. Multiple state, industry and farm groups have challenged the joint U.S. EPA-Army Corps of Engineers’ rule. In February, the Sixth Circuit ruled 2-1 that it had jurisdiction to hear the challenges rather than the district courts. A nationwide stay of the rule accompanied the Circuit’s ruling pending the resolution of the litigation. The National Association of Manufacturers, along with 31 states, petitioned the Supreme Court to reconsider the Sixth Circuit’s jurisdictional decision.
Georgia and Florida filed post-trial briefs in the Florida v. Georgia U.S. Supreme Court litigation on December 15, 2016. The same day, the United States filed a brief at the request of Special Master Ralph Lancaster addressing what impact, if any, additional flows along the Flint River might have with regard to the operations of the U.S. Army Corps of Engineers in the ACF River Basin. The United States declined to take a position on whether the consumption cap arguments by Florida were persuasive and limited its brief to the topic of any prejudice to the Corps utilizing existing and anticipated operations plans. Georgia and Florida supplemented the record on December 29, 2016, with responses to the parties’ previously filed post-trial briefs.
The U.S. Army Corps of Engineers (USACE) released the Apalachicola-Chattahoochee-Flint (ACF) River Basin Water Control Manual and draft Environmental Impact Statement (EIS) for state and agency review on December 7, 2016. The U.S. Environmental Protection Agency will publish the final EIS on Dec. 16, 2016. The review period will end on Jan. 14, 2017.