2018

May 14, 2018 – Court of Special Appeals Upholds Maryland’s 2014 CAFO General Discharge Permit – Food & Water Watch and the Assateague Coastal Trust challenged the validity of the Maryland Department of the Environment’s (“MDE”) 2014 General Discharge Permit (the “2014 Permit”) for Concentrated Animal Feeding Operations (“CAFOs”). Among its core provisions, the federal Clean Water Act (“CWA”) prohibits the discharge of any pollutant to waters of the United States from any point source, except as authorized by a National Pollutant Discharge Elimination System (“NPDES”) permit. Animal Feeding Operations (“AFOs”) and CAFOs are expressly listed within the definition of “point source” in the CWA. Maryland operates its approved NPDES program under authority delegated by EPA.

Plaintiffs maintained that the 2014 Permit failed to require chemical, biological, or physical monitoring at any outfall or in-stream locations and did not require effluent monitoring mandated by EPA’s CWA regulations. Plaintiffs asserted that MDE must require all CAFOs to conduct regular sampling of discharged water and that because the 2014 Permit only required CAFOs to analyze nutrient levels of manure and soil every three years, it was not a valid NPDES permit. Plaintiffs relied upon decisions from federal Courts of Appeals in both the 2^nd and 9^th Circuits, which found that EPA’s regulations mandate monitoring of effluent limitations be included in every Permit.

MDE maintained that it was allowed to use its discretion and expertise to determine what conditions to place in its NPDES permits and that EPA’s CWA regulations only require discharge monitoring where appropriate. MDE argued that best management practices (“BMP”) required by the 2014 Permit ensured compliance and analyzing nutrients in soil every three years was sufficient and appropriate. MDE also argued that the 2014 Permit was substantially similar to the 2009 CAFO General Discharge Permit, which was previously upheld by the Court.

The Court of Special Appeals ruled that Plaintiffs’ reliance on the 2^nd and 9^th Circuit holdings was flawed because the 2014 Permit has measures in place to ensure compliance. It determined that the 2014 Permit is reasonable and necessary to carry out the intent of the CWA and that monitoring of numeric limitations in discharges is infeasible because the 2014 Permit allows zero discharge. Further, the federal regulations in 40 C.F.R. §122.44 do not mandate analysis of water discharges, rather they grant discretion to the agencies to require such monitoring only when appropriate. Zero discharge permits allow no effluent; thus, discharge monitoring is unnecessary. The Court of Special Appeals agreed with the agency and the trial court, finding that there is substantial evidence in the record to support MDE’s decision to issue the 2014 Permit, that it complied with CWA requirements and regulations, and upheld MDE’s decision.

Food & Water Watch, et al. v. Maryland Department of the Environment, Maryland Court of Special Appeals, CSA-reg-2602-2016, (May 14, 2018, unreported).

April 26, 2018 – Illegal Discharge of Sewage – In a case of first impression, Maryland’s Court of Special Appeals overturned criminal convictions based on the “continuing violation” theory in the case of a man convicted of illegal sewage disposal. Peter Hershey handled the successful post-conviction appeal after the man was denied post-conviction relief by the trial court. The CSA’s April 26, 2018 decision agreed that the jury instructions provided by the Environmental Crimes Unit prosecutor at the underlying trial conflicted with the plain language of the environmental regulations on which the charges were based. The opinion establishes that in water pollution cases in Maryland, the State must prove an actual discharge on each date charged in order to obtain a conviction for an illegal discharge. The State relied upon the continuing presence of the alleged sewage on the ground surface as evidence of a continuing violation. The Court reversed the convictions based on the continuing violation theory and remanded the case for resentencing. Shortall v. State, __Md. App. __(Case No. 0170, September Term, 2017).

April 12, 2018 – In a split decision, the United States Court of Appeals for the Fourth Circuit ruled on a controversial issue of first impression regarding the Clean Water Act (“CWA”) — whether a discharge of pollutants to groundwater can violate the prohibition against point sources discharging pollutants without a permit. The Court held that an undisputed discharge of gasoline from a pipeline into groundwater could, if the groundwater is shown to have a direct hydrological connection to a water of the United States, be a point source discharge of the gasoline in violation of the prohibition on discharges to waters of the United States without an NPDES permit. There was a high level of interest among environmental groups, industry associations and states (including, AL, AK, IN, KS, LA, MS, OK, SC, UT, WI and WV) in the appeal, which resulted in the filing of a number of amicus briefs.

Previously, in the U.S. District Court for South Carolina, Defendant Kinder Morgan Energy filed a Motion to Dismiss the Clean Water Act citizen suit filed by the Savannah Riverkeeper, claiming that as a matter of law the discharge of gasoline through a leak from its pipeline (repaired prior to the filing of the notice of intent to sue) to groundwater cannot be a point source subject to the CWA. The District Court granted the motion, ruling that it lacked subject matter jurisdiction, in part, because the CWA does not encompass the movement of pollutants through groundwater that is hydrologically connected to navigable waters.

The Fourth Circuit disagreed, finding that if discharges through groundwater are sufficiently connected to surface waters of the U.S., they may support a claim under the CWA. It cautioned, however, that a discharge through groundwater does not always support CWA liability: “the connection between a point source and navigable waters must be clear.” Upstate Forever v. Kinder Morgan Energy Partners, L.P., 2018 U.S. App. LEXIS 9144, at *23. This analysis is essentially one of fact which must be both plead and proven: “A plaintiff must allege a direct hydrological connection between groundwater and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through ground water.” Id. at *25-26. Applying these criteria, the Court found that the Riverkeeper had pled facts sufficient to withstand the Motion to Dismiss and remanded the case to the District Court for further proceedings.

Before addressing the issue of the groundwater nexus, the Court addressed the question of what constitutes an ongoing discharge from a point source, which is a jurisdictional predicate for a CWA citizen suit (established by the U.S. Supreme Court in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 62 (1987). This, it said, required a determination of “whether citizens may bring suit alleging a violation of the CWA when the source of the pollution, the pipeline, is no longer releasing the pollutant, but the pollutant allegedly is passing a short distance through the earth via ground water and is being discharged into surface waterways.” Upstate Forever, at *4. It concluded that the District Court was wrong to have found that it lacked subject matter jurisdiction under the CWA because the pipeline has been repaired, because “[d]ischarges of pollutants that derive from a “point source” and continue to be “added” to navigable waters”, are an ongoing violation. Id. at *4-5.

The Court relied heavily on a decision reached for clients of Rich & Henderson in Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500 (4th Cir. 2015). It explained, as in Goldfarb, that “although a defendant’s conduct that is causing a violation may have ceased in the past . . . what is relevant is that the violation is continuous or ongoing.” Upstate Forever, at *14. Although, the Goldfarb decision involved alleged ongoing violations of Recourse Conservation and Recovery Act, the Court found the citizen suit provisions at issue to be substantially identical regarding what constitutes and ongoing violation.

Judge Floyd, in a well written and reasoned dissenting opinion, disagrees with the ongoing violation analysis put forth by the majority. Judge Floyd found that the Riverkeeper failed to show that the CWA violation is ongoing, because there is no ongoing discharge of pollutants from a point source. “The only point source at issue-the pipeline-is not currently leaking or releasing any pollutants.” Id. at *43.

It would not be a surprise if a petition for certiorari is filed with the Supreme Court by Kinder Morgan, given the high level of interest in the decision and the potential expansion of citizen suits likely to be spawned by the decision.

April 2018 – Partner Tony Gorski successfully challenged the Maryland Department of the Environment’s decision to deny an after-the-fact Tidal Wetlands License application. The landowners installed a replacement bulkhead landward of an existing bulkhead on their waterfront property along Fishing Creek in Woolford, MD. The original bulkhead was installed by a prior owner in a boat basin excavated landward on the property and had been damaged by flooding during Tropical Storm Isabel in 2003. MDE alleged that the installation was illegal and ordered the landowners to remove the replacement bulkhead, but agreed to first consider an after-the-fact application for a Tidal Wetlands License. In reviewing the application, MDE maintained that the original bulkhead failed the “Functionality Test” used to determine if it will allow an existing bulkhead to be replaced with another bulkhead, or require the landowner to use alternative “soft” erosion control features. MDE decided that the original bulkhead could not be replaced in kind and denied the Tidal Wetlands License application. In overturning MDE’s denial, the Court agreed with the landowners that the record provided no basis for MDE’s Functionality Test decision. The Court questioned the agency’s ability to apply the Functionality Test in any application because there are no statutory or regulatory provisions describing or quantifying the test or addressing how the agency is to make a decision concerning whether, and to what degree, a bulkhead is “functioning.” The Court also agreed with the landowners that the excavated boat basin where the replacement bulkhead was installed is a private wetland and, as such, the law does not authorize the agency to apply the Functionality Test. The Court remanded the matter to MDE to re-evaluate, based on its decision, whether a Tidal Wetland License was even required. (In The Matter Of Roy Harrison, et al.; Circuit Court for Dorchester County, Case No.: 09-C-14-021224).

January 3-7, 2018 –

Tim Henderson was the Co-Chair at the 35^th National Environmental Law Conference in Vail, Colorado for the Environmental, Land Use, Energy, and Litigation seminar. Mr. Henderson facilitated a conversation where program participants gained insights from experts across the country on the subject matter. Participants also had the unique opportunity to catch up on a variety of environmental, land use, and energy issues such as:

• Citizen suits
• Changing perspectives on Federalism, local, state and regional climate policies and action
• HOA governance and land use/environmental matters
• Past, present and future aesthetic land use regulation
• Land use case law
• Conservation easements
• Tax tips
• Real estate development prospects under the Trump administration
• Development agreements
• Chemical releases to the environment and their implications
• Regulatory takings law developments

Mr. Henderon’s Co-Chairs are respected environmental attorneys Gregor I. McGregor, McGregor & Legere, PC, Boston, MA, and Brian J. Connolly, Otten Johnson Robinson Neff + Ragonetti PC, Denver, CO.