It would seem that there is little to link the Chesapeake Bay and Pinto Creek, two waterbodies that are separated by almost an entire continent. One is the nation's largest estuary, the other an intermittent desert stream in Arizona's copper mining region.
The regions around the Bay hold some of the fastest growing counties of the nation; Pinto Creek's watershed includes aging mining towns with names like Globe and Miami, which have been losing population for years.
Yet the fate of Pinto Creek and the Chesapeake Bay could be intertwined.
That's because the outcome of a decade-long battle over a proposed new mining discharge into Pinto Creek could strengthen efforts to clean up the Bay and other "impaired" waterbodies.
Last fall, a federal court ruled that the EPA could not issue a permit for a new discharge into Pinto Creek because it would "cause or contribute" to a violation of water quality standards. No permit could be issued, the court said, unless there was a plan showing how and when that waterbody would be cleaned up.
Simply put: no cleanup schedule, no permits.
Right now, the decision only applies to nine Western states within the jurisdiction of the U.S. Ninth Circuit Court of Appeals.
That could soon change. The mining company has petitioned the U.S. Supreme Court to hear the case. A decision by the court on whether to take up the issue is expected by the end of this year.
Critics say the appeals court decision regarding a desert stream overreaches the intent of the Clean Water Act and would have the effect of placing "closed for business" signs on entire watersheds as construction and plant expansions could come to a standstill.
"When Congress enacted the Clean Water Act, Americans were told the objective was improvement of the quality of 'waters of the United States,' that is, the nation's navigable streams," said William Perry Pendley, president of the Mountain States Legal Foundation, a property rights group. "Yet with this ruling, the Ninth Circuit, as it too often does, puts form over substance."
Others say the decision provides a tool to finally reach the 35-year-old Clean Water Act's goals of making waterways "fishable and swimmable."
"Pinto Creek is the wave of the future," said Rick Parrish, an attorney with the Southern Environmental Law Center, who has been involved in water issues for years. "I think we are going to be moving in that direction. You are going to see a lot more about this issue in the next three or four years."
The implications of the ruling have already been discussed at Bay Program meetings where state and federal officials are developing a new cleanup plan for the Chesapeake. That plan, known as a TMDL, or Total Maximum Daily Load, will set a pollution budget for the Chesapeake-the maximum amount of nitrogen, phosphorus and sediment it can absorb and still meet water quality standards. Those loads will then be assigned to pollution sources throughout the watershed, from urban wastewater treatment plants to rural farms.
Because the Bay Program has already missed its 2000 cleanup goal and will miss its 2010 goal, many state and federal officials, as well as environmentalists, believe the new TMDL must carry consequences if the goals aren't met.
One of the suggested consequences was the Pinto Creek solution: a moratorium on permits for new or expanded discharges, large stormwater systems and construction sites larger than an acre until a firm schedule is established to clean up the Bay. It was dubbed the "nuclear option."
But it might not be an option at all. If the Supreme Court hears, and upholds, the decision, it could become the law of the land. If the Supreme Court doesn't hear the case, the Pinto Creek case could still serve as a precedent for similar cases.
People are already contemplating that possibility. "We looked at this pretty hard and think it could have application here in the Bay," said Jon Mueller, director of litigation for the Chesapeake Bay Foundation.
Reflecting frustration with past delays and missed goals, Mueller said the Bay TMDL is not likely to fare much better than previous cleanup plans without some teeth. "Otherwise, it doesn't mean anything, and it's just a paper exercise."
The reality is, even as state and federal officials attempt to draft a cleanup plan for the Bay watershed, looming actions in courtrooms may make their decisions moot.
This is because the Clean Water Act, originally approved in 1972, has lofty goals that all waterways be "fishable and swimmable" and provided for regulations "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."
But the act is often ambiguous about how to achieve those goals, especially when it relates to "nonpoint source" pollution-or runoff from farms, suburban yards and other land uses.
The Clean Water Act was last updated in 1988. Since that time, runoff has emerged as the chief source of pollution to many waterways. Yet the act prohibits the EPA from directly regulating nonpoint sources of pollution, thereby causing it to focus its authority over discharge permits on "point sources," which include industrial and wastewater plants, large animal feedlots, stormwater systems and large construction sites.
With that limitation on its authority, EPA officials, environmentalists, attorneys and judges have been trying to read between the lines to determine how the act intended its overarching goals to be achieved.
The issue is not just one of interpretation. Both state and federal agencies are wary of extending authority over nonpoint sources, especially farms, because of the backlash.
In 2000, the EPA approved new TMDL rules that would have increased pressure on nonpoint sources, only to see the regulations-vigorously opposed by agriculture, builders and others- blocked by Congress. The rules were ultimately withdrawn.
At recent public meetings, Maryland and Virginia officials suggested that enacting sufficient budget and regulatory actions to meet cleanup goals, including those for nonpoint sources, are not likely to happen without a regulatory "hammer" from the EPA.
EPA officials have said that if the states did not meet clean water goals, it could force all wastewater dischargers to install "limit of technology" treatment controls. That regulatory hammer would likely cost billions of dollars, and produce minimal additional nutrient reductions-far less than what is needed to restore Chesapeake water quality.
But Parrish said, that is not actually the biggest hammer in the Clean Water Act toolbox. "Frankly, the most serious threat is no more discharges, which is a frightening prospect for local governments, developers and what have you, because that would include construction and stormwater runoff," he said. "The law pretty clearly gives the EPA, and I might mention states and local governments and citizen groups, the right to enforce that."
That's what happened in the Pinto Creek case, where local environmental groups turned to Clean Water Act rules to block a planned copper mine.
Under the court's interpretation of EPA regulations, no discharge permits could be issued if they "cause or contribute" to the impairment of a waterway. Permits could be issued, though, if a compliance plan was developed showing when the affected waterway would meet its water quality standards. Those plans would need to include nonpoint source pollution if they were causing the impairment.
The EPA had never interpreted "cause or contribute" that way before. But then, it has never stated exactly what the three words mean.
Parrish, who served on a TMDL advisory panel for the EPA in the late 1990s, said panel members never got a definition of the term. "We begged EPA for guidance on this additional discharge issue," he said. "It was simply too hot, politically."
Several courts have wrestled with what those three words mean. Much of the legal thinking on the issue has come from a 1992 Supreme Court case, Arkansas v. Oklahoma. In that case, the state of Oklahoma challenged a proposed discharge permit for a sewage treatment plant in Arkansas on the grounds that it could potentially violate Oklahoma's water quality standards.
Specifically, Oklahoma said that the discharge could affect a state-
designated scenic river. Under Oklahoma water quality standards, no degradation of a scenic river is allowed.
Oklahoma's position was upheld by the Tenth Circuit Court of Appeals. But it was overruled by the Supreme Court, which stated that nothing in the Clean Water Act "mandates a complete ban on discharges into a waterway that is in violation of those standards."
Nonetheless, the court did say that it was within the EPA's right to prohibit discharges that cause or contribute to such violations, but in this case, the agency had determined the new discharge could not be detected downstream and therefore did not violate any standards.
Since that ruling, the EPA and state agencies have taken the position that new discharges into impaired waterbodies can be allowed but they must be offset by other reductions in the same watershed.
Last year, the Minnesota Supreme Court upheld that approach in a split decision. In In re City of Annandale, it ruled in favor of a discharge permit for a new facility that would release 2,200 pounds of phosphorus annually into a river already impaired because of excess phosphorus.
As part of the permit, the increase would be offset by a 53,000-pound reduction at a nearby facility. That offset, the court said, would result in a net water quality improvement, although the North Fork of the Crow River would remain impaired. The dissenting opinion stated the discharge was not allowed because it would still "cause or contribute" to a water quality violation.
In the late 1990s, the Carlota Copper Company proposed building a 3,000-acre, open-pit copper mine and processing facility in the middle of the Pinto Creek, which winds through the rugged mountains of Arizona's Tonto National Forest.
The creek would have been re-routed around the mine, which the company hopes will one day produce an estimated 100 million tons of ore.
Environmental groups rallied against the plan, saying that portions of the stream that contained water all year created a unique "riparian oasis" in the desert. In 1998, the environmental group American Rivers listed Pinto Creek one of the nation's 10 most endangered rivers. Joining the opposition was the late U.S. Sen. Barry Goldwater, R-AZ, who called Pinto Creek a "jewel of the desert."
Several efforts to block the mine failed; under the 1872 Mining Law, it is nearly impossible to stop a mining operation on federal land under most environmental laws.
Opponents then used a different tool-the Clean Water Act. Under Carlota's plan, most of the mine's drainage would be kept onsite. But during heavy rains, stormwater in the mine would be exposed to material with high concentrations of copper, which would be diverted through ditches into Pinto Creek. That discharge would require a NPDES (National Pollution Discharge Elimination System) permit from the EPA.
The EPA issued a draft permit in 1998, but opponents objected because Pinto Creek was already listed as impaired for copper. The EPA then amended the draft permit requiring Carlota to remediate the flow of copper into the Pinto Creek from an inactive mine upstream.
The permit was issued in 2002. The environmental groups challenged the permit before the EPA's Environmental Appeals Board. The board in 2004 upheld the permit, saying the amount of copper being offset at the upstream remediation site would "far exceed" the projected loadings from the storm runoff at the new mine resulting in a "significant improvement" of water quality.
Because the overall amount of pollution to the stream would not increase, the board concluded that Carlota's discharges would not "cause or contribute" to a violation of water quality standards.
Nonetheless, the creek would still be impaired because too much copper was entering from other sources. So opponents took their case against the EPA to the Ninth Circuit Court of Appeals.
Last October, more than a decade after the battle over the mine began, a three-judge panel from the court unanimously agreed with the environmental groups.
In its decision, Friends of Pinto Creek v. EPA, the court stated that the "plain language" of the EPA's regulations stated that no permit may be issued if it "will cause or contribute to the violation of water quality standards."
The court stated that merely offsetting a new discharge, as the EPA had proposed in the permit, was not adequate. The court said "there is nothing in the Clean Water Act or the regulation that provides an exception for an offset when the waters remain impaired and the new source is discharging pollution to the impaired water."
The court said the goal "is not simply to show a lessening of pollution, but to show how the water quality standard will be met if Carlota is allowed to discharge pollutants into the impaired waters."
In keeping with the Supreme Court's Oklahoma decision, the Ninth Circuit did not totally close the door to new permits. Pinto Creek is impaired for copper. The court ruled that if a TMDL was developed for the waterway, copper allocations were made to existing dischargers, and those dischargers were subject to a compliance schedule, the new permit could be issued-as long as reductions from other sources would be large enough to both attain water quality standards and allow the new discharge without causing a violation.
The EPA had argued the Pinto Creek TMDL had sufficient remaining load allocations for the new discharge, but the court disagreed. It said the Pinto Creek TMDL did not contain a compliance schedule showing when the load allocations would be achieved. "The TMDL merely provides for the manner in which Pinto Creek could meet the water quality standards if all of the load allocations in the TMDL were met, not that there are sufficient remaining pollutant load allocations under existing circumstances," the court stated.
A new permit did not have to wait for the creek to attain its standards, the court said. It just had to wait until a compliance schedule was created in the TMDL to show when it would be cleaned up.
Then, the court decision went further. On Pinto Creek, it is possible that regulating point sources alone would not do the job because of runoff from nonpoint sources-something beyond the authority of the EPA. But the court said, the state, or Carlota itself, could take action: "If there are not adequate point sources to do so, then a permit cannot be issued unless the state or Carlota agrees to establish a schedule to limit pollution from a nonpoint source or sources sufficient to achieve water quality standards.
The impact of the decision could be sweeping. Jeremy Jungreis, an California attorney specializing in environment and water issues, labeled the decision an "all or nothing approach" to dealing with impaired waters in an analysis of the decision that appeared The Water Report, a professional journal covering Western water issues.
The decision could affect the EPA's, or a state's, ability to issue many kinds of permits, not only traditional NPDES discharge permits, but also permits for large animal feedlots, stormwater and even general permits for construction sites that disturb more than one acre.
Interpreted broadly, Jungreis said the decision would result in "a de facto building moratorium" in half of the watersheds in the country. "Such a result would wreak havoc on local economies and potentially expose the states and EPA to limitless inverse condemnation claims from property owners precluded from developing their properties," he wrote.
This summer, Carlota asked the U.S. Supreme Court to take up the case, saying the issue is "one of national importance." It noted that 45 percent of the nation's rivers and streams, and 47 percent of its lakes, ponds and reservoirs, are considered impaired.
"If the EPA and the states cannot approve new source discharges into impaired waters, they would be unable to approve the construction and operation of new projects and facilities that discharge into almost one-half of the nation's waters," attorneys for Carlota argued.
They said the appeals court should have allowed the EPA more discretion to interpret its own rules, allowing it to determine on a case-by-case basis how a permit would impact water quality. "No other court has held or suggested that the Act and the regulation impose such stringent restrictions on the permitting agencies' discretion in administering their NPDES program," they said.
The practical impact, they said, is a "de facto moratorium on new source discharges into impaired waters" because it would take years to contact and permit all dischargers to develop schedules for nonpoint source reductions. In Pinto Creek, they argued, the issue is further complicated because some discharges are from abandoned "orphan" mines with no owners to issue permits to.
"By imposing these additional requirements, the Ninth Circuit has made it difficult, if not virtually impossible for the EPA and the states to approve new source discharges into impaired waters under all but exceptional circumstances," they said.
They further argue that not allowing offsets for new discharges would "frustrate" efforts to clean waterways, as offsets typically result in a net pollution reduction. In such cases, they said, the discharge does not "cause or contribute" to a water quality violation. "The EPA regulation prohibits discharges that impair water quality, not improve it," the attorneys stated.
Other groups expressed similar concerns. In a brief supporting Carlota's appeal, appeal, the National Association of Home Builders and several regional builders groups argued that the Ninth Circuit's ruling "would be catastrophic to the construction industry, local communities and permitting authorities alike."
The association argued that because many urban waterways are impaired, the rule would have the effect of dispersing new development- and septic systems-across the countryside. Or, new developments would have their effluent piped to new treatment plants built on unimpaired waters, it said.
Another brief supporting Carlota came from National Association of Clean Water Agencies and several California water agencies. It contended that the ruling would discourage or prevent wastewater authorities from building new facilities or expanding existing ones, even if those upgraded facilities would operate more cleanly than old ones.
It said the ruling discouraged trading and programs, like those being developed in the Chesapeake Bay region, which present a "win-win" scenario because they generally require greater pollution reductions than what is being added. In contrast, the Pinto Creek decision results in a "lose- lose" scenario.
"Impaired waters lose because existing pollutant sources will not be further reduced," it said. "Communities lose because new state-of-the-art treatment facilities may be precluded from discharging, which prolongs reliance on outdated facilities"
Not everyone agrees that the ruling has such dire consequences. In fact, the federal government, which lost the case, filed a brief asking the Supreme Court not to hear an appeal. Although the brief filed by the Justice Department said the Ninth Circuit erred by not allowing the EPA greater discretion in interpreting its regulations, it said no substantial conflict existed with rulings from other courts.
The Western Mining Action Project, which represents the environmental groups in the case, has until late November to respond to Carlota's request. But the attorney handling the case, Roger Flynn, said the Ninth Circuit's ruling was a sound interpretation of the Clean Water Act, which 35 years ago promised "fishable and swimmable" waters.
"This is an impaired water, so any new discharge into an impaired water is going to cause or contribute to the situation getting worse," he said. From the perspective of a fish near the Carlota discharge, he said it made little difference that pollution was being reduced miles upstream.
"All they know is that where they live, there is too much copper, and this mine is coming in and is going to dump more copper into that stream," Flynn said.
"They really don't care what is going on five miles upstream. All they know is they're in bad shape, and it is going to get worse."
If the decision stands, it may become a powerful tool for citizens in other parts of the country, including the Bay region, he said. "It is a leverage point for citizens to go press for the cleanup of impaired waters and getting impaired waters on the road to recovery, rather than allowing more discharges into them," Flynn said.
Others have noted that the rationale in Pinto Creek is not as draconian as critics argue and, in fact, has similarities to federal clean air regulations. Those require states to develop enforceable implementation plans showing how and when "non- attainment" areas will come into compliance with air quality standards through the controls of smokestack emissions, vehicle emissions or other programs.
If states don't submit acceptable plans, they face a variety of sanctions. The state may have to offset emissions from any new or expanding facilities by a ratio of at least 2-1, a major disincentive for businesses to expand or locate in an area. If that doesn't work, federal highway funds can be withheld.
"Ultimately, that's where we're going to go, there is no question in my mind, under the Clean Water Act," said an attorney with long experience with that law. "The question is how fast, and through what mechanisms, it happens."
Unless Congress attempts to clarify the Clean Water Act, it will likely be up to further court decisions to attempt the job. Even if the Supreme Court hears-and strikes down-the Pinto Creek case, others will surely follow.
But Parrish said the Pinto Creek decision would be an appealing precedent for other courts trying to determine what "cause or contribute" means. "It does not use a lot of legal creativity to reach the result it reached," he said. "It is very straightforward. But it is just the Ninth Circuit, and you will have similar battles playing out in other circuits over the next few years."
Noting that the Pinto Creek case has been winding through the legal system for a decade, though, he said the definitive answer may not come anytime soon.
A similar conclusion was reached in a white paper produced by the National Sea Grant Law Center for the Bay Program's Scientific and Technical Advisory Committee, which touched on the Pinto Creek issue.
"Because the Chesapeake Bay is impaired, as are many of its tributaries, it is clear that neither the EPA nor the states may issue a permit if the discharge 'will cause or contribute to the violation of water quality standards.' Legal minds are disagreeing, however, on what the phrase 'cause or contribute' means," the paper stated. "The various courts operating in the Chesapeake Bay region could go either way."
The question is, will the Bay region still need that regulatory hammer-or pile driver-to finish the job of restoring the Chesapeake.
Key Terms in the Chesapeake's Cleanup Plans
A Total Maximum Daily Load, or TMDL, is required for "impaired" waterways; those that do not meet their water quality standards. A TMDL is a pollution budget that sets the maximum amount of pollution a waterbody can receive and still meet its standards, with a margin of safety. The load is then allocated to various contributors. Under a 1999 court agreement, a TMDL must be completed for the Chesapeake Bay by 2011. The TMDL will affect the Bay's entire 64,000-square-mile watershed. It will be the largest TMDL yet developed.
Water Quality Standards define the goals for a waterbody. The Chesapeake Bay fails to meet its standards for dissolved oxygen, water clarity and chlorophyll a. Dissolved oxygen is essential for fish, shellfish and other aquatic life in the Bay. Clear water is essential to support underwater grass beds, which provide important food and habitat for many species. Chlorophyll a is a measure of algae. High concentrations indicate blooms, which contribute to water quality problems.
The impairment to the Bay's water quality is caused by excessive amounts of nitrogen, phosphorus and sediment. Nitrogen and phosphorus are nutrients that spur algae blooms in the Bay. When the algae die, they sink to the bottom and decompose in a process that depletes the water of oxygen. Algae blooms, as well as sediment, reduce water clarity, which prevents the growth of underwater grass beds.
The Bay TMDL will set limits on the amount of nitrogen, phosphorus and sediment that can enter the Chesapeake. Major sources of pollution sources that contribute to the problems include agriculture, wastewater treatment plant discharges, runoff from developed lands and air pollution.