Sep 032014

The Ninth Circuit said an energy firm's non-stormwater discharges of coal into Resurrection Bay in Alaska are prohibited by an EPA multi-sector general permit (Alaska Community Action on Toxics  v. Aurora Energy Services, 13-35709).

Here is the summary provided by the court:

The [9th Circuit] panel reversed the district court’s summary judgment entered in favor of Aurora Energy Services, LLC and Alaska Railroad Corporation in a citizen suit that challenged, pursuant to the Clean Water Act, defendants’ non-stormwater discharges of coal into Resurrection Bay, Alaska.

The panel held that the district court erred in concluding that the Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity - a general permit under the Environmental Protection Agency’s National Pollutant Discharge Elimination System - shielded the defendants from liability under the Clean Water Act for their non-stormwater coal discharges. The panel remanded for further proceedings.

And here's a quote from the 11-page opinion:

The plain terms of the General Permit prohibit defendants’ non-stormwater discharge of coal. In Part, the General Permit states: “You must eliminate non-stormwater discharges not authorized by an NPDES permit. See Part 1.2.3 for a list of non-stormwater discharges authorized by this permit.” The referenced section (which is actually Part 1.1.3) lists eleven categories of non-stormwater discharge which are “the non-stormwater discharges authorized under this permit.” None of these categories cover defendants’ coal discharge.

Argument coverage

Opinion from ESWR site

Oral argument recording (from 9th Circuit website)

Sep 032014

U.S. District Judge Lawrence O'Neill rejected a request by California irrigators to stop extra flows provided by the Bureau of Reclamation to help prevent a die-off of chinook salmon in the Klamath River (San Luis & Delta-Mendota Water Authority v. Jewell, 13-1232 LJO-GSA, Cal. E.D.).

"[T]he flow augmentation releases are designed to prevent a potentially serious fish die-off from impacting salmon populations entering the Klamath River estuary," O'Neill said in his Aug. 27 order. "There is no dispute -- and the record clearly reflects -- that the 2002 fish kill had severe impacts on commercial fishing interests and tribal fishing rights, and that another fish kill would likely have similar impacts."

The judge issued a similar ruling last year, when the same groups sought to stop increased flows to protect the fish.

"The Court finds that, although Reclamation has not presented an entirely consistent approach to determining the need for [Flow Augmentation Releases], the circumstances justify the planned 2014 FARs as a measure needed to prevent a fish kill that could significantly impact this year’s fall-run Chinook in the lower Klamath."

Biologists' principal concern is that the low water levels make the fish more susceptible to an epizootic outbreak of Ich, a fresh-water ciliated protozoan parasite.

In his conclusion, the judge wrote:

The Court concludes that, even though Plaintiffs are likely to (and in all likelihood soon will) succeed on the merits of at least one of their claims against Reclamation in connection with the 2013 FARs, the balance of the harms does not warrant an injunction at this time. Even if the Court were prepared immediately to issue a final ruling on the merits in favor of Plaintiffs, an injunction would not be automatic. The potential harm to the Plaintiffs from the potential, but far from certain, loss of added water supply in 2015 does not outweigh the potentially catastrophic damage that “more likely than not” will occur to this year’s salmon runs in the absence of the 2014 FARs.

In a "Note," he added:

Federal Defendants are hereby on notice that the Court will view future FARs (and requests to enjoin them) in light of all the circumstances, including the fact that Federal Defendants repeatedly have treated as “emergency” circumstances that appear to merit a consistent, reasoned, policy rationale. All involved deserve a reasonable opportunity to challenge any such rationale, and all interested, including the Court, deserve to be able to give to these issues “the time and attention [they] deserve.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 606 (9th Cir. 2014). Failure to heed this notice may disappoint Defendants in future orders.

Coverage (scroll over for hed)

Eureka Times-Standard (Jeff Barnard, AP, and Will Houston, Times-Standard) (8/27)

Bay Area Indy Media (Dan Bacher) (8/28)