Welcome to California River Watch!

I find some hope for the future of our planet in the emergence of millions of unconnected environmental and social movements. The leaderless Anarchy of this mass phenomenon and its macro scale means that its cells will not be centrally controlled or turned aside by profit motives. It seems to be a genuine grass roots response to the global threat which our planet faces. —Paul Hawken «

State Supreme Court to review challenge to North Coast railroad project

EPA to use 2 rulemakings
to repeal and replace WOTUS
(Waters of the US Rule)

Ariel Wittenberg, E&E News reporter
Greenwire: Wednesday, April 12, 2017

U.S. EPA reportedly plans to replace the Clean Water Rule with two separate rulemakings, one to repeal the regulation and another to set a new standard. Photo by Ricardo Mar, courtesy of Flickr.

U.S. EPA plans to repeal and replace the Clean Water Rule with two separate rulemaking processes, an EPA official told the Association of State Wetland Managers yesterday.

In a talk to the association's annual winter meeting, Mindy Eisenberg, acting director of the EPA wetlands division, said that the agency plans to first rescind the Obama administration's contentious regulation and then work on a new definition for "waters of the United States," according to multiple people who attended the meeting.

"This is an attempt to repeal and replace, but in this case the EPA has decided that it can repeal the regulation now and replace it later," said Stephen Samuels, a former Department of Justice attorney who spoke to the association's meeting right before Eisenberg did.

The Clean Water Rule, also known as the Waters of the U.S. rule, or WOTUS, aims to clarify the reach of federal regulations over wetlands and waterways under the Clean Water Act. The act itself uses vague language to assert its jurisdiction over "traditionally navigable waters of the United States" without providing any further detail, and various administrations have struggled to define the term in the past.

Current EPA Administrator Scott Pruitt sued the Obama administration over the regulation when he was the Oklahoma attorney general, saying along with industry interests that it amounted to government overreach.

The Trump administration will first look to rescind WOTUS before taking on the heavier lift of replacing the regulation with a new definition of which waters are covered by the Clean Water Act, Eisenberg reportedly told the meeting.

In repealing WOTUS, the agency would revert to a 1986 definition and would also rely on 2008 guidance from the George W. Bush administration about how to apply that definition.

The repeal would essentially maintain the current status quo, as the administration is already using the 1986 rule and Bush guidance because the Obama administration regulation has been stayed by the 6th U.S. Circuit Court of Appeals pending litigation. The Supreme Court is also currently considering whether the case should proceed in district or circuit court (Greenwire April 3).

EPA did not respond to requests for comment.

Those at the meeting said Eisenberg did not explain the administration's reasoning for separately repealing and replacing WOTUS.

"She was clearly sticking to her talking points," National Wildlife Federation Wetlands and Water Resources Director Jan Goldman-Carter wrote in an email.

But there are a few reasons why the administration might want to split up the process.

One is that the administration could be racing against time to repeal the regulation before the Supreme Court rules on which jurisdiction should hear the legal challenge to the Obama rule.

The Supreme Court could reach a decision on jurisdiction by the end of 2017. If the high court decides that the 6th Circuit does not have jurisdiction, it could endanger the validity of the stay that the circuit court issued for WOTUS, Samuels said.

If the Supreme Court decides that the 6th Circuit can proceed with the case, he said, EPA would likely have an easier time of dismissing the litigation if it has already taken steps to repeal WOTUS.

Rescinding the regulation would be a lot easier, and faster, without EPA also having to come up with a plan to replace it at the same time.

"That Supreme Court decision will determine a lot, not just for the Clean Water Rule, if it is still in existence, but also for any future challenges on this issue," Samuels said.

Former EPA Office of Water head Ken Kopocis has a different theory about the agency's plan.

Kopocis, who did not hear Eisenberg speak to the association but has heard both about the talk and EPA's plans from former colleagues still working at the agency, said he believes EPA may not actually be planning to replace the regulation.

"I am not convinced that they will do a new rule," he said.

EPA has previously said it intends to rewrite WOTUS using an opinion written by the late Supreme Court Justice Antonin Scalia in the famously messy 2006 Rapanos v. United States 4-1-4 split decision.

In that case, Michigan landowner John Rapanos wanted to develop a property that was designated a wetland. Because he hadn't applied for a permit, EPA sought to bring civil and criminal enforcement actions.

Scalia, who died last year, argued that the Clean Water Act only applied to "navigable waters" connected by a surface flow at least part of the year. He was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.

But Justice Anthony Kennedy issued a concurring opinion, stating that waters must have a "significant nexus" to navigable rivers and seas, including through biological or chemical connections.

Until now, EPA has followed Kennedy's "significant nexus" test in regulating clean water.

"Every lawyer who is going to be consulted on this is going to say that defending a rule based on Scalia's opinion will be very, very difficult," Kopocis said.

By Will Houston
Posted: 05/01/17

A section of railroad lies next to the Eel River. The California Supreme Court is set to hear two cases on Wednesday challenging the North Coast Railroad Authority’s stance that its project to restore a railroad stretching from Napa County to Arcata is not subject to the requirements of the California Environmental Quality Act.
A section of railroad lies next to the Eel River. The California Supreme Court is set to hear two cases on Wednesday challenging the North Coast Railroad Authority’s stance that its project to restore a railroad stretching from Napa County to Arcata is not subject to the requirements of the California Environmental Quality Act. Friends of the Eel River — submitted

The California Supreme Court is set to hear two cases Wednesday that challenge the state-operated North Coast Railroad Authority’s stance that federal laws preempt it from having to conduct an environmental review on its project to restore a railway stretching from Arcata to Napa County.

“They say federal law supercedes the state law and I think we have a very strong argument that the state can decide on how to spend its own money,” Californians for Alternatives for Toxics Executive Director Patty Clary said Friday. “This is state-owned property, this is a state agency involved and it’s the state’s money that is paying for [the project]. We’re kind of gobsmacked that we’re going to have to go to the California Supreme Court to argue this thing.”

Environmental groups Friends of the Eel River and Californians for Alternatives for Toxics filed the cases in the Marin County Superior Court nearly six years ago against the authority and named the authority’s private partner — the Northwestern Pacific Railroad Company — as a real party of interest.

At the time, the authority had just certified an environmental review in June 2011 of its plans restore 142 miles of railroad from Napa to Willits rather than the whole 316 miles of track up to Arcata, according to court documents.

The authority’s and railroad company’s attorneys declined to comment for this article.

The two environmental groups first challenged the authority’s project in civil court in July 2011 claiming that the project’s environmental review was incomplete and did not properly assess how the railroad restoration would impact the environment — especially Eel River Canyon. The groups also argued that the authority was required under the California Environmental Quality Act to review the impacts of restoring all 316 miles of the railroad rather than just sections of it as the authority was proposing to do.

The authority — created by the state Legislature in 1989 to maintain rail service in the region — had received $60 million from the state to repair the railroad under the condition that it conduct an environmental impact review of its project, according to court documents.

After the court challenges were filed, the Northwestern Pacific Railroad Company attempted to move the cases to federal court where it made the argument that the federal Interstate Commerce Commission Termination Act preempted it from having to conduct the environmental review under state law, according to court documents.

The federal law passed in 1996 created the Surface Transportation Board to take jurisdiction over railroad operations regardless of whether the railroad was contained in a single state. The law was created to eliminate outdated, unnecessary and burdensome regulatory requirements on railroads, according to court documents.

The federal court moved the two cases back to the Marin County Superior Court where a judge ultimately agreed that the federal law did not require the authority to comply with the California Environmental Quality Act.

The authority then voted in April 2013 to do away with its project’s environmental review. The two environmental groups appealed the ruling in July 2013, but the appellate court upheld the trial court’s original ruling. The cases were then appealed again to the state supreme court, which granted review in December 2014, according to court documents.

Friends of the Eel River Executive Director Scott Greacen stated that on the day of their appellate court hearing, the Third District Court of Appeal decided on similar federal preemption case, Town of Atherton v. California High-Speed Rail Authority. Greacen said that the appellate court in the Town of Atherton case found that federal law did not preempt state environmental laws.

“From our perspective, these are two cases which are really essentially similar on the basic legal questions which came to very different conclusions,” Greacen said.

Greacen said that the supreme court will now have to determine which ruling makes more sense.

“If we lose this case and the NCRA case is established as law, it really does leave people and natural communities who may be affected by state-owned rail lines entirely at the mercy of the railroads shielded by the [U.S. Surface Transportation Board],” he said.

Clary said that the railroad is well over a century old and that many of the materials in the railroad contain harmful chemicals such as the preservative dioxin and pesticides that she said could contaminate the soil, air and over 120 waterways in proximity to the railroad.

“Our concern is because [railroad is] so old and decrepit that the railroad [authority] was just simply not analyzing the effects of the project they were proposing,” Clary said. “The analysis under California law makes it so they have to develop a program to prevent these things from entering the environment and harming the environment.”

The supreme court hearing is set to take place at 9 a.m. on Wednesday in San Francisco.

If the supreme court rules in their favor, Greacen and Clary said that the case would be brought back to trial court again.

“The problem for the [North Coast Railroad Authority] is if we go back to square one on this thing, we have a very straightforward [California Environmental Quality Act] challenge and they don’t have a CEQA document. They decertified it,” Greacen said.