October 2006, Vol. 18, No.10

Supreme Court Splits on Wetlands Protection


A U.S. Supreme Court decision handed down in June suggests that the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency (EPA) may have misinterpreted the Clean Water Act (CWA) when they prevented two Michigan landowners from developing on wetlands.

 In a 4–1–4 ruling in the cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, the justices voted to remand the two cases back to the lower courts, calling on them to reconsider CWA’s definition of “navigable waters” and whether CWA protects wetlands that are adjacent to, or separated by, manmade berms from small tributaries that flow into larger waterbodies. The split decision was the first significant environmental ruling under Chief Justice John Roberts, and the lack of any clear direction from the court almost certainly means more litigation in the years to come, said developers, environmentalists, and state wetland managers alike.

The combined cases involve four Michigan wetlands lying near ditches or manmade drains that eventually empty into traditional navigable waters. Under CWA, landowners cannot alter wetlands that affect such waters with sand, dirt, or other fill material without a permit. However, in these cases, the landowners argued that the U.S. Congress never intended for the government to have authority over wetlands that are adjacent to navigable waters and that the Army Corps exceeded its authority under CWA when it denied them permits to build on the wetlands.

Justice Antonin Scalia — joined by justices Roberts, Clarence Thomas, and Samuel Alito — wrote in the plurality opinion that “waters of the United States” that are covered by CWA do not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. Therefore, the Army Corps was wrong in asserting jurisdiction. Justice Anthony Kennedy wrote a separate concurring opinion criticizing the lower courts for failing to interpret CWA’s intent clearly.

The other four justices, led by Justice John Paul Stevens, dissented, saying that the decision by federal regulators to treat the wetlands as “waters of the United States” was a reasonable interpretation of the statute. The “[Army] Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our nation’s waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow,” Justice Stevens wrote.

Varying Interpretations
Those representing developers’ interests maintained that the ruling mandates a significant reduction in federal jurisdiction.

“The court rejected the idea that there are no limits on the federal government’s regulatory authority under the CWA,” said Reed Hopper, principal attorney for Pacific Legal Foundation (Sacramento, Calif.), which represented developer John Rapanos. “It is not the role of the federal government to micromanage every pond, puddle, and ditch in our country.”

But environmentalists countered that this decision only means that the regulating agencies will need a better record for asserting jurisdiction, including a more rigorous analysis of what the flow is in the tributaries in question.

“The key ruling is Justice Kennedy’s opinion … that wetlands adjacent to very small streams can have major impact on downstream waterbodies and therefore can be regulated,” said Timothy Searchinger, a senior attorney with Environmental Defense (New York, N.Y.). “But he wants the agencies to jump through some more hoops.”

Both sides agreed that the decision will be difficult to implement because the court was split, with no clear majority.

“It clearly adds to the confusion,” said Jeanne Christie, executive director of the Association of State Wetland Managers (Berne, N.Y.). “So we’d expect to continue to see both a fair amount of litigation and circuit courts not necessarily taking consistent direction,” as cases will have to be decided on site-specific interpretations of what this latest series of opinions from the Supreme Court means, she added.

Application of “Significant Nexus”
At the heart of the ruling is Justice Kennedy’s “significant nexus” test for determining, on a case-by-case basis, whether federal jurisdiction applies to wetlands adjacent to non-navigable tributaries.

Although Justice Scalia’s plurality opinion concludes that U.S. waters include only “relatively permanent, standing, or continuously flowing bodies of water,” Justice Kennedy found that a water or wetland constitutes “navigable waters” under CWA if it possesses a “significant nexus” to waters that are navigable. The rationale, he continues, is that “wetlands can perform critical functions related to the integrity of other waters — such as pollutant trapping, flood control, and runoff storage.”

“It’s a fractured decision,” admitted Patrick Parenteau, director of the Vermont Law School’s Environmental and Natural Resources Law Clinic (South Royalton, Vt.). He added, however, that there’s more overlap between Justice Kennedy’s and Justice Stevens’ opinions, and virtually none between Kennedy’s opinion and Justice Scalia’s plurality opinion. “So, in effect, what that does is to leave the CWA’s protection of wetlands and other waterbodies in place, but subject to proof that they do in fact have a substantial nexus to downstream water quality,” Parenteau explained.

“Kennedy wants you to have a more rigorous analysis of what the flow is in these tributaries; he doesn’t say they have to be perennial or natural, allowing for the possibility that they could be either artificial or ephemeral, but that record has to establish some degree of significance,” Parenteau noted.

Consequently, the Army Corps and EPA will have to work harder to assert jurisdiction, and that worries environmentalists.

“Prior to this decision, the agencies were able to categorically regulate virtually all waters without the burden of having to make this case-by-case showing for many waters,” said Jim Murphy, wetlands and water resources counsel for the National Wildlife Federation (Reston, Va.). “We’re not sure the agencies are going to muster up the resources to go out and make all these determinations when they come up, and the result might be that they unjustifiably let some waters slip from coverage.”

Far-Reaching Impacts
The court’s ruling could have implications extending far beyond wetlands. “This isn’t just a wetlands case,” Christie pointed out. “This applies to the entire CWA, so anything that’s not jurisdictional for dredge and fill activities is also not jurisdictional for point source discharges.”

In a Jan. 9, 2006, letter to the Association of State Wetland Managers, Benjamin Grumbles, EPA assistant administrator for Water, laid out what removing headwaters, small streams, and wetlands from CWA jurisdiction could mean. More than 40% of the point source discharges permitted under CWA (excluding stormwater and nonstormwater general permits) are located on intermittent, ephemeral, or very small perennial streams, he wrote. Additionally, 90% of the source water protection areas providing drinking water for more than 110 million Americans are located in headwater areas of U.S. watersheds.

“This decision has an even greater impact on the drier areas of the U.S. where you typically have a much larger proportion of waters that are intermittent and ephemeral, because if you only have 7 to 10 inches [180 to 250 mm] of rain per year, they don’t flow continuously, but when they do, they can be catastrophic,” Christie explained.

Because of such concerns, 33 states submitted briefs in support of the government in the Rapanos case, Parenteau noted. “That’s pretty startling” because “if there was this great concern that federal jurisdiction was stomping all over state authority, you wouldn’t expect to see 33 states arguing for it, but they did,” he said. “One of the points states made very strongly is that we can’t manage water quality just within our borders; we have to have a federal floor of protection.”

What’s Next?
The Army Corps and EPA will have to step in and issue guidance or a rulemaking to address what the significant nexus test is and how it should be met, Christie said.

In a U.S. Senate Environment and Public Works subcommittee hearing in August, Grumbles said EPA and the Army Corps are working on guidance to clarify the scope of the Supreme Court ruling, but he gave no timetable for its release. Meanwhile, the two agencies are holding off on making any wetlands determinations until the guidance is issued.

“The [Army] Corps has stopped issuing jurisdictional determinations nationally until they get this issue resolved, which is going to create a pretty significant backlog of work,” said Mary Sadler, a senior project engineer in the Raleigh, N.C., office of Arcadis (Denver).

Congress also could step in to help sort things out. The Clean Water Authority Restoration Act of 2005 (H.R. 1356 and S. 912) would amend CWA to clarify federal jurisdiction over U.S. waters. 

— Kris Christen, WE&T



When Mother Nature Turns Ugly

Utilities give tips to prepare for, survive a major weather event

An umbrella, a raincoat, and perhaps a flashlight with batteries. That’s all most people need to worry about on a stormy day. But for water and wastewater utility operators, umbrellas are the least of their concerns: A storm can mean power outages and flooding that can wreak havoc on their plants.
It takes significant forethought to keep systems up and running throughout a powerful storm. However, with some advance planning, operators can help ensure that their plants run as efficiently during a storm as on a sunny day.

Keeping a Watchful Eye
To prepare for bad weather, Rebecca West and staff at the Spartanburg (S.C.) Water System–Spartanburg Sanitary Sewer District (SSD) wear a meteorologist’s hat.

“We actually monitor the weather continuously,” said West, SSD director of technical services, adding that staff members tune into the U.S. National Oceanic and Atmospheric Administration weather channel via the Internet. “Because we’re in South Carolina and have the potential to be affected by hurricanes that may hit the East Coast or the Gulf of Mexico, we try to anticipate when we’re going to have heavy rain events.”

West said that by monitoring the weather, she often knows 3 days to a week in advance if a heavy rain event or an ice storm is headed their way, so preparation can begin immediately.

SSD comprises 14 wastewater plants and three drinking water plants spread throughout Spartanburg County. In times of bad weather, utility employees must consider all aspects of the system.

West said that for the wastewater facilities, SSD makes as much additional capacity as possible available in the plant. For example, equalization basins and tanks that can store water in the plant before it runs through the treatment process are open, empty, and ready to take on additional water before a major storm event.

In case of a power outage, SSD has backup generators throughout the system. Keeping the generators fueled continuously during a major storm can be difficult, West said. When an ice storm hit Spartanburg in December, sections of the system were without power for 5 days.

“Moving generators from [the plants and lift stations] during the ice storm was a bit of a challenge, and keeping enough fuel for 5 days of continuous running was a challenge,” West said. ”In that situation we actually had three different fueling companies coming and just making a continuous run across our system, fueling up generators.”

Mark Poling, wastewater treatment department director at Clean Water Services (CWS; Hillsboro, Ore.) said it’s not hurricanes his staff watches for, but earthquakes. The greatest danger with earthquakes is their unpredictability, he said.

“We don’t have an earthquake season like they do with hurricanes,” Poling explained. “It’s something you have to be ready for.” Preparing for earthquakes requires keeping up with frequently changing building codes. “The challenge for us is to go back and retrofit all the existing facilities and trying to stay current with that code,” Poling said.

Poling said CWS recently installed automatic shutoff valves for the gas mains so they will turn off immediately if an earthquake occurs.

While Poling said he’s been fortunate and has not experienced a major seismic event at CWS, the facility — responsible for stormwater and the wastewater of about 500,000 residents in the Portland metropolitan area — must be prepared for one nonetheless.

Flooding, on the other hand, is not a big concern for CWS, as the utility is located in a relatively flat area.

“The river that we discharge into people have likened ... to a very long lake — it’s not very wide, but it has very little drop to it,” Poling said. “We have lots of floodplain area, and that will fill up over the course of the winter, depending on how much rain we’ve had.”

When a large storm occurs after the floodplain and the system reservoirs fill up beyond their ability to hold excess water, “that’s when there’s a possibility of flooding for us. So we have a pretty good sense of when it’s coming,” Poling explained.

Power outages at CWS also are prepped for long before they occur.

“Almost all of our 40 pump stations have backup generators, and the couple that don’t have very small flows to them, [so] they can store flow for several days before there’d be an overflow,” said Poling.
CWS has a dual power feed including a preferred feed and an alternate, should the preferred go down. An added bonus: One of the CWS plants is neighbor to a Portland General Electric substation, which provides a reliable power feed to the plant.

Power outages can be tricky, however, even when a system is well-prepared, Poling said. He recalled one incident in which a squirrel made his way into a transformer, knocking out power for a while.
“Power bumps happen at every plant,” he said.

To minimize time spent on restarting equipment when an outage does occur, Poling said that CWS has tried to install equipment that can automatically restart. CWS recently switched its main influent pumps from manual to automatic.

“If you’re in a storm condition where you have very little storage time in the collection system because you have so much flowing water out there, [and] the person [in charge] couldn’t get to a SCADA terminal quickly, it’s really good to have those pumps come back up [automatically] and keep the water moving into the plant, so we don’t have overflows,” Poling explained.

Coping With Floodwaters
What if your plant actually floods?

“Then we pray a lot,” West said with a laugh. “During that time, if it’s a big enough event, we’re pretty much set up like a communication center or a command incident center for the company. First of all, we’re trying to make sure we’ve got communication going [within] the plant. But if it gets so bad that the safety of our employees is affected, then we have to evacuate them … from the facility until it’s safe enough to go back in.”

During major storm events, if staff members will be working longer shifts or if staff will be staggered around the clock, SSD provides food and sleeping quarters.

Spartanburg also contracts with outside vendors that provide pumping equipment and tankers to help the utility move water or solid materials out of the area, West explained.

In a severe flood, when pumps are flooded and underwater, they usually stop working immediately, West said. Her staff takes measures to prevent such an incident.

“If you get these huge floods, there’s not a lot you can do,” West said. “For example, with our pumping stations, we have SCADA control, which tells us what the levels are at those pumping stations; we have alarms that tell us ‘okay you’re getting excess water in the pump station.’ We’ll then dispatch people and then we stage people out basically to run from pump station to pump station to make sure the pumps are working properly.”

“Now if the water is rising to the point that the pump stations themselves get flooded, well then, safety’s first,” West said. “We don’t want our employees in those situations.”

Poling, who said flooding has never been an issue within the system’s facilities, agreed that looking out for the staff’s well-being is important.

“We run with a fairly minimal staff in the off hours,” Poling said. “Two of our plants are staffed 24 hours [per day], and we only have one person on for about 4 hours every night. If there are storms or we think there might be power outages or high flows, we’ll put more people on. It’s a lot for one person to handle.”
Although much of the equipment at CWS comes back on automatically after an outage, staff members still must verify that everything is in working order.

After a storm, Poling said, there’s an order to checking on things within the plant. “You make sure that the water is moving, that’s the first thing — you check your prime movers, all the pumps,” he said. “Then the next thing you do is ... go to aeration blowers because that’s what keeps your secondary system alive.”

Keeping the Community Informed
West said that in times of heavy storm events, it’s beneficial both for local residents and the plant system to open the lines of communication.

“Communication,” West said, plays “a vital role.”

When computer systems and phones are down, West said plants must often rely on local residents for information as to what the community’s dire needs are — and where they are. Likewise, hourly newscasts updating residents about water and wastewater conditions are not only informative but help calm jangled nerves.

Poling explained that a public affairs group assists CWS in getting basic information out to the public. The group enlists the expertise of staff members when more detailed information is requested by the media.

Lessons Learned: Katrina
It would be difficult to find a utility that did not take away a lesson or two from Hurricane Katrina. Although a difficult time for many, the hurricane enabled other facilities to take stock of their own emergency preparedness.

“It raised awareness of what potential large-scale disasters might happen to us,” Poling said, “and are we ready for such a catastrophic event?” 

CWS is updating its emergency planning, including working with the community and improving emergency planning within the system’s field operations groups for both the sanitary and stormwater collections systems. 

Hurricane Katrina caused SSD to take a long, hard look at its staffing procedures.

West recalled asking herself, “What do you do when you’ve got staffing that may or may not be available [because] you either have to send them home because the facility becomes flooded, or they’re trying to take care of their own personal situations?”

Additionally, the Gulf Coast storm made West and other managers “stop and look and see if we had adequate spare parts or generators, or anything like that that you would need to keep your system operational as best you could,” West said.

— Meghan Oliver, WE&T



Electrical Conductivity Aids in Locating Septic System Failures

Roughly a quarter of U.S. households use onsite decentralized systems to treat and dispose of their wastewater, according to U.S. Environmental Protection Agency (EPA) statistics. Further data indicate that at least 10% of such systems have stopped working, potentially leading to surface water and groundwater contamination. Now, a new tool could help local and state health inspectors to detect such failures more effectively, even when the systems seem to be operating properly.

Researchers at Purdue University (West Lafayette, Ind.) and the U.S. Department of Agriculture (USDA) are testing an instrument, called a noninvasive electromagnetic induction (EMI) sensor, to see if they can spot the source of septic system failures without destroying a whole yard with a backhoe. The sensor measures how well soil conducts electricity, based on the soluble salts, water, temperature, and percentage of clay in the soil.

Field studies of a failed septic system in northeastern Indiana indicated that the sensor was capable of collecting soil data that identified problems in the septic tank and septic field trenches, said Brad Lee, a soil scientist at Purdue and lead author of a report on the study’s findings that was published recently in the online Vadose Zone Journal.

“Soil contaminated with household waste has a higher electrical conductivity than the readings from the rest of the lawn,” Lee explained. “The instrument identifies these changes in soil electrical conductivity.”
If the results hold up in other soil types and with other decentralized wastewater systems, such a diagnostic tool for assessing performance would be “a tremendous management advance and fill a major research gap,” said Valerie Nelson, director of the Coalition for Alternative Wastewater Treatment (Gloucester, Mass.).

Pinpointing Trouble Spots
Typical signs that a septic system may be failing include wastewater backup in drains or toilets, sluggish drains, mushy ground or greener grass around a septic system, outdoor odors, nitrates or bacteria in drinking water, and algae blooms in ponds adjacent to homes with such systems, according to USDA.

Finding the problem and determining the extent of soil contamination can be destructive, time-consuming, and a nuisance to homeowners, Lee noted. The EMI sensor, on the other hand, “can help investigators locate problems without digging,” he said, adding that this was his main motivation for undertaking the study. Additional advantages of the sensor are that it is portable, it collects data quickly, and it can measure down to soil depths of several meters, Lee said.

“It sends out an electromagnetic wave signal into the soil and then measures what comes back,” Lee explained.

Lee and his colleagues used the sensor at a home in Allen County, Ind., that was believed to have a failed septic system leaking contaminants into the ground adjacent to the septic system trenches. They confirmed this when readings of electrical conductivity were higher in the septic field than on the adjacent property. The researchers retested the area 6 months after the owners had moved and the system had not been used. At that time, the readings around the septic field were comparable with those for the surrounding land.

The findings suggest that the EMI sensor is “a promising technique for identifying the location of septic system components, failed septic systems, and their associated effluent plumes,” at least in the fine-textured, glacial-till derived soils of northeastern Indiana, Lee said. Further studies are planned to confirm its effectiveness in other soil types and environmental conditions, as well as different septic system types.

Widespread Applicability
Decentralized wastewater treatment systems serve roughly 25% of all U.S. homes and about 40% of newly developed areas, EPA statistics show. The distribution and density of such systems varies widely by region and state, from a high of about 55% in Vermont to a low of about 10% in California. States list leaky septic systems as the third most common source of groundwater contamination, and most of these failures are related to inappropriate design and poor maintenance, according to EPA.

Despite how widely dispersed such systems are across the country, however, “failure rates are merely guesses in most places,” Lee pointed out. “It’s very difficult to go into an area and identify how many septic systems have failed.”

And by the time signs of failure are identified, the system could have been contaminating nearby soils and groundwater for several years as individual point sources, added Robert Watkins, planning director for Elkhart County, Ind., where as many as 30,000 onsite systems currently are operating. The significance of this device is that it could allow “us to go into areas and look at systems that have been in use for a longer period of time and see if there are plumes of contaminants coming off that system or migrating away from it,” he noted.

From a local level, the data gleaned could show “if there’s a need in those areas to go to a different type of system that assures a better quality effluent before it hits the soil,” Watkins said. “It could also show where systems are functioning just fine in that effluent isn’t surfacing, the toilet does flush, and we can’t detect a plume moving away from these systems; that’s a good thing.”

Nelson agreed. “The failure rate analysis of what’s going on with septic systems around the country is very inadequate, and that lack of understanding is a problem,” she said. A technology that could cheaply and effectively assess what is going on in soils would go a long way toward better “understanding the performance of these systems across the country and providing a means to assess whether something needs to be done with an individual home system design,” she added.

Cluster systems serving more than one household also could benefit, said Todd Danielson, manager of community systems for the Loudon County (Va.) Sanitation Authority, which services one of Virginia’s fastest growing areas. “We’ve got some very significantly sized mass drain fields serving subdivisions,” he noted. “Rather than having to go out through an entire drain field, this could really make our life a lot easier if [the EMI sensor] does work to pinpoint failure locations.”

The EMI sensor has been used to test for animal waste and salinity in agricultural areas and to locate storm collection systems and buried landfills, but it has never been used before to find problems in septic systems, Lee said. Additionally, maps prepared from the sensor data could be used for assessing building site conditions, planning future testing, and locating the best sites for sampling and monitoring of soil for possible septic contamination.

Kris Christen, WE&T