Earlier this month, the D.C. Circuit Court of Appeals issued a decision that is a must-read for anyone who will be needing at some point to relicense an existing hydroelectric facility. The short version is the status quo may no longer be good enough and dam operators may have to improve on existing conditions in order to succeed in relicensing. At a minimum, facility operators will have to take the cumulative impacts of dam operation into account in performing environmental assessments under NEPA required for relicensing.… More
Category Archives: Waterways
Last week, EPA and the Army Corps issued a Supplemental Notice of Proposed Rulemaking in support of their efforts to get rid of the Obama WOTUS rule. It’s a shrewd but cynical document. It’s shrewd, because it fairly effectively shifts the focus from the scientific question to the legal question. Instead of asking what waters must be regulated to ensure that waters of the United States are protected,… More
The debate over the definition of “Waters of the United States” goes on and on. I tend to think that Kennedy’s “significant nexus” test was a reasonable approach to making sense of a vague statute. I also think that the Obama administration definitional rule was supported by good science.
What we sometimes lose track of in the ongoing debate is that the definition – whatever we choose – matters,… More
Last week, the 4th Circuit Court of Appeals – not the most liberal court in the land – joined the 9th Circuit in ruling that discharges from a point source to groundwater can be subject to the Clean Water Act. The decisions follow a number of district court cases to the same effect. It’s hard to deny the trend at this point.
I’ve always been skeptical of these cases,… More
On Monday, the Supreme Court ruled that challenges to the WOTUS Rule must be heard in the district courts. At a certain level, the decision was easy and obvious – as evidenced by the absence of any dissent.
After all, the Clean Water Act does assign jurisdiction to the district courts of all cases under the Act other than in seven specifically identified categories,… More
Back in September and February, we wrote about MassDEP’s Proposed Interpretation of Chapter 91 regulations, which attempted to provide guidance to the regulated community on the conditions under which a historic pile field can contribute to the “project shoreline” — the outer boundary of a development proposal. Triggered by proposed redevelopment of Lewis Wharf, the proposed interpretation essentially stated that if the piles comprising a pile field were no longer visible at “Extreme High Water”,… More
Last month, MassDEP and the Massachusetts Office of Coastal Zone Management released long-awaited revisions to the regulations governing waterfront development in Massachusetts (the Chapter 91 regulations, the Designated Port Area regulations, and the Municipal Harbor Plan regulations). The changes have been in the works since 2010, when MassDEP and CZM first convened working groups to review whether the regulations could be revised to provide greater flexibility to accommodate a variety of uses along the waterfront. … More
Last week we wrote about the Conservation Law Foundation filing suit against EOEEA Secretary Beaton and DEP Commissioner Suuberg for actions associated with the approval of an amendment to the South Boston Waterfront District Municipal Harbor Plan. In that suit, CLF alleged that the Secretary’s decision approving the plan was arbitrary and capricious.
This week, CLF is in the news again for sending a letter to Secretary Beaton requesting that he delay the state’s approval process for another Municipal Harbor Plan located just across the Fort Point Channel.… More
Last week the Conservation Law Foundation (CLF) announced it has filed suit against EOEEA Secretary Beaton and DEP Commissioner Suuberg for actions associated with the approval of an amendment to the South Boston Waterfront District Municipal Harbor Plan. In the Commonwealth, coastal communities can create Municipal Harbor Plans (MHPs) to guide planning and development along the shoreline. If approved by the Secretary, MHPs can create substitute provisions that modify the Commonwealth’s underlying Chapter 91 standards governing public and private use of land and water along the coastline.… More
Acting in response to state legislation, the West Virginia Department of Environmental Protection ceased work on promulgation of total maximum daily loads related to ionic toxicity. Ionic toxicity is a consequence of mountaintop removal coal mining. In case you weren’t aware, the coal industry has a certain amount of political clout in the Mountain State (and can they keep the nickname if they chop the tops off of all of their mountains?).… More
Does a pile field exist if it’s covered at high tide?
MassDEP seems to think not.
Through the Commonwealth’s Chapter 91 program, MassDEP regulates what can be built over tidelands. In last week’s Environmental Monitor, MassDEP announced a “Proposed Interpretation” that would prescribe the way a proponent seeking a Chapter 91 license to authorize development should define a “Project Shoreline”… More
The City of Boston has just released its “Climate Projections Consensus.” It’s not a pretty picture. Here are the lowlights:
- Even with “moderate” emissions reductions, see level rise is likely to be between 1.5 feet and 2.5 feet by 2070.
- The number of “extreme precipitation” events has been increasing and that increase will continue.…
In a decision that was not a surprise based on oral argument, the Supreme Court today ruled that Army Corps of Engineers Jurisdictional Determinations concerning “waters of the United States” are final agency action subject to judicial review under the APA. As we previously noted, this continues the Court’s emphasis on the practical consequences of Corps decisions. Indeed, Chief Justice Roberts noted that the Court’s decision:
Tracks the ‘pragmatic’ approach we have long taken to finality.… More
MassDEP and the Commonwealth’s office of Coastal Zone Management recently proposed draft changes to the Designated Port Area and Facility of Public Accommodation regulations under the Chapter 91 program. The draft for public comment, including a summary of the changes and redlines of the regulations, can be found here. Information on submitting public comments can be found here. Comments are due by Monday,… More
According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government. Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are final agency subject to judicial review. The reach of Sackett expands a bit more.
Earlier this month, the White House released a Presidential Memorandum on “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.” If that portentous title isn’t enough to make developers quiver in their boots, how about this first line?
We all have a moral obligation to the next generation to leave America’s natural resources in better condition than when we inherited them.… More
The Clean Water Act regulates discharges of pollutants to waters of the United States. That term is not understood to include groundwater. The Sierra Club was unhappy about alleged discharges to groundwater from coal ash disposal facilities at the Chesapeake Energy Center power plant. The plant had a solid waste permit for the disposal facilities under Virginia law and, one can at least infer, was in compliance with the solid waste permit.… More
Two Days, Three Decisions, One Big Mess: Welcome to Judicial Review of the Waters of the United States Rule
On Wednesday, Judge Irene Keeley of the Northern District of West Virginia held that district courts do not have jurisdiction to hear challenges to EPA’s rule defining waters of the United States, because courts of appeal have original jurisdiction over “any effluent limitation or other limitation.” Yesterday, Judge Lisa Wood of the Southern District of Georgia agreed.
Later yesterday, Judge Ralph Erickson of the District of North Dakota disagreed. … More
On Monday, the Third Circuit Court of Appeals affirmed EPA’s TMDL for the Chesapeake Bay. This should not be news. Although Judge Ambro comprehensively disposed of the appellants’ arguments in a thoughtful opinion, I think that the opinion probably could have been six pages rather than sixty.
The crux of the challengers’ arguments was that a TMDL must consist of a single number specifying the amount of a pollutant that a water body can accommodate without adverse impact. … More
Even assuming that the “significant nexus” test from Justice Kennedy’s concurring opinion in Rapanos defines waters of the United States subject to Clean Water Act jurisdiction, the question remains what establishes a significant nexus. In a decision earlier this week, the 4th Circuit Court of Appeals provided some important guidance in answering this question. The news is good for EPA and the Corps,… More
It’s All Connected: EPA Finally Determines that the Science Supports an Expansive Definition of Waters of the United States
On Thursday, EPA issued its final report on Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence. The Connectivity report is intended to support EPA’s rule clarifying the definition of waters of the United States. I know that groups on all sides will be providing their two cents, but of this I am sure enough to abandon my usual reluctance to speculate: This report will be more than sufficient to insulate EPA’s final rule from judicial challenge. … More
This week, Virginia formally proposed Nutrient Trading Certification Regulations. The program will establish a market in phosphorus and nitrogen removal credits. Although the program is welcome news, it should be neither earthshattering nor controversial. After all, as we noted more than two years ago, a study by the Chesapeake Bay Commission demonstrated that use of nutrient trading would substantially reduce the cost of the Chesapeake Bay restoration project.… More
Definitely a Victory For Regulations Over Guidance: EPA Issues Proposed Rule Defining Waters of The United States
Tthe Supreme Court issued its decision in Rapanos almost 8 years ago and EPA has been struggling ever since to figure out what “waters of the United States” are within the meaning of the Clean Water Act. After several failed attempts at guidance, EPA finally acknowledged that this issue is too important and too contentious for guidance – and that it merits formal notice and comment regulation. … More
The Federal Tail Should Not Wag the Non-Federal Dog: The Sixth Circuit Concludes that the Corps’ Review of Mountaintop Removal Projects Is Limited
The Sixth Circuit Court of Appeals has ruled, in Kentuckians for the Commonwealth v. Army Corps of Engineers, that the scope of review by the Army Corps of Engineers of § 404 permit applications for fills related to mountaintop removal mining is limited to impacts directly related to the filling operations that require a permit, rather than the overall impacts of the mining project.
The case concerned a mountaintop removal project by Leeco in Perry County,… More
Last Friday, in American Farm Bureau Federation v. EPA, Judge Sylvia Rambo upheld EPA’s Chesapeake Bay TMDL. As Judge Rambo noted in her conclusion, while the environmental problems associated with the Chesapeake Bay are massive and the issues complicated, her review was not that difficult.
Notwithstanding the expansive administrative record, and the complexity of the numerous issues implicated herein, the court’s scope of review in this case is relatively narrow.… More
EPA’s used its blog today to announce that it and the Army Corps of Engineers have sent to OMB a draft rule clarifying the scope of jurisdiction under the Clean Water Act. It appears that EPA has finally given up on its controversial efforts to solve the Rapanos problem through guidance. As I noted previously, when an agency is still working on its quick and easy guidance (with regulations to follow) eight years after the court decision that made the guidance necessary,… More
Last week, in Conservation Law Foundation v. EPA, Judge Mark Wolf ruled that CLF did not have standing to challenge EPA’s approval of total maximum daily loads promulgated for certain waters in and around Cape Cod. Given the increasing number of citizen suits involving TMDL promulgation, the decision is important.
CLF asserted two claims. First, it alleged that EPA wrongly classified certain sources,… More
Equal Protection Claims Concerning Disparate Enforcement of Environmental Laws Remain an Uphill Battle
In 2000, in its 2-page per curiam opinion in Village of Willowbrook v. Olech, the Supreme Court gave hope to developers and property owners that the equal protection clause could be used to prevent local zoning and environmental officials from engaging in disparate treatment against disfavored residents. The Court stated that one may bring an equal protection claim as a “class of one” where
the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.… More
Earlier this month, the Supreme Judicial Court (SJC) issued its decision in Mahajan v. DEP, holding that the Boston Redevelopment Authority’s (BRA) proposed redevelopment of Long Wharf in Boston is not subject to Article 97 of the Amendments to the Massachusetts Constitution. Among other things, Article 97 protects park lands from being disposed of or used for other purposes, absent a supermajority vote from both branches of the Legislature.… More
In addition to its MCP package, MassDEP has also released its formal regulatory reform proposals for its water, wastewater, wetlands, and waterways programs. As with the MCP proposal, the water package took longer than it should have, and may not be perfect, but is definitely worth the wait. MassDEP has provided two separate helpful summaries of the changes, one concerning wastewater issues and the other concerning wetlands,… More
In a curious, but unsurprising, decision yesterday, in Los Angeles County Flood Control District v. NRDC, the Supreme Court held that the flow of water containing pollutants from part of a river that has been culverted into a part of the river which still maintains natural banks is not a “discharge of a pollutant” within the meaning of the Clean Water Act. The decision appears to be controlled by the Court’s prior decision in Florida Water Management District v.… More
In April 2011, MassDEP launched a regulatory reform initiative. Yours truly participated in the original stakeholder group working with MassDEP to develop a list of potential reforms. Last week, MassDEP provided an update on the status of the reform package. While it has probably taken longer than Commissioner Kimmell had hoped, I am pleased to say that there is a lot of good stuff at this point, including some items that have been added since the original Action Plan was finalized in March 2012.… More
After my post on judicial restraint – and the lack thereof – in Texas v. EPA, the opinion issued last week by Judge Robert Chambers, in Ohio Valley Environmental Coalition v. United States Army Corps of Engineers, affirming the Corps’ § 404 permit for Highland Mining’s Reylas Surface Mine, seemed particularly notable. I cannot recall of similar example of a judge who was almost visibly restraining himself,… More
An article in the New York Times earlier this week reported on EPA’s attempts under the Superfund program to address contamination in water bodies, such as rivers, lakes and harbors. Although the article acknowledges that these water body sites are technically challenging, it does not remotely capture the tortured regulatory history of these sites or the dubious remedial approach that EPA is now pursuing. It is not an exaggeration to say that some of the most notorious Superfund failures involve water body sites.… More
Industry groups and environmentalists continue to do battle over EPA’s efforts to update its post-Rapanos guidance. Greenwire reports that 12 different groups have met with “the White House” in the past six weeks. As this process drags on, one cannot help but ask why this guidance is even being issued at all.
For once, speculation about oral argument proved solid. The Supreme Court’s unanimous ruling today in Sackett v. EPA means that EPA must allow judicial review of enforcement orders issued pursuant to its authority under the Clean Water Act. The question now is what the true scope of the decision will be. That question really has two parts.
The first is what will happen to CWA enforcement. On that score,… More
Yesterday, the Bureau of Ocean Energy Management issued a notice of availability for the Environmental Assessment it prepared in connection with the issuance of leases for wind energy development off the coast of New Jersey, Delaware, Maryland, and Virginia. The EA includes a Finding of No Significant Impact, or FONSI. In other words, BOEM concluded that the issuance of leases does not require a full blown Environmental Impact Report.… More
A story in today’s Boston Globe makes clear that, at least in states where it is permissible to use the words “climate” and “change” in the same sentence, the battle over adaption may no longer be hypothetical. The neighborhood known as East Boston is one that might appropriately be described as having unfulfilled potential. Last month, at a Chamber of Commerce breakfast, Mayor Menino pledged to revive East Boston, specifically calling out five projects that have been on the drawing board for some time.… More
If You Build a Facility of Public Accommodation, but There’s No Public to Accommodate,What Do You Have? Empty Space
Chapter 91 is in many ways my favorite Massachusetts environmental statute. After all, very few statutory regimes allow one to discuss the Colonial Ordinances of 1641-47, and where the waters ebbeth and floweth. The gist is that these waters, and the land under them, belong to the Commonwealth, in trust for its citizens. Of course, the modern details get more complicated, but that’s still the essence.… More
The abandonment of any discussion of climate change in Washington has not been followed in Massachusetts. Yesterday, Rick Sullivan, the Secretary of Energy and Environmental Affairs, released the Massachusetts Climate Change Adaptation Report, providing the fruits of a lengthy process in Massachusetts to look at the impacts of climate change on five areas: Natural Resources and Habitat; Key Infrastructure; Human Health and Welfare; Local Economy and Government;… More
Greenpeace Critiques Apparel Sector Companies for Failing to Manage Water Contamination by Suppliers
Some of the world’s most well-known apparel companies have come under criticism from Greenpeace for not sufficiently monitoring and limiting industrial wastewater discharges by suppliers. In a new report called “Dirty Laundry“, Greenpeace highlights the wastewater discharges from two major manufacturers in China that supply products to a range of major brands — including Adidas, Bauer Hockey, Calvin Klein, Converse, Lacoste,… More
First Circuit Finds Coast Guard Violated NEPA in Attempt to Preempt Massachusetts Oil Spill Prevention Act
While not ones to unnecessarily toot our own horns, the First Circuit’s decision in United States et al. v. Coalition for Buzzards Bay et al. is worth a read. We (specifically, Buzzards Bay Guardian Jonathan Ettinger, Amy Boyd, and I) have been representing the recently-renamed Buzzards Bay Coalition in this case for a number of years and yesterday’s decision represents both a victory for the Coalition and an important First Circuit precedent with respect to the National Environmental Policy Act (NEPA).… More
I posted recently that EPA actually seems to be listening to comments from the regulated community and has changed course in some cases in response to those comments. The release by EPA and the Army Corps yesterday of their long-awaited revised guidance implementing the Supreme Court’s Rapanos decision confirms that EPA is in listening mode. Although I am not normally a fan, this new version seems an appropriate use of guidance.… More
In Cool Hand Luke, Paul Newman is sentenced to two years on a chain gang for cutting the heads off of municipal parking meters. The Mingo Logan Coal Company wants to cut the top off of 3.5 square miles of West Virginia mountaintop. This week, EPA gave the company’s Spruce No. 1 Mine
proposal the death penalty, using its authority under § 404(c) of the Clean Water Act to veto a permit issued by the Army Corps of Engineers in 2007. … More
The Cape Wind project cleared another important hurdle yesterday with a 4-2 ruling by the Massachusetts Supreme Judicial Court, holding that the state Energy Facilities Siting Board (EFSB) can authorize local construction permits for the project’s transmission lines. The decision in Alliance to Protect Nantucket Sound Inc. v. Energy Facilities Siting Board is particularly significant because it means that the renewable energy project has all of the state and local permits it needs to move forward.… More
The SJC Really Means It: Only the Legislature Can Give Up the Public’s Ownership Interest in Tidelands
As many of you know, the Commonwealth’s tidelands licensing statute, Chapter 91, is one of my favorites, for no other reason than that it gives me the opportunity to talk about where the “waters ebbeth and floweth.” Deriving from the Colonial Ordinances of 1641 and 1647, Chapter 91 is about as arcane as it gets – which, of course, lawyers are supposed to like.
Sometimes, the practice of environmental law just takes my breath away. A decision issued earlier last month in United States v. Washington DOT was about as stunning as it gets. Ruling on cross-motions for summary judgment, Judge Robert Bryan held that the Washington State Department of Transportation had “arranged” for the disposal of hazardous substances within the meaning of CERCLA by designing state highways with stormwater collection and drainage structures,… More
Yesterday, the Supreme Court decided, 8-0, in Stop the Beach Renourishment v. Florida Department of Environmental Protection, that a Florida law which allows the State DEP to fill in submerged land (owned, under Florida law, by the State), and then to cut off the littoral owners’ rights to accretion of the beach front without paying compensation, was not a taking requiring compensation under the 5th Amendment.… More
I’ve been waiting to write this headline ever since the SJC took this case. Today, the SJC issued its long-awaited decision in Moot v. Department of Environmental Protection. For those of you who pay attention to where the waters ebbeth and floweth – or at least where they ebbed and flowed in 1641 – you know that this is the second time that Moot has been before the SJC.… More
Earlier this week, Energy & Environmental Affairs Secretary Ian Bowles announced the release of the nation’s first ocean management plan. The plan is similar, but not identical to, the draft plan issued last July. Here are the highlights:
A Prohibited Area off the coast of the Cape Cod National Seashore, where most uses will be – you guessed it – prohibited
Multi-Use Areas, constituting approximately two-thirds of the planning area, where uses will be permitted if they comply with stringent standards for protecting marine resources
Renewable Energy Areas, where commercial- and community-scale wind projects have been found to be appropriate.
Perhaps The Next Coastal Project Won’t Take 10 Years: The First Circuit Preempts Some State Authority
Public and private developers spend a lot of time talking about NIMBY, or Not In My Backyard. With the increasing number of coastal development projects, ranging from wind farms to LNG facilities to plans for casinos, we should perhaps be talking about another acronym: NIMO, or Not In My Ocean. Yesterday, a decision from the First Circuit Court of Appeals in Weaver’s Cove LNG v. Rhode Island Coastal Resources Management Council gave some hope that NIMO will not mean that states can simply squelch development of ocean resources.… More
In 1992, in South Carolina Coastal Council v. Lucas, the Supreme Court held that a state statute or regulation that denies a property owner all economic use of her property requires payment of just compensation under the Takings Clause. The Court distinguished statutes and regulations from restrictions inherent in background principles of the common law of nuisance – the latter types of restrictions do not require just compensation.… More
I know it’s hard to believe, but some of you may not have realized that today is World Oceans Day. In connection with World Oceans Day, Senator Jay Rockefeller has written a letter to the White House in support of the concept of “ocean zoning.” Senator Rockefeller will also be holding hearings on the issue tomorrow. Among those testifying will be Deerin Babb-Brott, who is the Assistant Secretary in the Massachusetts Executive Office of Environmental Affairs and is in charge of Massachusetts’… More
In December, I posted about the decision in Canton v. Paiewonsky, in which Judge Fabricant held that a party seeking to challenge the certificate of the Secretary of Energy and Environmental Affairs approving an Environmental Impact Report must do so within 30 days of issuance of the first permit for a project – even if the plaintiff’s concerns about the project are totally unrelated to that permit and the plaintiff would not be harmed by issuance of the permit. As before,… More