In Black Warrior Riverkeeper v. ACOE, decided this week by the 11th Circuit Court of Appeals, the Court was faced with a quandary. “On the eve of oral argument”, in a case challenging The Army Corps of Engineers Nationwide Permit 21, which allows certain surface coal mining activities without an individual permit, the Army Corps of Engineers informed the Court that it had significantly underestimated the acreage that would be affected by NWP 21. Moreover, the Corps acknowledged that this error was sufficiently significant that it needed to revisit NWP 21. More
Category Archives: Wetlands
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, not so good for developers.
The Court laid out four general precepts that apply to all cases:
Either qualitative or quantitative evidence may demonstration jurisdiction. Here, the Court rejected the developer’s argument that, because the… More
EPA has been working to craft a general permit for small Municipal Separate Storm Sewer Systems for quite some time. The most recent draft permit, published last September, has received significant comment, most recently from the Massachusetts Department of Environmental Protection. While emphasizing cooperation and appreciate for EPA’s efforts at collaboration, it is difficult to read MassDEP’s comments as anything other than as a sign of significant concern about overreach by EPA.
What’s the problem with the draft permit? Nothing that a modicum of attention to cost – and cost-effectiveness – couldn’t solve. Indeed it’s telling that MassDEP… 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. If opponents of the rule want to… 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.
Since I have a gift for the obvious, I’ll remind readers that we’ve been trading credits in SO2… More
The Science Advisory Board has now provided its advice to EPA and the ACOE concerning their proposed rule clarifying the definition of “waters of the United States” under the Clean Water Act. In a brief letter that can only worry the National Farm Bureau and embolden those who thought that the EPA/ACOE proposal did not go far enough, the SAB concluded that:
the available science supports the conclusion that the types of water bodies identified as waters of the United States in the proposed rule exert strong influence on the… More
Over the past few months, I worked with a number of colleagues from the American College of Environmental Lawyers to provide the Environmental Council of the States with a balanced review of the history and background of how the term “waters of the United States” has been defined and interpreted under the Clean Water Act. In announcing the release of the memorandum, Dick Pedersen, President of ECOS, thanked “those members of ACOEL who spent significant time and effort developing this comprehensive memorandum.”
To which I can only add, that’s… More
Early last month, we noted that the decision in Luminant v. EPA suggested that the reach of the Supreme Court decision in Sackett is not unlimited. The Court of Appeals for the 5th Circuit agrees. In Belle Company v. Corps of Engineers, the Court ruled that a Corps Jurisdictional Determination, or JD, is not final agency action subject to judicial review.
That had always been the law, but the plaintiffs argued that Sackett changed the landscape. Not so, said the Court. The Court agreed that the JD was the “consummation of the Corps’s decisionmaking process.” However,… 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. On March 25, EPA sent a proposed rule for publication in the Federal Register. It’s only 370 pages. Sounds like guidance to me.
Although one might have thought that defining waters… 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, Kentucky. Prior to issuing a § 404 permit, the ACOE performed its NEPA review, issuing a Finding of No Significant Impact after completion… More
I previously noted that the record of the Bush administration in defending its rulemaking decisions was dangerously near the Mendoza Line. Indeed, even four years after Bush left office, it was continuing to lose decisions. Now, we can say that the record has extended to five years. Last week, in National Parks Conservation Association v. Jewell, the United States District Court for the District of Columbia vacated the 2008 rule issued by the Office of Surface Mining Reclamation and Enforcement, which had itself revised the 1983 stream buffer zone rule.
The ground for the vacatur was… More
Last week, what appears to be a draft (so long that it is in two separate parts) of EPA’s proposed rule defining “waters of the United States” was widely circulated. Part of what I love about this story is that it is uncertain whether this is in fact the draft rule that EPA sent to OMB to review. On one hand, it has many of the hallmarks of an EPA proposed rule. However, there are some aspects that do read somewhat oddly, particularly the level of informality in the text. According to the Daily Environment Report on… 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. In accordance with the deferential standards applicable to a court’s review of an agency’s actions, this court must give EPA’s… 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, it’s probably time to acknowledge that there is no quick and easy, so you… 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, including septic systems, storm water systems, and waste water treatment facilities as non-point sources, rather than point sources. Second, it alleged that the TMDLs failed to take into account the need for additional stringency due to… More
The Supreme Court ruled today, in Koontz v. St. Johns River Water Management District, that a property owner who is denied a land use permit on the ground that he refused to pay money to compensate for the harm to be caused by his proposed property use states a claim for a regulatory taking, unless the regulator can establish a “nexus” and “rough proportionality” between the exaction and the alleged harm requiring mitigation.
The facts in Koontz are muddled and, as the dissent points out, it is not obvious that Koontz should prevail on remand, even under the majority’s… More
When is the Meaning of a Statute Sufficiently Plain? The D.C. Circuit Restores EPA Authority to Withdraw Approval of Section 404 Permits
In a decision on Tuesday that must have sent shivers down the spine of every coal company executive, the D.C. Circuit Court of Appeals restored EPA’s authority to withdraw the specification of streams for the disposal of mountaintop mining wastes – years after the Army Corps had issued the permit containing the specification. Indeed, Daily Environment Report quoted National Mining Association CEO Hal Quinn as saying that the decision, in Mingo Logan Coal Company v. USEPA
has pulled the regulatory rug out from under the feet of U.S…. More
CZM Proposes Regulations to Implement Ocean Management Plan and Update Federal Consistency Review Program
The Massachusetts Office of Coastal Zone Management (CZM) recently released for public review and comment draft regulations designed to update federal consistency review requirements and implement the state’s Ocean Management Plan.
Governor Patrick signed the Oceans Act on May 28, 2008, requiring the Secretary of EOEEA to develop a comprehensive ocean management plan. The Massachusetts Ocean Management Plan was released on December 31, 2009. CZM has now drafted its proposed Ocean Management Plan regulations, which would implement the Ocean Management Plan largely through MEPA and other existing permitting processes. Key provisions of the regulations include the following:
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.
Since Olech, however, the Courts of Appeal have been… 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, waterways and water quality.
A Victory For Regulation Over Guidance? Are EPA and the Corps Giving Up on Post-Rapanos Wetlands Guidance?
As readers of this blog know, EPA’s use of guidance is a pet peeve of mine. The issue has arisen with particular force in connection with EPA’s efforts to define Clean Water Act jurisdiction following the Supreme Court decision in Rapanos. When I last posted on this issue, I noted that any potential theoretical benefits to guidance were being outweighed by the practical reality that issuing guidance on such an important issue ends up taking on many of the trappings of regulation, and thus does not save time or transaction costs.
Sometimes, I’m right.
Almost a year later,… More
The New York Times reported today that Governor Cuomo is proposing to spend $400 million to buy out owners of property to avoid a recurrence of the damage caused by Hurricane Sandy. I have to say that I have been persuaded over the past few years that we cannot put all our eggs in the mitigation basket, particularly since political gridlock in Washington has prevented much mitigation from occurring.
As a result, adaptation is going to be important and programs at least similar to what Governor Cuomo has proposed are going to be necessary. The hard question, of course,… More
Yesterday, I did an update on Clean Air Act developments. Today, it’s the Clean Water Act’s turn. According to the Daily Environment Report, EPA will meet its deadline of June 13, 2013 to promulgate a post-construction stormwater rule. I found it interesting that the story states that EPA has nearly completed its cost-benefit analysis for the rule – even though it has not yet made a decision on the size threshold. Presumably, the cost-benefit analysis is being performed across a range of possible thresholds.
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. Highlights include:
Elimination of MassDEP sewer connection permits. The existing program represents… More
On Friday, E&E News reported that EPA had – for the fifth time – missed its deadline for proposing regulations governing stormwater discharge from post-construction activities. Apparently, EPA and the Chesapeake Bay Foundation, which was the plaintiff in the original litigation, are negotiating a new deadline. Good luck with that.
EPA is not in a good place at the moment. There is significant congressional opposition to any rule, with comments questioning not just the wisdom of a rule, but EPA’s authority to issue a post-construction rule at this point. Addressing stormwater will undoubtedly be extremely expensive. The same E&E story noted that… 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.
At an earlier point, I acknowledged that this might actually be an appropriate situation in which to use guidance, for one basic reason. The guidance is only temporary; EPA has already acknowledged the need to pursue rulemaking as the long-term solution.
That being said, however, I… More
The decision last week by Judge Amy Berman Jackson – an Obama appointee – to reject EPA’s authority to withdraw its “specification” which authorized the Army Corps of Engineers to issue a § 404 permit to the Mingo Logan Spruce No. 1 mine would be important in its own right. In combination with the recent Supreme Court decision in Sackett, and given the language used in both cases, the combination rebuke to EPA is worth attention.
The permitting history of the Spruce No. 1 mine was lengthy… More
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, I actually largely share Justice Alito’s view:
The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determination under the… More
Yesterday, MassDEP released its Final Action Plan for Regulatory Reform. It pretty consistent with the draft package I summarized last October. There is some good stuff in the package, but it really is baby steps. MassDEP’s own ground rules precluded the adoption of any changes that could not be described as Pareto improvements– If any stakeholder would be made worse off, it just wasn’t going to happen. Thus, MassDEP imposed the following limitations to ensure that the changes would not:
Cost MassDEP money Impose burdens on municipalities Reduce public process Require statutory… More
Just in case you are not sated with coverage about the Supreme Court argument in Sackett and the potential implications if EPA loses, I thought I would note that I did a brief (8 minutes) interview with LexBlog Network about the issues it presents. You can see it here.
Last week, I noted that the D.C. Court of Appeals had found that the National Association of Home Builders did not have standing to challenge a determination by EPA and the Army Corps of Engineers that two reaches of the Santa Cruz River are traditional navigable waters. On Friday, in National Association of Home Builders v. United States Army Corps of Engineers, the NAHB lost yet another standing battle.
This time, the NAHB was challenging the Corps’ nationwide permit, NWP-46, allowing discharges of dredge and fill material into certain upland ditches. The District Court had found that the NAHB… 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; and Coastal Zone and Oceans.
Certainly, the summary of potential impacts in Massachusetts is not a pretty picture – speaking metaphorically, anyway; many of the pictures in the report actually are pretty cool. For those… More
Late last week, Greenwire reported that EPA is delaying its proposed construction general permit, or CGP, for stormwater. The delay is certainly a victory for the real estate industry, which has been fighting hard to delay the rule and, in particular, its numeric turbidity limit. The industry had complained about the data on which the standard was based, calculation errors by EPA, and what it views as a 10-fold underestimate of the compliance costs.
EPA denies that the delay was a political decision by the White House or OMB and stated that it needs to gather more information about existing… More
It’s easy enough to complain about EPA; I’ve even been known to do it on occasion. However, in Massachusetts, we have a different problem. We let local municipalities regulate all sorts of matters in which they have no expertise. We even delegate to municipalities the implementation of our state Wetlands Protection Act. That’s how we end up with cases such as Lippman v. Conservation Commission of Hopkinton. Lippman didn’t make any new law, but it does illustrate what havoc local boards can wreak.
The Lippmans wanted to build a single family house on land subject to the WPA. They… More
Perhaps the Justices Just Don’t Like GE: The Supreme Court Grants Certiorari to Review EPA’s Clean Water Act Order Authority
As I noted earlier this month, the Supreme Court denied GE’s certiorari petition seeking to challenge the constitutionality of EPA’s use of unilateral administrative orders issued under section 106 of CERCLA. It thus comes as something of a surprise that the Court today accepted a certiorari petition in Sackett v. EPA. The Sackets are appealing a decision by the 9th Circuit Court of Appeals holding that pre-enforcement review is not available to challenge unilateral administrative orders issued by EPA pursuant to section 319 of the Clean Water Act. Lest anyone think that this is simply the Court reining… 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.
For those of you who thought that the sky was about to fall in EPA as part of the budget battle, I’m able to report that EPA survived sufficiently intact to continue to issue new rules. Today, EPA proposed a draft revised construction general permit, or CGP, for stormwater discharges from construction sites disturbing at least one acre (or less, if the project is part of a common development plan that is greater than one acre). The revised CGP would replace the current CGP which is set to expire on June 30. EPA has proposed to extend the current CGP through January… More
As readers of this blog know, the question of guidance v. regulation is one near and dear to my heart. I generally disfavor guidance, because I think it offers none of the protections of the regulatory process and almost none of the flexibility that guidance is supposed to provide. Two issues are of particular concern. First, guidance is not supposed to announce new rules – only clarifying interpretation of existing rules. However, we all know what a slippery slope that can be. Second, notwithstanding the purported flexibility of guidance, how often do regulators on the street – those actually using the guidance, rather than… 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. As EPA noted in its press release, this is only the… More
It has long been understood that Massachusetts that the Commonwealth cannot meet its renewable energy goals with solar power alone. Solar is great, but really ratcheting up the percentage of energy supplied by renewable sources is going to take a big commitment to wind. In fact, Governor Patrick announced a goal of 2,000 MW of wind on- and off-shore in Massachusetts by 2020. There are currently 17 MW of wind power in Massachusetts.
Everyone knows the permitting travails – now, hopefully, over – that Cape Wind has faced. It is less known that on-shore wind has not been any easier to develop in… More
Yet More Bad News for Coal (Mining): EPA Issues Guidance Imposing Numeric Criteria For Discharges From Mountaintop Mining
Last week, EPA proposed to veto a permit for the No. 1 Spruce Mine in West Virginia. Yesterday, EPA went much farther, announcing new guidance – effective immediately – which will impose numeric water quality based effluent limits, or WQBELs, on effluent from surface mining projects. EPA has at least tentatively concluded that high conductivity resulting from discharges of mountaintop fill has adversely affected streams downstream of surface mining operations.
Yesterday, EPA released its effluent guidelines for construction sites. The guidelines establish the first national standard containing numeric limitations on stormwater discharges. The final standard imposed is 280 nephelometric turbidity units. It will apply to all construction sites greater than 20 acres in size as of 18 months following the effective date of the regulations (which will be 60 days after Federal Register promulgation) and sites larger than 10 acres 4 years after the effective date.
As expected, EPA did not take NRDC and Waterkeeper Alliance up on their suggestion that EPA impose post-construction controls. However, since EPA has… More
Although not breaking any new ground, a decision from the Massachusetts Appeals Court last week provides a helpful summary of the discretion typically given to MassDEP in making permitting decisions. In Healer v. Department of Environmental Protection, abutters to a proposed wastewater treatment facility in Falmouth sued MassDEP, claiming that the groundwater discharge from the leach field associated with the facility would damage drinking water supplies and nearby wetlands. The Court affirmed the MassDEP Commissioner’s rejection of the abutters’ challenge.
As the Court noted
the “applicable standard of review is “highly deferential to the agency” and requires the reviewing… More
In an statement this week likely to send chills down the spine of developers, EPA Administrator Jackson called on Congress to provide a clearer definition of wetlands subject to permitting authority under the Clean Water Act. As most readers know, the 2006 Supreme Court decision in Rapanos v. United States narrowed the scope of regulatory jurisdiction over wetlands. Unfortunately, the absence of a majority decision in Rapanos means that, at this point, no one knows quite how much narrower. I think that most observers at least triangulate around Justice Kennedy’s concurring opinion, which stated that waters or… More
Developers and others who appear before local boards know what an uphill battle it is to challenge decisions of those boards. After all, there’s a reason for the existence of the phrase “You can’t fight City Hall.” Of course, it’s never a good idea to fight City Hall unless you absolutely have to do so, but a recent decision from the Massachusetts Appeals Court gives some hope to those forced into that position by a board taking an extreme position.