Category Archives: Wetlands

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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. [...]

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; [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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- [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]