Embed Size (px)
Citation preview
OVERVIEW OF NATIONAL OVERVIEW OF NATIONAL ENVIRONMENTAL ISSUESENVIRONMENTAL ISSUES
GCAA MANAGEMENT WORKSHOPGCAA MANAGEMENT WORKSHOP COBB GALLERIA, ATLANTA GA COBB GALLERIA, ATLANTA GA
FEBRUARY 27, 2013FEBRUARY 27, 2013
OVERVIEW OF NATIONAL OVERVIEW OF NATIONAL ENVIRONMENTAL ISSUESENVIRONMENTAL ISSUES
GCAA MANAGEMENT WORKSHOPGCAA MANAGEMENT WORKSHOP COBB GALLERIA, ATLANTA GA COBB GALLERIA, ATLANTA GA
FEBRUARY 27, 2013FEBRUARY 27, 2013
Lawrence R. LiebesmanPartner
Holland & Knight LLP800 17th Street, N.W., Suite 1100
Washington, D.C. [email protected]
• Infrastructure & Transportation
• Water ( stormwater , wetlands, CWA jurisdiction)
• Air (GHG regulation, Particulates)
• ESA
• Energy
Key Players in Administration:
• EPA ---- Lisa Jackson Replacement ( Gina McCarthy?)
• Interior ---- Sally Jewell ( former CEO of REI)
• Transportation----- Ray LaHood Replacement?
• President’s Council on Environmental Quality– Nancy Sutley
• NOAA– Jane Lubchenco Replacement?
• Corps of Engineers---- Jo - Ellen Darcy ( Assist. Sec. of Army for Civil Works)
Key National Environmental Issues Key National Environmental Issues Impacting Aggregates IndustryImpacting Aggregates Industry
Key Players in Congress:
Senate:
• EPW--- Sen. Barbara Boxer ( D- Cal.)
(Sen. David Vitter ( R- La.) ( Ranking)
House:
• Transportation & Infrastructure--- Bill Shuster
(R- Pa.)( Nick Rahall ( D- W Va) (Ranking)
• Natural Resources ----- Doc. Hastings (R- Was.), Edward Markey (D- Mass) (Ranking)
Key National Environmental Issues Impacting Key National Environmental Issues Impacting Aggregates Industry Cont’dAggregates Industry Cont’d
INFRASTRUCTURE & INFRASTRUCTURE & TRANSPORTATIONTRANSPORTATION
INFRASTRUCTURE & INFRASTRUCTURE & TRANSPORTATIONTRANSPORTATION
• Moving Ahead For Progress in the 21st Century Act ( P.L 112-141) ( MAP- 21)
(a) Reauthorizing funding for surface transportation projects through9/14
(b) Environmental permitting improvements--- NEPA Cat. Exclusions, streamlined fed./state reviews, accelerating project delivery.
• Possible Responses to Infrastructure Crisis---
(a) Immense scope of crisis--- failing roads & bridges, water systems, Dams
(b) Administration's proposals---- Significant Increased six year budget for surface transportation projects, Invest in high speed rail, National Infrastructure Bank , competitive grants to create incentives for state and local partners
( c) Congressional resistance-- possible cut in water revolving loan funds and limiting tax exemptions
CLEAN WATER ACT --- CORE of the CLEAN WATER ACT --- CORE of the Act are the 3 “P”s ---Act are the 3 “P”s ---
CLEAN WATER ACT --- CORE of the CLEAN WATER ACT --- CORE of the Act are the 3 “P”s ---Act are the 3 “P”s ---
• Prohibitions : Sec. 301
• Permits-- Secs. 402 ( by EPA or delegated states ) and 404 ( by Corps)
• Penalties---- Sec. 309
CWA is a strict liability law-- no mental state for person to be liable for a CWA violation
CWA administrative or civil sanctions apply Criminal liability -- negligently, knowingly,
recklessly, purposefully Citizen Suit Enforcement
CWA JURISDICTIONCWA JURISDICTIONCWA JURISDICTIONCWA JURISDICTION
• Regulatory definition interpreted to cover-- rivers & streams, lakes and ponds, wetlands, sloughs, prairie potholes , intermittent streams, territorial seas, and wetlands s adjacent to these waters
• Two Major Supreme Court decisions affecting CWA jurisdiction (a) -- SWANCC v. Corps ( 2001) -- No CWA jurisdiction by use of migratory birds over isolated, intrastate waters that could affect interstate commerce
(b) --- Rapanos v. United States ( 2006) --- confusing split decision --- plurality ( Justice Scalia)-- CWA jurisdiction limited only to relatively permanent flowing streams --- concurrence (Justice Kennedy)-- Must have "significant nexus” between wetlands and traditionally navigable waters.
2007 & 2008 CORPS/EPA 2007 & 2008 CORPS/EPA RAPANOSRAPANOS GUIDANCEGUIDANCE
2007 & 2008 CORPS/EPA 2007 & 2008 CORPS/EPA RAPANOSRAPANOS GUIDANCEGUIDANCE
• Standards for determining jurisdiction:(1) If water body is "relatively permanent" and its adjacent wetlands directly abut the water body (Scalia test); or (2) If a water body, in combination with all wetlands adjacent to that water body, has a "significant nexus" with Traditional Navigable Waters (TNW) (Kennedy test).
• Coordinated Procedure (Enhanced Role for EPA): Draft JDs based on "Significant Nexus" and "Isolated
Waters" determinations sent to EPA for review.
Guidance: Key TermsGuidance: Key TermsGuidance: Key TermsGuidance: Key Terms
• Traditionally Navigable Waters (TNWs) All waters subject to ebband flow of tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate of foreign commerce.
• Relatively Permanent Waters (RPWs) – Typically flow year-round or have continuous flow at least seasonally (e.g. 3 months).
• Non-Relatively Permanent Waters (Non-RPWs) – Tributaries that typically flow less than three months a year includes intermittent and ephemeral tributaries.
• Tributary – natural, man-altered or man-made water body that carries flow directly or indirectly into TNW.
• Ordinary High Water Mark (OHWM) – visual indicator of low (e.g. natural line impressed on bank, prominent water staining).
2007 & 2008 EPA and CORPS 2007 & 2008 EPA and CORPS GUIDANCEGUIDANCE
2007 & 2008 EPA and CORPS 2007 & 2008 EPA and CORPS GUIDANCEGUIDANCE
A consideration of hydrologic factors such as:
• Volume, duration, and frequency of flow, including consideration of certain physical characteristics of the tributary
• Proximity to the TNW
• Size of the watershed
• Average annual rainfall
• Average annual winter snow pack
A consideration of ecologic factors such as:
• The ability of the tributary and its adjacent wetlands (if any) to carry pollutants and flood waters to TNWs
• The ability of the tributary and its adjacent wetlands (if any) to provide aquatic habitat that supports biota of the TNW
• The ability for adjacent wetlands to trap and filter pollutants or store flood waters
• The ability to maintain water quality
• Precon v. Corps, 633 F.3d 278 (4th Cir., Jan. 25, 2011) Requires Site Specific Evidence of Relationship Between Wetland and TNW Functions for SN.
GUIDANCE: NON-JURISDICTIONAL GUIDANCE: NON-JURISDICTIONAL EXCLUSIONSEXCLUSIONS
GUIDANCE: NON-JURISDICTIONAL GUIDANCE: NON-JURISDICTIONAL EXCLUSIONSEXCLUSIONS
• Generally excludes swales, ditches and gullies
• Certain ephemeral waters in the arid west are distinguishable from the excluded ditches and swales where they are tributaries and may have a significant nexus to TNWs.
• Such features may also be jurisdictional where they:
Replace or relocate a water of the U.S., or Connect a water of the U.S. to another water of the
U.S., or Provide relatively permanent flow to a water of the U.S.
CORPS/EPA Draft Guidance on Identifying CORPS/EPA Draft Guidance on Identifying Waters Protected Under Clean Water ActWaters Protected Under Clean Water Act
CORPS/EPA Draft Guidance on Identifying CORPS/EPA Draft Guidance on Identifying Waters Protected Under Clean Water ActWaters Protected Under Clean Water Act
• Aggregation---would sweep in many marginally aquatic areas with only a remote and insubstantial impact to TNWs that agencies determine will drain into a “single point of entry” to a TNW.
• Evidence for SN---allows agency field personnel to rely on broad “desktop” studies in lieu of developing site specific documentation.
• Tributaries---essentially creates a presumption that a tributary has a SN based on evidence of OHWM or “bed or bank” flow. Would cover “water features” that are dry most of year. Allows inclusion of ditches that connect “indirectly” to TNWs.
On May 3, 2011 Corps and EPA released draft guidance clarifying how EPA and Corps will determine CWA Jurisdiction to address SWANCC and Rapanos Cases. Draft Guidance would replace 2007-08 Guidance. NSSGA commented in August 2011 and Guidance is now at OMB and will reportedly be issued soon. Industry pursuing major lobbying effort to block issuance. Guidance currently “stuck” at OMB. Guidance would greatly expand CWA jurisdiction as follows:
Draft Guidance on Identifying Waters Draft Guidance on Identifying Waters Protected Under Clean Water Act (Cont’d)Protected Under Clean Water Act (Cont’d)
Draft Guidance on Identifying Waters Draft Guidance on Identifying Waters Protected Under Clean Water Act (Cont’d)Protected Under Clean Water Act (Cont’d)
• Adjacency---Includes wetlands separated from tributaries by berms and a distance away from a tributary without any surface hydrologic connection and allows “aggregation” of such wetlands within watershed as “similarly situated.”
• Other waters---Allows aggregating of isolated ponds, playa lakes, vernal pools and other similar waters within watershed that are “proximate” to TNW. Avoids requirement to conduct a Commerce Clause analysis
• NSSGA commented that Draft Guidance distorts Justice Kennedy’s test, undermines federal and state partnership under CWA and would substantially increase costs to aggregate operators at time when the industry is trying to recover from severe recession.
RECENT SIGNIFICANT CWA COURT RECENT SIGNIFICANT CWA COURT DECISIONSDECISIONS
RECENT SIGNIFICANT CWA COURT RECENT SIGNIFICANT CWA COURT DECISIONSDECISIONS
• Coeur Alaska v. SE Alaska Conservation Council ( Sup. Ct, 2009) --- EPA's Promulgation of effluent limitation guidelines does not trump Corps section 404 authority when discharge has effect of fill -- Corps properly issued permit for discharge of mining slurry into lower Slate Lake Ak.
• Sackett v. EPA ( Sup. Ct. Jan. 2012)--- EPA administrative compliance order against Sacketts for filling wetland for vacation home in Idaho was final agency action subject to judicial review
• Mingo Logan Coal Co. v. EPA--- ( D.D.C. ) ( March, 2012) ( appeal pending in D.C.. Cir.) ( EPA's “after the fact” veto of Army Corps permit for mountaintop mining in Logan Co. W.Va. exceeded EPA's veto authority under section 404 © of the CWA. ( NSSGA amicus brief cited by court in support of ruling)
RECENT SIGNIFICANT CWA RECENT SIGNIFICANT CWA COURT DECISIONS Cont’dCOURT DECISIONS Cont’d
RECENT SIGNIFICANT CWA RECENT SIGNIFICANT CWA COURT DECISIONS Cont’dCOURT DECISIONS Cont’d
• NRDC v. County of LA ( Sup. Ct., Jan 8, 2013) --- LA County's transfer of water within its MS4 system from the improved part of the LA River to the natural part of River was not an "addition of a pollutant" requiring a CWA NPDES permit.
• Virginia DOT v. EPA ( E.D. Va . Jan 3, 2013) EPA TMDL setting "flow based” stormwater limits for Accokeek Creek Va. Exceeded EPA's authority under CWA---- Stormwater is not a pollutant under the CWA.
STORMWATERSTORMWATERSTORMWATERSTORMWATER
• EPA has initiated national rulemaking to establish program to reduce stormwater discharges from newly developed and redeveloped sites and make other regulatory improvements
• Proposed rulemaking considering following:
(a) performance standards for BMPs
(b) Options for expanding protections under MS4 permits
STORMWATER Cont’dSTORMWATER Cont’dSTORMWATER Cont’dSTORMWATER Cont’d
(c) Possibly establishing single set of minimum requirements for regulating MS4s
(d) explore options for establishing specific requirements for transportation facilities
(e) evaluating additional provisions specific to the Chesapeake Bay watershed --- 2010 Bay
TMDL covering 6 states , being implemented through EPA approved Watershed
Implementation Plans
•Proposed Rule scheduled to be published in June 2013 and issued in Summer of 2014.
ENDANGERED SPECIESENDANGERED SPECIESENDANGERED SPECIESENDANGERED SPECIES
• 1973 ESA--- TVA v. Hill--- ESA conservation goals trump other considerations
• ESA administered by FWS , NMFS and federal "action" agencies
• 1,358 species of animal and plants on T & E list. 80% on private lands. 38 animal species listed in Ga (Notable species are the Cherokee Darter, Indiana Bat, Green Turtle and Red Cockaded Woodpecker).
• Under 5/10/11 court settlement , FWS will make listing decisions for 251 species by September 2016. Could greatly impact a range of industries and activities .
• Recovery-- Only a very few species have actually been recovered ( eg.. bald eagle American Alligator, brown pelican)
ENDANGERED SPECIES Cont’dENDANGERED SPECIES Cont’dENDANGERED SPECIES Cont’dENDANGERED SPECIES Cont’d
• Section 7 consultation/ jeopardy/ Ad. Mod of critical habitat is "heart of the Act."
• Section 9 take prohibitions and section 10 HCPs.
• Federal and Citizen Suit enforcement.• Climate Change and the ESA• ESA Improvement Process --- FWS/ NMFS
ANPRM to encourage landowner incentive efforts.
AIR QUALITYAIR QUALITYAIR QUALITYAIR QUALITY
• Regulation of Green House Gases ( GHG)
(a) Mass v. EPA ( Sup. Ct. 2007)-- GHGs are an "air pollutant" under CAA --- EPA required to determine if GHGs "cause or contribute to air pollution that may endanger public health and welfare”
(b) EPA endangerment fining ( 2009)--- Summarizes scientific evidence in support of man induced climate change, describes human health and welfare effects of climate change-- upheld by D.C. Cir.
(c) EPA establishes CO emissions standards for light duty trucks and cars in 2011
AIR QUALITY Cont’dAIR QUALITY Cont’dAIR QUALITY Cont’dAIR QUALITY Cont’d
(d) Tailoring Rule--- lowers regulatory threshold levels in phases for permitting for Title V and Prevention of Significant Deterioration sources
(e) In SOU address, President Obama promised to further address climate administratively if Congress does not act
(f) Keystone Pipeline decision pending.
National Particulate Matter ( PM 10) standards and
visibility ---- After 5 year battle, on Dec. 14, 2012, EPA decided not to revise the national ambient air quality standards (NAAQS) for course particulate matter, known as PM 10. NSSGA was part of the Course PM coalition. The decision averted the significant risk to the coalition members from the 2010 EPA staff policy assessment recommending lowering primary ( health based) standard and adopting a new secondary standard. EPA's action averted major impacts to coalition members that would have caused widespread nonattainment of standards, including virtually all to the Country west of the Mississippi.
Conclusion-- What can we expect?Conclusion-- What can we expect?Conclusion-- What can we expect?Conclusion-- What can we expect?
• More gridlock between Administration and Congress.
• More aggressive environmental rulemaking and policy guidance from the Administration
• More Litigation
• More Focus on Clean Energy and Infrastructure as job creators
• Economic Progress Promising but will be conditioned by stringent environmental policies.
