Clean Water Environmental Issues for 2015

McGuireWoods LLP
John M. Lain, Benne C. Hutson, Dale G. Mullen, James A. Thornhill and Heather Nixon Stevenson

February 5, 2015

There are a handful of legal and regulatory issues on the horizon in 2015 that are worth watching. Some of these issues, like the U.S. Environmental Protection Agency’s (EPA’s) Cooling Water Rule and the U.S. Army Corps of Engineers’ and EPA’s Clean Water Act jurisdictional rule, have been around for a while and new chapters are due to unfold. Others, like the Financial Capability Assessment for Municipal Clean Water Act, are new this year. Each of these has the potential to produce significant effects on the regulated community.

Finalization of Clean Water Act Jurisdiction Rule

In April of 2014, EPA and the Corps of Engineers issued a draft rule seeking to clarify the scope of what qualifies as a water of the United States and is subject to Clean Water Act (CWA) permitting. The draft rule’s critics, and there are many, believe the draft rule goes too far in extending the reach of CWA jurisdiction. EPA has given a target date of April 2015 to finalize the rule.

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LSRP UPDATE: NJDEP: Site Remediation, May 2016 Extension RFS Due

Synergy Environmental, Inc.
David Robinson, LSRP

February 20, 2015

Remediation Funding Source (RFS) renewals for all sites that received the 2-year Extension of the May 2014 Remedial Investigation deadline are due before May 7, 2015. For each site (or bundled sites), a complete Remediation Cost Review and RFS-FA Form (or May 2014 RI Extension & Remediation Cost Review Form for bundled cases) must be submitted.

The RFS must be adjusted (either higher or lower) based on information obtained after the initial RFS was acquired.   If a Remedial Investigation Report was submitted and there are no other regulatory obligations to maintain a RFS, the RFS can be closed.

For more information, please go to the following web site:

David Robinson is an LSRP in Synergy’s Cherry Hill, NJ Office.

EPA is Improving Public Access to (your) Environmental Inspection and Compliance Data

Seyfarth Shaw LLP
Andrew H. Perellis and Craig B. Simonsen

February 9, 2015

Marion Herz, the Chief of Staff for EPA’s Office of Compliance, just blogged that EPA has launched a new compliance website to “make it easier to stay informed about our work and to share tools that can help companies and others follow the law.”

Click here to view image.

Herz notes that the Enforcement and Compliance History Online (ECHO) database “lets you analyze compliance and enforcement data through dashboards, maps and charts. It also gives you access to other EPA tools designed to identify pollution sources, including greenhouse gases, wastewater discharges and toxic chemicals.”

Another related recent EPA blog discusses the Agency’s recent updates to the ECHO database, which provides information about environmental inspections, violations, and enforcement actions for EPA-regulated facilities. “As one of our most important and popular resources, ECHO houses information about more than 800,000 facilities nationwide, and last year, it was visited more than 2 million times.” Emphasis added.

Significant updates to ECHO include the ability for anyone with access to the Internet to download data to analyze violations at any of the 800,000 ECHO facilities, which data is now updated within the week.

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Shifting the Balance Of Power: A “Mitigation Bank Instrument” Can be a Binding Contract, Not Just a Regulatory Approval

Bernkopf Goodman LLP
Elizabeth Mason

February 10, 2015

Owners and developers of property with significant wetlands or other natural resources take notice – the United States Court of Federal Claims recently held in Pioneer Reserve, LLC v. United States that an environmental mitigation bank agreement between a property owner and the United States Army Corps of Engineers constitutes a binding contract that the property owner can enforce against the Corps, not merely a “regulatory approval” that the Corps may unilaterally alter or revoke without consequence.

Under Section 404 of the federal Clean Water Act, when a developer seeks to dredge or dump fill into the “waters of the United States,” including wetlands, it must apply to the Corps for a permit. In reviewing the permit application, the Corps must evaluate and approve or reject the measures proposed by the developer to mitigate the unavoidable impacts of the work on the waters or wetlands. Approved mitigation measures may be implemented on or off the property intended for development, and the developer is not required to be the entity that implements the measures. “Rather,” as the Court explains, the Section 404 “regulations contemplate an option whereby the developer may secure mitigation ‘credits’ from a third party mitigation bank, which assumes responsibility for the preservation of a piece of land containing natural resources, such as wetlands, in exchange for compensation from the developer.” Under the regulations, the operation and use of a mitigation bank are governed by a “mitigation bank instrument.”

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