USEPA Draft Report Indicates Likely Ground Water Contamination From Fracking

This post was written by Mark Mustian.

On December 8, U.S. Environmental Protection Agency (USEPA) Region 8 released a draft report detailing the results from an investigation of suspected ground water contamination from natural gas drilling and gas production near Pavillion, Wyoming. After four rounds of sampling, detailed analysis, and an evaluation of various explanations, USEPA concluded that "the data indicates likely impact to ground water that can be explained by hydraulic fracturing." Furthermore, EPA stated that the data suggested "enhanced migration of gas has occurred within groundwater at depths used for domestic water to supply and to domestic wells." In its study, USEPA measured a variety of organic compounds, including benzene, xylenes, gasoline range organics, and diesel range organics. USEPA also measure measured pH, alkalinity and inorganic chemical compounds which were indicative of chemicals used in fracking solutions. The concentrations and depth profiles were such that USEPA was unable to identify an alternative contamination scenario which would explain the findings. The explanation which best fit the facts was that "inorganic and organic constituents associated with hydraulic fracturing have contaminated ground water supply at and below the depth used for domestic water supply."

Though opponents of hydraulic fracturing may seize upon this report as proof of the dangers of shale gas production, it is important to look beyond the surface of this report to understand that the situation in Pavillion, Wyoming is unique, and is not indicative of conditions in other parts of the country. Hydraulic fracturing in the Pavillion gas field occurred within zones of gas which were located within an underground source of drinking water. Hydraulic fracturing occurred at unusually shallow depths in the region, while many domestic water wells are screened unusually deep. USEPA's review of well completion reports showed instances of poor cement bonding on the completed wells. Furthermore, the geology of the region shows little lateral and vertical continuity of hydraulically fractured tight sandstones and no laterally continuous shale units to stop upward vertical migration of constituents of hydraulic fracturing. Finally, there were numerous unlined surface pits in the area used for storage of drilling wastes and produced water. In other words, the conditions in the region were unique and not like the conditions present in other parts of the country where hydraulic fracturing is utilized.

The report is interesting, and in some ways, useful. But it is just one link in a long chain of information which much be collected in order to properly understand the possible impacts of hydraulic fracturing and shale gas production.

USEPA Plan to Study Fracking Criticized by House Republicans on Energy and Environment Panel

This post was written by Luke Liben and Nicolle Bagnell.

This past Thursday, in a hearing titled "Fostering Quality Science at EPA: The Need for Common Sense Reform," Republicans on a U.S. House of Representatives energy and environment panel criticized a recently released U.S. Environmental Protection Agency plan to study any potentially detrimental effects of fracking on drinking water supplies. Perhaps informed by Secretary Krancer's Capitol Hill testimony from the day before, the Republican panel members were quick to point out that roughly 1.2 million wells have already been drilled using this technique, and there has yet to be a documented report of drinking water contamination. As such, these committee members found the EPA's suggested use of government funds to be lacking in common sense. The EPA responded by noting that until studies were done, or evidence of detrimental effects were sought, it was clear that no such evidence could be found. You can find more information here.

Pennsylvania's Department of Environmental Protection Defends States' Ability to Regulate Hydraulic Fracturing

This post was written by Luke Liben and Nicolle Bagnell.

Last week Secretary Michael Krancer of Pennsylvania's Department of Environmental Protection testified before the U.S. House of Representatives' Subcommittee on Water Resources and Environment regarding his stance that federal intervention was unnecessary to aid state regulation of hydraulic fracking processes. Citing the unique geographic and geologic features of each individual state where fracking was taking place, Mr. Krancer stated that a "one-size-fits-all" approach would not be appropriate to ensuring safe and practical fracking procedures. Secretary Krancer also made the Subcommittee aware that despite the roughly 1.2 million wells that have been drilled using this process, there has yet to be a report of drinking water contamination. Mr. Krancer cited this process as yielding both jobs and cheaper energy costs, and reiterated his stance that the individual states were doing a good job with their own regulatory regimes. For more information, click here.

Pennsylvania to Issue Guidance on Wastewater Treatment Regulations

This post was written by Nicolle Bagnell and Ariel Nieland.

On November 3, 2011, the Pennsylvania Department of Environmental Protection ("DEP") announced that it plans to release technical guidance regarding Pennsylvania's updated wastewater treatment regulations, which took effect in August 2010, for new or expanded sources of natural gas wastewater. The guidance will clarify the requirements that facilities accepting shale gas wastewater must meet under the regulations, including effluent standards for total dissolved solids in treated wastewater and radiation monitoring prior to discharge of wastewater that was not fully pre-treated.
 

 

USEPA Announces Final Study Plan to Assess Hydraulic Fracturing

This post was written by Jennifer Smokelin.

This week, the U.S. Environmental Protection Agency (USEPA) announced its final hydraulic fracturing study plan and indicated that initial research results are expected by the end of 2012 with a final report in 2014. The overall purpose of the study is to understand the relationship between hydraulic fracturing and drinking water resources. The final study plan looks at the full cycle of water in hydraulic fracturing, from the acquisition of the water, through the mixing of chemicals and actual fracturing, to the post-fracturing stage, including the management of flowback and produced or used water as well as its ultimate treatment and disposal. Earlier this year, USEPA announced its selection of locations for five retrospective and two prospective case studies.

This study got its start in a 2010 budget report in which the U.S. House of Representatives Appropriation Conference Committee identified the need for a focused study of hydraulic fracturing. Since then, USEPA has held a series of public meetings across the nation to receive input from states, industry, environmental and public health groups, and individual citizens.

USEPA Announces Schedule to Develop Natural Gas Wastewater Standards for Shale Gas and Coal Bed Methane under Clean Water Act

This post was written by Jennifer Smokelin.

The U.S. Environmental Protection Agency (USEPA) announced today that it will propose a rule for wastewater from coal bed methane in 2013 and a proposed rule for shale gas wastewater in 2014. The announcement is part of the effluent guidelines program (Clean Water Act § 304(m)), which sets national standards for industrial wastewater discharges based on best available technologies that are economically achievable.

To ensure that these wastewaters receive proper treatment and can be properly handled by treatment plants, USEPA will gather data, consult with stakeholders, including ongoing consultation with industry, and solicit public comment on a proposed rule for coal bed methane and for shale gas. The time frame for coal bed methane is shorter because USEPA feels it already has a leg up on data necessary for the coal bed rule whereas there is more information to gather with regard to shale gas wastewater.

A Few More Details

Hydraulic fracturing is a method of releasing natural gas from highly impermeable rock formations by injecting large amounts of fracturing fluids at high pressures to create a network of fissures in the rock formations and provide the natural gas a pathway to travel to the well for extraction. Geologic pressure within the shale formation forces these fracturing fluids back to the surface, where they are referred to as “produced water” or shale gas wastewater. Based on a review of available data, USEPA is initiating a rulemaking to control wastewater produced by natural gas extraction from underground shale formations. Under this proposed rulemaking, EPA will consider standards based on demonstrated, economically achievable technologies, for shale gas wastewater that must be met before going to a treatment facility.

Slides and Audio from Reed Smith's Quarterly Environmental and Energy Law Resource Telesiminar

This post was written by David Wagner.

On Wednesday, Reed Smith held its quarterly environmental and energy law resource teleseminar and the slides and audio are available. We discussed current or emerging issues under five general categories. The categories and discussion included:

  • Legislation/Rules — We reviewed the key points and effective dates related to the New Source Performance Standards for the oil and gas industry as well as for utilities and refineries.
  • Litigation — A big environmental litigation issue involving the oil and gas industry is the aggregation of air emissions from diverse sources and we discussed recent challenges to air permits involving this issue. We also discussed the U.S. Supreme Court's recent denial of certiorari in Morrison Enterprises v. Dravo Corporation and the implications on CERCLA cost recovery and contribution claims.
  • Policy and Technology — On this front, our presentation focused on a recent DOE report on the need for additional disclosure, and the policy implications related to the interplay between the U.S. Environmental Protection Agency and Federal Energy Regulatory Commission.
  • International Issues — Here we provided a brief preview of the upcoming COP in South Africa and the fate of the Kyoto Protocol
  • State Issues — On the state level, we focused on California and summarized recent developments regarding the implementation of the California Global Warming Solutions Act (aka AB32) and California's “Green Chemistry” Initiative.
     

Join Us for Reed Smith's Environmental and Energy Law Resource Teleseminar on October 5

This post was written by David Wagner.

We expanded the scope of our quarterly teleseminar to include hot topics in environmental and energy law and invite you to join us. It’s on Wednesday, October 5, 2011 from 12 to 1 pm ET. There’s no cost but we do ask you to R.S.V.P. At the teleseminar, we’ll provide a regulatory update on five major legal developments in the environmental and energy law world:

  • Legislation/Rules — The hottest issue in new rules is the New Source Performance Standards for the oil and gas industry as well as for utilities and refineries. Our team will review the high points and effective dates, what industry should look out for, and likely challenges.
  • Litigation — A current issue in litigation, especially in the oil and gas industry, is aggregation of air emissions from diverse sources. We will discuss recent challenges to air permits involving this issue. Also, our team is challenging a CERCLA 107/113 appeal for cert to the United States Supreme Court – tune in to hear the latest in that area.
  • Policy and Technology — The policy framework behind fracking is in its infancy and studies to determine or influence policy framework abound. Our team will discuss recent DOE and USGS papers, as well as industry studies, concerning emissions. In addition, we will touch on the significance of the U.S. Supreme Court in Sackett v. EPA. We will also tackle the policy implications of interplay between the U.S. Environmental Protection Agency and Federal Energy Regulatory Commission.
  • International Issues — In the international arena, all eyes are on the upcoming COP in South Africa and the fate of the Kyoto Protocol. Our team will discuss these issues, as well as their implications for EU business and EU greenhouse gas regulations.
  • State Issues — We will focus on California with a summary of recent developments regarding the implementation of the California Global Warming Solutions Act (aka AB32) and California's “Green Chemistry” Initiative.

To sign up, please email Sandy Petrakis.

USEPA Finalizes Guidance on Mountain-top Mining

This post was written by Mark Mustian.

Last year we discussed the U.S. Environmental Protection Agency's (USEPA) interim guidance for permitting of mountain-top mining and surface mining projects and the likelihood of revisions based on comments USEPA would receive. More than 60,000 comments later, USEPA revised and issued the Final Appalachian Mining guidance. While not legally binding, the guidance document published yesterday is intended to provide guidance to states in the Appalachian region on permitting issues related to mountain-top mining and surface mining projects. The guidance addresses the current best available science, identifies permitting strategies that comply with the requirements of the Clean Water Act (CWA) and provides assistance to USEPA staff in reviewing and approving permits issued by both the states and by the U.S. Army Corps of Engineers (USACE).

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U.S. Cities, Including Portland, Oregon, Are Grappling with Cost and Effectiveness of Federal Safe Drinking Water Rule

This post was written by Mark Mustian and David Wagner.

A federal safe drinking water rule that requires public water systems operating open water reservoirs to either cover their reservoirs or install additional treatment on the water discharged from the reservoirs is a significant issue in many cities across the United States. The rule may not be necessary for all public water systems and, as evidenced at a City Council hearing in Portland, Oregon this week, the rule’s necessity along with its big price tag generates a lot of controversy.

Background

On January 5, 2006, the U.S. Environmental Protection Agency (USEPA) promulgated the Long Term 2 Enhanced Surface Water Treatment Rule (LT2 Rule) under its authority granted by the Safe Drinking Water Act. The LT2 Rule is a part of USEPA's efforts to protect the safety of the nation's drinking water following a Cryptosporidium outbreak in Milwaukee, Wisconsin in 1993. The outbreak sickened hundreds of thousands of people and at least 104 deaths were attributed to the event. The LT2 Rule requires public water systems to monitor their raw water supply, and, based upon the data, install additional intake water treatment to ensure specific removal rates of Cryptosporidium and other pathogens. The LT2 rule also requires all water systems that operate open finished water reservoirs to either cover their reservoirs or install additional treatment on the water discharged from the reservoir.

Developments in Portland, Oregon

Many cities utilizing open reservoirs have had significant concerns with implementing the LT2 Rule, including New York, NY, Rochester, NY and Portland, Oregon. In the case of Portland, because of the protected nature and stringent controls on water supply, its water only requires minimal treatment prior to use. Portland has never experienced a Cryptosporidium outbreak, and testing has not detected this pathogen. However, because of the new rule, Portland may be required to install additional controls and cover its reservoirs at a cost estimated at $500 million.

Portland’s City Council held a hearing on May 18 to examine this issue, including a possible rate increase. Reed Smith, on behalf of a local coalition of water users in the Portland area, analyzed some of the key legal issues, including the possibility of obtaining a variance from treating or covering the reservoirs and extending the City's compliance schedule under the LT2 Rule, and testified at the hearing. Coverage can be found here.

It's Official: the Environmental Law Resource is a Top 50 Environmental Law Blog

This post was written by David Wagner.

We’re in – LexisNexis has selected Reed Smith's Environmental Law Resource blog as one of the Top 50 Environmental Law & Climate Change Blogs for 2011. We were recognized as "preeminent thought leaders in the blogosphere" who "offer some of the best writing out there." LexisNexis found that our blog contains "a wealth of information for all segments of the environmental law and climate change industry, and includes timely news items, expert analysis, practice tips, frequent postings and helpful links to other sites and sources."

The 50 honorees were grouped into 10 categories and our blog was one of just 4 blogs honored under the "Litigation" category.

We’re thrilled and certainly appreciate the recognition. Even more importantly, we appreciate your interest in our blog.

Pennsylvania Department of Environmental Protection Calls on Marcellus Shale Drillers to Stop Taking Wastewater to Treatment Plants

This post was written by Nicolle Bagnell and Ariel Nieland.

Last week, Pennsylvania Department of Environmental Protection (DEP) Secretary Michael Krancer gave Marcellus Shale natural gas drilling operators a deadline of May 19 by which to voluntarily stop delivering wastewater produced from natural gas extraction to water treatment facilities. This request from the DEP comes as a result of concerns over increased levels of bromides detected in the Allegheny and Beaver rivers in western Pennsylvania. In August 2010, the prior administration implemented new regulations addressing the potential for contamination from "total dissolved solid" (TDS), a by-product of natural gas extraction. Bromides, which are also present in wastewater containing TDS, can become toxic when combined with chlorine used for water disinfection at treatment facilities. The 2010 TDS regulations imposed more stringent standards on publicly owned treatment works and centralized waste treatment facilities for the treatment of TDS discharges. However, the regulations included a "grandfather clause" allowing for facilities that had historically accepted drilling wastewater to continue to do so, provided that the total amount of wastewater they received did not increase. Out of the 27 "grandfathered" facilities, nearly half have voluntarily ceased accepting Marcellus Shale wastewater in the past year. DEP's request calls upon operators to stop delivering wastewater to the remaining 15 facilities in hopes that concentrations of bromides will "quickly and significantly decrease" as a result.

Notes from the USEPA's Science Advisory Board Panel for the Review of Hydraulic Fracturing Study Plan

This post was written by Nicolle Bagnell and Ariel Nieland.

Reed Smith, represented by Nicolle Bagnell, attended the Science Advisory Board Panel's public meeting on March 7, 2011 in Washington D.C. The purpose of the panel, comprised of a distinguished group of 22 professors and practitioners ranging in expertise from public health, hydrogeology, water quality engineering and environmental justice, is to provide an independent review of the U.S. Environmental Protection Agency's (USEPA's) proposed Hydraulic Fracturing Study Plan for scientific soundness of the draft plan. The panel was selected from nominations made in response to a request in the Federal Register last July. In addition to the Panel's review, USEPA received over 300 sets of public comments on the draft plan. There were also twelve speakers who provided 5-minute commentaries either in person or by phone and roughly 50 members of the public who attended the meetings.

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Testing for Radioactivity of Pennsylvania River Water Downstream of Marcellus Water Treatment Plants Shows Water Is Safe

This post was written by Jennifer Smokelin.

The Pennsylvania Department of Environmental Protection (DEP) yesterday announced results of in-stream water quality monitoring for radioactive material in seven of the Commonwealth’s rivers. Seven river testing stations – which monitor “raw water” in the river before it enters public water suppliers’ intakes where the water receives further treatment – that were evaluated are Monongahela at Charleroi in Washington County, South Fork Ten Mile Creek in Greene County, Conemaugh in Indiana County, Allegheny at Kennerdell in Venango County, Beaver in Beaver County, Tioga in Tioga County, and the West Branch of the Susquehanna in Lycoming County. All seven samples showed levels at or below the normal naturally occurring background levels of radioactivity.

According to the Associated Press, a review of state records shows most of the gas-drilling wastewater that was treated and discharged by sewage plants in the second half of 2010 found its way into eight (8) waterways, seven of which were tested (above) by DEP. The eighth waterway, Blacklick Creek in southwestern Pennsylvania - is a tributary of the Conemaugh, one of the 7 tested locations. The tests were conducted in November and December of 2010 at stations downstream of wastewater treatment plants that accept flowback and production water from Marcellus Shale drilling. DEP said that these sampling stations were installed last fall specifically to monitor stream quality for potential impacts of Marcellus development.

The Environmental Law Resource Nominated for LexisNexis Top 50 Environmental Law Blogs

This post was written by David Wagner.

It's really nice to be recognized. In fact, we're thrilled that LexisNexis has nominated Reed Smith's Environmental Law Resource as one of the Top 50 Environmental Law & Climate Change Blogs for 2011. Even better, they grouped the 50 nominees into 11 categories and our blog was one of just 7 blogs nominated under the "Litigation" category. LexisNexis selected the nominees based on "timely topics, quality writing, frequent posts and that certain something 'extra' that keeps a web audience coming back for more."

We certainly appreciate your interest in our blog and, if you want to support our nomination, LexisNexis is inviting comments.

 

Settlement between Pennsylvania and Cabot to Resolve Drinking Water Problems Linked to Gas Migration

This post was written by Nicolle Bagnell and Ariel Nieland.

After announcing in October that Cabot Oil & Gas Corporation would be held responsible for the cost of a 5.5-mile, $11.8 million water line construction project to provide residents of Dimock with quality drinking water, the Pennsylvania Department of Environmental Protection (DEP) has now reached a $4.1 million settlement with Cabot.  According to DEP, Cabot's natural gas drilling activities in Susquehannah County are believed to be the source of gas migration and water contamination problems affecting Dimock residents' water wells, which the DEP began investigating in January 2009. The terms of the settlement agreement will require Cabot to reimburse DEP with $500,000 for the cost of investigating the gas migration, as well as to enable all 19 of the affected families to resolve their water-related issues based on their particular circumstances (with a minimum payment of $50,000), including offering, installing, and paying for whole-house gas mitigation water treatment systems.
 

 

USEPA Proposal Would Require a Clean Water Act Permit for Certain Pesticide Applications

This post was written by David Wagner.

For the application of pesticides, the U.S. Environmental Protection Agency (USEPA) is taking a new position – it now aims to bring pesticide applicators under the Clean Water Act’s (CWA) permitting program. Earlier this month, USEPA released a draft CWA National Pollutant Discharge Elimination System (NPDES) pesticide general permit for point source discharges from the application of pesticides to waters of the United States. Under the Bush Administration, USEPA had issued a rule stating that these Clean Water Act permits were not required for applications of pesticides to U.S. waters. An appeals court decision vacated the rule in April 2009 and triggered the development of this proposal.

USEPA estimates that the court’s decision will require approximately 365,000 pesticide applicators nationwide, including farmers, land managers and other entities, to obtain NPDES permits by April 2011. The draft pesticide general permit covers applicators of biological pesticides and chemical pesticides that leave a residue in four categories of pesticide uses:

  • Mosquito and other flying insect pest control
  • Aquatic weed and algae control
  • Aquatic nuisance animal control
  • Forest canopy pest control
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USEPA Increases Permitting Requirements for Surface Coal Mining Projects

This post was written by Mark Mustian.

On April 1, 2010, the U.S. Environmental Protection Agency (USEPA) published on their website a new guidance document on improving USEPA reviews of Appalachian surface coal mining operations. As we noted in our blog over a year ago, changes were likely coming to the practice of mountain-top mining. The guidance documents sets forth the standards which will be followed when evaluating the issuance of permits under Section 404 of the Clean Water Act for the discharge of dredged or fill material during surface mining operations. USEPA has identified the following standards which must be met for any future mining activities.

  • Water quality and environmental integrity must be protected
  • Mining projects must avoid and minimize environmental impacts
  • Mining impacts must be effectively mitigated
  • Water quality and biological parameters must be monitored

The standard which will likely have the most significant impact is the protection of water quality. USEPA is proposing to evaluate the impact of a project based upon an increase in conductivity in the stream. They are setting general standards which must be met for any future projects. USEPA has found that mountain-top mining causes significant and persistent increases in dissolved chemical ion levels downstream from the mining, and these increases reach levels which are acutely toxic to aquatic organisms. In conjunction with the release of the guidance document, USEPA has released a report which assesses the state of the science on the environmental impacts of mountain-top mines and valley fills on streams in the Central Appalachian Coalfields.

The guidance is intended to become effective immediately on an interim basis. However, USEPA will be publishing the guidance in the Federal Register for comment. Based upon the comments its receives, USEPA will decide whether to modify the guidance document.

The guidance document, the report on environmental impacts of mountain-top mining, and other associated documents are available here.

This Time We're Serious: USEPA Outlines Punitive Measures Related to Cleanup of the Chesapeake Bay Watershed

This post was written by Chris Rissetto, Lou Naugle, Bob Helland, and David Wagner.

Last week, the U.S. Environmental Protection Agency ("EPA") outlined what it terms a "rigorous accountability framework" for addressing pollution levels in the Chesapeake Bay and its tributaries. Federal efforts to cleanup the Chesapeake Bay watershed have been ongoing for over 25 years and this is the first time that EPA has outlined a number of punitive measures intended to force compliance with pollution controls by the six Chesapeake Bay states – Delaware, Maryland, New York, Pennyslvania, Virginia and West Virginia – and the District of Columbia.

The update by Reed Smith describes the regulatory regime in place to address the harmful levels of pollutants in the watershed and discusses the punitive measures along with the legal issues they raise. The update also discusses what measures are expected in 2010, especially as they relate to the Chesapeake Bay total maximum daily load (TMDL) for nitrogen, phosphorus and sediment.

In the US, the End of Mountaintop Mining?

This post was written by Mark Mustian. 

Mountain-top mining has probably generated more controversy in the United States than any other current resource extraction process, and recent USEPA activities have significantly increased attention to the process. Before discussing the regulatory developments, some background information may be helpful. Mountain-top mining is utilized to remove low-sulfur coal from the tops of mountains in the Appalachian region. The mining company timbers the mountain-top and removes the topsoil. The company then uses explosives to remove the overburden rock to expose the coal seams. The overburden is typically pushed into a nearby valley, creating a valley fill. The coal is excavated and washed (creating a significant amount of coal slurry waste), and the top of the mountain is reclaimed and revegetated. The process results in permanent changes to the topography and permanent impacts to the regions streams and water quality.

Mountain-top mining is allowed under section 515(c)(1) of the Surface Mining Control and Reclamation Act (SMCRA). However, in order to deposit the overburden into the valley, and the valley watershed, the mining company must obtain a permit from the U.S. Army Corps of Engineers (USACE). A permit is required under section 404 of the Clean Water Act (CWA) in order to discharge dredged or fill material into the waters of the United States. The permit is issued by the USACE using the guidelines developed by the Environmental Protection Agency (EPA). Under Section 404(c) of the CWA, the EPA has the authority to deny a permit for the discharge of dredged or fill material if it determines that "that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas."

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Come About! USEPA Changes Course on Commercial Vessel Permitting Requirements

This post was written by Mark Mustian, Jennifer Smokelin and Lou Naugle.

On Dec. 18, 2008, EPA issued a Vessel General Permit (“VGP”) to regulate discharges incidental to the normal operation of vessels operating in a capacity as a means of transportation. See epa.gov. This reverses the long-standing regulatory policy of EPA to specifically exclude discharges incidental to the normal operation of vessels from permitting requirements under the National Pollutant Discharge Elimination System (“NPDES”). See 38 FR 13528, May 22, 1973.

EPA’s about-face was the result of a petition and legal action by a group of parties concerned about the effects of ballast water discharges. The court found that EPA’s exclusion of incidental discharges from vessels exceeded its authority under the Clean Water Act. See, Northwest Environmental Advocates v. U.S. E.P.A, 2005 WL 756614, 61 ERC 1245, 35 Envtl. L. Rep. 20,075 (N.D. Cal. Mar 30, 2005). The ruling in Northwest Environmental vacated the blanket exemption for vessels effective Dec. 19, 2008. After that date, all discharges incidental to the normal operation of vessels operating in a capacity as a means of transportation are prohibited unless authorized under a NPDES permit.

All owners and operators of non-recreational vessels that are 79 feet and greater in length, commercial vessels less than 79 feet, and commercial fishing vessels of any length that discharge ballast water, are required to obtain and comply with the new VGP. The VGP covers 26 separate sources that will be regulated. Compliance with the VGP for a majority of the sources will require implementation of an inspection program and compliance with Best Management Practices (“BMP”). The permit also imposes additional inspection and monitoring programs for certain classes of vessels, numeric discharge limits for graywater from cruise ships, and oily discharges, and imposes whole effluent toxicity (“WET”) testing requirements on ballast water treatment systems that use biocides.

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US Agencies Issue Revised Guidance Addressing Clean Water Act Jurisdiction

This post was written by Steven M. Nolan and Louis A. Naugle.

In Rapanos v. United States, 547 U.S. 715 (June 19, 2006), the Supreme Court issued a decision that delineated the extent to which federal regulation extended over water resources. In that case, the petitioner had filled in wetlands on his property without obtaining a permit, and had thereafter been prosecuted for doing so. The decision turned on the meaning of the phrase “waters of the United States” as used in the Clean Waters Act.

Three opinions emerged. Writing for four Justices, Justice Scalia held that the term “waters of the United States” encompassed waters that were navigable in the traditional sense and abutting wetlands; relatively permanent, standing or continuously flowing bodies of water connected to traditional navigable waters; and wetlands with a continuous surface connection to such waters (the “Scalia test”). In an opinion concurring in the judgment, Justice Kennedy stated that he would hold that wetlands were waters of the United States if the wetlands alone, or in combination with similarly situated lands in the region, significantly affected the chemical, physical and biological integrity of other covered waters more readily understood as navigable (the “Kennedy nexus” test). Four dissenters would have upheld a broad regulatory definition of the term “waters of the United States.”

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