Environmental Law ReSource : Environmental Lawyer & Attorney : Reed Smith Law Firm : Climate Change, Sustainability

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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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.

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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.

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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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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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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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