Category: Environmental Law

Obama Bans Drilling Offshore Atlantic, Arctic – But For How Long?

Drilling OffshoreWith a new President on the White House doorstep, President Obama has announced a ban – ostensibly permanent – on offshore oil and gas drilling in federal waters along the Eastern seaboard and offshore Alaska. President Obama appears to be relying upon a seldom-used provision of the 1953 Outer Continental Shelf Lands Act (“OCSLA”) 43 U.S.C. §§ 1331 et seq.), which allows the President to withdraw any “unleased lands of the outer Continental Shelf.” Whether the ban proves permanent is likely to be tested politically and legally, as the Trump Administration takes office alongside a Republican-controlled Congress.

OCSLA and the Authority to Ban

OCSLA mandates that the Secretary of the Interior expeditiously develop the resources on the submerged lands three or more nautical miles offshore the coast of the United States. The purpose of OCSLA is “to assert the exclusive jurisdiction and control of the Federal Government of the United States over the seabed and subsoil of the outer Continental Shelf, and to provide for the development of its vast mineral resources.” See S. Rep. No. 411 (June 15, 1953) (the “1953 Senate Report”). The Secretary implements the mandate through a leasing program that involves auctions in which developers compete to acquire OCS leases. The program is administered and enforced by the Bureau of Ocean Energy Management (“BOEM”), the Bureau of Safety and Environmental Enforcement (“BSEE”), and the Office of Natural Resources Revenue (“ONRR”).

Section 12(a) of OCSLA provides that “the President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.” 43 U.S.C.A. § 1341(a). In his announcement on December 20, President Obama indicated his intention to remove federal submerged lands in the Atlantic and Arctic from future leasing. Shortly after the November 2016 election, the Obama Administration had already removed any Atlantic and almost all Arctic lease sales from the auction schedule through 2022, but this announcement appeared to go further by triggering the President’s authority under Section 12(a) to withdraw certain OCS lands from the leasing program indefinitely.

Prior Leasing Moratoria

Historically, Congress has been the one to bar certain regions on the OCS from leasing, but Presidential withdrawals under Section 12(a) have also occurred. Congress first enacted a moratorium in 1982 as part of an appropriations bill, removing three-quarters of a million acres offshore California from federal leasing. Because appropriations bills only cover one fiscal year, the moratorium lasted only a year, but Congress passed new moratoria in subsequent years, generally for areas offshore California, but also in the North Atlantic and the Eastern Gulf of Mexico.

In 1990, President George H.W. Bush issued a Presidential statement – not expressly relying upon OCSLA Section 12(a) – to state his support for a moratorium on new leasing offshore most of California, Oregon, Washington, the North Atlantic, and the Eastern Gulf of Mexico. But the President limited the duration of the ban, setting it to expire in 2000 (or 1996 in the case of certain subareas offshore California). In 1998, President Clinton announced similar withdrawals through 2012, expressly on the basis of Section 12(a).

In January 2007, President George W. Bush modified President Clinton’s withdrawal by narrowing it, and in July 2008 he modified his own 2007 withdrawal and two prior withdrawals by President George H.W. Bush and President Clinton. He also threatened to veto any appropriations bill that sought to renew the Congressional ban. Without the votes to override the veto, Congress stopped banning offshore leasing, until Congress passed the Gulf of Mexico Security Act in 2006, which locked up most of the Eastern Gulf of Mexico until 2022.

As this history indicates, both Democratic and Republican Presidents have used Section 12(a) to ban leasing for periods of time that encroached on future Administrations (even before knowing the political persuasion of those later Administrations). Likewise, later Presidents have modified (in particular, narrowed) the withdrawals made by prior Presidents and have done so under the authority of Section 12(a).

The New Ban

President Obama has not yet publicly released the language by which he apparently intends to invoke Section 12(a), but his announcement leaves little doubt that it will cover much of the OCS offshore the Atlantic seaboard and Alaska. Moreover, it is clear that he intends the ban to be indefinite – that is, without a sunset date. Some proponents of the ban argue that the decision is irrevocable because Section 12(a) only works ‘one way,’ authorizing withdrawals but remaining silent about the rescission of withdrawals. Others may argue that Section 12(a) itself contemplates change, as it refers to decisions made “from time to time,” and in any event prior withdrawals have been modified numerous times in the past. Moreover, they may argue, an irrevocable ban would flout OCSLA’s imperative to develop the offshore for the nation’s benefit subject to balancing considerations of the environment, competition, and national defense. Inherent in this balancing mandate is that the balance must be struck anew from time to time, as the weight of the statutory considerations changes in the balance.

As with many of President Obama’s environmental and energy initiatives, we anticipate this latest move will be challenged in federal court and through political efforts in Congress, which penned the withdrawal authority in Section 12(a). As the recent presidential election has shown, the balance of power and policy can shift, from time to time.

ARTICLE BY Kevin A. Ewing & Michael Weller of Bracewell LLP
© 2016 Bracewell LLP

Asbestos Among First Ten Chemicals to be Reviewed Under the Amended TSCA

chemical safetyEPA announced on June 29, 2016, that asbestos and nine other chemicals will be reviewed for hazard and exposure risks under the new procedures of the Lautenberg Chemical Safety Act, the June 2016 amendment to the Toxic Substances Control Act. Now that the ten chemicals have been chosen, EPA must produce a risk evaluation work plan for the chemicals by June 2017 and must complete the evaluations within three years. If unreasonable risks are found, EPA must take action to mitigate the unreasonable risks.

In addition to asbestos, the other nine chemicals are:

  • 1-Bromopropane, a solvent frequently used in adhesives
  • 1,4-Dioxane, a stabilizer in solvents and in certain consumer products
  • N-methylpyrrolidone, a solvent used in paint strippers, adhesives, and manufacturing
  • Carbon Tetrachloride, a carcinogen that was once used commonly as a solvent
  • Methylene Chloride, a paint stripper and degreaser
  • Tetrachloroethylene, also known as perchloroethylene, a common dry cleaning solvent
  • Cyclic Aliphatic Bromide Cluster, used as flame retardants
  • Pigment Violet 29, a dark reddish-purple dye

According to EPA, the chemicals were chosen because of their prevalence as environmental contaminants; their widespread use, especially in consumer products; and their perceived or known hazards.

EPA issued a ban and rule to phase out the use of asbestos in 1989, but the rule was overturned on the grounds that EPA failed to provide an adequate justification for the complete ban. Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991). Various other EPA rules have diminished the uses of asbestos over the years, as TSCA reformers were particularly focused on forcing EPA to make decisions about substances like asbestos. The new safety review focuses on risks to human health and the environment. The Lautenberg Act replaced the old cost-benefit standard with a new health-based safety standard. EPA is required to promulgate use standards if it finds that asbestos poses an unreasonable risk. EPA is expected to impose additional restrictions, including a possible ban, on the entry of asbestos into U.S. commerce. The other nine chemicals are subject to the same process.

ARTICLE BY Jane E. Montgomery of Schiff Hardin LLP
© 2016 Schiff Hardin LLP

California Proposition 65: Beep Beep, BPA Labeling

California proposition 65California proposes to amend Prop 65 warning requirements for BPA in canned and bottled foods and beverages.

  • In May 2015, California’s Office of Environmental Health Hazard Assessment (OEHHA) added bisphenol A (BPA) to the California proposition 65 list as a reproductive toxicant. On April 18, 2016, OEHHA implemented an emergency regulation for BPA, providing a safe harbor warning strategy to address exposures to this chemical from packaged foods and beverages sold at retail.  The emergency rulemaking allowed the use of point-of-sale (POS) signage to indicate exposures from BPA present in cans, lids, and caps of packaged foods and beverages at retail stores until October 17, 2016.

  • On July 22, 2016, OEHHA issued a proposed rule that would permit POS signage for BPA until December 30, 2017. The proposed rule is substantially similar to the emergency regulations promulgated earlier this year.  However, there is a significant difference in the proposal for foods that: (1) are covered under the POS signage requirement (i.e., BPA present in the can coating, lid, or cap); and (2) do not bear an on-label BPA warning. The proposal would require manufacturers, producers, packagers, importers, or distributors of foods in BPA-containing packages to send OEHHA specific information about the products to post on the “lead agency website” (in addition to sending similar information to retailers).  The proposal focuses on BPA that is intentionally used in food packaging.  OEHHA does not want manufacturers sending in information for posting on the lead agency website where BPA is unintentionally present.

  • OEHHA anticipates that by December 30, 2017, manufacturers either will have eliminated BPA from product packaging, labeled their products with a BPA warning, or provided retailers with shelf tags and signs. The final compliance option produces some confusion, as OEHHA has stated that part of the rationale for the emergency rulemaking was to avoid there being hundreds of shelf tags on retail shelves.  A public hearing on the proposal is scheduled for September 12 and comments are due by September 26.

ARTICLE BY Food and Drug Law at Keller and Heckman of Keller and Heckman LLP

© 2016 Keller and Heckman LLP

Cloud-Seeding – Make it Rain, Make it Stop: Monopoly on Weather?

They call it “cloud-seeding.” It’s a process by which clouds are injected with a chemical to induce rain. It sounds a little like science fiction, but it’s happening in California—where droughts are deadly—and in other states across the nation. As scientific weather modification becomes more common and weather contractors are brought in to induce climate change, we have to wonder: Might there one day be a monopoly on weather?

It is hard to imagine a commodity more in demand than the weather. Imagine a world where you could literally place an order for rain. The science known as “geoengineering” is an intentional, methodical intervention into the Earth’s natural climate system in order to bring about and counteract climate change. Cloud seeding has been used in Los Angeles County to battle the environmentally disastrous repercussions of drought, inducing much-needed rainfall. As a result, an approximate 15% increase rainfall has been estimated.

Cloud, Rain, Cloud-seedingSo how do companies hired to help with drought conditions literally “make it rain?” They use generators to shoot silver iodide into the clouds to produce more rain. It’s interesting to imagine the experiments conducted to test that model. However, many patents have been filed for weather modification systems of numerous varieties. If there are companies that know how to make it rain, you have to believe there are companies that know how to make it stop. Where rain might be needed to counteract detrimentally dry conditions in one region, like drought in California, dry conditions might equally be needed in another region to prevent damage caused by over-saturation—like flash flooding in Texas. Just as drought causes depletion of water reserves and spoilage of crops, too much rain can lead to excessive erosion, landslides, and sinkholes. Can weather contractors stop that as well? You bet – by seeding clouds with polymers that absorb aqueous solutions. You see, there’s an answer for everything.

These weather-defying acts are not without consequences, however. Study findings and weather contractors concur: rain inducement in one particular area can affect other areas in downwind regions. In other words, rain here may mean drought there. Flood-prevention here, may mean sinkholes and landslides elsewhere. Once you start tinkering with nature, the ripple effects are almost unpredictable. It would seem fiddling with the clouds in one area would require monitoring and likely more fiddling in neighboring regions. This is where we saw a potential weather conglomerate development. If it is possible to control all aspects, it could be possible for one conglomerate corporation to control weather everywhere. They might even create business by drumming up a drought in order to induce more orders for rain. Without competition, the sky is literally the limit as to what the Waldorf of Weather could charge for just one summer sprinkle. Then think about the military uses. Creating fog or heavy cloud cover over certain foreign regions to shield drones, heavy rains and winds over enemy campsites to prevent an invasion. Like many companies that now boast world market domination, initial growth for weather contractors might be spawned by the most profitable occurrence for most manufacturers of military-use products: a war.

While this type of growth may seem like pure speculation, cloud-seeding is happening now. Companies are being hired to both induce and stop rain, with the incumbent legal ramifications that must follow. We predict a growing need for geo engineering experts, as well as law firms to draft weather modification contracts, represent weather contractors in adverse weather liability suits, as well as ensure fair competition among the weather contractors.

ARTICLE BY Annie Dike of IMS ExpertServices

© Copyright 2002-2016 IMS ExpertServices, All Rights Reserved.

What’s New About the Revised TSCA – Toxic Substances Control Act

Toxic Substances Control ActAfter years of effort, comprehensive legislation to reform the Toxic Substances Control Act (TSCA) passed the House of Representatives on May 24, 2016.  The Frank R. Lautenberg Chemical Safety for the 21st Century Act is expected to pass the Senate the week of June 6.  President Obama is expected to sign the legislation shortly thereafter.  At that point, the Environmental Protection Agency (EPA) will begin its implementation of the new TSCA.

This alert first highlights key ways in which passage of TSCA amendments will impact industry.  Next, it outlines the key changes that the legislation will make to TSCA.  It then identifies those provisions of the bill as passed by the Senate in December 2015 that are retained in the bill as passed by the House on May 24 (thus expected to remain in the final Senate-passed version) and those provisions that are changed.  Finally, it considers what is likely to happen in the early days of implementation of the new TSCA.

Note:  Section references in this alert refer to TSCA as it will be amended by the legislation.

How Passage of TSCA Reform Legislation Will Affect Industry

Alone among major environmental statutes, TSCA had not been significantly amended since its enactment in October 1976, almost 40 years ago – until now.  During much of that time, EPA has regarded TSCA’s principal control provision, section 6, as unworkable.  As a result, EPA has not proposed any rulemaking under section 6 in 25 years, ever since a court invalidated the EPA ban on asbestos in 1991.  Other aspects of TSCA have also shown their limitations.

Once enacted, this legislation will amend section 6 to make it much easier for EPA to evaluate and, if appropriate, regulate chemicals.  The bill contains provisions mandating that EPA identify substances that are high priorities for risk evaluations; evaluate the health and environmental risks of those substances; decide, without regard to cost or other non-risk factors, whether a high-priority substance presents an unreasonable risk; and regulate those substances found to present an unreasonable risk under the conditions of use.  All of these steps are subject to tight time deadlines.  EPA must meet some quotas in the first five years.  This means that industry can expect EPA to review more chemicals, to review them more systematically and thoroughly, and to regulate those chemicals that it finds to be in need of regulation.

Continue reading…

Article By Mark N. Duvall, Ryan J. Carra, Timothy M. Serie & Sarah A. Kettenmann of Beveridge & Diamond PC
© 2016 Beveridge & Diamond PC

U.S. Supreme Court Allows Pre-Permit Challenges to Approved Jurisdictional Determinations

waters of the united statesIn a major new legal development for the Clean Water Act’s Section 404 wetlands permitting program, landowners can now challenge the federal government’s claim that areas targeted for fill are “waters of the United States” without first having to seek a permit to fill those waters, according to the Supreme Court’s decision issued on May 31st in United States Army Corps of Engineers v. Hawkes Co., Inc., No. 15-290 (U.S. May 31, 2016) (Hawkes). Until now, landowners could not immediately contest in court a determination by the Corps of Engineers (“Corps”) or the U.S. Environmental Protection Agency that jurisdictional wetlands, ephemeral drainages, vernal pools or any other types of “waters” existed on property targeted for fill. Instead, landowners had to first complete the Section 404 permitting process – a process that can take months or even years – before challenging the underlying jurisdictional determination, or proceed to fill the site without a permit and risk possible civil penalties of up to $37,500 per day, or even criminal prosecution. Under Hawkes, a landowner can now seek judicial review of the Corps’ formal assertion of jurisdiction without waiting for the conclusion of the Section 404 permitting process.

Unanimous Decision a Sharp Rebuke to the Corps and EPA

The Court’s opinion in Hawkes was unanimous (8-0), although some of the justices differed in their reasoning in support of the outcome. Nonetheless, at a time when the Court has been sharply divided on other issues, the unanimity of result in this case is a sharp rebuke to both the Corps and EPA.

At issue were plans by three mining companies to engage in the mining of peat, which is an organic material that forms in waterlogged ground. The companies applied for a Section 404 permit, and were told by the Corps that it would be very expensive and take years to complete the permitting process. The Corps issued an approved jurisdiction determination (“JD”) stating that the property contained jurisdictional “waters” by virtue of a “significant nexus” to a river, located some 120 miles away. The companies administratively appealed the JD within the Corps to no avail, and then sought judicial review in the federal district court. Following established legal precedent, the district court dismissed the case on the grounds that a JD does not constitute a “final agency action,” which is a prerequisite for judicial review under the federal Administrative Procedures Act. The 8th Circuit Court of Appeals reversed, holding that a JD was “final agency action,” and today the Supreme Court affirmed the 8th Circuit’s ruling.

Important Takeaways and Observations from Hawkes

  • The underlying merits of the challenge in Hawkes – whether the peat bog was jurisdictional under the Clean Water Act by virtue of its alleged “significant nexus” to a river 120 miles away – was not reached by the Supreme Court. Instead, under the posture of the case, the “waters” of the U.S.” determination will be returned to the District Court with instructions to hear the challenge to the JD, assuming the companies still wish to pursue their case.

  • The right to pre-permit judicial review of a JD applies only to “approved” jurisdictional determinations. These are the formal JD’s verified by the Corps (or the EPA in certain circumstances), which typically are based on extensive fact-finding by qualified experts following written guidance established by the Corps and EPA. These are distinguished from “Preliminary Jurisdictional Determinations” (“PJD’s”), which are also officially recognized as a basis for the issuance of a Section 404 permit, but which are not definitive declarations of jurisdiction by the Corps. Instead, PJD’s essentially operate as determinations by the Corps on the scope of jurisdictional waters that the landowner has agreed not to contest. The intent is to avoid a time-consuming, expensive and exacting jurisdictional determination and to instead move more quickly into the permitting process. It was the approved JD – not the PJD – that was the subject of the Supreme Court’s decision in the Hawkes case.

  • In order to challenge an approved JD, it still will be necessary for permit applicants to exhaust their administrative appeals within the Corps pursuant to the applicable Corps’ regulations (33 CFR Part 331) before they can file suit in federal court.

Implications of Hawkes

The Court’s decision in Hawkes is significant. Until now, the Corps and EPA held many of the cards in any proposed project that threatened to disturb or fill alleged “waters of the United States.” The landowner faced a Hobson’s choice of filling the potential “waters” and risking a civil or criminal enforcement action, or delaying project plans for months or even years while navigating the Section 404 permitting process. Now, in situations involving marginal claims of jurisdiction, the landowner has one more card to play – the opportunity to seek court review of an approved JD without waiting for the Section 404 permitting process to be completed.

Article By James T. Burroughs of Allen Matkins Leck Gamble Mallory & Natsis LLP

© 2010-2016 Allen Matkins Leck Gamble Mallory & Natsis LLP

Army Corps Proposes Renewal of Nationwide Permits for Work in Waters of the United States

On May 23, 2016, the U.S. Army Corps of Engineers (“Corps”) released a pre-publication version of its “Proposal to Reissue and Modify Nationwide Permits” (the “Proposal”).  The Proposal presents a draft version of the Corps’ latest renewal of its program for “Nationwide Permits” (NWPs) that authorize general categories of construction in waters of the U.S.  This begins the process for renewing and revising the 2012 NWPs that are set to expire on March 18, 2017.

The Corps has proposed changes to several existing NWPs, as well as the issuance of two new NWPs and modification to some of the General Condition and Definitions.  The Corps’ proposed modifications to existing NWPs, which are tabulated in the Corps’ summary table for the Proposal, aim largely to clarify the terms of the NWPs rather than change their substantive authorization.  More significant, however, are the comments the Corps has solicited, which address critical issues such as the relationship between the NWP program and the definition of the phrase “waters of the United States” (“WOTUS”) (which defines the scope of the Corps’ jurisdiction); potential changes in acreage limits for certain NWPs; potential changes in the Corps’ use of waivers; and potential changes in the pre-construction notifications (“PCN”) process.

Once the Proposal is published in the Federal Register, the Corps will provide a 60-day comment period.  Parties interested in the NWP renewal process should begin preparing to submit comments now.  Permittees with coverage under an existing NWP may wish to consider seeking to “grandfather” their rights by entering into a contract by March 18, 2017 to perform the work authorized by the NWPs, and/or by commencing construction by that date, and must complete construction by March 18, 2018.

Background

Section 404(e) of the Clean Water Act (“CWA”) authorizes the Secretary of the Army to “issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material.”  33 U.S.C. §1344(e)(1).  Activities that qualify for a general permit must be similar in nature, cause only minimal adverse environmental effects when performed separately, and have only minimal cumulative environmental effects. 33 C.F.R. § 325.5(c).

The most common general permits are NWPs, which provide streamlined review and authorization for categories of activities that the Corps has determined have minimal impacts on the aquatic environment.  NWPs automatically expire unless renewed every five years.  33 U.S.C. §1344(e)(2).  The 2012 NWPs became effective on March 19, 2012 and authorized 50 different categories of activities.  The EPA maintains a web page that provides a chronology of NWPs issued to date and related materials.

NWP Renewals and Revisions

The Corps’ Proposal states that, unless a particular NWP is specifically discussed in the Proposal’s preamble, the Corps is proposing to reissue the NWP without changing any of its terms.

The Corps’ summary table describes the proposed changes to individual NWPs.  A few of the key changes include:

  • NWP 12 (Utility Line Activities):

    • Authorize the use of temporary mats. Add note referencing definition of “single and complete linear project” and 33 C.F.R. §330.6(d).  Add note with reference to Corps regulations for required minimum clearances of overhead electric power transmission lines over navigable waters.

    • Clarify that NWP 12 only authorizes crossings of waters of the United States associated with the construction, maintenance, and repair of utility lines. In cases where Department of the Army authorization is required, NWP authorizes inadvertent returns of drilling muds through sub-soil fractures (frac-outs that might occur during directional drilling operations to install utility lines). Add note stating that NWP authorizes utility line maintenance and repair activities that do not qualify for the CWA §404(f) exemption for maintenance.

  • NWP 14 (Transportation Projects)

    • Add note referencing definition of “single and complete linear project” and 33 C.F.R. §330.6(d).

    • Does not authorize storage buildings, parking lots, train stations, aircraft hangars, or other non-linear transportation features.

  •  NWP 29 (Residential Developments)

    • Clarify that any losses of stream bed are applied to the 1/2-acre limit.

  • NWP 33 (Temporary Construction, Access, and Dewatering)

    • Require PCNs only for activities in section 10 waters.

  • NWP 39 (Commercial and Institutional Developments)

    • Clarify that any losses of stream bed are applied to the 1/2-acre limit. Add wastewater treatment facilities to the list of examples of attendant features.

  • NWP 43 (Stormwater Management Facilities)

    • Stormwater or wastewater management facilities that meet the criteria at 33 C.F.R. §328.3(b)(6) are not waters of the United States, and maintenance does not require a section 404 permit. Clarify that any losses of stream bed are applied to the 1/2-acre limit.

  • NWP 44 (Mining Activities)

    • For mining activities in non-tidal open waters, the 1/2-acre limit applies to the mining area. The loss of non-tidal wetlands plus the mining area in non-tidal open waters cannot exceed 1/2-acre. Clarify that any losses of stream bed are applied to the 1/2-acre limit. Final reclamation plan required for PCN, if reclamation is required.

  • NWP 51 (Land-Based Renewable Energy Generation Facilities)

    • Clarify that any losses of stream bed are applied to the 1/2-acre limit. Revise Note 2 to include NWP 14 activities.

  • NWP 52 (Water-Based Renewable Energy Generation Pilot Projects)

    • Add floating solar panels in section 10 waters to the list of activities authorized by this NWP, with 1/2-acre limit. Clarify that any losses of stream bed are applied to the 1/2-acre limit. Add note stating that hydrokinetic renewable energy generation projects authorized by the Federal Energy Regulatory Commission under the Federal Power Act of 1920 do not require separate authorization under Section 10 of the Rivers and Harbors Act of 1899.

Two New Proposed NWPs

In addition to these proposed modifications to existing NWPs, the Corps has proposed to add two new NWP categories:

  • NWP A (Removal of Low-Head Dams) would authorize removal of low-head dams, which is defined as a dam built to pass upstream flows over the entire width of the dam crest on an uncontrolled basis) for river restoration and public safety.

  • NWP B (Living Shorelines) would authorize construction and maintenance of living shorelines (natural and man-made materials to establish and maintain marsh fringes or other living elements to reduce erosion while retaining or enhancing ecological processes) for shore erosion control.

“Single and Complete Project”

The Corps is proposing to add a note regarding the term “single and complete project” to NWP 12 (Utility Line Activities).  The Corps applies the term “single and complete project” when determining the scope of NWP 12’s coverage for linear projects such as utility lines and transportation projects.  NWP 12 is routinely used to help expedite the permitting of energy development projects.

The following definition of “single and complete project” was added during the 2012 NWP process:

that portion of the total linear project proposed or accomplished by one owner/developer or partnership or other association of owners/developers that includes all crossings of a single water of the United States (i.e., a single waterbody) at a specific location. For linear projects crossing a single or multiple waterbodies several times at separate and distant locations, each crossing is considered a single and complete project for purposes of NWP authorization.

In order to qualify for coverage under NWP 12, each single and complete project cannot result in the loss of more than 1/2–acre of jurisdictional waters. Thus, for very large linear projects (including utility, cable, telephone, etc. lines as well as pipelines used to move oil, gas, slurry, etc.), there may be hundreds of separate NWP 12 verifications issued by the Corps, one for each crossing.

Importantly, the Proposal does not propose to modify the definitions of single and complete linear or non-linear projects.  The Proposal does, however, include a “clarification” of how single and complete projects are to be construed to address situations where both NWPs and Individual Permits are used for one project.  For example, while an overall project may qualify for the use of NWPs, one or two of the project’s components (crossings) may still require an Individual Permit (e.g., where greater than 1/2-acre of wetlands will be lost). Note 2 reminds applicants of the Corps’ regulations at 33 C.F.R. §330.6(d), which can require an Individual Permit for all crossings if one triggers an Individual Permit and the others do not have “independent utility.”  While the proposed Note 2 is consistent with the definition of single and complete project and the Corps’ historic treatment of these types of projects, it is unclear why Corps has chosen to emphasize this issue, which may be worthy of public comment.

Grandfathering Jurisdictional Determinations

According to the Proposal, activities that were authorized by the 2012 NWPs that have commenced or are under contract to commence by March 18, 2017, will have one year (i.e., until March 18, 2018) to complete those activities under the terms and conditions of the 2012 NWPs.  However, activities that were previously authorized by the 2012 NWPs that have not commenced or are not under contract to commence by March 18, 2017, will require reauthorization under the 2017 NWPs, provided those activities qualify for authorization under the 2017 NWPs.

Additionally, those projects with approvals under the 2012 NWPs should look for specific language in their verification letters, which, according to 33 C.F.R. §330.6(a)(ii), should include a statement that the verification will remain valid if  the NWP authorization is reissued without modification or the activity complies with any subsequent modification of the NWP authorization.  In such cases, a permittee under an existing NWP might not need to seek reauthorization under the 2017 NWPs.

Request for Comments on Other Important Issues

The Corps has solicited comments on a number of potentially-significant changes and other issues, including the following:

  • “WOTUS” issue

    • The Corps is seeking the views of NWP users on how the 2015 revisions to the definition of “waters of the United States” might affect the applicability and efficiency of the proposed NWPs.

  • Acreage and Linear Foot Limitations

    • The Corps is seeking comment on whether to retain the 1/2-acre limit that has been imposed on certain NWPs (i.e., NWPs 12, 14, 21, 29, 39, 42, 43, 44, 50, 51, and 52), or to impose different acreage limits on these NWPs.

  • Pre-construction notification (“PCN”)

    • The Corps is soliciting comments on changing the PCN thresholds for those NWPs that require pre-construction notification.

    • The Corps is also proposing to develop a standard form PCN that will be released in a separate notice and comment rulemaking.

  • Waivers

    • The Corps is soliciting comment on five aspects of waivers: (1) making changes to the numeric limits that can be waived; (2) whether to retain the authority of district engineers to issue activity-specific waivers of certain NWP limits; (3) whether to impose a linear foot cap on certain waivers; (4) whether to impose a linear foot cap on losses of intermittent and ephemeral stream bed potentially eligible for certain waivers; and (5) whether to require compensatory mitigation.

Pre-Construction Notifications

Many NWPs require the submittal of PCNs to the District Engineer before the prospective permittee may act pursuant to the permit.  Notification is required under General Condition 18(c), for example, if any species listed under the Endangered Species Act or designated critical habitat may be affected by or is in the vicinity of the project.

The procedures for PCN are set forth in General Condition 31.  In general, the Corps must be notified that a project proposed for authorization under a NWP requiring PCN is being undertaken.  The District Engineer must determine if PCN is complete within forty-five (45) calendar days of the receipt.  If the application is not complete, PCN review does not commence until all of the requested information has been received.  The prospective permittee may proceed if he/she is notified in writing that the activity may proceed under the NWP or if forty-five days have passed from the District Engineer’s receipt of the complete PCN and the permittee has not received written notification from the District or Division Engineer.  However, if the prospective permittee was required to notify the Corps pursuant to General Condition 18 (Endangered Species) or General Condition 20 (Historic Properties), he/she cannot begin the activity until receiving written notification. The Corps always retains the right to modify or revoke authorization under a NWP by following procedures specified at 33 C.F.R. §325.7.   Where PCN is not required, obtaining written verification from the Corps that a project meets all the applicable criteria and conditions for authorization under a NWP may be helpful to avoid a Corps’ investigation of potential violations.

As noted above, the Corps is proposing to eliminate the PCN requirement for certain NWPs; is proposing to develop a standard form PCN that will be released in a separate notice and comment rulemaking; and is soliciting comments on changing the PCN “thresholds” for those NWPs that require pre-construction notification.  All of these PCN-related topics are worthy of public comment, especially for frequent users of particular NWPs.

Other Conditions on the Use of NWPs

In addition to proposing changes to certain NWPs, the Corps also is proposing to modify a number of General Conditions (“GCs”).  GCs apply to all NWPs and currently there are 32 of them.  The Corps proposes to modify GCs 12 (Soil Erosion and Sediment Controls), 16 (Wild and Scenic Rivers), 18 (Endangered Species), 19 (Migratory Birds and Bald and Golden Eagles), 20 (Historic Properties), 23 (Mitigation), 30 (Compliance Certification), 31 (Activities Affecting Structures or Works Built by the United States), 32 (Pre-Construction Notification).

There are also regional and state conditions that may apply to project proponents seeking to utilize the NWP process.  Each Corps District can adopt regional conditions specific to NWPs implemented within their Districts.  Similarly, each state is required to issue water quality certifications under section 401 of the CWA and a consistency determination under the Coastal Zone Management Act for all permits under section 401 of the CWA, including NWPs.  Thus, states also have the authority to deny, preapprove, or establish conditions for the use of the NWPs.

Next Steps

The changes included in the Proposal appear relatively minor, especially compared to the breadth and depth of issues for which the Corps is seeking comment.  It would not be surprising, especially considering the drastic changes the Corps and the Environmental Protection Agency made between the proposed and final WOTUS rule, to see the Corps implement some of the “Important Issues” flagged above.  It will be very important for interested parties to carefully review and draft comments on the specific issues for which the Corps is seeking comments that are most likely to impact business and project development plans.

Finally, project proponents who have received coverage under one of the 2012 NWPs and have concerns about potential changes in the 2017 NWPs may wish to consider entering into contracts to complete all authorized work before the 2012 NWPs expire on March 18, 2017, arranging to have all of the work completed by March 18, 2018, or obtaining Corps verification of continued coverage under the 2017 NWPs.

EPA OIG Will Evaluate EPA’s Management of Resistance Issues Related to Herbicide Tolerant GE Crops

EPAOn March 25, 2016, the U.S. Environmental Protection Agency’s (EPA) Office of Inspector General (OIG) sent a memorandum to Jim Jones, Assistant Administrator, Office of Chemical Safety and Pollution Prevention (OCSPP), announcing that it plans to begin preliminary research to assess EPA’s management and oversight of resistance issues related to herbicide tolerant genetically engineered (GE) crops.  OIG states that its review will include the Office of Pesticide Programs (OPP), as well as other applicable headquarters and regional offices.  OIG’s objectives are to determine:

  1. What processes and practices, including alternatives, EPA has provided to delay herbicide resistance;

  2. What steps EPA has taken to determine and validate the accurate risk to human health and the environment for approved pesticides to be used to combat herbicide resistant weeds; and

  3. Whether EPA independently collects and assesses data on, and mitigates actual occurrences of, herbicide resistance in the field.

OIG states that the anticipated benefit of the project “is a greater understanding of herbicide resistance[,] which will lead to an enhancement of EPA’s herbicide resistance management and oversight.”

Commentary

Pesticide resistance is not a new issue and is one that EPA has affirmatively addressed when granting registrations for new products, GE or not, for some time.  In fact, that newer chemistries often have a more niche mode of action to reduce potential toxicity concerns has led some observers to speculate that greater resistance is one potential trade-off for the development of less toxic materials.

This “investigation” may appear to some to be a response to concerns raised by critics of GE crops generally and to a recent EPA decision to approve Enlist Duo herbicide, a new formulation of 2,4,D- and glyphosate designed to address the problem of weed resistance to glyphosate-tolerant crops.  Glyphosate tolerant crops were first approved some years ago, and their use was so broadly and readily adopted that issues have arisen with regard to potential resistance to some weed species.  EPA is currently expected to approve another GE strain, Dicamba-tolerant crops, to control glyphosate tolerant weeds.

To critics of GE crops, using more herbicides to control problems caused by what they claim is overuse of another herbicide is evidence of a troubling “pesticide treadmill,” which they believe should not have been allowed to occur in the first place.  Rebutting this criticism, others assert that resistance is a problem for all pesticides, not only genetically modified ones, and that with sufficient controls, resistance can be delayed, if not avoided.  Registrants point out that it is very much in their self-interest to take steps to avoid resistance to their products — once that occurs, the market viability of the product is significantly reduced.

ARTICLE BY Lisa M. Campbell, James V. Aidala & Carla N. Hutton of Bergeson & Campbell, P.C.
©2016 Bergeson & Campbell, P.C.

Ohio v. Sierra Club: The Integrity of the Clean Air Act

EPAYesterday, the Supreme Court of the United States announced it will not grant Certiorari in Ohio v. Sierra Club, et al. In this case, the Sixth Circuit found an area must adopt required pollution-control measures before the EPA can designate it as having satisfied the law’s health-based pollution standards.

In 1997, the EPA created the National Ambient Air Quality Standards of fine particulate matter in the air.  When the EPA created these standards, regions were designated as having met, or not met the air quality standards.  In order to meet the standards, states were required to adopt “reasonable measures and technologies” to reduce the pollution in the problematic areas.  In 2011, the EPA deemed Ohio to have met the appropriate standards because the air quality had improved. Ohio, however, had never created a pollution regulatory plan as the Clean Air Act required. In response, the Sierra Club filed suit alleging the EPA acted illegally by designated the areas as having met air quality standards.

Creating a pollution regulatory plan is crucial, according to Sanjay Narayan, the managing attorney for the Sierra Club on the case.  Before 1990, the Clean Air Act had no requirement that states produce an implementation plan.  According to Narayan, the expectation was “we [the EPA] don’t care how you get there, we aren’t going to tell you how to get there, we’re just going to check in at the deadline and expect you to have made it. And what happened was that the vast majority of the states did not meet the deadline.”

Narayan describes the implementation plan as “a show your math” requirement. This has been very useful in helping states create lasting change in their air quality–by creating a regulatory framework that shows how they can reduce air pollution, the states are more likely to meet their deadline.  Narayan points out “It’s also useful for other areas to know what worked and what successful areas did.  Here’s what turned out to be cost effective, that kind of record is tremendously useful as we move forward on what was meant to be a nation-wide campaign for healthy air for the public.”

In  Ohio v. Sierra Club, there are a few details to consider.  Pollution decreased, and that’s the goal.  However, it might not be that simple.  In the years preceding Ohio’s drop in air pollution, the economy crashed.  Narayan draws comparisons to the Beijing Olympics, saying, “When people aren’t running their [industrial] plants for economic reasons, the air cleans up a little bit.  But it turns around quickly once you turn the plants back on.”  However, Ohio did meet the standard, and according to Narayan, to comply with the Clean Air Act they’d simply need to go back and show their work.  He says, “They did meet the standard, and they say they have all the controls they need in place.  There is a procedural step that Ohio hasn’t taken, and it shouldn’t be hard for Ohio to take it.”

The Sixth Circuit decision that currently stands requires Ohio to take those regulatory steps. In the current case, the Sixth Circuit agreed that the entire portion of the Clean Air Act must be followed, and that it wasn’t enough for Ohio to have simply met the standards.  Ohio has appealed to the Supreme Court.

Narayan says, “It’s about the integrity of the clean air act.”  These requirements are crucial in ensuring the air gets cleaned up in a timely manner.  Narayan says, Decades of experience has shown us that without these requirements, states miss deadlines, air pollution lasts for much longer than it should and the public really suffers.  The pollution sends kids to the hospital with asthma, it creates respiratory disease in the elderly-delay is a disaster for public health.”

Article By Eilene Spear & Nicole Cudiamat Minnis of The National Law Review / The National Law Forum LLC
Copyright ©2016 National Law Forum, LLC

U.S. Court of Appeals Issues Split WOTUS Ruling

On February 22, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit (Cincinnati) issued a split 2-1 decision, ruling that it has jurisdiction to proceed with challenges to the Obama administration’s “Waters of the United States” rule, or WOTUS, as opposed to federal district courts. A wide range of government, industry and agriculture interests have filed lawsuits in several district courts across the U.S. challenging the WOTUS rule.

The decision came in the form of three separate opinions, as each judge had a different view of the law on this complex issue. Two judges concluded that the appellate court has jurisdiction over the legal challenges to the WOTUS rule; the third judge concluded that the appellate court lacks jurisdiction over these cases.

It is speculated that the split decision makes it very likely that the state and industry petitioners will seek en banc review of the ruling, meaning that it would go to rehearing before the entire Sixth Circuit for additional review. Challengers will need to petition the court within 45 days to request rehearing.

The decision, which does not answer the legality of the WOTUS rule, but rather which court has authority to review it, means that stay of the WOTUS rule issued last year by the Sixth Circuit will continue in effect until further rulings.

The decision could also be appealed, potentially to the U.S. Supreme Court.

Article By Aaron M. Phelps of Varnum LLP

© 2016 Varnum LLP