Archive for the ‘Permits’ Category

Government Shutdown Versus The Environment

An article published in Law360 by law firm Faegre & Benson used as an example the recent government shutdown in Minnesota to demonstrate the potentially unforeseen impacts of such a shutdown on the environment and environmental regulation.

Photo by Phil Roeder. Some rights reserved.

The most tangible interruption seemed to be the permitting and review process usually undertaken by the Minnesota Pollution Control Agency and Minnesota Department of Natural Resources. An estimated 240 construction stormwater permits would have been reviewed during the 20-day shutdown had everything been running normally.

And what would such a shutdown look like at the federal level, for the EPA?

While the budget itself almost crippled the EPA – riders that would have prevented the EPA from regulating GHG emissions were cut from the final agreement at the last minute – the narrowly missed shutdown could have had widespread effects on businesses, parks, and more.

A piece in the Huffington Post recalls the last government shutdown, in which 600+ sites halted toxic waste cleanup work, 300+ National Park Service sites were closed, and 12 national marine sanctuaries were shut down. Not to mention the approximately 18,000 employees at the EPA that were furloughed for the duration of the shutdown.

Of course, this is all according to plan. The Antideficiency Act (31 USC 1341, 1342) authorizes agencies to incur obligations in advance of appropriations only in certain “excepted” situations. For instance, agency functions that addresses emergency circumstances, such that the suspension of the function would imminently threaten the safety of human life or the protection of property, may continue to perform during a shutdown. Examples of excepted activities at the EPA include certain Superfund response site work and emergency response readiness operations.

The week of April 4th, when a government shutdown seemed well within the realm of possibility, EPA Administrator Lisa Jackson sent an email to EPA employees, urging them to plan for an “orderly shutdown.” A few days later, the EPA released a Contingency Plan for Shutdown, which got down to the nitty gritty of who was to do what, when, and how, in the event of an actual shutdown.

We scraped by un-shutdown this time, but given the recent economic volatility, I suppose I should at least feel relieved that there’s a plan in place in the face of chaos. Let’s just hope we never have to use it.

A Sliver of an Exemption Left in Silviculture Rule

Photo by ッ Zach Hoeken ッ. Some rights reserved.

40 CFR 122.27 (the EPA’s “silviculture rule”) exempts from NPDES permitting all discharges from silvicultural (forestry) activities such as thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance resulting from natural runoff.

But recent opinions from the U.S. Court of Appeals for the Ninth Circuit have restricted the interpretation of this exemption.

In Northwest Environmental Defense Center (NEDC) v. Brown, 617 F.3d 1176,  the Northwest Environmental Defense Center brought suit against Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and various timber companies for their failure to obtain permits for discharges from systems of ditches, culverts, and channels that receive stormwater runoff from two logging roads in the Tillamook State Forest. The Defendants argued that these discharges are “point source” discharges under the Clean Water Act (CWA) and that they therefore require permits under the National Pollutant Discharge Elimination System (“NPDES”).

The Ninth Circuit agreed, filing their original opinion in the case on August 17, 2010. According to Perkins Coie’s Update on the case, the silviculture rule’s exemption for natural runoff “ceases to exist as soon as the natural runoff is channeled and controlled in some systematic way through a ‘discernible, confined and discrete conveyance’ and discharged into the waters of the United States.”

On October 5, 2010, the defendants filed petitions (here and here) for rehearing and rehearing en banc, but just two weeks ago, the Ninth Circuit issued an order and opinion denying the petitions, and environmentalists everywhere rejoiced.


Renewable Energy Permitting and Leasing on Tribal Lands

Photo by Mataparda. Some rights reserved.

About one month ago, the Department of the Interior’s Bureau of Indian Affairs (BIA) released draft regulations that aim to “increase the efficiency and transparency of the BIA approval process” for leasing tribal land, according to a supplement that was provided along with the proposed regulations to tribal leaders for review.

The draft regulations, if finalized, would add several subparts to the existing 25 CFR Part 162 (“Leases and Permits”), one of which subparts (Subpart E) lays out specific procedures for wind and solar energy project permitting and leasing.

More recently, Pillsbury law published an Advisory addressing the draft regulations, generally giving them their full support. Pillsbury points out that the large swaths of tribal land in the lower 48 states add up to more than 50 million acres, and that this land has the potential to generate 535 billion kWh/year of wind energy and 17,600 kWh/year of solar energy.

Current regulations, however, provide several roadblocks to such renewable energy projects, having to do with landowner consent, tax credits, and an outdated approval process. Yet the Pillsbury Advisory remains upbeat that the proposed changes will improve things: “If and when finalized, the [wind and solar resources] regulations should help spur renewable energy development by streamlining the federal approval process for such projects on tribal land.”

One hopes the goal of “transparency” is taken as seriously as “efficiency.” If done correctly, perhaps these new regulations will help to smooth over historically rocky relations between the DOI and Native American groups and prevent the federal approval of such controversial renewable energy projects on tribal lands.

As of today, two remaining tribal consultation meetings are scheduled for March 31st and April 6th, which you can track using the BIA calendar here. Once this consultation period is over, BIA hopes to have the proposed regulations published in the Federal Register by late summer of 2011, and finalized and effective by early 2012.

Clearing Up Oregon’s Definition of Turbidity

Marten Law published an article earlier this week describing the challenges facing Oregon’s Department of Environmental Quality (DEQ) as they revise their 30-year-old definition of “turbidity.”

Photo by John Kratz. Some rights reserved.

What is turbidity? Turbidity is a measure of water clarity or cloudiness, caused by material that is suspended in the water. The material can range from soil particles from eroding watersheds to decaying plant matter to industrial waste discharges. High turbidity can be evidence of pathogens in drinking water, can increase water temperatures, impair photosynthesis, clog fish gills and otherwise harm aquatic life.

While increases in turbidity can often be attributed to human activities such as logging, agricultural practices, or construction, there is also substantial natural variability in a given water body’s turbidity from season to season (as big rains wash excessive sediment into the water) or in mountainous areas (where erosion and glacial flow can cause large changes in turbidity).

Turbidity, as a measure of water quality, is covered by the Clean Water Act (CWA). Under Section 303(c) of CWA, the EPA mandates individual states to develop water quality standards. While the EPA produces publications such as Quality Criteria for Water from time to time, these documents are not regulations in and of themselves, but rather offer data and guidance on which states can develop their own standards.

These standards are used in the evaluation of NPDES permits under CWA Section 402 and dredge and fill permits under CWA Section 404, in determining whether a body of water should be listed as “impaired” under CWA Section 303(d), and also in determining pollutant loading allocations under TMDL programs.

Ideally, states can come up with cold, hard numerical standards – limiting turbidity to a certain number and size of Nephelometric Turbidity Units (NTUs). Of course, actually determining useful absolute standards is much easier said than done. In addition to the inherent variability in a given water body, one must also establish a baseline “background” turbidity for each body of water, as well as grapple with the limitations of differences in instruments and techniques for gathering turbidity data.

Many states, like Oregon, apply a more “relative” approach for turbidity standards. Their current rule (OAR 340-041-0036) states that “No more than a ten percent cumulative increase in natural stream turbidities may be allowed, as measured relative to a control point immediately upstream of the turbidity causing activity.” According to Marten Law, DEQ hasn’t changed the water quality standard in more than 30 years! DEQ’s draft issue paper on the proposed revisions explains that the purpose of the review is to “incorporate best available science regarding the effects of increased turbidity levels.” For a clear explanation of the anticipated changes, don’t forget to check out the Marten Law article.

Will Congress Disapprove of the EPA’s New GHG Rules?

Republican Representative Fred Upton, who has made headlines with his “flip-flopping” stance on climate change, has recently declared his intentions of leaving behind any moderates that might have supported him up to this point: According to Mother Jones, he aims to overturn the EPA’s rules governing Clean Air Act permitting for greenhouse gases.

Photo by WukieGrl. Some rights reserved.

These EPA rules, which began to take effect this past Sunday, were the direct result of the 2007 Massachusetts v. EPA decision, in which the Supreme Court concluded that GHGs fall within the definition of an “air pollutant,” and therefore should be regulated as such. Given the ruling, the EPA now, for the first time, has the authority to regulate GHG emissions under the existing “Prevention of Significant Deterioration” permitting program.

Upton, however, hopes to block the rules by invoking the Congressional Review Act (5 USC 801-808), a notoriously obscure law enacted in 1996. Under the Act, Congress may review – and subsequently overrule – a new regulation within 60 days of its publication in the Federal Register by passing a “joint resolution” expressing their disapproval. However, as Mother Jones points out, the Act has only been successfully used to overturn federal rules once, when Republicans blocked new ergonomics rules from OSHA under the Clinton administration in 2001.

While the outlook for Upton’s crusade isn’t too promising, he still has time to give it a shot – some of the more recent rules issued by the EPA, which establish the regulatory framework necessary for the GHG permitting, have only just been published in the federal register. You can review the documents (public submissions as well as official notices) associated with each action by searching by ID on

  • Notice of Findings of Failure to Submit State Implementation Plan Changes for Seven States (ID No. EPA-HQ-OAR-2010-0107)
  • Final Greenhouse Gas Prevention of Significant Deterioration Federal Implementation Plan (ID No. EPA-HQ-OAR-2010-0107)
  • Interim Final Texas Greenhouse Gas Prevention of Significant Deterioration Error Correction, State Implementation Plan Partial Approval/Disapproval, and Federal Implementation Plan (ID No. EPA-HQ-OAR-2010-1033)
  • Proposed Texas Greenhouse Gas Prevention of Significant Deterioration Error Correction, State Implementation Plan Partial Approval/Disapproval, and Federal Implementation Plan (ID No. EPA-HQ-OAR-2010-1033)
  • Final State Implementation Plan Narrowing rule for Prevention of Significant Deterioration Permitting for Greenhouse Gases (ID No. EPA-HQ-OAR-2009-0517)
  • Final Title V Permitting Programs Under the Greenhouse Gas Tailoring Rule (ID No. EPA-HQ-OAR-2010-0107)

Icky Sickly Water Woes

Two recent news stories showcase the often uninvited residents of our nation’s water resources.

Photo by Some rights reserved.

Waterways through and surrounding the city of Boston have been receiving unwelcome and illegal dumps of raw sewage and other pollutants, according to a citizen lawsuit filed by the Conservation Law Foundation (CLF) in February of 2010. CLF alleges that defendant Boston Water and Sewer Commission’s (BWSC) “significant water-quality problems and programmatic deficiencies” are in violation of the Clean Water Act.

Then, yesterday, the EPA announced that the United States would be joining CLF’s case on the EPA’s behalf, seeking injunctive relief “in the form of significantly increased resources for BWSC to identify and expeditiously remove all illicit connections, implement stormwater Best Management Practices to mitigate concentrations of pollutants to the maximum extent practicable, establish programs necessary to meet permit conditions, and take actions necessary to mitigate and prevent [Sanitary Sewer Overflows].”

Since it’s winter, one shouldn’t need much more discouragement from taking a dip in the Charles, but just in case you want to know what you’re missing – the term “fecal” appears eight times in the complaint.

A few states down the coast, EPA administrator Lisa Jackson met with ten U.S. senators to discuss a recent report from the Environment Working Group that found chromium-6 (the “carcinogenic ‘Erin Brockovich chemical’”) in the drinking water of 31 out of 35 U.S. cities tested.

While the report claims that, despite its toxicity, the EPA “has not set a legal limit for chromium-6 in tap water,” the EPA was quick to disagree. A defensive statement released on Wednesday argues that the EPA “absolutely has a drinking water standard for total chromium, which includes chromium-6 (also known as Hexavalent Chromium), and we require water systems to test for it.”

Jackson’s slightly less defensive remarks on the senators’ meeting suggest that the EPA is moving quickly in response to the report. Though she maintains that “all public water facilities are in compliance with the existing total chromium standards,” she also laid out a series of steps “that the EPA will take over the coming days to address chromium-6 in our drinking water.”

Though most of the hubbub was centered around D.C., the highest levels of chromium-6 detected were actually in Norman, OK, Honolulu, HI, and Riverside, CA. You can track the status of the EPA’s chromium-6 risk assessment here.

You can review the status of BWSC’s stormwater permits and management reports here.

EPA Listening Session Today on Vessel General Permits

Today from 9-5 the EPA is holding a listening session to obtain feedback from the public on improving the next Vessel General Permit (VGP).

Photo by JamesCanby. Some rights reserved.

The VGP is a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit that regulates discharges “incidental to the normal operation of vessels operating in a capacity as a means of transportation.” All vessels weighing 300 gross tons or more (or those that have to ability to hold or discharge more than 8 cubic meters of ballast) must apply for coverage under the permit. Vessel operators can submit the requisite Notice of Intent here.

The final version of the most recent VGP became effective in 2008 and is set to expire in 2013. As part of the process for developing the next version, the EPA is seeking input on questions such as “Were parts of the 2008 VGP confusing? Do certain sections need to provide additional guidance?” and “Did the 2008 VGP accurately identify and capture all the discharge categories of discharges incidental to the normal operation of a vessel in the vessel universe?”

The listening session will be held in the EPA East Building at 1201 Constitution Ave. NW, Room 1153, Washington, DC 20004. If you are unable to attend, you can submit comments by email to, attention Docket ID No. EPA-HQ-OW-2010-0828.

Tailoring Rules May Send GHG Controls BACT to the Drawing Board

An interesting Alert published by K&L Gates this week explores the question, “What types of ‘Best Available Control Technologies’ could be utilized to control GHG emissions?”

Engraving scanned by Lars Aronsson.

Earlier this year, the EPA published the Final GHG Tailoring Rule, which, when it becomes effective next January, will require certain new and existing GHG-emitting facilities to obtain a New Source Review Prevention of Significant Deterioration (PSD) permit prior to construction or major modification. (The “tailoring” refers to the GHG emissions threshold – facilities with fewer emissions will be exempt from the program.)

PSD permits are currently issued to new major stationary sources of certain air pollutants under the Clean Air Act (CAA). While the EPA believes that GHG emissions would be best regulated by new legislation, the death of the federal cap and trade bill has left them with little choice but to “shoehorn” GHG emission control into the existing CAA framework. Under the PSD program, facilities must indicate how they intend to meet emissions requirements by implementing “Best Available Control Technology” (BACT). BACT is determined on a case-by-case basis, taking into account the cost and effectiveness of the control.

In October of 2009, the EPA established the “Climate Change Work Group,” whose duty was to “discuss and identify the major issues and potential barriers to implementing the PSD program […] for greenhouse gases.” The focus of the work group was to recommend information and guidance on the BACT requirement. Recommendations from the work group were presented to the Clean Air Act Advisory Committee in February, subsequently passed on to the EPA, and seemingly incorporated into BACT guidance released by the EPA last month.

And what, exactly, are the best technological options available for controlling GHG emissions? The EPA guidance offered the following two main suggestions: 1) increased emission source efficiencies (as K&L Gates puts it, “less fuel use = less CO2 emissions”), and 2) the use of cleaner alternative fuels, such as natural gas or biomass. The guidance also mentions the less-well established – but increasingly popular – carbon sequestration, but notes that it is unlikely that it will be “a technically feasible BACT option.” According to K&L Gates, “instead of identifying other, more concrete BACT options, [EPA] has essentially passed that future responsibility onto the state air permitting agencies through a series of general, well-known BACT review recommendations.”

K&L Gates summarizes the state of affairs nicely:

“If the Tailoring Rule survives the various legal challenges against it […] this case-by-case BACT analysis will – in the near term – likely result in a state-by-state patchwork of BACT analyses and accompanying regulatory uncertainty.  This uncertainty may also result in increased BACT legal challenges by environmental and industry groups that perceive individual BACT determinations as being either too weak or too stringent from a GHG reduction standpoint.”


Tip for knowledgemosaic users: there are plenty of other law firms’ analyses on this topic. Enter the text BACT and Greenhouse on our Law Firm Memo search page to learn more.

Leaked Corps Notice Favors Renewable Energy Over Wetlands

Will the Army Corps of Engineers move forward with a plan to permit construction of renewable energy facilities on wetlands and streams?

Original photos by TANAKA Juuyoh and Nigel Cox. Some rights reserved.

A draft proposal leaked earlier last week reveals that the Corps is contemplating creating three new nationwide permits (NWPs) that would allow for the discharge of dredged or fill material into non-tidal waters of the United States for the construction, expansion, modification, or improvement of renewable energy productive facilities.

The proposed permits cover “land-based” solar, wind, or geothermal projects, “hydrokinetic” (wave, tidal, current) projects, and wind or geothermal projects sited in navigable waters. All the permits propose a one-acre limit on project sites, with the loss of no more than 300 linear feet of stream bed. The permits make unfortunate allowances for attendant features such as roads, parking lots, and utility lines.

According to a recent Chapman and Cutler Update (see the third story down), the permit requirements for these renewable energy projects would be more relaxed than those of their traditional counterparts. Nonprofit Public Employees for Environmental Responsibility (PEER), who published the leaked proposal, points out that “in most areas of the country, Nationwide Permits limit or eliminate review by the Environmental Protection Agency (EPA), Fish and Wildlife Service, and National Marine Fisheries Service.”

It is difficult to say whether the Corps sees the trade off of wetlands for renewable energy facilities a net gain for the environment, or whether they are yet another government agency feeling compelled to usher “green” projects to the front of the line (see: USPTO’s Green Technology Pilot Program). Care to tell them your opinion? Though it is unclear when the proposal will be published in the federal register, once it is, you will have 60 days to submit comments.


You can review current Nationwide Permits Information here.

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