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- February 2011 – Fourth Circuit Issues Opinion Imposing Tighter Limits on the Jurisdiction of the Clean Water Act
- January 2011 – 2 – Rich & Henderson Successfully Challenges Provisions of the General Permit for Discharges from Mineral Mines, Quarries, Borrow Pits, and Concrete and Asphalt Plants
- January 2011 – 1 – Maryland Issues a New General Permit for Discharges from Marinas, Boat Yards and Yacht Basins
Fourth Circuit Issues Opinion Imposing Tighter Limits on the Jurisdiction of the Clean Water Act
On January 25, 2011, the United States Court of Appeals for the 4th Circuit issued an opinion limiting the jurisdiction of the Clean Water Act (CWA). The appeal arose from a determination by the Army Corps of Engineers granting the Corps jurisdiction, under the CWA, over 4.8 acres of wetlands (the “Site Wetlands”) located seven miles from the nearest navigable water, the Northwest River. Following the jurisdictional determination, the Corps denied the application for a CWA permit to begin construction.
Under the “substantial nexus test” set forth by the Supreme Court in Rapanos v. United States, CWA jurisdiction arises when “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.””
Precon made two substantive challenges to the Corps’ jurisdictional determination: first, that the Corps’ decision to label 448 acres of wetlands surrounding the Site Wetlands as “similarly situated” was in error; and second, that the Corps’ determination that a significant nexus exists between the Site Wetlands — and other similarly situated wetlands — and the Northwest River was also in error.
With respect to the first challenge, the Court read the substantial nexus test as clearly allowing for aggregation and held that aggregation of the Site Wetlands and 448 acres of surrounding wetlands satisfies the test. The Court, however, urged the Corps to offer more tangible evidence of similarity between wetlands in future attempts to aggregate widespread wetland areas.
Addressing the second challenge, the Court held that the record provided no evidence to establish a significant nexus. The Court held that the significant nexus test does “not require laboratory analysis or any particular measurements in order to establish significance” but does require some physical evidence — qualitative or quantitative — presented by the Corps, that a nexus exists and that the nexus is significant.
The Court determined that to establish a nexus, the record needed measurements of actual water flow, but all the record contained was information regarding the functions of the 448 acres of wetlands; potential flow rates and water storage capacity. Second, the Court held that a nexus alone, as evidenced by actual measures of flow, would not have been adequate; that information regarding the significance of the relationship between the wetlands at issue, their adjacent tributary, and traditional navigable waters is an essential element of the test. Important to the Court’s determination of significance was the distance of the wetlands from the navigable water, the Northwest River. According to the Court, a showing of significance must prove not merely that wetlands and adjacent tributaries trap sediment and nitrogen, and function to mitigate flooding, but that the navigable water affected actually suffers from high levels of nitrogen or sedimentation, or is prone to flooding as a result of anthropogenic changes to the Site Wetlands. The Court advised: “We ask only that in cases like this one, involving wetlands running alongside a ditch miles from any navigable water, the Corps pays particular attention to documenting why such wetlands significantly, rather than insubstantially, affect the integrity of navigable waters. Such documentation need not take the form of any particular measurements, but should include some comparative information that allows us to meaningfully review the significance of the wetlands’ impacts on downstream water quality.”
This decision curtails the jurisdiction of the Clean Water Act. Exactly how this opinion will impact the environment, individuals, businesses, and enforcement efforts in the Bay’s watershed has yet to be seen. Rich & Henderson will continue to monitor the issue.
Rich & Henderson Successfully Challenges Provisions of the General Permit for Discharges from Mineral Mines, Quarries, Borrow Pits, and Concrete and Asphalt Plants
On January 21, 2011, the Circuit Court for Anne Arundel County issued an opinion in favor of Rich & Henderson clients, striking down challenged portions of the General Permit for Discharges from Mineral Mines, Quarries, Borrow Pits, and Concrete and Asphalt Plants and remanding these provisions to the Maryland Department of the Environment (“MDE”). Several Rich & Henderson clients own and operate concrete manufacturing plants and mining operations throughout the state of Maryland and are required to obtain such permits, which are issued by MDE under authorization by the Environmental Protection Agency (“EPA”) pursuant to the Clean Water Act (“CWA”). Reviewing the new permit in the light most favorable to MDE, the Court adopted arguments made by Rich & Henderson with respect to the challenged provisions. The Court determined that MDE failed to provide substantial evidence to support four new requirements, which Rich & Henderson clients argued would create uncertainty in their operations and unnecessary increases in operating costs, without providing commensurate environmental benefits.
This successful challenge resulted in significant cost savings and workable permit requirements for Rich & Henderson clients and other similarly situated businesses.
Maryland Issues a New General Permit for Discharges from Marinas, Boat Yards and Yacht Basins
The Maryland Department of the Environment has issued a Notice of Final Determination to issue a new ‘General Permit for Discharges from Marinas, Including Boat Yards and Yacht Basins.’ Specific information on the new General Permit may be found here.
Unless challenged, the new General Permit will go into effect on March 1, 2011. Facilities already authorized to discharge stormwater and wastewater under the current General Permit have until May 31, 2011, to submit a ‘Notice of Intent’ for authorization to discharge under this new permit, the associated fee and a Stormwater Pollution Prevention Plan for the facility. Among its many conditions, this new General Permit imposes a requirement that all wastewater generated from boat bottom washing activities be captured and contained for treatment. Beginning September 1, 2012, the new General Permit also imposes monitoring requirements for several parameters including Total Suspended Solids, Oil & Grease and several metals. Discharge limits for TSS and O&G take effect beginning March 1, 2013, and for the metals beginning March 1, 2015.