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A recent Sixth Circuit decision on permit shield protection reinforces the importance of full disclosure to the permitting agency.  The Sixth Circuit found a coal company was shielded from Clean Water Act liability for discharges exceeding state water quality standards by a state NPDES general permit.   This is the latest decision in a series of cases where courts have wrestled with the scope of protection afforded by the CWA’s permit shield provision.  See 33 U.S.C. § 1342(k). 

In a recent memo issued by EPA’s Office of Enforcement & Compliance Assurance (OECA), Assistant Administrator Cynthia Giles announced that four specific “enforcement tools” should be considered “in all civil enforcement cases and incorporated in civil and administrative settlements whenever appropriate.”  OECA notes that these measures can be imposed via settlement through “injunctive relief, mitigation, or Supplemental Environmental Projects.”

The tri-state water wars continue to divide the Southeast as litigation moves forward.  In Georgia, two river basins supply water to metropolitan Atlanta—the Apalachicola-Chattahoochee-Flint (ACF) River Basin which flows through Georgia, Florida, and Alabama and the Alabama-Coosa-Tallapoosa (ACT) River Basin which runs through Georgia and Alabama.  Litigation is pending over water allocation for both the ACF and the ACT basins.

Virginia Governor Terry McAuliffe, U.S. EPA Administrator Gina McCarthy, U.S. Department of Agriculture Secretary Tom Vilsack, and Mike Boots of the White House Council on Environmental Quality, joined together last week to compliment and promote Virginia’s stormwater nutrient trading program. All noted the multiple environmental and economic benefits of Virginia’s program and held it out as an example to be followed in other states. Brent Fults of Troutman Sanders client Chesapeake Bay Nutrient Land Trust (CBNLT) also spoke at the event and was recognized as a leading private investor building Virginia’s market based nutrient trading program.

North Carolina Partner Sean M. Sullivan presented developments in the Brownfields program at the meeting of Groundwater Professionals of North Carolina on December 4, 2014. The discussion centered on:

  1. The Underground Storage Tank program and eligibility issues at Brownfields;
  2. Corrective action under the 2L Rules (02L.0106(e)) regarding unpermitted facilities;
  3. The

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Troutman Sanders’ Richmond office partner and environmental and natural resources attorney, Brooks Smith, has filed an amicus brief on behalf of the Virginia Coal and Energy Alliance Inc., Virginia Mining Association Inc. and Virginia Mining Issues Group. The brief supports A&G Coal Corporation’s request to the U.S. Court of Appeals for the Fourth Circuit to review whether it can use the permit shield defense to avoid liability for discharging naturally occuring pollutants that its Clean Water Act permit does not explicity prohibit from release into surrounding waters.

EPA recently released its draft “FY 2014-2018 EPA Strategic Plan” for public review and comment.  The Plan generally outlines the Agency’s regulatory, policy, and enforcement goals for next year through 2018.  As part of the Plan, EPA summarizes its specific priorities for “Enforcing Laws and Assuring Compliance” with environmental requirements (pages 42-45).  EPA notes that it will pursue “vigorous civil and criminal enforcement” that will target “the most serious water, air, and chemical hazards in communities in order to obtain compliance.”

The tri-state water wars between Georgia, Florida, and Alabama are far from over.  In fact, they have now been escalated.  On October 1, Florida filed a complaint in the United States Supreme Court requesting that the Court equitably apportion the waters of the Apalachicola-Chattahoochee-Flint (“ACF”) River Basin between Florida and Georgia.  Florida argues that Georgia has permitted withdrawals of both surface and groundwater that are allegedly adversely impacting the Apalachicola Region’s ecosystem and economy.  Florida cites declines in its fisheries and in particular claims that reduced flows impact oyster fisheries.  As support for its complaint, Florida alleges impacts to ecosystems, threatened and endangered species, recreation and Florida’s economy.  Georgia has yet to respond, but the state will likely raise issues related to conservation measures implemented by Georgia, Florida’s abandonment of its appeal of endangered species consultations between the U.S. Army Corps of Engineers and U.S. Fish and Wildlife Service, Florida’s own over-fishing of the oyster fisheries, and salinity issues created by Florida’s insistence upon Sikes Cut, a navigation channel through St. George Island.