The Focus On Environmental Justice

Although the concept of environmental justice has been around for decades, it has never been more pervasive. Since the advent of the Biden Administration, EPA has infused environmental justice principles into all its activities. It has also invigorated and encouraged citizen groups to file complaints alleging environmental justice issues.

Since January 2021, EPA has issued multiple pronouncements related to environmental issues in permitting, compliance, and remediation matters. For example, in August 2022, EPA released guidance entitled Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions. In it, and for the first time, EPA suggested that a “permit denial may be the only way to avoid a Title VI violation” if there are no mitigation measures an agency can take to address disparate impacts.

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EPA and Corps Expand Their Jurisdiction Over Waters and Wetlands

Over the objections of multiple national, state, and local groups, the EPA and the Corps of Engineers have published their final rule regarding the definition of ‘waters of the United States.’ Although they claim that the new definition merely ‘clarifies’ their existing jurisdiction, it actually expands their regulatory authority to waters and wetlands to an extent not contemplated when the Clean Water Act (CWA) was originally passed. The scope of jurisdiction is critically important because a costly and time-consuming permit is required to place materials in wetlands or other waters deemed jurisdictional. Continue reading “EPA and Corps Expand Their Jurisdiction Over Waters and Wetlands” →

EPA, U.S. Corps Assert Jurisdiction over Isolated Waters, Wetlands

During the golden age of discovery, an explorer arriving at the mouth of an unknown river would plant his country’s flag and claim all lands drained by that river for his sovereign. In modern times, there is no need for any flags or ocean voyages. Our sovereign simply publishes a proposed rule to accomplish the same thing.

The Clean Water Act (CWA) prohibits discharges of dredged or fill material into “navigable waters,” which are defined in the CWA as the “waters of the United States.” Regulations published by the U.S. Army Corps of Engineers (Corps) provide an expansive definition of waters of the United States, which serves to delineate the scope of the Corps’ jurisdiction under the CWA over those waters, which include wetlands. A permit from the Corps is required to place material in wetlands or other waters deemed jurisdictional.

The Corps has released a proposed rule that provides an even more expansive definition of U.S. waters, which serves to expand its jurisdiction over tributaries and wetlands far removed from any traditional navigable waters. If the proposed rule becomes final as written, permits will be required for activities in areas that were not previously regulated and that could be dozens of miles from navigable waterways. Continue reading “EPA, U.S. Corps Assert Jurisdiction over Isolated Waters, Wetlands” →

EPA Can Veto Corps’ Wetlands Permits “Whenever” It Wants

In a recent appellate court decision that is sure to create a great deal of uncertainty and hamper development efforts, the Court of Appeal for the D.C. Circuit approved EPA’s authority to veto permits issued by Army Corps of Engineers (Corps) well after they are issued. In fact, based on this ruling, these may do this ‘whenever’ they want. Mingo Logan Coal Company, Inc. v. EPA, No. 12-5150, April 23, 2013.

The Clean Water Act (CWA), Section 404(a), authorizes the Corps to issue permits for the discharge of fill material into waters of the United States at specified disposal sites. This authority, however, is subject to the CWA Section 404(c), which provides authority to EPA’s Administrator “to prohibit the specification (including the withdrawal of specification) of any” disposal site “whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect.” It is the timing of EPA’s actions (‘whenever he determines’) that will create problems. Continue reading “EPA Can Veto Corps’ Wetlands Permits “Whenever” It Wants” →

Why Should You Worry About Environmental Laws?

Environmental laws and regulations govern many activities in the construction and aggregates industries. Due to the nature and complexity of environmental regulation, this brief summary simply cannot comprehensively explain everything that may affect you and your business. However, it will touch on three of the main areas (water, air, and waste) and provide some basic information so you can generally assess whether you may have an issue that needs to be addressed. As Ben Franklin once said – “an ounce of prevention is worth a pound of cure.”

Why is this important? Inspections and potential enforcement actions by the Louisiana Department of Environmental Quality (LDEQ) are bad enough. But, other time-consuming actions could hamper your company as a result of unknowingly violating environmental laws. Third-parties, such as neighbors or environmental groups, have the right to file a ‘citizen’s suit’ against your company for environmental violations. General laws of nuisance, trespass, and tort may form the basis for a suit. When wetlands may be involved, the Corps of Engineers may issue stop-work orders, shutting down your job. Continue reading “Why Should You Worry About Environmental Laws?” →