Environmental Groups Join DL and NJ Opposing Army Corps Dredging

On October 30th, as described in this earlier post, Delaware filed a suit to stop the U.S. Army Corps of Engineers from dredging the Delaware River for a new shipping channel. New Jersey joined the suit a few days later.

Yesterday, a coalition of environmental groups intervened in the suit, adding their own claims against the project, including alleged violations the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Clean Air Act (CAA), the Endangered Species Act (ESA), the Coastal Zone Management Act (CZMA), the Magnuson-Stevens Act, the Fish and Wildlife Coordination Act, and Delaware State law. The groups include Delaware Riverkeeper Network, National Wildlife Federation, New Jersey Environmental Federation, Clean Water Action, and the Delaware Nature Society. You can read the groups' press release here, and an article from the Press of Atlantic City here. A hearing on a preliminary injunction is scheduled for December 8th.

Riverkeeper Uses CWA to Challenge Improper CERCLA cleanup

In an interesting coalescence of two different statutes, a company redeveloping a water front Superfund site in Oregon has been sued for violating the Clean Water Act in the process of that redevelopment. According to this article from the Oregon Daily News, Columbia Riverkeepers has sued Chinook Ventures for illegally dumping pollutants it is handling as part of the remediation of a former Reynolds Aluminum manufacturing facility on the Columbia River, using the citizen suit provisions of the Clean Water Act. Chinook is redeveloping the site, which is listed under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), to make into a private port facility. There's not much more out there on the case, but it is noteworthy, insofar as one would assume that a company conducting a CERCLA cleanup would have swarms of environmental consultants supervising the work to limit liability and ensure the work is completed to the Act's standards.

Federal Plan for Cleaning up Chesapeake Announced

Pursuant to Executive Order 13508 (May, 12 2009), (the Chesapeake Bay Protection and Restoration Executive Order), a committee of federal officials has released a draft plan for cleaning up the Chesapeake Bay. The EPA, Department of Agriculture (USDA), Department of the Interior (DOI), Department of Commerce (DOC, including NOAA) and Department of Defense (DOD) share responsibility for various parts of the effort. The Executive Order directs them to:

• define tools and actions to restore water quality and describe changes to be made to regulations, programs, and policies to implement these actions (EPA);
• target resources to better protect the Bay and its tributaries, including resources under the Food Security Act of 1985 as amended, the Clean Water Act, and other laws (USDA);
• strengthen storm water management practices at Federal facilities and on Federal lands within the Chesapeake Bay watershed and develop storm water best practices guidance (DOD, EPA);
• assess climate change impacts on the water quality and living resources of the Bay and develop strategy for adapting natural resource programs and public infrastructure to those impacts (DOI, DOC);
• expand public access to waters and open spaces of the Chesapeake Bay and its tributaries from Federal lands and conserve the landscapes and ecosystems of the Chesapeake Bay watershed (DOI);
• strengthen scientific support for decisionmaking to restore the Bay and its watershed, including expanded environmental research and monitoring and observing systems (DOI, DOC); and
• develop coordinated habitat and research activities to protect and restore the Bay's living resources and water quality. (DOI, DOC).

Chesapeake Bay Protection and Restoration Executive Order at Section 202 (lead agencies in parentheticals).

Notable components of the plan include: new EPA efforts to control runoff from Concentrated Animal Feeding Operations (CAFO) (a major source of nitrogen from chicken and other animal waste), as well as urban and suburban runoff; a revitalization of efforts to recover native oyster reefs and establish self-sustaining native oyster reef sanctuaries by 2020; and the establishment of a Chesapeake Conservation Corps made up of ordinary citizens. The EPA efforts will be helped along by $19 million in increased funding from Congress to "support additional regulatory and accountability programs to control urban, suburban and agricultural runoff in the watershed." (You can read a Chesapeake Bay Foundation press release about the funding here.)

Already, Maryland officials have voiced concerns about the potential impact of tightened regulations on the state's poultry industry, as you can read in this Baltimore Sun article. Indeed, any EPA effort to control runoff from major chicken operations will involve new costs, since operators of huge chicken operations, in which chickens are confined by the hundreds or thousands in large barns, simply let the waste drain into ground and surface water, and ultimately into the Bay. (This Frontline segment shows some fairly stark footage of the phenomenon.) In the event, this probably won't be a terribly difficult transition for these farmers to manage, monetarily--though it will take a little work. Chickens raised in more traditional circumstances don't pose the same problem, as their (more disperse) waste is absorbed back into the soil easily and is, indeed, beneficial. And if the chicken CAFO operators sold their guano to fertilizer manufacturers, most of the runoff problem would dissipate.

The Draft Strategy--which will be open to comment for 90 days--can be read here. The USDA press release can be read here. And an earlier post on EPA efforts to work with surrounding states to develop mandatory Watershed Implementation Plans (WIPs) to control runoff into the Bay can be read here.

EPA Orders Surrounding States to Draw Up Watershed Implementation Plans for Chesapeake

In a series of letters sent out on Tuesday and Wednesday of this week, the Acting Administrator of EPA Region III informed states in the Chesapeake Bay watershed that they will be expected to draft state initial "watershed implementation plans" (WIPs) by next June on how they will meet targets for how much nutrient (i.e. nitrogen and phosphorus) and sediment run-off will be allowed to drain into the Bay from each state. EPA will use these WIPs to establish a final rule on the total maximum daily load (TMDL) of run-off that will be allowed into the Bay, under section 303(d) of the Clean Water Act (CWA), and various consent decrees between EPA and the states involved . EPA expects to complete this final rule by December 2010--it is asking states for these initial WIPs so it can issue a draft next August. Further, more specific state WIPs will be required in two stages by 2017.

Interior Continues Slow Process of Revoking Midnight Regulation on MTR

Advanced notice of proposed rulemaking won't result in rule until early 2011

In more regulatory activity, the Department of Interior, Office of Surface Mining Reclamation and Enforcement (OSM) announced its intention to issue an advanced notice of proposed rulemaking by the middle of this month for the rule meant to overturn the Bush Administration's December 2008 change in the Stream Buffer Zone Rule under the Surface Mine Reclamation and Enforcement Act (SMREA), 30 U.S.C. § 1292. That rule, they promise, will be out as soon as early 2011.