Endanger Species in Mississippi Twenty species Threaten Species in Mississippi Nine species Crictial Habitats
MS Code Ann 45-5-1 et seq makes it unlawful for any person, or common or contract carrier, to take, possess, transport, export, process, sell, or offer for sale or ship any species or subspecies of wildlife appearing on any of the lists
General Construction Permits – 5 acres or more Need to obtain coverage under the General Permit SWPPP Controls and monitoring 1 to 5 acres Complete forms and develop SWPPP (no submittals) Follow same controls and monitoring requirements as 5 acre permit
Assign Prime Contractor responsibility - not Owner Creates a joint and several responsibility for both parties
Phased construction – not in compliance with SWPPP – (out of sequence) Multiple Owner Sites “island” sites within larger construction site Determination of site area impact v. actual property
County v. Municipal code If future plans call for transfer of system to nearby city – pay now or pay more later
Pending Consent Decree from EPA, prior enforcement action by MDEQ Proposed corrective action 10-15 years ----- $300 to 700 million ?? What does this mean for other communities in Jackson metro area ?
Wastewater system overcapacity $40 to 170 million to repair Ongoing discharge violations Currently under MDEQ compliance order Is the action moot because of “diligent prosecution”?
EPA considering permitting satellite systems discharging into regional systems TMDL’s and Nutrients = future permitting limit problems
Use of waters of the state shall not constitute absolute ownership or absolute rights of use of such waters, but such waters shall remain subject to the principle of beneficial use.
Surface Withdrawal Exemption – single household or from existing impoundment Groundwater Withdrawal Exemption – single household or well less than 6” diameter
Water use permits normally will be issued for a period of ten (10) years. Longer terms may be permitted for certain public entities in order to assure reasonable amortization of capital investment in water-related equipment Must construct well within 1 year of permit issuance or null and void without agency action (2 years for public wells)
Section 401 Water Quality Certification (MDEQ) Coastal counties need to also obtain permit from Mississippi Department of Marine Resources Section 404 Permit (Corps of Engineers) Vicksburg/Mobile/Memphis
Law unable to account for all necessary science Corps uses three characteristics of wetlands when making wetland determinations: Vegetation Soil hydrology
Rapanos v. United States, 547 U.S. 715 (2006) (Plurality decision) Three tests Kennedy – “Significant nexus” test (with waters of the US) (biological, chemical, physical) Scalia – Relatively permanent connection test (flow) with waters of the US Dissent – Corps’ reasonable interpretation
SACKETT v.ENVIRONMENTAL PROTECTION AGENCY Supreme Court of United States. 132 S.Ct. 1367 (2012)
•2/3 acre lot in Idaho across from home sites on lake
EPA claimed violations of Clean Water Act – “discharge of pollutants from a point source” CWA 301 and 502 “discharge of pollutants into waters of the US without a permit” CWA 301
EPA issued a compliance order demanding Sacketts remove all fill placed on the lot Sacketts requested a hearing from EPA but were denied EPA did not consider the compliance order a final and appealable action By not acting the Sacketts were accruing a $75,000 a day liability ($37,500 – CWA violation, $37,500 – Order violation)
Scalia Opinion • APA action acceptable under CWA when no other remedy available • Is a compliance order a “final agency action” – ripe for appeal ? • YES• How will decision impact agency enforcement approach ?
No formal exposure limits State will follow recommended levels or can conduct risk study Remediation options Existing structures Vapor collection systems HVAC pressure control New Construction Vapor collection Slab membrane or sealers
Continuing Obligations be in compliance with any land use restrictions established or relied on in connection with the response action; | not impede the effectiveness or integrity of any institutional control employed in connection with a response action. comply with land use restrictions relied on in connection with the response action even if restrictions haven’t been implemented through an enforceable institutional control.
take reasonable steps to stop continuing releases; prevent threatened future releases; and prevent or limit human, environmental, or natural resource exposure to earlier hazardous substance releases. provide full cooperation, assistance, and access to persons authorized to conduct response actions or natural resource restoration
Phase I Due Diligence Work MDEQ Uncontrolled Sites List Institutional Controls – recorded with MDEQ and County land records CERCLA Lists
Hattiesburg, 2009 Assessment $600,000MSGulfport, MS 2011 Assessment $200,000Quitman, MS 2011 Assessment $200,000Columbus, MS 2012 Assessment $200,000Hernando, MS 2012 Assessment $200,000McComb, MS 2012 Assessment $200,000
Proposed revisions to Economic Redevelopment Act – to include brownfields within the MDEQ program. Over ten years a percentage of taxes and fees are returned to developer - limited to 2 ½ times the amount of the allowable remediation costs.