Environmental considerations and land use

245 views

Published on

0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
245
On SlideShare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
0
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Environmental considerations and land use

  1. 1. Keith TurnerWatkins & Eager
  2. 2.  Endangered Species Permitting Wetlands CERCLA liability Impaired Property – Brownfield Sites Hazardous Substance Issues
  3. 3.  Endanger Species in Mississippi  Twenty species Threaten Species in Mississippi  Nine species Crictial Habitats
  4. 4.  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
  5. 5. Federal Designated Critical Habitat
  6. 6. Federal Designated Critical Habitat Sturgeon Sandhill Crane Piping Plover
  7. 7.  Storm water NPDES – wastewater Wetlands
  8. 8.  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
  9. 9. SIX FEET DEEP
  10. 10.  Assign Prime Contractor responsibility - not Owner Creates a joint and several responsibility for both parties
  11. 11.  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
  12. 12.  NPDES - Wastewater Water Withdrawal
  13. 13.  County v. Municipal code  If future plans call for transfer of system to nearby city – pay now or pay more later
  14. 14.  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 ?
  15. 15.  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”?
  16. 16.  EPA considering permitting satellite systems discharging into regional systems TMDL’s and Nutrients = future permitting limit problems
  17. 17.  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.
  18. 18.  Surface Withdrawal  Exemption – single household or from existing impoundment Groundwater Withdrawal  Exemption – single household or well less than 6” diameter
  19. 19.  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)
  20. 20.  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
  21. 21.  Law unable to account for all necessary science  Corps uses three characteristics of wetlands when making wetland determinations:  Vegetation  Soil  hydrology
  22. 22.  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
  23. 23. SACKETT v.ENVIRONMENTAL PROTECTION AGENCY Supreme Court of United States. 132 S.Ct. 1367 (2012)
  24. 24. •2/3 acre lot in Idaho across from home sites on lake
  25. 25.  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
  26. 26.  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)
  27. 27. 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 ?
  28. 28. ?
  29. 29.  Liability  Owner or Operator  Owner or Operator (at time of “disposal”)  Arranger  Transporter
  30. 30.  Two Paths - Contribution or Cost Recovery  Section 107 Cost Recovery ( statute of limitations - 6 years)  Section 113 Contribution (3 years)  “civil action” requirement
  31. 31.  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
  32. 32.  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.
  33. 33.  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
  34. 34.  Phase I Due Diligence Work MDEQ Uncontrolled Sites List  Institutional Controls – recorded with MDEQ and County land records CERCLA Lists
  35. 35. 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
  36. 36.  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.
  37. 37. Liberty National GolfCourse – New Jersey
  38. 38. Underground Storage Tanks v. Aboveground Storage Tanks
  39. 39. Questions?Keith Turner601-965-1958

×