EPA Releases Annual Enforcement Results for Fiscal Year 2012

Yesterday the U.S. Environmental Protection Agency (EPA) released its Enforcement Annual Results for Fiscal Year 2012.  According to the interactive web portal available here, 

EPA enforcement accomplishments in FY 2012, include:

• $251 million in criminal fines and civil penalties assessed to deter pollution

• 6.6 billion pounds of pollution and hazardous waste reduced, eliminated, properly disposed of or treated

•  $44 million in additional investments for supplemental environmental projects that benefit communities

• Improving compliance with drinking water regulations by 60%: Sustained and focused enforcement attention on serious violators of clean drinking water standards has resulted in dramatic improvements in compliance.

• Progress cleaning up raw sewage and stormwater: 67% of large municipalities with combined sewer overflows are now on track to address their local water issues, many using innovations like green infrastructure to help reduce stormwater flows. 

• Bringing criminal prosecutions where criminal activity threatens public health: EPA is taking criminal enforcement action against companies or individuals who fail to use required pollution control equipment, knowingly violate pollution rules, resulting in death or serious harm, or falsify pollution information. See a case example in Louisiana

• Advancing environmental justice: EPA incorporated fenceline monitoring into settlements, ensuring that local residents have access to critical information about pollution that may be affecting their community. See an oil refinery case example.

• Increasing transparency: EPA’s enforcement and compliance online history tools, including the map of enforcement cases in 2012, state dashboards, and Clean Water Act pollutant loadings tool, provide the public with critical access to environmental information.

Prior results are available here:
2011
2010
2009
2008


 

U.S. Supreme Court Watch: Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc.

Today, the U.S. Supreme Court is set to hear the second of two Clean Water Act cases to be argued this term. The first case, Decker v. Northwest Environmental Defense Center, was argued yesterday while the second case, being argued today, Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., will address the following Clean Water Act issues:

Questions Presented:

The Clean Water Act regulates the addition of pollutants to the navigable waters of the United States, including pollutants stemming from municipal stormwater systems. 33 U.S.C. §1342(p).

The questions presented by this petition are:

1. Do "navigable waters of the United States" include only "naturally occurring" bodies of water so that construction of engineered channels or other man-made improvements to a river as part of municipal flood and storm control renders the improved portion no longer a "navigable water" under the Clean Water Act?

2. When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a "discharge" from an "outfall" under the Clean Water Act, notwithstanding this Court's holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), that transfer of water within a single body of water cannot constitute a "discharge" for purposes of the Act?

Resources

Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., U.S. Supreme Court Docket, http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-460.htm

Preview, Los Angeles City Flood Control v. Natural Resources, et al., ABA, http://www.americanbar.org/publications/preview_home/11-460.html

9th Circuit Opinion, available at, http://www.ca9.uscourts.gov/datastore/opinions/2011/07/13/10-56017.pdf

Los Angeles County Flood Control District v. Natural Resources Defense Council, Scotus Blog, http://www.scotusblog.com/case-files/cases/los-angeles-county-flood-control-district-v-national-resources-defense-council/?wpmp_switcher=desktop

The transcript and audio recordings should be available the end of the week.

U.S. Supreme Court Watch: Decker v. Northwest Environmental Defense Center (NEDC)

Today, the U.S. Supreme Court is set to hear the first of two Clean Water Act cases set to be argued this term.  The first case, being argued today, Decker v. Northwest Environmental Defense Center (NEDC), will address the following:

Questions Presented:

(1) Congress has authorized citizens dissatisfied with the Environmental Protection Agency's (EPA's) rules implementing the Clean Water Act's (CWA's) National Pollutant Discharge Elimination System (NPDES) permitting program to seek judicial review of those rules in the Courts of Appeals. See 33 U.S.C. § 1369(b). Congress further specified that those rules cannot be challenged in any civil or criminal enforcement proceeding. Consistent with the terms of the statute, multiple circuit courts have held that if a rule is reviewable under 33 U.S.C. § 1369, it is exclusively reviewable under that statute and cannot bechallenged in another proceeding. 

Did the Ninth Circuit err when, in conflict with those circuits, it held that a citizen may bypass judicial review of an NPDES permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the CWA? 

(2) In 33 U.S.C. § 1342(p), Congress required NPDES permits for stormwater discharges "associated with industrial activity," and delegated to EPA the responsibility to determine what activities qualified as "industrial" for purposes of the permitting program. EPA determined that stormwater from logging roads and other specified silvicultural activities is non-industrial stormwater that does not require an NPDES permit. See 40 C.F.R. § 122.26(b)(14). Did the Ninth Circuit err when it held that stormwater from logging roads is industrial stormwater under the CWA and EPS’s rules, even though EPA has determined that it is not industrial stormwater?

Resources

Decker v. Northwest Environmental Defense Center (NEDC), U.S. Supreme Court Docket,   http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-338.htm
 
Preview, Decker v. Northwest Environmental Defense Center (NEDC), ABA, http://www.americanbar.org/publications/preview_home/11-338and11-347.html
 
9th Circuit Opinion, available at, http://www.ca9.uscourts.gov/datastore/opinions/2011/05/17/07-35266.pdf
 
Decker v. Northwest Environmental Defense Center, Scotus Blog, http://www.scotusblog.com/case-files/cases/decker-v-northwest-environmental-defense-center/ 
 
The transcript is available here, while the audio recordings should be available the end of the week.

Congressional Research Service Report Released: Clean Water Act and Pollutant Total Maximum Daily Loads (TMDLs)

The Congressional Research Service (CRS), the public policy research arm of Congress, just issued the report Clean Water Act and Pollutant Total Maximum Daily Loads (TMDLs) (Sept. 21, 2012). The 22 page report authored by Claudia Copeland discusses the basic program in Section 303(d) of the Act as well as recent developments and challenges.  Included in this report are sections discussing nonpoint source, mercury, stormwater, ocean acidification, climate change and multi-jurisdicational TMDLs.  All-in-all an excellent overview for the novice Clean Water Act practitioner.

2009 Open Space Conservation Plan -- NYS DEC

The New York State 2009 Open Space Conservation Plan takes a fresh approach to conserving our vital natural and recreational areas. Small or large areas; urban, suburban, rural or wilderness; can be protected with a combination of public land protection and thoughtful use of our own land.
Consider the example of riparian areas; lands that line waterways, when protected and managed properly, can filter runoff, absorb stormwater and reduce catastrophic flooding downstream.
Discover how open space conservation works for today's New Yorkers and future generations.

New Plan Identifies Conservation Priorities

The 2009 version features:
A new look for a fresh approach
A renewed commitment to plan, prioritize, and enable government and citizen actions
An action agenda oriented to:

• respond to climate change
• foster green, healthy communities
• connect people to nature and recreation
• safeguard our natural and cultural heritage