Category Archives: Permitting

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Further Update on Challenging Wetlands Permitting Decisions – the Latest Ruling in Hawkes

In a previous post we predicted that the U.S. Supreme Court would affirm an Eighth Circuit decision holding that a landowner can obtain immediate judicial review of a wetlands “jurisdictional determination” (JD) by the U.S. Army Corps of Engineers, and the Court did affirm that decision near the end of last Term. See U.S. Army … Continue Reading

FAST Act Implementation Progress: An Important Tool for Expediting Energy Projects for the Incoming Trump Administration?

FAST Act Implementation Progress: An Important Tool for Expediting Energy Projects for the Incoming Trump Administration? On Dec. 4, 2015, President Obama signed the Fixing America’s Surface Transportation Act, also known as the “FAST Act,” which sought to expedite the NEPA environmental review process for major infrastructure projects. One year later, rulemaking and guidance from … Continue Reading

Federal Court Rejects Citizen Suit to Force Stormwater Permitting Program

Last week, a federal district court in Rhode Island dismissed a citizen suit that sought to radically expand Clean Water Act stormwater permitting programs. In Conservation Law Found’n v. U.S. Environmental Protection Agency, Civil Action No. 15-165-ML, the plaintiff attempted to invoke a rarely used provision in the Clean Water to mandate that the U.S. … Continue Reading

U.S. EPA Declines to Require Permits for Stormwater Discharges from Commercial Properties

How to regulate stormwater discharges from impervious areas such as parking lots remains a hotly disputed environmental issue. Most recently, U.S. EPA Region 9 rejected a petition filed by environmental advocacy groups under the federal Clean Water Act calling for regulation of stormwater discharges into the Alamitos Bay/Los Cerritos Channel watershed in Los Angeles County … Continue Reading

Multiple Challenges Filed Against Massachusetts Small MS4 Stormwater General Permit

The long odyssey of the Massachusetts Small MS4 stormwater general permit continues – the latest chapter involving four separate appeals filed in two courts seeking to modify the permit’s terms.  Issued by U.S. EPA New England, the general permit authorizes stormwater discharges from small municipal separate storm sewer systems (“MS4”) located in Massachusetts. While the … Continue Reading

Supreme Court Allows Immediate Challenges to Army Corps’ Clean Water Act Determinations

On May 31, 2016, in a unanimous ruling, the United States Supreme Court held that the Army Corps’ determination as to whether “protected waters,” subject to Clean Water Act regulations, are present on a property is subject to judicial review. See United States Army Corps of Engineers v. Hawkes Co., Inc. No. 15-290 (U.S. May … Continue Reading

Massachusetts Takes Important Step Towards Clean Water Act Permitting Delegation

Massachusetts Governor Charlie Baker has filed legislation that moves Massachusetts one step closer to a long-desired goal:  authorization to administer the Clean Water Act NPDES permitting program.  Currently, Massachusetts is one of only four states (in addition to Idaho, New Hampshire, and New Mexico) that has not been “delegated” this authority. A number of the … Continue Reading

New York Clears the Way for Permitting LNG-Refueling Stations

The New York State Department of Environmental Conservation (DEC) announced on January 28, 2015 that it has finalized a new regulatory regime to allow the construction of liquefied natural gas (LNG) refueling stations in all parts of the State except for New York City.  Under the agency’s final Part 570 regulations, the facilities would be … Continue Reading

TCEQ Becomes Sole Permitting Authority for Greenhouse Gases in Texas

On November 10, 2014, the federal Environmental Protection Agency (EPA) published two actions in the Federal Register that gave the Texas Commission on Environmental Quality (TCEQ) sole authority over greenhouse-gas permitting in Texas: The Approval and Promulgation of Air Quality Implementation Plans; Texas; Prevention of Significant Deterioration (PSD); Greenhouse Gas (GHG) Tailoring Rule Revisions is … Continue Reading

FutureGen Receives EPA Permits for Underground Injection

On August 29, 2014, EPA issued the first Class VI underground injection control permits to FutureGen Industrial Alliance Inc., of Jacksonville, Illinois.   Four permits were issued for injection wells for the purpose of the geological sequestration of carbon dioxide.  FutureGen proposes to capture CO2 from a coal fired power plant near Jacksonville, Illinois, purify the … Continue Reading

New 2-Year Statutory Extension for Certain Florida Environmental & Development Permits

By the adoption of CS/HB 7023, (Click Here for a copy of the pertinent section of Bill),  the Florida Legislature has again authorized a new 2-year extension of permits issued by the Florida Department of Environmental Protection and water management districts and building permits,  including local government-issued development orders or certificates of level of service. The … Continue Reading

Proper Definition Of The Relevant Property Leads to a $7 Million Award In a Takings Case Arising From Denial of A Wetlands Fill Permit

From Jerry Stouck of GT Washington, D.C.: A Florida company was awarded nearly $7 million by the U.S. Court of Federal Claims on March 14 in a long-running case involving a claimed unconstitutional taking of property arising from the denial of a Clean Water Act Section 404 wetlands fill permit.  The critical issue underlying the court’s … Continue Reading

Koontz-Inspired State Legislation Would Expand Supreme Court’s Ruling in Permitting Context

Companion bills (H.B. 1077 and S.B. 1310) have been filed in the Florida Senate and House  that would prohibit local governments from imposing permit conditions or “development exactions” on a project that extend “beyond the direct impact of a proposed development.”  This legislation builds upon the U.S. Supreme Court’s ruling in Koontz v. St. Johns River Water … Continue Reading
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