A recent state appellate court decision sharply limited the bases on which Clean Water Act permittees may challenge permitting requirements imposed to comply with a federal Chesapeake Bay “Total Maximum Daily Load” (“TMDL”), often described as a watershed-wide “pollution diet.” The decision directly impacts municipalities with separate stormwater sewer (“MS4”) permits, as well as certain agricultural and other industrial concerns with stormwater requirements.

The Maryland Court of Appeals opinion affirmed water pollution (“NPDES”) permits issued to authorize discharges from two municipal separate storm sewer systems (“MS4s”) to the Chesapeake Bay watershed. Md. Dep’t of the Envt. v. County Comm’rs of Carroll County, Nos. 5 & 7, Sept. Term 2018 (Md. Aug. 6, 2019). The court held that state permits issued by the Maryland Department of the Environment (MDE) are required to conform to the Chesapeake Bay Total Maximum Daily Load (TMDL) issued by the federal Environmental Protection Agency and the Maryland Watershed Implementation Plan (WIP) promulgated by MDE and approved by EPA. The permittee may not challenge permit conditions necessary to meet the requirements of the TMDL or the WIP through judicial review of the permit, but instead must have already sought review in federal court of the TMDL. Moreover, EPA’s interpretation of the TMDL is entitled to Chevron deference.
Continue Reading Maryland Court of Appeals Limits Bases for Challenging CWA Permits under the Chesapeake Bay TMDL

On April 26, 2019, the Pennsylvania Environmental Hearing Board (EHB) voided two amendments to a prospective purchaser agreement (PPA) for the Bishop Tube Site entered into in 2007 and 2010.
Continue Reading Pennsylvania Prospective Purchasers of Contaminated Property and Their Administrative Records

The Pennsylvania appellate courts decided a relatively large number of environmental cases during 2018. This survey briefly characterizes those cases under the following categories: Environmental Rights Amendment; pre-emption of local

Continue Reading Significant Environmental Cases in Pa. Courts During 2018 (Part 1)

The Commonwealth Court recently provided new guidance on the extent to which the Environmental Rights Amendment to the Pennsylvania Constitution gives municipalities or agencies additional powers or imposes on them

Continue Reading Staying in Lane Under the Environmental Rights Amendment

On Friday, June 2, a Pennsylvania intermediate appellate court held that air emissions from a natural gas gathering system compression station and a natural gas well pad served by that
Continue Reading Air Source Aggregation: Compression Station and Natural Gas Wells are Not A Single Source in Pennsylvania Merely Because they are Owned by Corporate Affiliates