Fourth Circuit Restricts Scope of Clean Water Act Permit Shield

The Fourth Circuit issued a recent decision that has the potential to increase the burden on permit applicants hoping to avail themselves of the “permit shield” defense under the Clean Water Act (CWA). The case, Southern Appalachian Mountain Stewards v. A&G Coal Corp., stemmed from a citizen suit seeking to hold a mining company liable for selenium discharges that were not authorized under the defendant’s CWA permit. The court rejected the defendant’s appeal to the permit shield defense based on the defendant’s lack of knowledge regarding the potential for selenium discharges. The court held that the defendant had an affirmative obligation to assess whether such discharges were possible and disclose that information in a permit application to enjoy the protections of the permit shield.

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California has actively been pursuing a variety of initiatives to reduce regulatory burdens and streamline permitting requirements for new and existing development projects. One area where these initiatives are having important consequences involves CEQA – the California Environmental Quality Act.[1]

CEQA is California’s pre-eminent environmental law. It originally was adopted by the California state Legislature and signed into law (by then Governor Ronald Reagan) in 1970, shortly after passage at the federal level of the National Environmental Policy Act, or NEPA[2] (on which CEQA is largely modelled). In a nutshell, CEQA requires California state and local agencies to undertake a process to publicly evaluate the significant environmental impacts of new development projects and regulatory proposals. NEPA requires a similar process for federal projects and proposals; however, unlike NEPA, CEQA requires government agencies to affirmatively adopt and implement feasible mitigation measures to reduce or eliminate significant adverse impacts.

Detractors complain that these environmental review and mitigation requirements create impediments to new development and drive up their costs, and there is anecdotal evidence that these complaints historically may have been valid.[3] Consequently, California’s business community has increasingly been pressing for changes that would lower or eliminate the development barriers that CEQA is perceived to have fostered. Some of those changes are procedural, addressing uncertainties created by the threat of litigation challenging project approvals on CEQA grounds. Others are more substantive, focusing on questions of how CEQA applies to different types of specific development activity in different situations.

- See more at: http://www.martenlaw.com/newsletter/20140701-scope-california-environmental-review#sthash.TI0QAz1I.dpuf

California has actively been pursuing a variety of initiatives to reduce regulatory burdens and streamline permitting requirements for new and existing development projects. One area where these initiatives are having important consequences involves CEQA – the California Environmental Quality Act.[1]

CEQA is California’s pre-eminent environmental law. It originally was adopted by the California state Legislature and signed into law (by then Governor Ronald Reagan) in 1970, shortly after passage at the federal level of the National Environmental Policy Act, or NEPA[2] (on which CEQA is largely modelled). In a nutshell, CEQA requires California state and local agencies to undertake a process to publicly evaluate the significant environmental impacts of new development projects and regulatory proposals. NEPA requires a similar process for federal projects and proposals; however, unlike NEPA, CEQA requires government agencies to affirmatively adopt and implement feasible mitigation measures to reduce or eliminate significant adverse impacts.

Detractors complain that these environmental review and mitigation requirements create impediments to new development and drive up their costs, and there is anecdotal evidence that these complaints historically may have been valid.[3] Consequently, California’s business community has increasingly been pressing for changes that would lower or eliminate the development barriers that CEQA is perceived to have fostered. Some of those changes are procedural, addressing uncertainties created by the threat of litigation challenging project approvals on CEQA grounds. Others are more substantive, focusing on questions of how CEQA applies to different types of specific development activity in different situations.

- See more at: http://www.martenlaw.com/newsletter/20140701-scope-california-environmental-review#sthash.TI0QAz1I.dpuf

California has actively been pursuing a variety of initiatives to reduce regulatory burdens and streamline permitting requirements for new and existing development projects. One area where these initiatives are having important consequences involves CEQA – the California Environmental Quality Act.[1]

CEQA is California’s pre-eminent environmental law. It originally was adopted by the California state Legislature and signed into law (by then Governor Ronald Reagan) in 1970, shortly after passage at the federal level of the National Environmental Policy Act, or NEPA[2] (on which CEQA is largely modelled). In a nutshell, CEQA requires California state and local agencies to undertake a process to publicly evaluate the significant environmental impacts of new development projects and regulatory proposals. NEPA requires a similar process for federal projects and proposals; however, unlike NEPA, CEQA requires government agencies to affirmatively adopt and implement feasible mitigation measures to reduce or eliminate significant adverse impacts.

Detractors complain that these environmental review and mitigation requirements create impediments to new development and drive up their costs, and there is anecdotal evidence that these complaints historically may have been valid.[3] Consequently, California’s business community has increasingly been pressing for changes that would lower or eliminate the development barriers that CEQA is perceived to have fostered. Some of those changes are procedural, addressing uncertainties created by the threat of litigation challenging project approvals on CEQA grounds. Others are more substantive, focusing on questions of how CEQA applies to different types of specific development activity in different situations.

- See more at: http://www.martenlaw.com/newsletter/20140701-scope-california-environmental-review#sthash.TI0QAz1I.dpuf

California has actively been pursuing a variety of initiatives to reduce regulatory burdens and streamline permitting requirements for new and existing development projects. One area where these initiatives are having important consequences involves CEQA – the California Environmental Quality Act.[1]

CEQA is California’s pre-eminent environmental law. It originally was adopted by the California state Legislature and signed into law (by then Governor Ronald Reagan) in 1970, shortly after passage at the federal level of the National Environmental Policy Act, or NEPA[2] (on which CEQA is largely modelled). In a nutshell, CEQA requires California state and local agencies to undertake a process to publicly evaluate the significant environmental impacts of new development projects and regulatory proposals. NEPA requires a similar process for federal projects and proposals; however, unlike NEPA, CEQA requires government agencies to affirmatively adopt and implement feasible mitigation measures to reduce or eliminate significant adverse impacts.

Detractors complain that these environmental review and mitigation requirements create impediments to new development and drive up their costs, and there is anecdotal evidence that these complaints historically may have been valid.[3] Consequently, California’s business community has increasingly been pressing for changes that would lower or eliminate the development barriers that CEQA is perceived to have fostered. Some of those changes are procedural, addressing uncertainties created by the threat of litigation challenging project approvals on CEQA grounds. Others are more substantive, focusing on questions of how CEQA applies to different types of specific development activity in different situations.

- See more at: http://www.martenlaw.com/newsletter/20140701-scope-california-environmental-review#sthash.TI0QAz1I.dpuf

California has actively been pursuing a variety of initiatives to reduce regulatory burdens and streamline permitting requirements for new and existing development projects. One area where these initiatives are having important consequences involves CEQA – the California Environmental Quality Act.[1]

CEQA is California’s pre-eminent environmental law. It originally was adopted by the California state Legislature and signed into law (by then Governor Ronald Reagan) in 1970, shortly after passage at the federal level of the National Environmental Policy Act, or NEPA[2] (on which CEQA is largely modelled). In a nutshell, CEQA requires California state and local agencies to undertake a process to publicly evaluate the significant environmental impacts of new development projects and regulatory proposals. NEPA requires a similar process for federal projects and proposals; however, unlike NEPA, CEQA requires government agencies to affirmatively adopt and implement feasible mitigation measures to reduce or eliminate significant adverse impacts.

Detractors complain that these environmental review and mitigation requirements create impediments to new development and drive up their costs, and there is anecdotal evidence that these complaints historically may have been valid.[3] Consequently, California’s business community has increasingly been pressing for changes that would lower or eliminate the development barriers that CEQA is perceived to have fostered. Some of those changes are procedural, addressing uncertainties created by the threat of litigation challenging project approvals on CEQA grounds. Others are more substantive, focusing on questions of how CEQA applies to different types of specific development activity in different situations.

- See more at: http://www.martenlaw.com/newsletter/20140701-scope-california-environmental-review#sthash.TI0QAz1I.dpuf

California has actively been pursuing a variety of initiatives to reduce regulatory burdens and streamline permitting requirements for new and existing development projects. One area where these initiatives are having important consequences involves CEQA – the California Environmental Quality Act.[1]

CEQA is California’s pre-eminent environmental law. It originally was adopted by the California state Legislature and signed into law (by then Governor Ronald Reagan) in 1970, shortly after passage at the federal level of the National Environmental Policy Act, or NEPA[2] (on which CEQA is largely modelled). In a nutshell, CEQA requires California state and local agencies to undertake a process to publicly evaluate the significant environmental impacts of new development projects and regulatory proposals. NEPA requires a similar process for federal projects and proposals; however, unlike NEPA, CEQA requires government agencies to affirmatively adopt and implement feasible mitigation measures to reduce or eliminate significant adverse impacts.

Detractors complain that these environmental review and mitigation requirements create impediments to new development and drive up their costs, and there is anecdotal evidence that these complaints historically may have been valid.[3] Consequently, California’s business community has increasingly been pressing for changes that would lower or eliminate the development barriers that CEQA is perceived to have fostered. Some of those changes are procedural, addressing uncertainties created by the threat of litigation challenging project approvals on CEQA grounds. Others are more substantive, focusing on questions of how CEQA applies to different types of specific development activity in different situations.

- See more at: http://www.martenlaw.com/newsletter/20140701-scope-california-environmental-review#sthash.TI0QAz1I.dpuf

Clean Water

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