Category Archives: Laws&Regs

Lawsuit by Farm Bureau and Others Against EPA Over Chesapeake Bay TMDL in Federal Appeals Court as of April 2014; Virginia Attorney General Brief in Support of EPA Filed April 10, 2014

As of April 18, 2014, the lawsuit by the American Farm Bureau, the National Home Builders Association, and other organizations against the U.S. EPA over the Chesapeake Bay Total Maximum Daily Load (TMDL) pollution-reduction plan (issued by the EPA in December 2010) remained under consideration by the federal Court of Appeals for the 3rd Circuit, located in Philadelphia.  The case is American Farm Bureau v. U.S. Environmental Protection Agency; case number 13-4079.

The Farm Bureau and the other plaintiffs in the lawsuit—first filed in January 2011—are appealing the September 13, 2013, ruling in favor of the EPA by Judge Sylvia H. Rambo in the federal district court in Harrisburg, Pennsylvania.  The lawsuit alleges that the EPA exceeded its authority at the expense of state authority, used inaccurate or inadequate scientific information, and followed too short a regulatory timetable in developing the TMDL.  Judge Rambo upheld both the process and substance of the EPA’s actions.

On April 10, 2014, Virginia Attorney General Mark Herring announced that the Commonwealth had filed a brief supporting the EPA.  On February 3, 2014, 21 state attorneys general, including the attorney general in Bay-watershed state West Virginia, and eight Bay-watershed counties joined the case in support of the Farm Bureau and other plaintiffs.  Several of those states are in the Mississippi River drainage, and part of their concern is that approval of the EPA process in the Chesapeake Bay may lead the agency to seek a TMDL for the impacts of the Mississippi basin on the Gulf of Mexico.

Sources: Virginia Files Amicus Brief In Support Of Chesapeake Bay Restoration, Virginia Attorney General’s Office News Release, 4/10/14; and 21 states, 8 counties join Farm Bureau challenge to Bay TMDL, Bay Journal, 2/5/14.

For a previous News Grouper item on the District Court’s ruling in September 2013, please see Chesapeake Bay TMDL Upheld in Lawsuit Against U.S. EPA in Federal District Court in Pennsylvania; Ruling Issued 9-13-13, posted 9/17/13.

Other news accounts about the lawsuit: Fight Over Chesapeake Bay Clean-Up, WVTF (Blacksburg Va.) IQ Radio, 2/5/14; Wicomico [County, Md.] Joins Effort to Modify EPA Chesapeake Cleanup Plan, Delmarva Public Radio, 2/24/14; Lancaster County [Penn.] joins fight against EPA in setting pollution limits for farmers, Lancaster (Pa.) Online, 2/4/14.

Virginia Water-related Government Meetings for Apr. 21–May 5, 2014

For more information, click on underlined meeting dates.  Click here for the Commonwealth Calendar listing of all government meetings open to the public, and here for the Virginia Regulatory Town Hall listing of all government meetings of a regulatory nature.

For other, non-governmental, events, please see the Water Central News Grouper post, Quick Guide to Virginia Water-related Events.

REGULAR MEETINGS OF STATEWIDE BOARDS AND COMMISSIONS

4/21/14, 1:30 p.m.: Nuclear Energy Consortium Authority Board.  At theVirginia Commonwealth University East Engineering Hall, Room E3229, 401 W Main Street in Richmond.

4/22/14, 9:30 a.m.: Marine Resources Commission.  At 2600 Washington Avenue in Newport News.

4/22/14, 11 a.m.: Virginia Outdoors Foundation.  At Montpelier (Jefferson estate) near Charlottesville.

4/23/14, 10:00 a.m.: Advisory Board on Air Pollution.  At the Department of Environmental Quality (DEQ) Piedmont Regional Office, 4949-A Cox Road in Glen Allen.

4/24/14, 9:30 a.m.: Soil and Water Conservation Board.  At the DEQ Piedmont Regional Office, 4949-A Cox Road in Glen Allen.

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MEETINGS OF LEGISLATIVE BODIES.
4/23/14, noon: Virginia General Assembly’s reconvened (“veto) session to consider vetoes and amendments by the governor to legislation passed in the 2014 regular session.

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MEETINGS ABOUT TOTAL MAXIMUM DAILY LOADS (or TMDLs, for impaired waters).

For more information about TMDLs in Virginia, click here for the Virginia Department of Environmental Quality TMDL Web site.  A search tool to find approved TMDL reports is available at http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/TMDL/TMDLDevelopment/ApprovedTMDLReports.aspx.

None during this period.

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MEETINGS ON OTHER SPECIFIC TOPICS
(topics listed alphabetically)

Mining
4/22/14, 10 a.m.: Department of Mines, Minerals and Energy (DMME) Informal Hearing on Notice of Violation JDR0006264 for Norton Coal Company.  At the Wellmore Energy Company in Grundy.  The mine site is located off Big Butt Branch of Knox Creek in Buchanan County.

River Basin Advisory Committees
4/21/14, 10 a.m.: Roanoke River Basin Advisory Committee [includes representatives from Virginia only].  At the Charles R. Hawkins Research Center, 230 Slayton Avenue in Danville.

4/21/14, 1 p.m.: Roanoke River Bi-state Advisory Committee [includes representatives from Virginia and North Carolina].  At the Charles R. Hawkins Research Center, 230 Slayton Avenue in Danville.

Stormwater
4/30/14, 10 a.m.: Stormwater Best Management Practices Clearinghouse Committee.  At the U.S. Geological Survey (USGS) Virginia Water Science Center, 1730 East Parham Road in Richmond.  The Stormwater Best Management Practices (BMPs) Clearinghouse is a Web site on design standards and specifications of stormwater BMPs in Virginia.  The Clearinghouse Committee advises the Department of Environmental Quality (DEQ) and the State Water Control Board.  More information about the Stormwater BMP Clearinghouse Committee is available at http://www.vwrrc.vt.edu/swc/.  The DEQ’s Web page for the Virginia Stormwater Management Program is http://www.deq.virginia.gov/Programs/Water/StormwaterManagement.aspx.

Clarifying Clean Water Act Jurisdiction and the “Waters of the United States” is Intent of Proposed Regulation Announced March 25, 2014, by U.S. EPA and Army Corps of Engineers

On March 25, 2014, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced a proposed rule that seeks to clarify what water bodies “waters of the United States” and therefore fall under the jurisdiction of the federal Clean Water Act (CWA).

The 371-page proposed rule follows U.S. Supreme Court decisions in 2001 (in Solid Waste Agency of Northern Cook County [Illinois] v. United States Army Corps of Engineers et al.; click here forPDF of decision) that eliminated migratory-bird use as a sufficient stand-alone factor for isolated waters to fall under CWA jurisdiction; and in 2006 (Rapanos v. U.S. and Carabell v. U.S.; click here for PDF of decision), in which the High Court issued three different interpretations of how to determine CWA jurisdiction.  The proposed rule (p. 2) states that these decisions “resulted in the agencies evaluating the jurisdiction of waters on a case-specific basis are more frequently than is best for clear and efficient implementation of the CWA.”

Following are two excerpts from the proposed rule that identify some key parts features: [From pages 3-4] “The agencies propose to define ‘waters of the United States’ …for all sections of the CWA to mean [the following]: traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands. Waters in these categories would be jurisdictional ‘waters of the United States’ by rule—no additional analysis would be required.  In addition, the agencies propose that ‘other waters’ (those not fitting in any of the above categories) couldbedetermined to be ‘waters of the United States’through a case-specific showing that, either alone or in combination with similarly situated ‘other waters’in the region, they have a ‘significant nexus’ [this term was used by the Supreme Court in its 2001 and 2006 decisions] to a traditional navigable water, interstate water,or the territorial seas.  The rule would also offer a definition of significant nexus and explain how similarly situated ‘other waters’ in the region should be identified. … [From page 19] “Waters in a watershed in which there is no connection to a traditional navigable water, interstate water or the territorial seas would not be ‘waters of the United States.’  In addition, the proposed rule would for the first time explicitly exclude some features and waters over which the agencies have not generally asserted jurisdiction and in so doing would eliminate the authority of the agencies to determine in case specific circumstances that some such waters are jurisdictional ‘waters of the United States.’”

The proposed rule will undergo a 60-day public-comment period following its publication in the Federal Register.

A 1.5-hour seminar (targeted to attorneys) on the proposed rule will be held by Environmental Law Institute (ELI) in Washington, D.C., on May 22.  The seminar is also available via telecast.  For more details, including pricing and registration information, please visit http://www.eli.org/events/will-new-wotus-rule-float-eli-professional-practice-seminar; or send e-mail to mcmurrin@eli.org.

Sources:
EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded by Proposal, U.S. EPA News Release, 3/25/14.

EPA information about the proposed regulation, online at http://www2.epa.gov/uswaters and http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm.

News articles on the proposed rule:
115 Small Business Owners, Congressman Jim Moran, Environment Virginia Join EPA To Support Protecting Virginia’s Waterways, Alexadrianews.org, 4/15/14.
EPA proposes greater protections for streams, wetlands under Clean Water Act, Washington Post, 3/25/14.

Rapanos cartoon

Cartoon by George Wills of Blacksburg, Va. (www.georgewillsstudio.etsy.com), that accompanied an article on the January 2007 Virginia Water Central (the newsletter of the Virginia Water Resources Research Center). In thgat article, a Virginia Tech faculty member reviewed and offered his viewpoints on the U.S. Supreme Court’s 2006 Rapanos decision and on Clean Water Act jurisdiction generally. The article includes basic facts of the case and other background information. The newsletter is available online (as a PDF) at http://vwrrc.vt.edu/pdfs/newsletter/040Jan2007onecol.pdf; the article starts on page 1.

Virginia Water-related Government Meetings for Apr. 14–Apr. 28, 2014

For more information, click on underlined meeting dates.  Click here for the Commonwealth Calendar listing of all government meetings open to the public, and here for the Virginia Regulatory Town Hall listing of all government meetings of a regulatory nature.

For other, non-governmental, events, please see the Water Central News Grouper post, Quick Guide to Virginia Water-related Events.

REGULAR MEETINGS OF STATEWIDE BOARDS AND COMMISSIONS.
4/21/14, 1:30 p.m.: Nuclear Energy Consortium Authority BoardAt theVirginia Commonwealth University East Engineering Hall, Room E3229, 401 W Main Street in Richmond.

4/22/14, 9:30 a.m.: Marine Resources Commission.  At 2600 Washington Avenue in Newport News.

4/23/14, 10:00 a.m.: Advisory Board on Air Pollution.  At the Department of Environmental Quality (DEQ) Piedmont Regional Office, 4949-A Cox Road in Glen Allen.

4/24/14, 9:30 a.m.: Soil and Water Conservation Board.  At the DEQ Piedmont Regional Office, 4949-A Cox Road in Glen Allen.

*     *     *

MEETINGS OF LEGISLATIVE BODIES.

4/23/14: Virginia General Assembly’s reconvened (“veto) session to consider vetoes and amendments by the governor to legislation passed in the 2014 regular session.

*     *     *

MEETINGS ABOUT TOTAL MAXIMUM DAILY LOADS (or TMDLs, for impaired waters).
For more information about TMDLs in Virginia, click here for the Virginia Department of Environmental Quality TMDL Web site.  A search tool to find approved TMDL reports is available at http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/TMDL/TMDLDevelopment/ApprovedTMDLReports.aspx.

None during this period.

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MEETINGS ON OTHER SPECIFIC TOPICS
(topics listed alphabetically)

Fort Monroe
4/17/14, 1 p.m.: Fort Monroe Authority’s Board of Trustees.  At 490 Fenwick Road in Fort Monroe.  In 2011, the Virginia General Assembly (Senate Bill 1400) established the Fort Monroe Authority to manage the historic areas of Fort Monroe and Old Point Comfort—at the confluence of Hampton Roads with the Chesapeake Bay—after the federal government closed its military facilities there.  Fort Monroe had been a U.S. military base since 1836. In 2011, the area was designated as Fort Monroe National Monument (http://www.nps.gov/fomr/index.htm).  More information about Fort Monroe and the Authority is available online at http://www.fmauthority.com/.

Mining
4/11/14, 10 a.m.: Department of Mines, Minerals and Energy (DMME) Assessment Conference on Civil Penalty on Notice of Violation RDS0009028 (Violation 3 of 3) for Virginia Fuel Corporation.  At the DMME office, 3405 Mountain Empire Road in Big Stone Gap.  The mine site is 2.4 miles west of Keokee on Little Bundy creek in Lee County.

4/15/14, 10 a.m.: DMME Informal Hearing on Notice of Violation DLH0009347 for Consolidation Coal Company.  At the DMME office, 3405 Mountain Empire Road in Big Stone Gap.  The mine site is 3 miles west of Wise at the headwaters of Indian Creek in Wise County.

4/22/14, 10 a.m.: DMME Informal Hearing on Notice of Violation JDR0006264 for Norton Coal Company.  At the Wellmore Energy Company in Grundy.  The mine site is located off Big Butt Branch of Knox Creek in Buchanan County.

River Basin Advisory Committees
4/21/14, 10 a.m.: Roanoke River Basin Advisory Committee [includes representatives from Virginia only].  At the Charles R. Hawkins Research Center, 230 Slayton Avenue in Danville.

4/21/14, 1 p.m.: Roanoke River Bi-state Advisory Committee [includes representatives from Virginia and North Carolina].  At the Charles R. Hawkins Research Center, 230 Slayton Avenue in Danville.

Scenic Rivers
4/14/14, 4 p.m.: Catoctin Creek [Loudoun County] Scenic River Advisory Committee.  At the public library, 12 North Light Street in Lovettsville.

State Parks
4/14/14, 6 p.m.: Breaks Interstate Park Master Plan Committee.  AtBreaks Conference Center, 627 Commission Circle in Breaks (Dickenson County).

Power-plant Carbon-emissions Regulations — Overview and Information Sources as of April 10, 2014

New regulations from the U.S. EPA on the emissions of carbon dioxide and other “greenhouse gases” connected to climate change are part of the federal government’s actions in response to President Obama’s Climate Action Plan, announced on June 25, 2013.  (White House information on that plan is available online at http://www.whitehouse.gov/share/climate-action-plan.)

Placing regulatory limits on carbon emissions from power-generating plants is a major focus of the EPA’s actions under the president’s directive.  On September 20, 2013, the EPA proposed a revised regulation for carbon-emission from new power plants, replacing a March 27, 2012, proposal that received some 2.5 million comments from the public.  The September 2013 proposal’s public-comment period runs until May 9, 2014 (extended from the original deadline of January 8, 2014).  Also, by summer 2014, EPA is expected to publish proposed regulations on carbon emissions from existing power plants.  Both regulatory actions come under Section 111 of the federal Clean Air Act.  Information from the EPA on the current proposed regulation for new power plants and the upcoming proposal for existing plants is available online at http://www2.epa.gov/carbon-pollution-standards/what-epa-doing#overview.

Social Cost of Carbon: Information Sources for Updated Value Estimates Released in November 2013

February 27, 2014, was the closing date for a 90-day public comment period (extended 30 days from an original 60-day period) on a federal inter-agency group’s updated estimate of the “social cost of carbon.”  Proposed in a November 26, 2013, Federal Register from the Office of Management and Budget (OMB), the new estimate projected for 2015 is $37 per metric ton, up from a projected 2015 value of $24 that was part of the cost estimates issued in 2010.  The carbon-cost estimate is used by federal regulators to predict economic benefits of regulations requiring reductions of emissions of carbon dioxide, methane, and other “greenhouse gases” involved in global climate change.

Following are some sources of information on the social cost of carbon and the new estimate.

OMB information on the new proposed cost value is available from the following: “Refining Estimates of the Social Cost of Carbon,” White House Office of Management and Budget (OMB) News Release, 11/1/13, online at http://www.whitehouse.gov/blog/2013/11/01/refining-estimates-social-cost-carbon.

An explanation of how the social cost of carbon is estimated and used in the regulatory process is available in “Estimating the ‘Social Cost of Carbon’ for Regulatory Impact Analysis,” Resources for the Future Weekly Policy Commentary, 11/8/10, online at http://www.rff.org/Publications/WPC/Pages/Estimating-the-Social-Cost-of-Carbon-for-Regulatory-Impact-Analysis.aspx.

The two recent Federal Register notices from OMB on the new estimate are, “Technical Support Document: Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis Under Executive Order No. 12866,” 11/26/13 and 1/27/14; the Federal Register is available online at https://www.federalregister.gov/.

Information from the U.S. EPA about the social cost of carbon is available online at http://www.epa.gov/climatechange/EPAactivities/economics/scc.html.

Questions and Answers about Stormwater Regulation Changes in Virginia, from the March 11, 2014, Newsletter of Wetland Studies and Solutions, Inc.

An excellent reference for the developments in 2013 and 2014 in Virginia’s regulations of stormwater runoff is available in the March 11, 2014, issue (Vol. 22, No. 1) of Field Notes, a newsletter published by Wetland Studies and Solutions, Inc. (located in Gainesville, Va.).  The article, “Stormwater Regulations Guidance and FAQ’s,” is available online at http://www.wetlandstudies.com/newsletters/2014/march/SWregulations.html, or contact the company at 5300 Wellington Branch Drive, Suite 100, Gainesville, VA 20155; phone (703) 679-5600; e-mail: contactus@wetlandstudies.com.

For other information sources on stormwater-management developments in Virginia, including a cumulative list (since January 2013) of news articles about stormwater programs in Virginia localities and in other Chesapeake Bay states, please see this Water Central News Grouper post:
Virginia Localities Working to Meet Stormwater Program Implementation Deadline of July 1, 2014; Other Bay States’ Localities Also at Work on Stormwater Issues, including Stormwater Role in Chesapeake Bay TMDL.

Stormwater - Big drain behind Target Christiansburg Oct27 2013

Stormwater drain behind a shopping center in Christiansburg, Va. (Montgomery County), October 27, 2013.

Proposed Natural Gas Power Plant in Loudoun County Considered by Virginia State Corporation Commission on March 11, 2014

This updates a previous Grouper post from 3/22/13.  That post has been deleted, but still-relevant information from it has been included here.

On March 11, 2014, the Virginia State Corporation Commission (SCC) held a public hearing on whether to grant a certificate of public necessity and convenience for a proposed 750 megawatt (MW) capacity, natural-gas-fired, electrical-generating plant south of Leesburg (Loudoun County)First announced in 2009 and estimated to cost $500 million, the proposed Stonewall Combined-Cycle Project received an air-emissions permit from the Virginia Air Pollution Control Board in April 2013.  Panda Power Funds took over leadership of the project in September 2013 from Green Energy Partners/Stonewall, LLC.  According to the Panda’s Web site for the project (http://www.pandafunds.com/invest/stonewall/ as of 3/18/14), the project would occupy 101 acres; supply power equivalent to the demands of 750,000 homes; and use part of Leesburg’s treated wastewater for cooling.

More information on the project is available in the SCC’s case information online at http://docket.scc.virginia.gov/vaprod/main.asp; the case is PUE-2013-00104, “Green Energy Partners /Stonewall, LLC – Application for CPCN for 750 MW electric generating facility in Loudoun Co.”  Information on the project’s air permit is available from the Virginia Regulatory Town Hall notice about the April 3, 2013, public hearing and information session held by the Air Pollution Control Board/Department of Environmental Quality; available online at http://townhall.virginia.gov/L/Viewmeeting.cfm?meetingid=19627.

Additional sources: Local environmentalists mount opposition to planned power plant, Loudoun Times, 3/17/14; SCC Sets Hearing Date For Leesburg Power Plant Permit, Leesburg Today, 11/23/13; Developers seek fast track for Loudoun energy plant, Washington Business Journal, 9/28/12; ‘Green Energy’ Plant Proposed In Loudoun, Leesburg Today, 2/27/09.

 

Sunday Hunting Legislation, Waterfowl Blind Licenses, Tree Seedlings Sale, Wildlife-conservation Projects Reports, Outdoor Events, and More Available in March 12, 2014, Outdoor Report from Va. Dept. of Game and Inland Fisheries

The latest “Outdoor Report” (3/12/14) from the Virginia Department of Game and Inland Fisheries (VDGIF) in now available at http://www.dgif.virginia.gov/outdoor-report/2014/03/12/.

Each edition of the Outdoor Report is full of information on fishing, hunting, wildlife watching, boating, and other outdoor activities.  The sections of the 3/12/14 report are listed below, with hyperlinks to go to the individual items.

Chesapeake Bay Agreement Draft Revision Receiving Public Comment through March 17, 2014; Va. DEQ Listening Session to be held March 11, 2014

The federal-state Chesapeake Bay Program is coordinating an update of the Chesapeake Bay Agreement, first signed in 1983 by Virginia, Maryland, Pennsylvania, the District of Columbia, the Chesapeake Bay Commission, and the U.S. EPA, with revisions in 1987 and 2000.  A new draft agreement was released on January 29, 2014, for public comment through March 17, 2014.  The new agreement would also include Delaware, New York, and West Virginia.

On March 11, the Virginia Department of Environmental Quality (DEQ) will hold a listening session on the draft agreement.  The session starts at 2 p.m. and will be held at the DEQ’s Piedmont Regional Office, 4949-A Cox Road in Glen Allen; the session will also be available via Webcast.  More information about this meeting is available online from the Virginia Regulatory Town Hall, at   http://townhall.virginia.gov/L/ViewMeeting.cfm?MeetingID=21254.

Details on the draft agreement and on providing comment are available online at http://www.chesapeakebay.net/chesapeakebaywatershedagreement/page.

Finally, a Jan. 29, 2014, Bay Journal article provides information on draft agreement is available at this link: Draft Chesapeake Bay Watershed Agreement released for public comment.