In an issue of first impression, in Matter of Proposed Construction of Compressor Station (CS327), No. A-3616-20, 2023 WL 5614411 (N. J. Super. Ct. Aug. 31, 2023), the New Jersey Superior Court rejected the New Jersey Department of Environmental Protection (“DEP”)’s interpretation of the Highlands Water Protection and Planning Act (the “Highlands Act”) and found that a permittee’s project upgrade must be “routine” to be exempted from the strict permitting requirements of the Highlands Act. Read More »

Share | Email| Comments|  Topics: Chevron Deference, Citizen Suit, New Jersey, Oil and Gas, Permits, Pipelines, Wetlands

In Sackett v. EPA, 2023 WL 3632751 (U.S. May 23, 2023), the Supreme Court limited the authority of the United States Environmental Protection Agency (“EPA”) to regulate wetlands by embracing a “continuous surface connection test” to determine if adjacent wetlands are subject to the Clean Water Act (“CWA”) and explicitly rejecting Justice Kennedy’s “significant nexus” test from Rapanos v. United States, 547 U.S. 715, 754 (2006). While the 9-0 decision was unanimous in judgment by holding that the Sacketts’ wetland was not subject to federal jurisdiction, the court was sharply divided as to the test to determine when an adjacent wetland qualifies as a Water of the United States (or “WOTUS”).  A five-justice majority held that the CWA’s jurisdiction includes only adjacent wetlands that are indistinguishable from WOTUS due to a continuous surface connection. Under this framework, for an adjacent wetland to be subject to CWA jurisdiction, the adjacent body of water must constitute a WOTUS, and the adjacent wetland must have a continuous surface connection with the WOTUS such that it is difficult to determine where the body of water ends and the wetland begins.  The majority’s holding casts serious doubt on the continuing viability on the final WOTUS rule that became effective earlier this year and relied in part on the “significant nexus” test that EPA and the United States Army Corps have applied through guidance since the Rapanos decision. See 88 Fed. Reg. 3004 (Jan. 18, 2023). Read More »

Share | Email| Comments|  Topics: Clean Water Act, Decisions of Note, EPA, Major Questions Doctrine, Navigability, Ninth Circuit, Rapanos, Supreme Court, United States Supreme Court, Wetlands

In a January 6 decision, U.S. v. Brace, No. 21-2966 (3rd Cir. Jan. 6, 2023), the U.S. Court of Appeals for the Third Circuit affirmed a district court’s ruling that a long-standing consent decree prohibiting discharge to wetlands is valid and unambiguous. This decision is a good reminder that Consent Decrees have a long shelf life and that private parties should negotiate carefully to ensure both its short-term and long-term interests are protected. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Consent Decree, Enforcement, Third Circuit, Wetlands

Last week, the Pennsylvania Supreme Court issued its highly anticipated opinion in EQT Prod. Co. v. Dep’t of Envtl. Prot., No. 6 MAP 2017, 2018 WL 1516385, (Pa. Mar. 28, 2018), holding that the Clean Streams Law (“CSL”) does not authorize the Department of Environmental Protection (“DEP”) to impose daily penalties for the ongoing, continuing presence of pollutants in waters of the Commonwealth. In the 5-to-2 decision, which affirmed in part the Commonwealth Court’s preceding opinion, the Court ruled that to construe the language of the CSL as allowing penalties for the movement of pollutants from one water body to another (DEP’s “water-to-water” theory) was not only unsupported by the statutory language, but would also expose the regulated community to potentially massive civil penalties, and as such, DEP’s penalty calculations including penalties for the days the pollutants remained in the affected groundwater after the initial discharge were excessive. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Case Update, Cases to Watch, Civil Penalties, Clean Streams Law, Contamination, Decisions of Note, Declaratory Relief, Drilling, EHB, Enforcement Action, Groundwater, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Remediation, Water, Wetlands

On January 22, as Philadelphia Eagles fans continued to celebrate the team’s NFC Championship victory over the Minnesota Vikings, the U.S. Supreme Court was busy issuing a unanimous opinion in National Association of Manufacturers v. Department of Defense concerning the Waters of the United States Rule (“Rule”) promulgated by the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) in 2015. The Rule defines the statutory term “waters of the United States” in the Clean Water Act, and has been subject to appeals in both federal district courts and courts of appeals. On October 11, 2017, the Supreme Court heard oral argument addressing whether appeals of the Rule should be filed first in either the district court or the court of appeals, and held today that because the Rule does not fall within one of the Clean Water Act’s (“Act”) seven enumerated categories of EPA actions for which the courts of appeal have jurisdiction, appeals of the Rule must first proceed in district court. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, Federal Procedure, NPDES, Permits, Procedure, Supreme Court, Water, Wetlands

In a decision issued today in Pa. Independent Oil & Gas Assoc. v. Commonwealth, No. 321 M.D. 2015, a seven-member panel of the Pennsylvania Commonwealth Court held that Section 3215(c) of Act 13, the Pennsylvania Oil and Gas Act, remains enforceable despite the Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013).  Section 3215(c) provides that when making a determination on a proposed oil and gas well, DEP “shall consider” the impact of the proposed well on public resources, including parks, rivers, landmarks, historic sites, flora and fauna habitat, and public drinking water sources.  Read More »

Share | Email| Comments|  Topics: Act 13, Declaratory Relief, Drilling, Drinking Water, Exploration, Legislation, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Water, Wetlands

Last week, the United States Court of Appeals for the Third Circuit struck down challenges by environmental organizations to the Federal Energy Regulatory Commission’s (FERC) approval of an expansion of the Transcontinental pipeline, a 10,000-mile pipeline that extends from South Texas to New York City and is operated by Transcontinental Gas Pipe Line Company, LLC (“Transco”).  In doing so, however, the Court held that the environmental organizations had properly invoked a provision of the federal Natural Gas Act to challenge water quality-related permits issued by the states of Pennsylvania and New Jersey.  Thus, the decision, Delaware Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot, No. 15-2122 (3d Cir. August 8, 2016), provides that the Court of Appeals has exclusive jurisdiction over challenges to permits issued to an interstate natural gas facility to certify compliance with State water quality standards promulgated under federal supervision, as well as with federally-established Clean Water Act requirements.   Read More »

Share | Email| Comments|  Topics: Clean Water Act, Energy, Federal Energy Regulatory Commission, Federal Procedure, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pennsylvania, Permits, Procedure, Subject Matter Jurisdiction, Third Circuit, Water, Wetlands

Last week, the United States Supreme Court held that federal courts can review the Army Corps of Engineers’ determinations that a landowner’s property contains “waters of the United States” and is therefore subject to the Clean Water Act’s regulations and permitting process.  Remarkably, the decision was unanimous in affirming the Eighth Circuit’s decision that such determinations are considered final agency actions under the Administrative Procedures Act and are therefore reviewable by the courts.  The majority opinion in the case, United States Army Corps of Eng'rs v. Hawkes Co., No. 15-290 (U.S. May 31, 2016), was authored by Chief Justice Roberts while Justices Kennedy, Kagan, and Ginsberg each authored separate concurring opinions.   Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Procedures Act, Army Corps, Clean Water Act, Eighth Circuit, Enforcement, EPA, Federal Procedure, Informal Agency Action, Permits, Procedure, Rapanos, Supreme Court, Water, Wetlands

Relying on the United States Constitution’s Fourth Amendment protection against unreasonable search and seizure, yesterday the New Jersey Supreme Court , inNJDEP v. Huber, ___ N.J. ____ (Apr. 4, 2013), held that the New Jersey Department of Environmental Protection (“NJDEP”) does not have an unfettered right to inspect residential property in order to ensure compliance or determine violations of the Freshwater Wetlands Protection Act, even when the property in question is subject to an FWPA permit. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Freshwater Wetlands Protect Act, Inspection, New Jersey, Permits, Real Estate, Residential, Wetlands

The U.S. District Court for the Middle District of Louisiana recently ruled that an U.S. Army Corps of Engineers’ approved jurisdictional determination finding wetlands subject to the Clean Water Act (CWA) is not a final agency action within the meaning of the Administrative Procedure Act (APA). The court further held that its holding was not impacted by the U.S. Supreme Court’s recent decision in Sackett v. EPA. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, Due Process, Procedure, Real Estate, Wetlands