EPA Not Required to Make CWA Necessity Determination for Mississippi River
The Fifth Circuit reversed and remanded a lower court decision ordering EPA to determine whether new water quality standards were necessary to control nitrogen and phosphorus pollution in the mainstem of the Mississippi River and the Northern Gulf of Mexico. Relying on the U.S. Supreme Court's decision in Massachusetts v. EPA, environmental groups argued that EPA has a clear statutory obligation to determine whether numeric nutrient criteria are necessary to meet the requirements of the CWA. But the Court in Massachusetts also stated that EPA could avoid making a threshold determination "if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do."
Corps' Wetlands Jurisdictional Determination is "Final Agency Action"
The Eighth Circuit held that a U.S. Army Corps of Engineers jurisdictional determination (JD) is a final agency action under the APA, thereby creating a split between the circuits. According to the court, the Corps' assertion that the JD is merely advisory and has no more effect than an environmental consultant's opinion "ignores reality." The JD requires appellants either to incur substantial compliance costs (the permitting process), forego what they assert is lawful use of their property, or risk substantial enforcement penalties.
The April 2015 issue of ELR's News & Analysis features articles on administering NEPA, crafting collaborative water governance, addressing affordability and long-term resiliency via the National Flood Insurance Program, and performing internal investigations of environmental crimes. The issue also looks at EPA's CAA §111(d) proposal to reduce CO2 emissions from electric generating units, as well as CAA preemption of state common-law tort claims. A transcript to a recent ELI seminar on the ESA is included as well.