Contractors understand how difficult it can be on a technical level to do work in or near wetlands or other environmentally-sensitive areas. Such work is even more difficult due to complex, ever-changing regulations coming from the federal government under the Clean Water Act (“CWA”). The CWA applies to “navigable waters”, which are defined as “the waters of the United States.” To determine whether certain wetlands are “the waters of the United States”, contractors and owners have had to engage in fact-intensive “significant-nexus” determinations that turned on a lengthy list of hydrological a ..read more

The U.S. Supreme Court recently issued an opinion in County of Maui v. Hawaii Wildlife Fund that further expands upon its opinions under the Clean Water Act.  This time, the Court addressed the issue of whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by groundwater.  Point sources under the Clean Water Act are defined as “any discernable, confined and discrete conveyance … from which pollutants are or may be discharged,” including containers, pipes, ditches, channels, tunnels, conduits, or wells.  I ..read more

In my previous blog post, I advised that companies with federal environmental obligations should review the applicability of U.S. EPA’s temporary enforcement policy, entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” In that document, U.S. EPA stated that it does not expect to seek civil penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, and reporting or certification obligations, if they occurred as a result of the COVID-19 pandemic. Since releasing this temporary enforcement policy, U.S. EPA faced ..read more

Everyone in the United States has been affected in some way or another by the COVID-19 pandemic, but many companies with environmental compliance obligations are facing impossible situations.  Worker shortages due to the pandemic as well as travel- and social-distancing restrictions imposed by many state and local governments have affected the ability of companies to carry out activities required by environmental permits, regulations, and statutes.  Companies may be unable to meet limitations on air emissions or water discharges and requirements for the management of hazardous waste ..read more

On July 30, 2019, Illinois Governor J.B. Pritzker signed into law Senate Bill 9, which places strict regulations on surface impoundments that are designed to hold an accumulation of coal combustion residue (“CCR”), commonly known as coal ash.  The term CCR encompasses fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated from burning coal for the purpose of generating electricity by electric utilities and independent power producers.  Surface impoundments are typically natural topographic depressions, man-made excavations, or diked areas, which are design ..read more

Illinois Governor J.B. Pritzker recently signed into law a $45 billion capital infrastructure plan dubbed “Rebuild Illinois”.  This plan allocates $33.2 billion for transportation, including $11 billion for the Illinois Department of Transportation’s multi-year plan and $14 billion for other road and bridge projects.  It also includes $4.7 billion for mass transit, $1 billion for passenger rail and millions for ports, aeronautics, and other projects.  The plan also appropriates $25 million from the Build Illinois Bond Fund to the Illinois Environmental Protection Agency for a gr ..read more

Contractors that often do work for the federal government are likely familiar with the National Environmental Policy Act (“NEPA”).  NEPA requires federal agencies to prepare an Environmental Impact Statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.”   Once an agency issues a final EIS, the federal agency will provide environmental clearance via a Record of Decision (“ROD”).  Environmental and other citizens-organizations can attempt to delay or stop a federal project by challenging the processes under which an EIS ..read more

According to a recent news report, local Sierra Club chapters are reactivating programs that support volunteers who inspect construction sites for potential violations of environmental laws.  For many years, the national Sierra Club organization has had programs to “connect people with their waterways” by having them conduct local water quality testing and monitoring.  At times, these programs also involved volunteers inspecting construction sites. This program has not been used as frequently since the Great Recession began in 2008; however, Sierra Club reportedly once again sees the ..read more

The Illinois Pollution Control Board recently published its Environmental Register for January 2019 on its website.  The Board is an independent five-member Board that adopts environmental control regulations and decides enforcement actions and other environmental cases in the State of Illinois.  As usual, the Environmental Register contains an update from the chairperson of the Board, Katie Papadimitriu, a rulemaking update, an appellate update, a summary of actions of the Board, the Board’s upcoming calendar, and lists of restrictive status and crucial review for community water su ..read more

Recently, the U.S. Fish and Wildlife Service settled a claim filed by the Center for Biological Diversity that forces FWS to take action on issues relating to a critical habitat designation for the western yellow-billed cuckoo. In 2014, FWS listed the western distinct population segment of the yellow-billed cuckoo under the Endangered Species Act but had not yet published a final rule designating critical habitat or made a finding that it would not be prudent to do so.  In 2017, the FWS received a petition to delist and subsequently published a 90-day finding on the petition, concluding t ..read more