1. Keith Turner
Watkins & Eager

4.  Endangered Species
 Permitting
 Wetlands
 CERCLA liability
 Impaired Property – Brownfield Sites
 Hazardous Substance Issues

5.  Endanger Species in Mississippi
 Twenty species
 Threaten Species in Mississippi
 Nine species
 Crictial Habitats

6.  MS Code Ann 45-5-1 et seq
 makes it unlawful for any person, or common or
contract carrier, to take, possess, transport, export,
process, sell, or offer for sale or ship any species or
subspecies of wildlife appearing on any of the lists

7. Federal Designated Critical Habitat

8. Federal Designated Critical Habitat
Sturgeon
Sandhill Crane
Piping Plover

10.  Storm water
 NPDES – wastewater
 Wetlands

11.  General Construction Permits –
 5 acres or more
 Need to obtain coverage under the General Permit
 SWPPP
 Controls and monitoring
 1 to 5 acres
 Complete forms and develop SWPPP (no submittals)
 Follow same controls and monitoring requirements as 5
acre permit

15. SIX FEET DEEP

16.  Assign Prime
Contractor
responsibility - not
Owner
 Creates a joint and
several responsibility
for both parties

18.  Phased construction – not in compliance with
SWPPP – (out of sequence)
 Multiple Owner Sites
 “island” sites within larger construction site
 Determination of site area impact v. actual
property

19.  NPDES - Wastewater
 Water Withdrawal

20.  County v. Municipal code
 If future plans call for transfer of system to nearby
city – pay now or pay more later

21.  Pending Consent Decree from EPA, prior
enforcement action by MDEQ
 Proposed corrective action 10-15 years -----
$300 to 700 million ??
 What does this mean for other communities in
Jackson metro area ?

22.  Wastewater system overcapacity
 $40 to 170 million to repair
 Ongoing discharge violations
 Currently under MDEQ compliance order
 Is the action moot because of “diligent prosecution”?

23.  EPA considering permitting satellite
systems discharging into regional
systems
 TMDL’s and Nutrients = future
permitting limit problems

24.  Use of waters of the state shall not constitute
absolute ownership or absolute rights of use
of such waters, but such waters shall remain
subject to the principle of beneficial use.

25.  Surface Withdrawal
 Exemption – single household or from existing
impoundment
 Groundwater Withdrawal
 Exemption – single household or well less than 6”
diameter

26.  Water use permits normally will be issued for a
period of ten (10) years. Longer terms may be
permitted for certain public entities in order to
assure reasonable amortization of capital
investment in water-related equipment
 Must construct well within 1 year of permit issuance
or null and void without agency action (2 years for
public wells)

30.  Section 401 Water Quality Certification
(MDEQ)
 Coastal counties need to also obtain permit
from Mississippi Department of Marine
Resources
 Section 404 Permit (Corps of Engineers)
 Vicksburg/Mobile/Memphis

31.  Law unable to account for all necessary science
 Corps uses three characteristics of wetlands when
making wetland determinations:
 Vegetation
 Soil
 hydrology

33.  Rapanos v. United States, 547 U.S. 715 (2006)
(Plurality decision)
 Three tests
 Kennedy – “Significant nexus” test (with waters of the
US)
 (biological, chemical, physical)
 Scalia – Relatively permanent connection test (flow)
with waters of the US
 Dissent – Corps’ reasonable interpretation

34. SACKETT
v.
ENVIRONMENTAL PROTECTION AGENCY
Supreme Court of United States.
132 S.Ct. 1367 (2012)

35. •2/3 acre lot in Idaho across from home sites on lake

37.  EPA claimed violations of Clean Water Act –
 “discharge of pollutants from a point source” CWA
301 and 502
 “discharge of pollutants into waters of the US
without a permit” CWA 301

38.  EPA issued a compliance order demanding
Sacketts remove all fill placed on the lot
 Sacketts requested a hearing from EPA but
were denied
 EPA did not consider the compliance order a
final and appealable action
 By not acting the Sacketts were accruing a
$75,000 a day liability ($37,500 – CWA
violation, $37,500 – Order violation)

39. Scalia Opinion
• APA action acceptable under CWA when
no other remedy available
• Is a compliance order a “final agency
action” – ripe for appeal ?
• YES
• How will decision impact agency
enforcement approach ?

41. ?

42.  Liability
 Owner or Operator
 Owner or Operator (at time of “disposal”)
 Arranger
 Transporter

43.  Two Paths - Contribution or Cost Recovery
 Section 107 Cost Recovery ( statute of limitations - 6
years)
 Section 113 Contribution (3 years)
 “civil action” requirement

45.  No formal exposure limits
 State will follow recommended levels or can conduct
risk study
 Remediation options
 Existing structures
 Vapor collection systems
 HVAC pressure control
 New Construction
 Vapor collection
 Slab membrane or sealers

46.  Continuing Obligations
 be in compliance with any land use restrictions
established or relied on in connection with the response
action; |
 not impede the effectiveness or integrity of any
institutional control employed in connection with a
response action.
 comply with land use restrictions relied on in connection
with the response action even if restrictions haven’t been
implemented through an enforceable institutional control.

47.  take reasonable steps to stop continuing
releases; prevent threatened future releases;
and prevent or limit human, environmental, or
natural resource exposure to earlier hazardous
substance releases.
 provide full cooperation, assistance, and access
to persons authorized to conduct response
actions or natural resource restoration

48.  Phase I Due Diligence Work
 MDEQ Uncontrolled Sites List
 Institutional Controls – recorded with MDEQ and
County land records
 CERCLA Lists

49. Hattiesburg, 2009 Assessment $600,000
MS
Gulfport, MS 2011 Assessment $200,000
Quitman, MS 2011 Assessment $200,000
Columbus, MS 2012 Assessment $200,000
Hernando, MS 2012 Assessment $200,000
McComb, MS 2012 Assessment $200,000

50.  Proposed revisions to Economic
Redevelopment Act – to include brownfields
within the MDEQ program.
 Over ten years a percentage of taxes and fees
are returned to developer - limited to 2 ½
times the amount of the allowable remediation
costs.

52. Liberty National Golf
Course – New Jersey

53. Underground Storage Tanks
v. Aboveground Storage
Tanks

55. Questions?
Keith Turner
601-965-1958