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2010 National Waterways Conference 50 th Anniversary Annual Meeting

2010 National Waterways Conference 50 th Anniversary Annual Meeting. Issues Updates: Environmental. Washington: Here to Help? September 23, 2010. William A. Anderson, II Williams Mullen 1666 K Street, N.W., Suite 1200 Washington, D.C. 20006 Private line: 1.202.327.5060

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2010 National Waterways Conference 50 th Anniversary Annual Meeting

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  1. 2010 National Waterways Conference 50th Anniversary Annual Meeting Issues Updates: Environmental

  2. Washington: Here to Help? September 23, 2010 William A. Anderson, II Williams Mullen 1666 K Street, N.W., Suite 1200 Washington, D.C. 20006 Private line: 1.202.327.5060 Email: wanderson@williamsmullen.com

  3. Washington: Here to Help? • Clean Air Act – Climate Change • Clean Water Act • Water Resource Development

  4. Clean Air Act—Climate Change • What’s the Score? • Supreme Court 1 • EPA 5 • Congress 0

  5. Supreme Court: Massachusetts v. EPA • Greenhouse Gases (GHGs) are “air pollutants” under Clean Air Act • EPA may regulate them under the CAA • EPA must regulate GHGs from vehicles or explain why not

  6. EPA 5 • Endangerment Finding • GHG Emissions Standards for Vehicles • Mandatory GHG Reporting Rule • “Tailoring” Rule • Permit Rule

  7. EPA Endangerment Finding • Trigger for Regulation • Mobile sources: Vehicles and engines • Criteria pollutants • “Numerous or diverse” sources • National Ambient Air Quality Standards • State Implementation Plans • GHGs “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare”

  8. GHG Standards for Vehicles • Administration announced May 2009 • Auto industry is on board • Become effective for MY 2012-2016 • Cars and Light Trucks • CAFE Standards 25 to 35.5 MPG • May 2010, President ordered EPA & DOT to set standards for Heavy-Duty Trucks and Post-2016 MYs

  9. EPA Mandatory GHG Reporting Rule • Applies to: • Suppliers of fossil fuels and industrial gases • Manufacturers of vehicles and engines • Sources over 25,000 TPY CO2e • Initially 31 of 42 proposed source categories • Effective 12/29/2009 • First reporting period: 01/01-12/31/2010 • Initial reports due by March 31, 2011 • Several amendments added source categories • Will provide a basis for inventory, regulation

  10. EPA “Tailoring” Rule • New Source Review and Title V Permits • NSR: PSD & Non-Attainment • Phased extension of permit requirement • 250 TPY → 100,000 TPY New • Modifications → 75,000 TPY Increase • BACT or LAER • Title V Permit Requirement • 100 TPY → 100,000 TPY

  11. EPA Permits Rule • States administer PSD and Title V Programs • Some unable or unwilling to issue CO2 permits • EPA is issuing a rule to take over

  12. Congress is Locked “in Irons” • Can’t move unless the winds shift • Cap-and-Trade Proposals • House passed American Clean Energy & Security Act (“ACES”) • Senate EPW: Boxer’s Lieberman-Warner Version • K-L-G compromise stalled • Proposals to Trim EPA’s Sails • Murkowski: Deny EPA Jurisdiction • Rockefeller: 2-year delay

  13. Clean Water Act • Oberstar Bill — 2009 Reprise • Permits for Vessel Discharges

  14. Americas Commitment to Clean Water Act • H.R. 5088, introduced April 21, 2010 • Replaces 2008 “Clean Water Restoration Act” • Overturns SWANCC and Rapanos • Extends to wholly intrastate lakes, ponds, potholes and intermittent streams • “Exempts” existing waste treatment systems and croplands • EPA is reportedly at work on a rule

  15. Permits for Vessel Discharges • 9th Circuit Decision • Nationwide effect • Decision covered all vessel discharges • EPA issued permit by rule for larger vessels • Pub. L. 110-299: Congress postponed effect for recreational, fishing, commercial vessels (< 79 ft.) • Pub. L. 111-215: Signed S. 3372 on July 30 • Exempts ~ 140,000 fishing boats, commercial vessels • Extends till 12/18/2013

  16. Water Resource Development • Potential Obstacles: • National Environmental Policy Act • Endangered Species Act • Historic Preservation Act • Fish & Wildlife Coordination Act • Etc.

  17. WRD Projects: Potential Solution Miccosukee Tribe v. Corps of Engineers • Challenge to bridge project on Tamiami Highway • Omnibus Appropriations Act of 2009: • Notwithstanding any other provision of law • Immediately and without further delay • shall . . . Construct • Court held Appropriations Act repealed NEPA, ESA, all other laws • Courts had no jurisdiction • Dismissed Tribe’s challenges

  18. CONCLUSIONS • Congress is gridlocked on climate change • EPA is moving forward aggressively • There’s risk of expanded EPA jurisdiction • Fishing boats and vessels under 79 ft. have 3 more years till permits • Environmental objections can block or delay WRD projects; but a “notwithstanding” clause is a solution.

  19. COMMENTS or QUESTIONS? Further Information: William A. Anderson, II Williams Mullen 1666 K Street, N.W., Suite 1200 Washington, D.C. 20006 Private line: 1.202.327.5060 Email: wanderson@williamsmullen.com

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