In The News

New Federal Rule Proposes to Expand Jurisdiction of the Federal Clean Water Act

By Sharon O. Jacobs

On March 25, 2014, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly proposed a new rule defining the scope of waters protected under the Clean Water Act (CWA). The rule would expand EPA’s jurisdiction to waters that were previously not subject to EPA’s jurisdiction as “waters of the United States.” The new rule, if it becomes final, may allow the EPA or the Tennessee Department of Environment and Conservation to expand its jurisdiction to small bodies of water on private property. Under the joint proposed rule, all natural and artificial tributaries and wetlands that are adjacent to or near larger downstream waters would also be subject to the federal CWA. The EPA and the Corps purportedly proposed the new rule in an effort to clarify the CWA program. However, the end result appears to be an expansion of the scope of “waters of the United States” protected under the CWA. Specifically, the proposed rule provides that under the CWA:

    • • Most seasonal and rain-dependent streams are protected.
    • • Wetlands, ponds and other waters near rivers and streams are protected.
    • • Other types of waters may have more uncertain connections with downstream water, and protection will be evaluated through a case-specific analysis of whether the connection is or is not significant.

The proposed rule defines “waters of the United States” as “traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters or the territorial seas; and adjacent waters, including adjacent wetlands.” In addition, the agencies propose that “other waters” (those not fitting in any of the above categories) could be determined to be “waters of the United States” through a case-specific showing that, either alone or in combination with similarly situated “other waters” in the region, they have a “significant nexus” to a traditional navigable water, interstate water or the territorial seas. However, at this time, the “significant nexus” has not been defined. The agencies seek public comments on alternate approaches to determine which waters are jurisdictional as “other waters.”

The proposed rule allows the EPA and the Corps to seek comment on a case-by-case basis on whether the aggregate effect of geographically isolated wetlands and other waters that “significantly” affect the physical, biological and chemical integrity of federally protected downstream waters are jurisdictional pursuant to the CWA. An interpretive rule was also included which clarifies that 53 specific conservation practices identified by the Agriculture Department's Natural Resources Conservation Service to protect or improve water quality won't be subject to dredge-and-fill permits under Section 404 of the CWA.

The agencies seek public comments on the proposed rule. Public comments will be accepted for 90 days after the date of the publication in the Federal Register. Because the rule alludes to other bodies of water, which could be regulated, it is important for the public to review the proposed rule carefully and provide comments. The rule is a game changer for small bodies of water if it becomes final.

The public should submit feedback by identifying Docket ID No. EPA–HQ–OW–2011–0880 using one of the following methods:

    • • Mail: Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460, Attention: Docket ID No. EPA–HQ–OW–2011–0880.

 

Norfolk Southern Receives Economic and Environmental Sustainability Award

Congratulations to Bone McAllester Norton client Norfolk Southern, who received an award last week from the Loudon County Economic Development Agency for its work in Lenoir City, Tennessee. The 2013 PEAK (Performance, Excellence, Achievement, Knowledge and Innovation) Award was presented to the transportation company for its remediation of the Lenoir Car Works site and their long-term economic partnership with Loudon County. Sharon (Sheri) Jacobs is proud to represent Norfolk Southern in this project and lead their team before the Tennessee environmental regulators.

 

 

 

Bone McAllester Norton PLLC is a full-service law firm with 36 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.




Are Your Wipes Clean? EPA Adopts Industrial Wipes Standard

By Sharon O. ("Sheri") Jacobs

On July 31, 2013, the United States Environmental Protection Agency (EPA) issued a final rule to clarify how companies handle disposable and reusable solvent contaminated industrial wipes. This change will affect many businesses, from auto repair shops to large manufacturing facilities, by identifying requirements for handling solvent contaminated wipes in order to avoid hazardous waste rules, which would otherwise apply.

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Bone McAllester Norton PLLC is a full-service law firm with 36 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 17 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit

www.bonelaw.com.

EPA Issues New Vapor Intrusion Guidance

The United State Environmental Protection Agency (EPA) issued vapor intrusion guidance last week that presents recommendations for how to identify and consider factors when assessing vapor intrusion, making risk management decisions and implementing mitigation pertaining to this potential human exposure pathway. This new guidance may affect real estate developments and acquisitions.

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Bone McAllester Norton PLLC is a full-service law firm with 33 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 16 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters. Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Sheri Jacobs Selected as Top Rated Lawyer in Energy, Environmental & Natural Resources

American Lawyer Media and Martindale-Hubbell announced that Bone McAllester Norton attorney Sharon O. Jacobs has been selected as a "2013 Top Rated Lawyer in Energy, Environmental & Natural Resources."

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Sheri Jacobs Selected as 2013 Top Rated Lawyer in Energy, Environmental & Natural Resources

Bone McAllester Norton congratulates our own Sharon O. Jacobs for her selection as a “2013 Top Rated Lawyer in Energy, Environmental & Natural Resources” by American Lawyer Media and Martindale-Hubbell.

Sheri, an AV-rated, Best Lawyer and SuperLawyer, has been practicing environmental and administrative law, along with litigation and dispute resolution, for more than 20 years.

"We are proud but not surprised by Sheri's selection for this notable list," said Charles W. Bone, founder and chairman of Bone McAllester Norton. "Her expertise with companies and local governments on compliance, sustainability and all facets of environmental law makes Sheri a trusted adviser and problem solver for all who work with her."

Bone McAllester Norton PLLC is a full-service law firm with 33 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 16 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters.   Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.

Sheri Jacobs Selected as 2013 Top Rated Lawyer in Energy, Environmental & Natural Resources

Bone McAllester Norton congratulates our own Sharon O. Jacobs for her selection as a “2013 Top Rated Lawyer in Energy, Environmental & Natural Resources” by American Lawyer Media and Martindale-Hubbell.

Sheri, an AV-rated, Best Lawyer and SuperLawyer, has been practicing environmental and administrative law, along with litigation and dispute resolution, for more than 20 years.

"We are proud but not surprised by Sheri's selection for this notable list," said Charles W. Bone, founder and chairman of Bone McAllester Norton. "Her expertise with companies and local governments on compliance, sustainability and all facets of environmental law makes Sheri a trusted adviser and problem solver for all who work with her."

Bone McAllester Norton PLLC is a full-service law firm with 33 attorneys and offices in Nashville and Sumner County, Tennessee. Our attorneys focus on 16 distinct practice areas, providing the wide range of legal services ordinarily required by established and growing businesses and entrepreneurs. Among our practices, we represent clients in business and capital formation, mergers and acquisitions, securities matters, commercial lending and creditors’ rights, commercial real estate and development, governmental regulatory matters, commercial litigation and dispute resolution, intellectual property strategy and enforcement, entertainment and environmental matters.   Our client base reflects the firm’s deep understanding and coverage of today’s leading industry and business segments. For more information, visit www.bonelaw.com.