8C — April 25 - May 15, 2014 — Shopping Centers — M id A tlantic

Real Estate Journal


S hopping C enters

n March 2014, the U.S. Environmental Protec- tion Agency (“EPA”) re- By Jonathan H. Spergel and Bridget L. Dorfman EPAwater rules may directly impact planned development projects I ter permit numeric turbidity discharge limits applicable to larger development sites.

withdrawal of the numeric turbidity limit was a big relief to developers, EPA signaled in its announcement that it may revisit the notion of stormwater effluent limita- tion guidelines and monitor- ing requirements in a future rulemaking. On March 25, 2014, EPA and the Army Corps of Engi- neers (“Corps”) released their proposed definitions of “wa- ters of the United States” and related terms contained in the CWA. According to EPA and the Corps, these proposed regulations were developed to clarify confusion created by U.S. Supreme Court de- cisions about wetlands in 2001 and 2006, in which the Court provided a difficult-to- apply analysis of fact-specific disputes concerning federal jurisdiction over water bod- ies. Information released by EPA in connection with the proposed rule indicates that numerous members of the regulated community, includ- ing nonprofit organizations, trade groups and governmen- tal entities, requested that a rule be issued to clarify the meaning of “waters of the United States.” Although the request for clarification stems from confusion about wetlands jurisdiction, EPA and the Corps have stated that the proposed definition of “waters of the United States” would apply to “all sections” of the CWA, meaning that the proposed rule may impact not only CWA Section 404 wetlands permit issues, but also individuals and facilities needing NPDES permits. In addition to proposing a modified definition of the phrase “waters of the United States,” the 370-page propos- al also provides proposed defi- nitions of the terms “neigh- boring,” “riparian area,” “floodplain,” “tributary” and “significant nexus,” which to date have not been defined by EPA or the Corps. EPA’s and the Corps’ stated purpose in proposing these definitions is to “enhance protection for the nation’s public health and aquatic resources” while also providing the regulated community “predictability and consistency by increas- ing clarity as to the scope of ‘waters of the United States’ protected” under the CWA. While EPA and the Corps claim that the proposed rule continued on page 12C

leased two new ru l e s – one final and the oth- er proposed – u n d e r the federal Clean Water Act (“CWA”) t h a t ma y

As originally drafted, the withdrawn rule would have incor- porated tur- bidity limits into NPDES permits, and permit hold-

Jonathan Spergel Bridget Dorfman

have significant impact for future development projects. On March 6, 2014, EPA pub- lished a final rule withdraw- ing its previously proposed, and controversial, stormwa-

ers would have had to col- lect and analyze samples of the stormwater discharged from the site after a rainfall event to demonstrate permit compliance. Although EPA’s


or more than twenty years, Manko, Gold, Katcher & Fox’s partners have been active members of ICSC, reflecting the firm’s experience and commitment to serving the environmental and energy law and litigation needs of the shopping center industry, including :

Environmental Aspects of Site Development and Brownfield Redevelopment Site Remediation Under Federal and State Cleanup Programs Real Estate Litigation and Land Use Hearings Environmental Permitting and Licensing

Environmental and Regulatory Audits

Indoor Air Quality/Vapor Intrusion Consulting and Litigation

Superfund and Cost Recovery Litigation

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Jonathan H. Spergel, Esquire 484-430-2309; jspergel@mankogold.com Suzanne Ilene Schiller, Esquire 484-430-2354; sschiller@mankogold.com

401 City Avenue, Suite 901 Bala Cynwyd, PA 19004 www.mankogold.com

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