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Hypothetical Water Law

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Follow hypothetical questions belowMust only use the following two sources below and LAW STATUTES MUST BE IN BLUEBOOK FORMRobert V. Percival et al., Environmental Regulation: Law, Science, and Policy (Alphen aan den Rijn: Wolters Kluwer Law & Business, 2017)James Salzman and Barton H. Thompson, Environmental Law and Policy (2006Background: Fannie Fairchild and Bryce Tower are partners and fellow Alumni of Vermont Law School.  In 2012 they move back to the region and buy property in a combined zoning district (allowing residential, industrial, and rural uses) on the Connecticut River in Norwich, Vermont with the plan to build and operate the largest waste-to-energy incinerator plant in the United States – which will also make it the major source of air pollutant emissions (particularly particulate matter and SO2&) in Vermont.  Fannie and Bryce consider themselves to be experts on air pollution law, but do not remember anything about water pollution regulation in general, or the Clean Water Act, in particular. Therefore, while they will handle all air pollution issues, they hire you, the managing partner of Trash Talk LLP – a law firm specializing in advocating and litigating for waste management and energy companies – as their attorney to handle all other environmental law issues.Fannie and Bryce inform you that, besides emitting material into the air (as incinerators do), the plant will discharge a daily effluent from a pipe into the Connecticut River.  This effluent contains organic nutrients (e.g., nitrogen from organic waste that they cannot burn), oil and grease from the processing of the waste, and mercury from some unknown, and unburnable, waste collected from a nearby college.What concerns do you have as their attorney before they begin operation? Be as specific as you can about what your clients need to do to satisfy their likely responsibilities under the CleanWater Act.It is now fall 2017 and you have become disenchanted with your work for Trash Talk LLP.  You leave the firm and take a position with a local non-profit environmental law firm – Green Talk.  Your firm is concerned that much of the Connecticut River, south of the waste-to-energy plant is failing to maintain its water quality standards for oil (a weekly average standard), nitrogen (based on presence/absence of algal blooms), and mercury (based on fish consumption advisories).  Your firm believes that the plant may be responsible so you contact their new attorney (who was once your junior associate at Trash Talk).  The plant maintains that they are in full compliance with all federal and state laws for their water discharge.  In addition the plant’s attorney points out that there is also a large amount of oil pollution from stormwater runoff from the new 10-story parking tower built in Norwich, Vermont.  Also, the large number of family farms (including dairy farms) – both upstream and downstream of the plant – are likely contributors to the nitrogen pollution.  Note: many of the dairy farms dispose of excess cow manure by dumping it into local bogs on their properties.  There is no surface connections between these bogs and the Connecticut River, but state hydrologists do believe they may be connected to ground water systems that may also be connected to the Connecticut River.  Finally, the plant's attorney also points out that they know that the EPA has conducted air transport studies that show that emissions from the recently opened high-sulfur coal power plant in Ohio owned by GECO (Gigantic Electric Company of Ohio) are being carried to New England.  Studies have shown that coal-fired power plant emissions are a leading source of mercury in waterways – via deposition from the air.After your conversation, you contact the state of Vermont and offer them the services of your law firm to develop a management program to achieve WQS in the Connecticut River.  This includes a new Nonpoint Source Management Program under CWA s. 319.What are the major elements of your plan to deal with the failing WQS and non-point sources of pollution – focusing on what is required and/or suggested by the Clean Water Act? Be sure to include discussion of which, if any, waters may not be under Clean Water Act jurisdiction and, if so, how they could be managed.
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