Legal Issues relating to the BMAP and Water Quality Credit Trading

1
Legal Issues relating to the BMAP and Water
Quality Credit Trading

• F. Joseph Ullo, Jr.
• jullo_at_llw-law.com
• for
• CLE International

2
BMAP Adoption Process

• A Process akin to Negotiated Rulemaking combined
  with Technical Working Group to develop BMAP and
  allocate loads that will achieve the TMDL.
• BMAP adopted by Secretarial Order
• Subject to Section 120 Challenges

3
BMAP Keys

• Allocation
• Strategies to reduce loads
• Time for establishing BMPs must comply with 40
  CFR 122.47 as soon as possible.

4
Water Quality Credit Trading

• Federal Guidance
• EPAs WQC Trading Toolkit for Permit Writers
• http//www.epa.gov/watershed/trading/WQTToolkit.ht
  ml
• State Rules Coming

5
Making the Trade

• DEP to require affidavit signed by buyer and
  seller, disclosing
• Term
• of Credits
• Unit Price Paid
• Any State Funding

6
Making the Trade (cont.)

• Contract between parties will have key
  provisions
• Remedies
• Indemnity -- Reciprocal
• Cost calculation
• Right of Reverter
• Reporting Exchange

7
Other Issues

• Insurance??
• Minimizing Transaction Costs

8
Current Litigation

• Florida Wildlife Federation, Inc. v. Stephen
  Johnson, Administrator of the United States
  Environmental Protection Agency
• Filed July 17, 2008 requesting the Court order
  EPA to set numeric nutrient standards
• EPA has until November 17, 2008 to Answer.