On December 11, 2018, USEPA and the Army Corps of Engineers proposed a new rule defining “water of the United States” (WOTUS) subject to USEPA/Army Corps jurisdiction under the Clean Water Act. The proposed rule would replace the 2015 WOTUS rule, which has been the subject of litigation across the country, with a more narrow… Continue Reading
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Federal Court Affirms Decision to Lift Stay on Litigation Challenging WOTUS Rule
Posted in EnvironmentOn May 1, 2018, a federal judge for the U.S. District Court for the District of North Dakota affirmed a Magistrate’s decision to lift the stay on a group of 13 States’ lawsuit challenging U.S EPA’s the Army Corps’ 2015 rule defining “waters of the United States” (“WOTUS”) under the Clean Water Act. The Court… Continue Reading
U.S. EPA Finalizes Rule Delaying WOTUS Applicability Date
Posted in EnvironmentThis post provides an important update to our January 22, 2018 entry. On January 31, 2018, U.S. EPA and the Army Corp finalized a rule that makes the 2015 WOTUS Rule applicable two years following publication of the applicability date rule in the Federal Register. The final rule provides that the scope of Clean Water… Continue Reading
U.S. Supreme Court Determines Jurisdiction for WOTUS Challenges
Posted in Energy, EnvironmentOn January 22, 2018, the U.S. Supreme Court held that lawsuits challenging the joint EPA-Army Corps rule defining “waters of the United States” (WOTUS) must be filed in federal District Courts. The Supreme Court’s decision overturns the Sixth Circuit’s February 2016 decision that the federal Circuit Courts have exclusive jurisdiction, pursuant to Section 1369(b)(1) of… Continue Reading
Eleventh Circuit Defers to Sixth Circuit in WOTUS Challenge
Posted in Energy, EnvironmentThis entry provides an update to our blog post on February 23, 2016 regarding the Sixth Circuit’s decision that it has jurisdiction to adjudicate challenges to the EPA-Army Corps WOTUS rule. On August 16, 2016, the Eleventh Circuit Court of Appeals stayed 10 states’ lawsuit challenging the WOTUS rule. In reaching its decision to stay… Continue Reading
U.S. EPA Finalizes Rule Prohibiting Oil/Gas Wastewater Discharges to POTWs
Posted in Energy, EnvironmentOn June 27, 2016 U.S. EPA finalized a regulation under the Clean Water Act that prohibits the discharge of wastewater from certain oil and gas extraction facilities to POTWs. Specifically, the rule applies to onshore extraction from shale and/or tight geologic formations – referred to as unconventional oil and gas resources. EPA determined that current… Continue Reading
Supreme Court Holds CWA Jurisdictional Determinations are Final Agency Actions
Posted in Energy, EnvironmentOn May 31, 2016, The U.S. Supreme Court held that Clean Water Act jurisdictional determinations by the Army Corps of Engineers are final agency actions that can be reviewed by federal courts. In reaching its decision, the Supreme Court declined to follow a 2014 decision from the Fifth Circuit which held that jurisdictional determinations are… Continue Reading
U.S. EPA Issues Draft Information Request on Methane Emissions
Posted in Energy, EnvironmentOn the same day that U.S. EPA finalized amendments to the New Source Performance Standards for the oil and gas industry (click here for our blog post on the final rule), the Agency issued a draft Information Collection Request (ICR) to require oil and gas companies to provide extensive information on methane emissions from various… Continue Reading
U.S. EPA Finalizes NSPS OOOO Amendments
Posted in Energy, EnvironmentOn May 12, 2016, U.S. EPA finalized amendments to the New Source Performance Standards (NSPS) for the oil and natural gas source category at 40 CFR Part 60, Subpart OOOO, and established new standards at 40 CFR Part 60, Subpart OOOOa. The final rule establishes standards for greenhouse gas emissions in the form of limitations on… Continue Reading
Sixth Circuit Denies En Banc Review of WOTUS Jurisdictional Issue
Posted in Energy, EnvironmentThis entry is a follow-up to our blog post on February 23, 2016 regarding the Sixth Circuit’s decision that it has jurisdiction to adjudicate challenges to the EPA-Army Corps WOTUS rule. On April 21, 2016, the Sixth Circuit denied six petitions for rehearing en banc. In order to obtain en banc (full court) review, the issue presented must be… Continue Reading
Sixth Circuit Issues Nationwide Stay of WOTUS Rule
Posted in Energy, EnvironmentOn October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay barring implementation of the U.S. EPA-Army Corps rule defining Waters of the United States pending the Court’s review of several lawsuits (consolidated in the Sixth Circuit) challenging the validity of the rule. The Court held that issuing a… Continue Reading
Federal Court Bars Implementation of WOTUS Rule in 13 States
Posted in Energy, EnvironmentOn August 27, 2015, the U.S. District Court for District of North Dakota granted a preliminary injunction prohibiting the implementation of the U.S. EPA-Army Corps joint rule defining Waters of the United States in 13 states. The Court held that the rule, which went into effect today, “would encompass virtually all EPA actions under the… Continue Reading
Ohio Supreme Court Decides Ohio EPA TMDLs Must be Promulgated As Rules
Posted in EnvironmentOn March 24, 2015, the Ohio Supreme Court decided the Fairfield County v. Nally (former Ohio EPA Director) case. This was a challenge brought by Fairfield County to a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit limit, which was based on a total maximum daily load (TMDL) report prepared by Ohio… Continue Reading
U.S. EPA Extends Comment Period for Proposed WOTUS Rule
Posted in EnvironmentOn October 14, 2014, U.S. EPA and the Army Corps of Engineers extended the comment period for the proposed rule defining “Waters of the United States” under the Clean Water Act. The comment period was extended from October 20, 2014 to November 14, 2014.… Continue Reading
Ohio Residents Allege Unlawful Transfer of Discharge Permit Authority for CAFOs
Posted in EnvironmentOn August 4, 2014, two Ohio residents filed a complaint in federal court alleging that Ohio EPA violated the Clean Water Act in 2001 when the agency transferred its discharge permitting authority for concentrated animal feeding operations (CAFOs) to the Ohio Department of Agriculture without notifying U.S. EPA until 2006. The lawsuit seeks a court order directing that only… Continue Reading
U.S. EPA Proposes Rule Defining “Waters of the United States”
Posted in EnvironmentOn March 25, 2014, U.S. EPA and the Army Corps of Engineers jointly released a proposed rule redefining "Waters of the United States." Editorializing a bit, a cursory review of the proposed rule indicates little has been done to clarify whether and how certain streams and wetlands are protected under the Clean Water Act. We will follow-up with a more detailed… Continue Reading
A Potential Stop to Clean Water “Power Grab” via EPA Guidance?
Posted in EnvironmentThe Congressional Committee on Transportation and Infrastructure announced today that H.R. 4965 was introduced to "prohibit the Obama Administration from finalizing or implementing the EPA and Corps Clean Water Act ‘guidance’ in order to significantly broaden the scope of federal jurisdiction under the Act." The press release is good reading if your position is that… Continue Reading
The U.S Supreme Court Decided Today A Significant CWA Case
Posted in EnvironmentToday the U.S. Supreme Court unanimously (with two concurring decisions) decided Sackett v. EPA – a case that everyone in the environmental law business has been anxiously awaiting. The issue concerns whether a USEPA unilateral compliance order issued under the Clean Water Act was subject to judicial review. USEPA had issued the Sacketts a compliance order asserting the Sacketts had illegally… Continue Reading
New (Relatively) KY Oil Pipeline Spill Case
Posted in Energy, EnvironmentIn Mid-Valley Pipeline Co. v. S.J. Louis Construction, Inc., the United States District Court for the Eastern District of Kentucky (Northern Division) recently held (among other things) that (a) the Clean Water Act (CWA) allows a pipeline owner to recover penalties, paid to U.S. EPA, from a third party through a contribution or indemnity claim; and (b) a right… Continue Reading
House Will Consider Bill to Rein in EPA to “Restore Balanced Federal-State Regulatory Partnership”
Posted in EnvironmentWe all will likely be reading and hearing more about a US House Bill (H.R. 2018) coming before the full House for a vote – the bill purports to "bring the federal water quality permitting process back to center and help ensure a more stable, clear, and equitable national clean water program." Find a Press Release here that explains in more… Continue Reading
Navigable Water Guidance
Posted in Energy, EnvironmentU.S. EPA and the Army Corps of Engineers (Corps) have published for comment a guidance document that describes how the agencies intend to identify waters protected by the Clean Water Act and implement the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (531 U.S. 159 (2001))… Continue Reading
CWA – Navigable Waters
Posted in EnergyWe have reported previously on the narrowing definition of "navigable waters" under the Clean Water Act, particularly with respect to the federal SPCC Rule (see here, for example; but see here (Rapanos decision in Sixth Circuit)). The significance of that trend – especially on enforcement – has finally been recognized by those outside of industry… Continue Reading
Clean Water Act – Stepped Up Enforcement
Posted in EnvironmentOn October 15, 2009, US EPA announced its intention to step up enforcement under the Clean Water Act. The Clean Water Action Enforcement Plan announced by US EPA outlines how it will strengthen the way it addresses water pollution, with the goals of (1) targeting enforcement to the most significant pollution problems; (2) improving transparency… Continue Reading
Supreme Court Rules on Clean Water Act Section 402 and 404 Distinction
Posted in EnvironmentOn June 22, 2009, the U.S. Supreme Court, in its last environmental ruling of the term, discussed the permitting authority distinction between a Clean Water Act Section 402 (NPDES discharge) permit, a Section 306 (pollutants from certain categories of new sources) permit and a Section 404 (fill/dredge) permit. In Coeur Alaska, Inc. v. Southeastern alaska Conservation… Continue Reading