By Ryan Elliott on Posted in Energy,EnvironmentThe U.S. Army Corps of Engineers recently determined that Ohio waived its right to issue a water quality certification (WQC) under section 401 of the Clean Water Act (CWA) for the 16 new Nationwide Permits (NWPs) that went into effect on March 15, 2021. Ohio’s 401 WQC waiver means that an applicant seeking to obtain… Continue Reading
By Ryan Elliott on Posted in Energy,EnvironmentOn July 6, 2020, the U.S. Supreme Court issued an Order partially granting a motion to stay a Montana District Court’s injunction barring the use of the Army Corps’ streamlined Nationwide Permit 12 (NWP 12) governing pipeline and other utility construction activities that impact a water of the United States regulated under the Clean Water… Continue Reading
By Ryan Elliott on Posted in Energy,EnvironmentOn June 1, 2020, U.S. EPA finalized amendments to the rules governing the Clean Water Act (CWA) Section 401 water quality certification (WQC) process, which had not been updated since 1971. The final amendments establish a more robust framework for the WQC process which is intended, in large part, to ensure that certifying agencies take… Continue Reading
By Ryan Elliott on Posted in Energy,EnvironmentOn April 23, 2020, the U.S. Supreme Court, in a 6-3 decision, held that a permit is required for either “a direct discharge of pollutants from a point source into federally regulated navigable waters, or when there is the functional equivalent of a direct discharge.” County of Maui, Hawaii v. Hawaii Wildlife Fund et al.,… Continue Reading
By Ryan Elliott on Posted in Energy,EnvironmentOn April 21, 2020, U.S. EPA and the Army Corps of Engineers published the final Navigable Waters Protection Rule amending the definition of “Waters of the United States” (the “2020 WOTUS Rule”). Under the 2020 WOTUS Rule, four categories of jurisdictional WOTUS are subject to regulation under the Clean Water Act (CWA): 1. The territorial… Continue Reading
By Ryan Elliott on Posted in Energy,EnvironmentOn 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
By Ryan Elliott on 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
By Ryan Elliott on 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
By Ryan Elliott on 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
By Ryan Elliott on 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
By Ryan Elliott on 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
By Ryan Elliott on 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
By Ryan Elliott on 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
By Ryan Elliott on 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
By Ryan Elliott on 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
By Ryan Elliott on 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
By Ryan Elliott on 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
By Ilya Batikov on 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
By Ryan Elliott on 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
By Ryan Elliott on 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
By Ryan Elliott on 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
By Kristin Watt on 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
By Kristin Watt on 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
By Greg Russell on 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
