Last week, EPA and the Army Corps finally published their long-awaited rule defining “Waters of the United States.” Will the WOTUS rule finally provide the clarity for which we have been waiting, allowing the rule to be as...more
Last week, EPA and the Army Corps proposed a new rule to define what constitutes “waters of the United States.” Déjà vu all over again.
Under the proposal, the agencies: are exercising their discretionary authority to...more
Last week, I reported that Judge Rosemary Marquez had vacated the Trump administration’s Navigable Waters Protection Rule. I also asked “what’s next”? EPA and the Army Corps have now answered that question, at least for the...more
Yesterday, Judge Rosemary Marquez vacated the Navigable Waters Protection Rule, the misnomer also known as the Trump WOTUS rule. In response to this citizens’ suit challenging NWPR, the Biden EPA and Army Corps of Engineers...more
Last week, in what may or may not be the last round in the ongoing efforts by Michael and Chantell Sackett to build a house on wetlands in Idaho, the 9th Circuit Court of Appeals found that:
EPA reasonably determined...more
8/27/2021
/ Appeals ,
Enforcement ,
Environmental Litigation ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Inland Waterways ,
Jurisdiction ,
Mootness ,
US Army Corps of Engineers ,
Water ,
Waters of the United States ,
Wetlands
Last week, the 9th Circuit Court of Appeals ruled that EPA’s decision to withdraw its proposed veto of the Army Corps’ Section 404 permit for the Pebble Mine project in Bristol Bay, Alaska, was subject to judicial review. ...more
On Wednesday, EPA and the Army Corps of Engineers announced that they plan to revise the definition of “Waters of the United States”. Simultaneously, DOJ moved to remand the Navigable Waters Protection Rule, in a challenge...more
Last week, the District of Columbia Court of Appeals affirmed vacatur of the easement issued to the Dakota Access Pipeline by the Army Corps of Engineers. As I noted last month in connection with the Biden Executive Order...more
2/4/2021
/ Appeals ,
Biden Administration ,
Dakota Access Pipeline ,
Energy Sector ,
Environmental Impact Statements ,
Executive Orders ,
NEPA ,
New Legislation ,
Oil & Gas ,
Pipelines ,
US Army Corps of Engineers
Earlier this week, the 4th Circuit Court of Appeals stayed construction of the Mountain Valley Pipeline. The Court did so with a two-sentence order stating that an opinion would follow. The order was issued hours after oral...more
On Wednesday, the D.C. Circuit Court of Appeals stayed the injunction requiring the shutdown of the Dakota Access Pipeline. It’s a victory for the operator, Energy Transfer LP, simply because it lives to fight another day. ...more
Sometimes, history repeats itself. Sometimes, that is not a good thing.
After the Obama WOTUS rule was promulgated in 2015, the challenges came fast and furious, and in multiple forums. The Supreme Court, as I put it,...more
Yesterday, the 9th Circuit Court of Appeals refused the appellants’ request for a partial stay of the injunction recently issued against use of the Army Corps Nationwide Permit 12 for oil and gas pipeline projects...more
Yesterday, EPA and the Army Corps of Engineers finalized their revisions to the definition of Waters of the United States. There’s nothing in here that everyone didn’t already know. The agencies largely sidestepped the...more
At the end of the December, the EPA Science Advisory Board posted the text of a letter that the SAB intends to send to Administrator Wheeler concerning the administration’s proposed revision to the WOTUS rule. The SAB’s...more
1/9/2020
/ Clean Water Act ,
Environmental Protection Agency (EPA) ,
Groundwater ,
Navigable Waters ,
Proposed Rules ,
Science Advisory Board ,
Scientific Research ,
US Army Corps of Engineers ,
Water ,
Waters of the United States ,
Wetlands
Last week, EPA and the Army Corps of Engineers promulgated the final rule repealing the 2015 rule defining the Waters of the United States. The repeal rule is 172 pages in its pre-publication version. The word “science” is...more
When the Supreme Court decided that the district courts had jurisdiction over challenges to the Obama administration WOTUS rule, I described it as a victory of the “give me a break” doctrine of statutory interpretation over...more
A lot of proverbial ink has been spilled regarding the Trump administration’s proposal to amend the definition of “waters of the United States” under the Clean Water Act. The administration has focused on what it views as a...more
Last week, EPA and the Army Corps issued a Supplemental Notice of Proposed Rulemaking in support of their efforts to get rid of the Obama WOTUS rule. It’s a shrewd but cynical document. It’s shrewd, because it fairly...more
The debate over the definition of “Waters of the United States” goes on and on. I tend to think that Kennedy’s “significant nexus” test was a reasonable approach to making sense of a vague statute. I also think that the Obama...more
President Trump’s infrastructure plan includes a number of important proposals. My initial reaction is consistent with my view of many of the President’s initiatives – he gives regulatory reform a bad name. We do need to...more
2/16/2018
/ Atomic Energy ,
Clean Water Act ,
Environmental Impact Report (EIR) ,
Environmental Protection Agency (EPA) ,
Infrastructure ,
Injunctive Relief ,
NEPA ,
Nuclear Power ,
Regulatory Reform ,
Trump Administration ,
US Army Corps of Engineers ,
Veto Rights
After the Supreme Court decided last spring that Army Corps of Engineers’ Jurisdictional Determinations are final agency action subject to judicial review, I advised the Corps to pick up its marbles and go home. The statute...more
Late last week, the 11th Circuit Court of Appeals rejected challenges to the Army Corps’ Nationwide Permit 21, which allows small surface mining projects to proceed without individual permits under § 404. ...more
In a decision that was not a surprise based on oral argument, the Supreme Court today ruled that Army Corps of Engineers Jurisdictional Determinations concerning “waters of the United States” are final agency action subject...more
According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government. Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are...more
While the litigation over the WOTUS rule wends its tortuous way through the courts, EPA and the Corps have not been idle. Earlier this month, they jointly issued a memorandum on their plans for improving the permitting...more