On December 27, 2016, the U.S. Fish and Wildlife Service (FWS or the Service) issued the final Endangered Species Act (ESA) Compensatory Mitigation Policy (the Policy).  81 FR 95316.  The Policy is the first comprehensive treatment of compensatory mitigation under ESA authority to be issued by the FWS following previous piece-meal and disjointed policies.

Continue Reading Fish and Wildlife Service Issues First Comprehensive Compensatory Mitigation Policy

Applying Chevron deference, the U.S. Court of Appeals for the Second Circuit on January 18, 2017, reversed the Southern District of New York by a 2-1 margin and concluded that the United States Environmental Protection Agency’s (the “EPA”) Water Transfers Rule that permits transfers between waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit was sound.  (Catskill Mountains Chapter of Trout Unlimited, Inc. et al. v. USEPA, et al., U.S. Court of Appeals, Second Circuit, Docket Nos. 14-1823, 14-1909, 14-1991, 14-1997, 14-2003, 2017 U.S. App. LEXIS 914). The controversy stemmed from the transfer of water from the Schoharie Reservoir through the Shandaken Tunnel into the Esopus Creek in New York.  Historically, the EPA has taken a hands-off approach to water transfers, choosing not to subject them to the requirements of the NPDES permitting program established by the Clean Water Act (“CWA”) in 1972.

Continue Reading Second Circuit Gives Thumbs Up To EPA Water Transfers Rule

On January 12, 2017, EPA published a final rule adjusting for inflation the civil monetary penalty amounts for the statutes it administers. This most recent adjustment follows on the heels of a major adjustment finalized in July 2016.  These adjustments are mandated by 2015 revisions to the Federal Civil Penalties Inflation Adjustment Act.  The new law required agencies to make initial “catch-up” adjustments by July 2016, followed by annual inflation adjustments beginning January 15, 2017.  In the past, EPA only adjusted penalty levels for inflation once every several years.

Continue Reading EPA Increases Maximum Civil Monetary Penalty Amounts

The Supreme Court granted certiorari today in the long running dispute as to whether the federal district courts or appellate courts have jurisdiction to decide the viability of the Waters of the U.S. (WOTUS) Rule under the Clean Water Act.  The controversial definitional section proposed for the CWA would expand federal jurisdiction for waterways and wetlands.  Set for review is the U.S. Circuit Court of Appeals for the Sixth Circuit’s decision to hear legal challenges over the rule in lieu of district courts who are considered to be a potentially more favorable venue.  Multiple state, industry and farm groups have challenged the joint U.S. EPA-Army Corps of Engineers’ rule.  In February, the Sixth Circuit ruled 2-1 that it had jurisdiction to hear the challenges rather than the district courts. A nationwide stay of the rule accompanied the Circuit’s ruling pending the resolution of the litigation. The National Association of Manufacturers, along with 31 states, petitioned the Supreme Court to reconsider the Sixth Circuit’s jurisdictional decision.

On January 11, the U.S. Fish and Wildlife Service (FWS) published its final listing of the Rusty Patched Bumble Bee as endangered under the Endangered Species Act (ESA).  A proposed listing of the bee was previously published in September 2016.  The decline in the species is due to a number of factors such as pathogens, pesticides, habitat loss and degradation, small population dynamics, and the effects of climate change.

Continue Reading FWS Lists Rusty Patched Bumble Bee as Endangered

The U.S. Circuit Court of Appeals for the Fourth Circuit recently upheld the U.S. District Court for the Southern District of West Virginia’s decision that a West Virginia coal mine was not shielded from Clean Water Act violations where its National Pollutant Discharge Elimination System (NPDES) permit includes a boiler plate provision requiring compliance with applicable water quality standards.  In Ohio Valley Environmental Coalition (OVEC) v. Fola Coal, the Court held that the mining company did not comply with this term of its permit and therefore was not shielded from enforcement under the Clean Water Act’s section 402(k) “permit shield.”

Continue Reading 4th Circuit Clarifies Application of Clean Water Act Permit Shield, Requires Strict Permit Compliance

As mentioned in a previous blog post, EPA recently issued a pre-publication version of the new regional haze regulations. EPA’s “pre-publication” version of the rule stated that the regulations would become effective thirty days after publication in the Federal Register. However, in the published version of the rule in today’s Federal Register, the rule states that it is immediately effective as of today, January 10, 2017. Making the rule effective immediately makes it more difficult for the Trump Administration to roll it back

On December 15, 2016, EPA issued a pre-publication version of new regional haze regulations. The Agency’s regional haze program regulates emissions affecting visibility in national parks, or “Class I” areas. EPA promulgated the regulations in 1999 with the goal of achieving natural visibility conditions by 2064. Under the program, states must create plans to control visibility-impairing emissions, and must update these plans every “planning period” of ten years.  The new regulations are intended to apply to the second planning period, but will become effective 30 days after the recently released rule is published in the Federal Register, which is scheduled for January 10th.

Continue Reading EPA Revises Regional Haze Rules for Next Planning Period

Georgia and Florida filed post-trial briefs in the Florida v. Georgia U.S. Supreme Court litigation on December 15, 2016.  The same day, the United States filed a brief at the request of Special Master Ralph Lancaster addressing what impact, if any, additional flows along the Flint River might have with regard to the operations of the U.S. Army Corps of Engineers in the ACF River Basin.  The United States declined to take a position on whether the consumption cap arguments by Florida were persuasive and limited its brief to the topic of any prejudice to the Corps utilizing existing and anticipated operations plans.  Georgia and Florida supplemented the record on December 29, 2016, with responses to the parties’ previously filed post-trial briefs.

Continue Reading Special Master Directs Florida And Georgia To Consider Framework For Compromise In Water Wars