Today the Supreme Court issued its order list from its February 15 Conference during which it considered whether to grant certiorari in two pending petitions regarding discharges of pollutants to groundwater that is hydrologically connected to surface water. The Court granted certiorari in County of Maui, HI v. Hawaii Wildlife Fund, et al. only as to the question of “whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.”

The Court did not take action on the other pending petition regarding this issue in Upstate Forever v. Kinder Morgan. However, the Supreme Court has shown interest in the Upstate Forever case as well, asking the Solicitor General to file a brief expressing the views of the United States. The Solicitor General filed its brief on January 3, 2019 stating that Supreme Court review is warranted in the case but asking the Court to hold the petition in Upstate Forever until the Court’s disposition of the Count of Maui petition, which is the course the Supreme Court has now taken. For now, the Supreme Court will hear at least one case on this issue which is not unexpected given the Circuit split between the Fourth, Sixth, and Ninth Circuits.

EPA recently released its FY 2018 Enforcement Results highlighting the environmental benefits reaped from its enforcement and compliance assurance actions over the past year.  This year’s report shows a marked shift away from previous years’ reports, which focused on the number of cases initiated and resolved and the amount of penalties imposed.  Overall enforcement numbers declined over previous years, with a continuing decline in inspections from 10,612 in FY 2018 compared to 11,941 in FY 2017, fewer cases initiated and concluded, and few penalties imposed from $69.4 million in FY 2018 compared to $1.67 billion in FY 2017.  To contextualize the penalty reduction, EPA notes that annual penalty totals are often skewed by one or two large cases in a particular year, such as the Volkswagen mobile source defeat device enforcement with $1.45 billion in penalties in FY 2017 and the $5.7 billion in penalties assessed in FY 2016 for the BP oil spill.  Despite other reductions, the report shows an increase in enforcement of environmental crimes for FY 2018.

Continue Reading EPA Releases 2018 Enforcement Results Showing Declining Enforcement, Shifting Priorities

The Trump Administration’s proposed rule regarding the definition of Waters of the United States under the Clean Water Act (“WOTUS Rule”) was published yesterday in the Federal Register.  The EPA and U.S. Army Corps of Engineers will receive comments on the proposal until April 15, 2019.  As covered in a previous blog post, a pre-publication version of the proposed rule was initially released in December 2018, which is substantively the same as the version published yesterday.

On February 6, 2018, David Ross, EPA’s Assistant Administrator for the Office of Water issued a new guidance memorandum updating the Agency’s Water Quality Trading Policy.  The new guidance strongly supports and promotes trading and flexibility and clarifies EPA’s previous guidance, stating, for example, that its 2003 Water Quality Trading Policy “may be too prescriptive to be widely effective and implementable.”  The guidance announces six “Market-Based Principles” designed to encourage and promote the development and implementation of market-based pollutant reduction programs.  The six principles include:

Continue Reading EPA Issues Guidance Updating Water Quality Trading Policy

On January 23, 2019 and February 6, 2019, OSHA and EPA, respectively, published their annual civil monetary penalty adjustments in the Federal Register. The Federal Civil Penalties Inflation Adjustment Act of 2015 requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. The annual inflation adjustments are based on a cost-of-living multiplier determined by changes to the Consumer Price Index. Continue Reading EPA and OSHA Publish Annual Inflation Adjustments to Civil Penalty Amounts

EPA recently released the pre-publication version of its proposed National Compliance Initiatives for FY 2020-2023.  Notably, consistent with Susan Bodine’s August 21, 2018 Memorandum “Transition from National Enforcement Initiatives to National Compliance Initiatives,” EPA has extended the cycle from two years to four years, moved away from sector targeting, and updated its focus for FY 2020-2023 from enforcement to compliance initiatives.  EPA believes this adjusted focus will “better convey the overarching goal of increased compliance and the use of not only enforcement actions, but the full range of compliance assurance tools.”

Continue Reading EPA Proposing FY 2020-2023 National Compliance Initiatives

Earlier this week, the Supreme Court ruled that federal district courts, rather than appellate courts, are the proper venue to challenge the “Waters of the United States” (“WOTUS”) Rule (discussed in a previous blog post here), an Obama-era regulation that expansively defined waters subject to Clean Water Act jurisdiction.  Following the Supreme Court decision, the Eleventh Circuit on Wednesday vacated its 2015 decision which held the opposite.  In doing so, it also remanded a challenge to the WOTUS Rule brought by a coalition of states (led by Georgia) in 2015 in the federal district court in Brunswick, Georgia.

Continue Reading Challenge to WOTUS Rule Heads Back to Georgia District Court

Today, in a much-anticipated decision, the Supreme Court unanimously held that district courts are the proper courts to hear challenges to the “Waters of the United States” (“WOTUS”) Rule, an Obama-era regulation that expansively defined waters subject to Clean Water Act jurisdiction.  The decision overturns a Sixth Circuit ruling that federal appeals courts maintain the proper jurisdiction to hear such challenges.  Writing for the Court, Justice Sotomayor found that “Congress has made clear that rules like the WOTUS Rule must be reviewed first in federal district courts.”

Continue Reading Supreme Court Decides Jurisdiction for WOTUS Rule Challenges

As previously reported, President Trump has issued an Executive Order calling on EPA and the U.S. Army Corps of Engineers (Corps) to formally review the “Clean Water Rule” also known as the Water of the United States (WOTUS) Rulemaking. On April 19, EPA laid outs its plans for revising the Clean Water Rule consistent with the Executive Order in a meeting with state and local officials. Continue Reading EPA Sets Out Plans For WOTUS Replacement