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Yesterday, the U.S. District Court for Montana amended its April 15, 2020, order vacating Nationwide Permit (NWP) 12, which authorizes minimal impacts from “utility line activities” to jurisdictional waters. As we previously reported, despite the case centering on the Keystone XL Pipeline, the court’s April 15 order vacated NWP 12 nationwide for all activities (including broadband, electric, water and sewer) until the U.S. Army Corps of Engineers (Corps) consults with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) pursuant to the Endangered Species Act (ESA). In yesterday’s order, the court amended the vacatur’s applicability by limiting it to the construction of new oil and gas pipelines. Under the amended order, the Corps may continue to authorize the use of NWP 12 for construction of new utility lines for broadband, electric, water, and sewer, as well as “maintenance, inspection, and repair activities” on existing utility lines, including existing pipelines.

Continue Reading Montana District Court Limits Its Vacatur of Nationwide Permit 12

As we previously reported, the Federal District Court for Montana vacated the U.S. Army Corps of Engineers (Corps) Nationwide Permit (NWP) 12 on April 15, 2020, finding that the Corps had failed to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service prior to issuing NWP 12. Despite the case centering on the Keystone XL Pipeline, the court’s decision vacated NWP 12 nationwide and prevents the Corps from authorizing a broad range of utility projects that are unrelated to the Keystone XL Pipeline.

Continue Reading Update: Corps Seeks Stay of Montana District Court’s NWP 12 Ruling

Today the U.S. Supreme Court issued its long-awaited opinion in County of Maui v. Hawaii Wildlife Fund, addressing whether the Clean Water Act (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 issue has historically been controversial and

On April 21, 2020 the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) published the final rule narrowing the meaning of the Clean Water Act (“CWA”) term “waters of the United States,” which represents the culmination of one of President Trump’s key environmental agenda items. The Trump Administration’s

EPA and the U.S. Army Corps of Engineers’ new rule repealing the 2015 “Clean Water Rule,” will be published in the Federal Register tomorrow.

The “repeal rule” will take effect December 20, 2019, providing nationwide consistency regarding the jurisdiction of Waters of the U.S. and ending the current state-by-state patchwork of where the

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

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

On December 16, the U.S. Army Corps of Engineers (the Corps) issued a proposed rule to update and clarify its policies governing the use of its reservoir projects for domestic, municipal and industrial water supply under Section 6 of the Flood Control Act of 1944, 33 U.S.C. § 708 and the Water Supply Act of 1958, 43 U.S.C. § 390b. This is the first time the Corps has proposed a rule to set policy on these important issues.
Continue Reading U.S. Army Corps of Engineers Releases First Ever Proposed Rule Governing Use of Its Reservoirs for Water Supply

The U.S. Army Corps of Engineers is soliciting comments on the proposed reissuance and modification of the existing nationwide permits (NWPs), general conditions, and definitions. The Corps proposes to add two new NWPs and one new general condition and seeks comment on several modifications to the existing NWPs, general conditions, and definitions.
Continue Reading Proposal to Reissue and Modify Nationwide Permits