Last Thursday, in South Carolina Coastal Conservation League v. Pruitt, South Carolina Federal District Court Judge Norton issued an order which made the Waters of the United States (WOTUS) Rule take effect in twenty-six states. As background, the CWA prohibits discharges to WOTUS without a permit, but does not define the term. In 2015, the Obama Administration finalized the WOTUS Rule, which applied an expansive meaning to the term to broaden federal jurisdiction. In October 2015, the Sixth Circuit delayed the effective date of the WOTUS Rule pending judicial review. In January 2018, the Supreme Court concluded its review and ordered that the Sixth Circuit, among other actions, lift its stay of the Rule. In order to delay the implementation of the WOTUS Rule, the Trump Administration responded with yet another rulemaking – referred to as the “Suspension Rule” – which delayed the effective date of the WOTUS Rule by two years while the Administration considered a replacement for the Obama-era WOTUS Rule.
The Supreme Court has declined to review the U.S. Court of Appeals for the Second Circuit’s January 2017 decision in Catskill Mountains Chapter of Trout Unlimited, Inc. et al. v. U.S. EPA reinstating the U.S. Environmental Protection Agency’s (the “EPA”) Water Transfers Rule, meaning the Second Circuit’s decision reinstating the Rule will stand. The Water Transfer Rule, issued by EPA in 2008, formalized EPA’s historic practice of excluding water transfers between water basins from the Clean Water Act’s (“CWA”) National Pollutant Discharge Elimination System (“NPDES”) permitting requirements after years of legal battles over EPA’s informal policies regarding interbasin transfers.
Attorney General Jeff Sessions recently issued a memorandum rolling out a new policy prohibiting settlement payments to third parties. The policy, which is effective immediately, prohibits DOJ attorneys from entering into settlement agreements that include payments to non-governmental organizations or third-party organizations that were not parties to the dispute. The memorandum aims to ensure that settlement funds are used to compensate victims, redress harm, or punish and deter unlawful conduct.
Yesterday a group of organizations with ties to the Shenandoah River sued the EPA claiming that EPA violated the Clean Water Act (CWA) by approving Virginia’s 2014 305(b)/303(d) Water Quality Assessment Integrated Report (Integrated Report) which includes a listing of Virginia’s water quality-impaired rivers. The groups claim that Virginia failed to evaluate data and information showing impairments to the North Fork, South Fork, and main stem of the Shenandoah River and their tributaries (collectively the Shenandoah River) due to algae blooms resulting from nutrient over enrichment, and as a result failed to add the Shenandoah River to the impaired waters list. The groups claim that EPA’s approval of Virginia’s Integrated Report violated the CWA because EPA relied on Virginia’s determination that it is too challenging to apply Virginia’s water quality standards to algal blooms, and therefore EPA failed to require that the Shenandoah River be listed as impaired by excessive algae and that as a result EPA also failed to promulgate a Total Maximum Daily Load (TMDL) for the pollutants causing the impairment in violation of its obligations under CWA § 303(d)(2). Continue Reading Suit against EPA Claims CWA Violations for Approving Virginia’s Water Quality Assessment Integrated Report
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
Among the provisions of President Trump’s March 28, 2017, Executive Order “Promoting Energy Independence and Economic Growth” (the “Executive Order”) is the repeal of President Obama’s November 3, 2015, Presidential Memorandum entitled “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment” (the “Obama Memorandum”). The Executive Order also directed all agencies to identify “Agency Actions” (existing regulations, orders, guidance documents, polices, and other similar agency actions) arising from the Obama Memorandum and, as appropriate, and “as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules [to do so]…”
In a brief ceremony yesterday, President Trump signed an Executive Order requiring EPA and the U.S. Army Corps of Engineers to review the final “Clean Water Rule,” also known as the Waters of the United States (WOTUS) Rule to ensure it is consistent with a new policy also laid out in the order to keep the Nation’s navigable waters free from pollution “while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles played by Congress and the States under the Constitution.” Although implementation of the Rule has been stayed by the U.S. Court of Appeals for the Sixth Circuit pending further court review, the Executive Order also requires EPA and the Corps to review all orders, rules, regulations, guidelines, or policies implementing the Rule and to revise or rescind such rules consistent with the Executive Order.
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.
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.”
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