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
On Wednesday, President-Elect Donald Trump’s transition team announced that Trump will name Oklahoma Attorney General Scott Pruitt as the next Administrator of the U.S. Environmental Protection Agency. In a statement that same day, the transition team quoted Pruitt as stating that he “intend[s] to run th[e] agency in a way that fosters both responsible protection of the environment and freedom for American businesses.”
EPA has released “EJ 2020 Action Agenda,” its action plan for addressing environmental justice (“EJ”) for 2016 through 2020. The Agenda builds on the foundation established in its last EJ strategic plan, Plan EJ 2014, which laid the groundwork of EJ practices with guidance and tools to integrate EJ in EPA’s programs and policies. The Agenda is framed by three overarching goals with priority areas and examples of key actions for each goal, as well as measures to evaluate progress.
The U.S. Fish and Wildlife Service (FWS) has released a National Listing Workplan outlining its planned approach to address a backlog of Endangered Species Act listing petitions and critical habitat decisions for species over the next seven years. The Workplan includes 30 candidate species that FWS previously determined warrant ESA protection, as well as 320 other species based on third party listing petitions, and 11 species FWS has determined to evaluate as discretionary status reviews. Continue Reading FWS Announces Work Plan for ESA Listing and Critical Habitat Decisions Through 2023
In its response to comments calling for a Section 7 consultation under the Endangered Species Act (“ESA”) for its recently revised Cadmium Water Criteria, EPA determined that the appropriate time for ESA consultation is during the state adoption process. Several groups, including the National Marine Fisheries Service (“NMFS”), the Center for Biological Diversity, and the California State Water Resources Control Board all submitted public comments on the proposed criteria changes recommending ESA consultation. The groups argued that due to the frequent adoption of the federal criteria by states, EPA should consult with NMFS in order to insure species protection. The groups further argued that deferring consultation until the state adoption process resulted in a “piecemeal approach” that leaves EPA’s adoption process “legally vulnerable.”