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:
AG Sessions Issues Policy Prohibiting Third Party Payments in Settlement Agreements
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.
Suit against EPA Claims CWA Violations for Approving Virginia’s Water Quality Assessment Integrated Report
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).
EPA Sets Out Plans For WOTUS Replacement
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.
Trump and Zinke Orders Set Stage for Review of Federal Mitigation Policy
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, policies, 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]…”
Trump Issues Executive Order Compelling EPA and the U.S. Army Corps of Engineers to Formally Review WOTUS
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.
4th Circuit Clarifies Application of Clean Water Act Permit Shield, Requires Strict Permit Compliance
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.”
Army Corps rolls out guidance to help determine jurisdiction
The United States Army Corps of Engineers has issued its first Regulatory Guidance Letter (“RGL”) in 8 years. The new RGL supersedes two previous guidance letters (RGL 07-01 “Practices for Documenting Jurisdiction under Sections 9 & 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act” and RGL 08-02 “Jurisdictional Determinations.”) and describe differences between “approved” jurisdictional determinations (“AJDs”) and “preliminary” jurisdictional determinations (“PJDs”). Issuance of RGL 16-01 appears to be motivated by a recent US Supreme Court decision holding that “approved” jurisdictional determinations are subject to judicial review (US Army Corps of Engineers v Hawkes Co., 136 S.Ct. 1807 (2016)) and questions on that decision’s impact on the Corps’ willingness to issue JDs.
Virginia Governor, EPA Administrator, U.S. Department of Agriculture Secretary and CEQ Chair join together to laud Virginia’s stormwater nutrient trading program and Troutman Sanders client
Virginia Governor Terry McAuliffe, U.S. EPA Administrator Gina McCarthy, U.S. Department of Agriculture Secretary Tom Vilsack, and Mike Boots of the White House Council on Environmental Quality, joined together last week to compliment and promote Virginia’s stormwater nutrient trading program. All noted the multiple environmental and economic benefits of Virginia’s program and held it out as an example to be followed in other states. Brent Fults of Troutman Sanders client Chesapeake Bay Nutrient Land Trust (CBNLT) also spoke at the event and was recognized as a leading private investor building Virginia’s market based nutrient trading program.
Secretary of Interior Issues Order on Improving Mitigation Policies and Practices
Mitigation banking has been highlighted in a new order issued by the Secretary of the Department of Interior. Secretary Jewell signed her first Secretarial Order on October 31, 2013, calling for the establishment of a Department of Interior mitigation strategy for developments occurring on DOI managed lands. Order No. 3330 (“Order”) directs the previously established DOI Energy and Climate Change Task Force (“Task Force”) to develop a coordinated strategy on mitigation practices to “effectively offset impacts of large development projects of all types through the use of landscape-level planning, mitigation banking, in-lieu fee arrangements, or other possible measures.”