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The U.S. Army Corps of Engineers (USACE) released the Apalachicola-Chattahoochee-Flint (ACF) River Basin Water Control Manual and draft Environmental Impact Statement (EIS) for state and agency review on December 7, 2016.  The U.S. Environmental Protection Agency will publish the final EIS on Dec. 16, 2016.  The review period will end on Jan. 14, 2017.

The cast party following the wrap of the month long trial between Florida and Georgia known as the water wars may not be the social event of the season for the participants who exited the case largely as they entered it:  in opposite corners.  A decision on the water turf…

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.

One of the storied college football rivalries is the annual gridiron battle of teams of the University of Georgia and University of Florida.  Last weekend’s football battle, held at the Jacksonville site where the Tri-State Water Wars between Florida, Alabama, and Georgia were heard in Multi-District Litigation five years ago, ironically tipped off the Supreme Court litigation between Florida and Georgia that commenced on October 31.  Special Master Ralph Lancaster, sitting by designation of the Supreme Court of the United States, heard opening remarks in the three year old case of Florida v. Georgia, Supreme Court Docket No. 142, which is proceeding under the original jurisdiction of the Court.  At issue is Florida’s assertion that it should be granted a consumption cap for its upstream neighbor in the Apalachicola-Chattahoochee-Flint (“ACF”) basin based upon a claim of a substantial injury predicated on a variety of theories.  Florida ceded away any claim of delivery of a specific amount of water at the state line earlier in the litigation.  To prevail, Florida must demonstrate by clear and convincing evidence a substantial injury that is redressable by the Court.

On Friday, October 7, 2016, several industry trade organizations and associations, as respondents, filed a brief requesting that the U.S. Supreme Court review the fractured decision of the Sixth Circuit to exercise jurisdiction over various challenges to the EPA-Army Corps issued Waters of the United States (”WOTUS”) Rule under the Clean Water Act (“CWA”).

EPA defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” On June 7, 2016, EPA released its final version of the Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (EJ Technical Guidance). EPA previously released a draft version of this guidance on May 9, 2013.  The new guidance complements EPA’s Guidance on Considering Environmental Justice During the Development of Regulatory Actions, issued in May 2015, which provides direction on when EJ should be considered during the development of a “regulatory action,” and begins to address the issue of how to do so in an analytical fashion. A “regulatory action” is “any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.”

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.

On March 31, 2016, federal Judge Sharon Gleason sentenced the former Chief Operating Officer for mining company XS Platinum to one year in jail for his role in discharging pollutants in violation of the Platinum Creek Mine (Alaska) NPDES permit. The COO – James Slade – was convicted of one misdemeanor and one felony CWA violation for his role in allowing excess pollutants from mining discharges to enter the Platinum Creek and Salmon River.  The court noted that state agencies had issued two previous warnings to stop the pollution.