On December 11, 2018, the Environmental Protection Agency (“EPA”) and the Department of the Army (“DOA”) (“Agencies”) released their much-anticipated Notice of Proposed Rulemaking (“Proposed Rule”), which if adopted would scale back the jurisdictional reach of the Clean Water Act (“CWA”) by narrowing the definition of “Waters of the United States” (“WOTUS”) to include only those waters that are oceans, rivers, streams, lakes, ponds, and wetlands, and their “naturally occurring surface water channels.” The practical implications for project proponents of the Proposed Rule are that ephemeral streams and many ponds and ditches used in agricultural, industrial and construction activities would no longer be within the jurisdictional reach of the CWA, alleviating the requirement for and uncertainty surrounding permitting requirements and related mitigation measures. The next step in the Proposed Rule’s process is publication in the Federal Register, after which the Agencies will accept public comments on the proposal until 60 days after Federal Register publication.
The Trump administration is expected to announce a new proposed definition of “waters of the United States” (WOTUS) which would reverse the expansions adopted under the Obama administration’s controversial WOTUS rule, significantly narrowing the number of waterways and wetlands that fall within the jurisdictional scope of the Clean Water Act (CWA).
Continue Reading Trump Administration to Propose Narrowing “WOTUS”
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 most recent development in the decades-long water wars between Georgia, Florida, and Alabama occurred today at the Supreme Court. In a 5-4 decision, Justices Breyer, Roberts, Kennedy, Ginsburg, and Sotomayor overruled the Special Master’s February 14, 2017 decision and remanded the case back to him for further consideration on factual issues. In his decision, the Special Master dismissed Florida’s claim against Georgia for its consumptive use of water from the ACF River Basin, stating that Florida failed to carry its burden of demonstrating that a limit on Georgia’s water consumption would make any difference to Florida’s economic and ecological harm.
On June 11, 2018, the Supreme Court summarily affirmed the Ninth Circuit’s opinion in United States v. Washington through a 4-4 split, with Justice Kennedy taking no part in the decision due to his involvement in similar cases during his time as a circuit judge on the Ninth Circuit. The immediate effect of the high court’s decision will be to require the State of Washington to replace or modify, at the State’s expense, several hundred culverts placed in streams under roads and bridges throughout the State. In the longer run, however, the decision could have much more far-reaching impacts related to federal and state obligations to protect against habitat degradation of salmon and other aquatic species pursuant to their obligations under several Nineteenth Century treaties reached with Native American Tribes in the Pacific Northwest.
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.
On February 1, 2018, the Ninth Circuit published Hawai’i Wildlife Fund v. County of Maui, which applied Clean Water Act (CWA) permitting requirements to well wastewater injections that migrate to the Pacific Ocean through groundwater.
The scope and definition of critical habitat under Section 4 of the Endangered Species Act has been a controversial subject. In 2012, the U.S. Fish and Wildlife Service designated 6,477 acres of land in Louisiana (including 1,600 privately-owned acres) as critical habitat for the dusky gopher frog, despite the fact that the frogs have not been seen in the state for decades. Timber company Weyerhauser Co. and private landowner Markle Interests LLC filed suit challenging that designation. Subsequent to the critical habitat designation for the dusky gopher frog, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) promulgated new critical habitat rules that authorized, among other things, the designation of areas where a species was not actually present as critical habitat for that species. Thus, the outcome of this case has significant implications for these 2016 rules.
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.
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.”