The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the “Corps”) (together the “Agencies”) have continued working on a proposed rule to revise the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA or Act), which will soon move to the next stage of agency consideration.[1] The outcome of these rulemaking efforts will impact countless regulated parties, from solar developers to manufacturers, and heavily regulated industry.
Continue Reading Biden Administration Presses Forward With Revised WOTUS Rule
WOTUS
Ross Says Long-Term Focus Shaped Water Policies During Trump EPA
Dave Ross, a partner in Troutman Pepper’s Environmental and Natural Resources Practice Group, was interviewed in the InsideEPA.com article, “Ross Says Long-Term Focus Shaped Water Policies During Trump EPA.”
Dave Ross, Longtime Public Servant in Federal and State Environmental Agencies, Joins Troutman Pepper
Ross Brings Unique Background of Federal, State and Private Sector Experience to Firm, Expanding Environmental and Natural Resources Practice
WASHINGTON (January 11, 2021) – Dave Ross, a longtime public servant who has held key leadership positions in federal and state environmental agencies, has joined Troutman Pepper as a partner in the firm’s Environmental and Natural Resources Practice Group in Washington, D.C. Ross’ policy background, along with a distinctive combination of federal, state and private sector experience, will significantly expand the capabilities of the firm’s 50-attorney national environmental practice, which serves clients in a variety of industries across the United States.…
Federal Courts Reach Opposite Conclusions Regarding Implementation of the Navigable Waters Protection Rule
By Andrea Wortzel, Fitzgerald Veira, Byron Kirkpatrick, Brooks Smith, Patrick Fanning, Ashley Cameron & Rich Pepper on
In the past two weeks, two federal district courts reached seemingly opposite conclusions regarding the implementation of the U.S. Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ (“the Agencies”) Navigable Waters Protection Rule (“the Rule”). The Rule, which took effect on June 22, narrows the term “waters of the United States” and, thereby, the scope of waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The Rule has been a top priority for the Trump Administration under its two-step process to repeal the Obama Administration’s 2015 rule, which expanded the scope of the CWA, and replace it with a rule that provides more distinct clarity as to which waters are jurisdictional. States, environmental groups, and other interested parties have filed lawsuits across the country challenging the Rule and requested courts issue preliminary injunctions to prevent it from taking effect.
Continue Reading Federal Courts Reach Opposite Conclusions Regarding Implementation of the Navigable Waters Protection Rule
Trump Administration Releases Final WOTUS Rule
By Fitzgerald Veira, William Droze, Patrick Fanning, Houston Shaner, Morgan Gerard, Rich Pepper & Mandi Moroz on
On January 23, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers (collectively, “Agencies”) released the pre-publication version of the much-anticipated final rule narrowing the meaning of the term “waters of the United States,” which defines waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The final rule, called the “Navigable Waters Protection Rule,” represents the latest development in the Trump Administration’s extensive effort to repeal and replace the Obama Administration’s 2015 rule redefining the term (“2015 Rule”) and will become effective 60 days after its publication in the Federal Register.
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Continue Reading Trump Administration Releases Final WOTUS Rule
Army Corps Agrees to Obtain Clean Water Act Permit to Operate Federal Hydroelectric Dam
By Chuck Sensiba, Angela Levin & Morgan Gerard on
On November 22, 2019, the Army Corps of Engineers (Corps) agreed to obtain a National Pollutant Discharge Elimination System (NPDES) permit for the operation of the federally owned and operated Chief Joseph Dam, the second-largest hydropower producing dam in the United States, as part of a settlement with the Columbia Riverkeeper. The settlement resolves litigation (previously addressed on this blog) brought by the Columbia Riverkeeper, which claimed that the Corps’ dam operations had long been discharging oil, grease, and heated water into the Columbia River without a permit.
Sections 301(a) and 402 of the Clean Water Act (CWA) prohibit anyone, including a federal agency, from discharging “pollutants” through a “point source” into a “water of the United States” except as authorized by a NPDES permit. Section 505 of the CWA provides any citizen, including a citizen group like Columbia Riverkeeper, the ability to bring a civil action against any person, including the United States, that is violating an effluent standard or limitation. As detailed by its complaint, the Columbia Riverkeeper alleged that the Corps has been in violation of CWA standards by allowing oils and grease to accumulate in sumps that drain into the river and utilizing hydro-carbon based lubricants on generation equipment that become discharged with cooling water without a NPDES permit.
Continue Reading Army Corps Agrees to Obtain Clean Water Act Permit to Operate Federal Hydroelectric Dam
Nationwide WOTUS Certainty in Sight
By Byron Kirkpatrick, Fitzgerald Veira, Brooks Smith, Patrick Fanning & Houston Shaner on
EPA and the U.S. Army Corps of Engineers’ new rule repealing the 2015 “Clean Water Rule,” will be published in the Federal Register tomorrow.
The “repeal rule” will take effect December 20, 2019, providing nationwide consistency regarding the jurisdiction of Waters of the U.S. and ending the current state-by-state patchwork of where the…