On July 20, 2018, President Trump signed into law two pieces of legislation alleviating complex federal land use issues for two FERC-licensed hydropower projects in Alaska.  Strongly supported by the entire Alaska congressional delegation, Public Law No: 115-200 and Public Law No: 115-201 respectively allow the Swan Lake Hydroelectric Project (“Swan Lake”) and Terror Lake Hydroelectric Project (“Terror Lake”) to pursue needed and scheduled updates to their operations to maintain sufficient electric capacity for their customers in the Last Frontier.

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.

On April 26, 2018, a North Carolina jury awarded 10 neighbors $51 million in the first North Carolina hog farming case to be heard before U.S. District Judge W. Earl Britt.  Almost a week later on May 9, 2018, Judge Britt reduced the jury’s award of $23 million in punitive damages to nearly $3 million in punitive damages because of a North Carolina state law that limits punitive damages to $250,000-per-plaintiff.  This was the first case tried of 26 lawsuits brought by 500 neighbors complaining about hog operations in eastern North Carolina against Smithfield Foods, the world’s largest pork producer.

On July 30, the United States Fish and Wild Service (“USFWS”) published notices in the Federal Register withdrawing the USFWS Mitigation Policy and the Endangered Species Act Compensatory Mitigation Policy (“ESA-CMP”). Both of these policies were published in late 2016, at the tail end of the Obama Administration.

On July 20, the U.S. Fish Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) released pre-publication versions of three proposed rules that would significantly affect applicability and implementation of the Endangered Species Act (“ESA”). These regulations relate to the process and standards for listing species and designating critical habitat, the scope of protections for threatened species, and the process for consultations with federal agencies under Section 7.

In addition to implementing the Trump Administration’s general deregulatory goals and Executive Order 13777, several of these proposed changes appear directly responsive to negative court precedent from the Ninth Circuit that the Services indicate improperly have extended the ESA beyond its intended scope, while other changes are intended to rollback expansions that were implemented by the Obama Administration.

On June 18, 2018, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (USACE) clarified their guidelines for when offsets are required for wetlands impaired by development on the Last Frontier.  The new policy recognizes the uniqueness of Alaska for wetlands permitting, by allowing alternatives and flexibility related to compensatory mitigation as Alaska is home to 174 million acres of wetlands covering 43 percent of the land area.

On June 27, 2018, the Environmental Protection Agency (“EPA”) submitted its final Management Standards for Hazardous Waste Pharmaceuticals rule (“Pharm Rule”) to the Office of Management and Budget (“OMB”), which is charged with reviewing every final and proposed federal agency rule before its publication in the Federal Register.  EPA published…

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.