On November 7, EPA filed a motion asking the D.C. Circuit to remand certain provisions of the CCR Rule for the Agency’s reconsideration.  As background, on September 13, EPA granted USWAG’s and AES Puerto Rico’s petitions for reconsideration of the CCR Rule stating that it was “appropriate and in the public interest” for the Agency to reconsider parts of  the regulation.  EPA’s decision was largely based on the Water Infrastructure Improvements for the Nation (WIIN) Act, which alters the self-implementing nature of the Rule to one implemented through enforceable permit programs.

The United States Supreme Court announced today that it will hear oral argument in the Florida v. Georgia lawsuit on January 8, 2018.  In that case, Florida sought to mandate a statewide water usage cap for Georgia but was held to have failed to establish by clear and convincing evidence that such a remedy would be effective where the U.S. Army Corps of Engineers, a major manager of impoundments along the Chattahoochee River, was not a party to the lawsuit.  The lawsuit represents the most recent battle in the long-running “water wars” among the Southeastern states over the Apalachicola-Flint-Chattahoochee River Basin.

Previously, we reported on the U.S. Fish and Wildlife Service’s (“USFWS”) issuance of the final ESA Compensatory Mitigation Policy (“ESA-CMP”), the first comprehensive treatment of compensatory mitigation under the Endangered Species Act.  Endangered Species Act Compensatory Mitigation Policy, 81 FR 95316 (Dec. 27, 2016).  The policy formalizes the Services’ shift from project-by-project to landscape-scale approaches to planning and implementing compensatory mitigation.  We also reported on the Services’ issuance of a final revised Mitigation Policy in November 2016 intended to serve as an overall umbrella strategy under which more detailed Service sub-policies or guidance documents covering specific activities would be issued.  U.S. Fish and Wildlife Service Mitigation Policy, 81 FR 83440 (Nov. 21, 2016).  Both policies focus on using mitigation to achieve a “net conservation benefit.”

In an October 16, 2017 order signed by EPA Administrator Scott Pruitt, EPA reversed a position it has held for many years — that the Agency has authority, in the context of Title V permitting, to review previous state-level decisions on the applicability of new source permitting requirements.  The new policy outlined in the October 16 order removes the Title V petition to object as an avenue for citizens to seek EPA review of state preconstruction permitting decisions.

EPA issued what the Agency is calling “Round 1” of final area designations under the 2015 ozone standard on November 6, 2017. The designations, which will be published in the Federal Register tomorrow, November 16, and become effective 60 days later, include only those counties, tribal areas, and territories that EPA has designated “attainment/unclassifiable” — totaling 2,646 counties. EPA also designated 3 counties in the state of Washington as “unclassifiable.” EPA did not designate any nonattainment areas as part of the final rule, but simply noted that it is “not yet prepared to issue designations” for the remaining areas of the U.S.

EPA is currently facing litigation over its June 2017 announcement extending the deadline for designating areas under the 2015 ozone NAAQS by one year, to October 2018, even though the Agency later reversed that decision. On July 12, 2017, a dozen environmental and public health groups sued EPA in the D.C. Circuit Court of Appeals, claiming the Agency did not have authority to extend the deadline for designating areas under the Clean Air Act. Fifteen states followed in their footsteps, filing their own lawsuit challenging the delay on August 1. EPA responded the following day by publicly announcing its intent to withdraw the deadline extension and published official notification of the withdrawal in the Federal Register on August 10. (82 Fed. Reg. 37,218.)

On November 9, 2017, on the heels of New Jersey’s move to set a maximum contaminant level for certain perfluoroalkyl substances, California’s Office of Environmental Health Hazard Assessment (OEHHA) added perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) to the list of chemicals known to the state of California to cause reproductive toxicity (also known as the Prop 65 list).

On November 2, EPA announced that it plans to hold the public hearing on the proposed repeal of the Clean Power Plan in Charleston, West Virginia and the Agency is extending the deadline for written comments on the rule until January 16, 2018.   The hearing will be held on November…

On October 25, 2017, EPA Region 6 announced a settlement with Macy’s department stores for alleged violations of hazardous waste regulations.  In the press release, EPA alleged that Macy’s generated thousands of pounds of hazardous waste between 2012 – 2015 and qualified as a small-quantity generator but failed to…

FERC released a policy statement on October 19, 2017, revising its longstanding approach to setting the license terms for hydroelectric projects.  The new policy establishes a default term of 40 years for non-federal projects, which can be shortened or extended in certain identified circumstances.  According to Section 6 of the Federal Power Act, the term of a license may not exceed 50 years — the Act sets no minimum license term.  It has been FERC’s policy to set a 50-year term for licenses issued to federal projects and to base the license term for non-federal projects on the level of redevelopment, new construction, or environmental mitigation and enhancement slated for the project.  For projects involving little to no activity, FERC has set a 30-year term, for a moderate amount of activity, a 40-year term, and for extensive activity, a 50-year term.