On January 12, 2017, EPA published a final rule adjusting for inflation the civil monetary penalty amounts for the statutes it administers. This most recent adjustment follows on the heels of a major adjustment finalized in July 2016.  These adjustments are mandated by 2015 revisions to the Federal Civil Penalties Inflation Adjustment Act.  The new law required agencies to make initial “catch-up” adjustments by July 2016, followed by annual inflation adjustments beginning January 15, 2017.  In the past, EPA only adjusted penalty levels for inflation once every several years.

The Supreme Court granted certiorari today in the long running dispute as to whether the federal district courts or appellate courts have jurisdiction to decide the viability of the Waters of the U.S. (WOTUS) Rule under the Clean Water Act.  The controversial definitional section proposed for the CWA would expand…

On January 11, the U.S. Fish and Wildlife Service (FWS) published its final listing of the Rusty Patched Bumble Bee as endangered under the Endangered Species Act (ESA).  A proposed listing of the bee was previously published in September 2016.  The decline in the species is due to a number of factors such as pathogens, pesticides, habitat loss and degradation, small population dynamics, and the effects of climate change.

The U.S. Circuit Court of Appeals for the Fourth Circuit recently upheld the U.S. District Court for the Southern District of West Virginia’s decision that a West Virginia coal mine was not shielded from Clean Water Act violations where its National Pollutant Discharge Elimination System (NPDES) permit includes a boiler plate provision requiring compliance with applicable water quality standards.  In Ohio Valley Environmental Coalition (OVEC) v. Fola Coal, the Court held that the mining company did not comply with this term of its permit and therefore was not shielded from enforcement under the Clean Water Act’s section 402(k) “permit shield.”

As mentioned in a previous blog post, EPA recently issued a pre-publication version of the new regional haze regulations. EPA’s “pre-publication” version of the rule stated that the regulations would become effective thirty days after publication in the Federal Register. However, in the published version of the rule in…

On December 15, 2016, EPA issued a pre-publication version of new regional haze regulations. The Agency’s regional haze program regulates emissions affecting visibility in national parks, or “Class I” areas. EPA promulgated the regulations in 1999 with the goal of achieving natural visibility conditions by 2064. Under the program, states must create plans to control visibility-impairing emissions, and must update these plans every “planning period” of ten years.  The new regulations are intended to apply to the second planning period, but will become effective 30 days after the recently released rule is published in the Federal Register, which is scheduled for January 10th.

Georgia and Florida filed post-trial briefs in the Florida v. Georgia U.S. Supreme Court litigation on December 15, 2016.  The same day, the United States filed a brief at the request of Special Master Ralph Lancaster addressing what impact, if any, additional flows along the Flint River might have with regard to the operations of the U.S. Army Corps of Engineers in the ACF River Basin.  The United States declined to take a position on whether the consumption cap arguments by Florida were persuasive and limited its brief to the topic of any prejudice to the Corps utilizing existing and anticipated operations plans.  Georgia and Florida supplemented the record on December 29, 2016, with responses to the parties’ previously filed post-trial briefs.

A number of states, industry groups, companies and environmental groups have filed petitions for review with the D.C. Circuit challenging EPA’s final Cross State Air Pollution Update Rule.  The petitions assert that EPA exceeded its statutory authority and that the rule is arbitrary and capricious.

On December 16, 2016, President Obama signed the Water Infrastructure Investment for the Nation Act (WIIN) (S. 612).  As one of the last pieces of legislation by Congress this session, the Act gives the Environmental Protection Agency (EPA) authority to approve state permitting programs for coal combustion residuals units (CCR units).  The Act also affects other areas of water resources, ranging from the remediation of lead piping in Flint, Michigan to studies addressing the California drought.

On December 16, the U.S. Army Corps of Engineers (the Corps) issued a proposed rule to update and clarify its policies governing the use of its reservoir projects for domestic, municipal and industrial water supply under Section 6 of the Flood Control Act of 1944, 33 U.S.C. § 708 and the Water Supply Act of 1958, 43 U.S.C. § 390b. This is the first time the Corps has proposed a rule to set policy on these important issues.