ISSUE: WPR Top Stories

DOJ Urges Appellate Court To Reverse Stay Of WOTUS Rule In Colorado

The Justice Department (DOJ) is urging an appellate court to overturn a judicial stay of the Trump administration’s narrowed “waters of the United States” (WOTUS) definition in Colorado, arguing the lower court erred in its analysis of Colorado’s likelihood of success on the merits and that the state failed to show it will be irreparably harmed by the rule. “At most, one could speculate that Colorado will have to choose whether to bring one or two additional enforcement actions” as...

Amid Sparring Over EPA Policies, House Democrats Advance FY21 Bill

House Appropriations Committee Democrats are advancing their fiscal year 2021 spending bill for EPA after adding a new provision blocking the agency’s controversial science “transparency” rule and rejecting Republicans’ attempts to scrap existing provisions in the bill that block other Trump administration environmental policies. During a July 10 markup by the full appropriations panel, lawmakers did not alter the bill’s spending levels for EPA, which would see an increase in overall funding by roughly 3 percent from just over $9...

Despite High Court Order, Use Of CWA General Permit Remains Uncertain

Despite the Supreme Court’s decision this week clearing the way for the use of a Clean Water Act (CWA) general permit for most pipeline construction, unresolved questions about how to assess endangered species impacts from the projects creates uncertainty over whether they can proceed, legal experts say. The Supreme Court July 6 lifted a national injunction on the use of nationwide permit 12 (NWP 12) for new oil and gas pipelines -- except for the controversial Keystone XL pipeline --...

Unified Agenda Signals Delays For Major EPA Waste, Water Office Policies

Several major EPA water and waste office rulemakings face fresh delays according to the agency’s updated Spring Unified Agenda of pending regulations, punting some controversial policies until next year and making it possible that former Vice President Joe Biden’s EPA could reverse the rules if he wins the 2020 presidential election. Timelines for several Office of Water (OW) rules in the agenda updated June 30 have slipped, some significantly, from the fall 2019 agenda, including one rule that will now...

States, Water Utilities Warn Of Confusion With EPA’s Guidance Proposal

State water regulators and utilities are raising concerns about some aspects of EPA’s proposal to create a central repository for all guidance and to develop a formal process for developing or revising guidance, saying it is unclear which documents would be covered by the rule and that a planned 30-day comment period for guides is inadequate. The proposed rule , published in the May 22 Federal Register , would establish several new restrictions on guidance documents, including required public comment...

DOJ Appeals Stay Of WOTUS Rule In Colorado, Fights Bid To Narrow Policy

The Justice Department (DOJ) is appealing a federal district court’s stay of the Trump administration’s narrowed definition of “waters of the United States” (WOTUS) in Colorado to the U.S. Court of Appeals for the 10th Circuit, and is urging a federal court in New Mexico to deny ranchers’ request to stay a small portion of the rule. The appeal was docketed in the 10th Circuit June 25 following DOJ’s June 23 notice to the U.S. District Court for the District...

EPA Weighs Options For Policy ‘Clarity’ With High Court Groundwater Ruling

EPA is grappling with its options for providing policy “clarity” to the Supreme Court’s decision finding discharges of pollutants that travel through groundwater to surface waters can require a Clean Water Act (CWA) permit, says Region 4 chief Mary Walker, including potential rulemaking, guidance, and other measures. On a recent American Bar Association (ABA) webinar, Walker also suggested that states are likely in the best position to make groundwater permitting decisions. “We are assessing the best way that we can...

Judge Claims Power To Issue National WOTUS Stay But Notes Deference

A federal judge in California pushed back on Justice Department (DOJ) suggestions at a June 18 hearing that case law bars him from staying the Trump administration’s waters of the United States (WOTUS) rule on a nationwide basis, although he also said some of the merits arguments from the rule’s critics were hard to understand. Judge Richard Seeborg of the U.S. District Court for the Northern District of California suggested at the end of the hearing that he would aim...

DOJ Seeks Supreme Court Stay Of CWA Pipeline General Permit Vacatur

The Justice Department (DOJ) is asking the Supreme Court to stay a landmark district court ruling that vacated the federal Clean Water Act (CWA) general permit for constructing new oil and gas pipelines, arguing in part that the lower court erred in issuing a nationwide injunction and noting several justices’ recent concerns about universal injunctions. “The amended order would not survive this Court’s review and should be stayed pending appeal,” DOJ says in a June 15 filing with the high...

EPA Narrows CWA 401 Rule But Still Places Major Limits On States’ Power

EPA in its recently signed rule aimed at speeding permitting of energy infrastructure projects modified some provisions from its proposal that were concerning to state regulators, but legal experts say the rule still contains significant limits on states’ ability to require water quality protections for federally permitted or licensed projects. “The final rule still represents a cut back of states’ reach, but it is cut back less drastically than the proposal” in some areas, James McElfish of the Environmental Law...

District Court Says Water Law Requires EPA To Update Oil Spill Rules

A federal court in California has agreed with environmentalists that EPA has a nondiscretionary duty under the Clean Water Act (CWA) to update its rules governing oil spills in order to better regulate dispersants, relying in part on a landmark appellate decision that found EPA had unduly delayed updating its lead paint dust hazard standards. In a precedent-setting June 2 decision , Judge William Orrick of the U.S. District Court for the Northern District of California denied EPA’s motion to...

Rejecting Criticism, EPA Touts CWA 401 Rule’s ‘Cooperative Federalism’

EPA is defending its final Clean Water Act (CWA) rule limiting the scope of state reviews of federally permitted projects’ water quality impacts as defining the appropriate parameters of the agency’s “cooperative federalism” policy balancing EPA and states’ regulatory powers, rejecting calls from critics that the rule undercuts states’ authority. “[T]he final rule does not infringe upon the roles of States as co-regulators, nor does it undermine cooperative federalism,” EPA says in the rule, signed June 1 by EPA Administrator...

9th Circuit Denies Stay Of NWP Ruling Barring New Pipeline Construction

In a major setback for the energy sector and Trump administration, an appellate court has denied an emergency request from the Justice Department (DOJ) and industry to stay a landmark district court ruling that vacated the federal Clean Water Act (CWA) general permit for constructing new oil and gas pipelines. DOJ and the industry parties “have not demonstrated a sufficient likelihood of success on the merits and probability of irreparable harm to warrant a stay pending appeal,” the U.S. Court...

Environmentalists Seek To Broadly Apply High Court’s Groundwater Ruling

Several federal courts are poised to become test beds for applying the Supreme Court’s recent ruling on when pollutants that travel through groundwater to navigable waters require a Clean Water Act (CWA) discharge permit, with environmentalists seeking to reverse recent rulings contrary to the high court’s precedent or apply it to new situations. The Supreme Court’s April 23 ruling in County of Maui v. Hawaii Wildlife Fund, et al. , created a new “functional equivalent” test for determining, on a...

Judge Doubts ‘Harm’ To States From Narrower WOTUS Rule Taking Effect

A federal judge is asking California and other states challenging the Trump administration’s waters of the United States (WOTUS) rule to explain by May 22 why they would face “irreparable harm” from letting the policy take effect June 22 before he rules on whether to stay it, saying it is unclear that the states would suffer such harm. “While plaintiffs’ desire to have their preliminary injunction decided prior to the effective date of the Clean Water Act rule is understandable,...

EPA Weighs ESA Policy Change For States To Assume Wetlands Permitting

EPA is considering changing its position that Endangered Species Act (ESA) consultations are not required before allowing states to assume Clean Water Act (CWA) wetlands permitting after Florida -- one of several states eyeing such permitting authority -- wrote a white paper contending that the consultations are necessary. In a Federal Register notice scheduled for publication May 21, EPA explains its current position, first outlined in 2010 and based on a 2007 Supreme Court ruling, as well as the...

DOJ, Energy Sector Seek To Stay Landmark Ruling Blocking Pipeline Permit

The Justice Department (DOJ) and the energy industry are asking an appellate court to stay the landmark district court ruling that vacated the federal Clean Water Act (CWA) general permit for constructing pipelines, with DOJ and industry citing numerous alleged errors in the lower court’s ruling that they say are likely to be overturned on the merits. A stay of the vacatur pending appeal is “plainly warranted” because the Army Corps of Engineers is likely to succeed in its appeal,...

EPA Critics Threaten ‘Last Resort’ Suit Over Chesapeake Bay Cleanup Plan

Maryland, Virginia, the District of Columbia, and environmentalists are threatening a coordinated suit against EPA for failing to ensure Pennsylvania and New York meet cleanup targets for the Chesapeake Bay, charging the agency is violating statutory requirements unique to the bay that require federal enforcement of the bay’s cleanup plan. “This is a very last resort,” Chesapeake Bay Foundation (CBF) President William Baker said about a pair of notices of intent to sue sent May 18 to EPA Administrator Andrew...

Maui Ruling Could Shape Supreme Court Consideration Of WOTUS Suits

The Supreme Court’s consideration of hydrology in its recent decision finding Clean Water Act (CWA) permits may be necessary for discharges of pollutants that travel through groundwater could lead the court to reject the Trump administration’s definition of waters of the United States (WOTUS) for failing to reflect science, says one legal scholar. But other legal experts downplay the significance of the justices’ April 23 ruling in County of Maui, v. Hawaii Wildlife Fund, et al. , which referenced language...

EPA Poised To Narrow States’ CWA Roles But ‘Lots Of Litigation’ Looms

As soon as this week, EPA could issue a final rule that is expected to significantly narrow the actions states can consider when determining whether a federally permitted project will violate water quality standards and limit states’ ability to mitigate such projects’ adverse impacts, although the rule is likely to spur a lengthy litigation battle. The White House Office of Management and Budget is currently reviewing EPA’s draft final rule updating the Clean Water Act (CWA) section 401 water quality...

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