Consistent with President Trump’s February 28, 2017 Executive Order, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) announced a joint proposal representing the first step of a two-part plan to implement a more narrow “waters of the U.S.” or “WOTUS” definition. The first step, published in the Federal Register on July 27, 2017, seeks to repeal the 2015 WOTUS rule, and replace prior rules. Continue Reading Next Steps in EPA Deferral to States: Waters of the U.S. Rule Repeal and Replacement

On April 12, 2017, the EPA announced that it will reconsider and administratively stay future deadlines of the 2015 final rule that set new, technology-based effluent limitations guidelines (ELGs) and standards for steam electric power plants under the Clean Water Act. The final rule places significant burden on affected segments of the steam electric power generating industry. While certain requirements of the new ELGs were generally set to become effective as soon as November 1, 2018 through incorporation into NPDES permits, the compliance timetable and future of the final rule is now unclear. Continue Reading EPA Announces Stay of Deadlines and Reconsideration of ELGs for Steam Electric Power Plants

In a big win for the agricultural community, the Iowa Supreme Court recently ruled against Des Moines Water Works (DMWW) in its state law claims against upstream drainage districts for nitrate pollution in the Raccoon River. See Bd. of Water Works Trs. of Des Moines v. SAC Cty. Bd. of Supervisors, No. 16-0076, 2017 WL 382402 (Iowa Jan. 27, 2017). The ruling instructs the federal court to dismiss DMWW’s state law claims (leaving only DMWW’s federal claims, which concern whether the districts should be regarded as ‘point sources’ under the Clean Water Act (CWA)). The ruling means that even if DMWW wins on its federal claims, DMWW—and thus the citizens who consume DMWW water—will have to foot the bill for any future nitrate processing. Continue Reading Ag’s Big Win: Iowa Supreme Court Denies Water Utility’s State Law Claims against Drainage Districts

Under a recent summary judgment decision from a federal district judge, the EPA must continuously examine the effects that certain Clean Air Act (CAA) regulations have on employment in the coal industry specifically and other industries more broadly. This means the EPA will be subject to increased requirements before taking action under the CAA. The ruling also suggests that additional requirements could be imposed on the EPA under similar provisions in other environmental statutes, such as the Clean Water Act, the Toxic Substances Control Act, the Solid Waste Disposal Act, and CERCLA. Continue Reading EPA Must Examine Effects of Clean Air Act Regulations on Jobs

In this much-anticipated decision, on May 31, 2016, the U.S. Supreme Court unanimously sided with the property owner companies over the U.S. Army Corps of Engineers (“Corps”). The Court held that a Corps’ jurisdictional determination as to whether a property contains a jurisdictional wetland is immediately appealable because it constitutes a final agency action. This decision resolves a split among federal circuits and provides a remedy for property owners that receive an unfavorable jurisdictional determination (“JD”) without forcing them to first suffer potentially costly consequences. The Fifth and Eighth Circuits had been split on the issue.   Belle Co. v. U.S. Army Corps of Eng’rs, 761 F.3d 383 (5th Cir. 2014); Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994 (2014) (please see our April 21, 2105 blog post for a summary of the Eighth Circuit decision). Continue Reading <em>Corps v. Hawkes</em>: Supreme Court Rules Clean Water Act Jurisdictional Determinations are Final and Appealable Agency Actions

On December 11, 2015, the U.S. Supreme Court granted certiorari to determine whether a jurisdictional determination approved by the U.S. Army Corps of Engineers (Corps) is a final agency action ripe for judicial review.  The decision will resolve a circuit split between the Eighth and Fifth Circuits. In U.S. Army Corps of Eng’rs v. Hawkes Co. Inc. et al., the Eighth Circuit ruled in favor of the petitioner property owners and determined that courts have jurisdiction to review Corps’ jurisdictional determinations (JDs) about whether a body of water is subject to its authority under the Clean Water Act (CWA). Case No. 15-290, review granted 12/11/15. Continue Reading U.S. Supreme Court to Decide Split on Whether a U.S. Army Corps Wetland Jurisdictional Determination is a Final Agency Action

On October 20, 2015, a district court held that a state enforcement action brought under the Clean Water Act (CWA) did not bar a citizen suit from proceeding against Duke Energy Carolinas, LLC (Duke Energy). Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, Case No. 1:14-cv-753 (M.D.N.C. Oct. 20, 2015).  For regulated industries, Yadkin Riverkeeper is a reminder that the diligent prosecution bar to citizen suits under federal environmental statutes is not absolute, and the existence of a government enforcement action alone may not be enough to bar a citizen suit. Continue Reading Too Little, Too Late: State Agency’s Enforcement Action Does Not Bar Citizen Suit

On September 15, 2015, several California property owners petitioned the United States Supreme Court to review a California appellate  decision permitting a regional water board to establish the total maximum daily load (TMDL) for pollutants in McGrath Lake based on the concentration of pollutants in lake bed sediment.  Conway v. State Water Res. Control Bd., 185 Cal. Rptr. 3d 490 (Cal. Ct. App. 2015), petition for cert. filed, 84 U.S.L.W. 3133 (U.S. Sept. 15, 2015) (No. 15-337).  According to the property owners, no other case has substantively addressed “how TMDLs for lake bed or riverbed sediment may be expressed” or “the parameters of how the ‘load’ in ‘total maximum daily load’ may be expressed[.]” Continue Reading Supreme Court Asked to Review Total Maximum Daily Load Based on Lake Bed Sediment

On September 4, 2015, the United States Court of Appeals for the Fifth Circuit overturned Citgo Petroleum Corporation’s two convictions under the Clean Air Act (CAA) and three convictions under the Migratory Bird Treaty Act (MBTA).  The court held that the district court had erred in allowing improper jury instructions and had misinterpreted the MBTA’s “take” provision.   Continue Reading Fifth Circuit Lets Citgo Fly Free

Several courts have ruled on motions for preliminary injunction to stay a new U.S. Environmental Protection Agency (EPA) Clean Water Act rule, with only one court granting an injunction. Thursday, August 27, 20015, a North Dakota federal court stayed the effectiveness of EPA’s rule clarifying the definition of “Waters of the United States” (WOTUS) under the federal Clean Water Act. This stay occurred just one day before the rule was to go into effect on August 28, 2015. North Dakota v. U.S. EPA, NO 3:15-cv-59 (D.N.D.). The judge held that an injunction was warranted because EPA (1) exceeded its authority in codifying what the court called an “exceptionally expansive” view of the definition; and (2) failed to comply with procedural rules in promulgating the rule. The court said original jurisdiction vested in his court and not the court of appeals because the rule has “at best only an attenuated connection to any permitting process.” Continue Reading Federal Courts Split on Staying EPA’s “Waters of the United States” Rule