Three recent actions have roiled the otherwise calm “navigable waters of the United States,” creating a sea of uncertainty for regulated entities and administrative agencies. Charting an appropriate course to address these actions will likely prove difficult.
The Navigable Water Protection Rule was issued, which substantially narrows the scope of jurisdiction over navigable waters. A court vacated the Corps of Engineers’ Nationwide Permit No. 12, which is widely used for pipelines and transmission lines. The Supreme Court ruled that a permit is required in certain circumstances for discharges to navigable waters that travel through groundwater. Continue reading “A Sea of Uncertainty in Navigable Waters”
LDEQ issued an amended Declaration of Emergency and Administrative Order on March 27, 2020. In terms of regulatory relief, it offers little more than prior orders.
LDEQ extended the deadline for submitting Title V Semiannual Monitoring and Deviation reports and Annual Compliance Certifications, which are ordinarily required to be submitted on March 31. They must be submitted no later than May 1, 2020. LDEQ did state that it maintains the capability to physically receive reports to the extent that the reports can be submitted to the Department by the March 31st deadline. Continue reading “UPDATE 2 – Regulatory Relief in the Environmental Arena Lags Behind”
After several national trade organizations, such as the American Petroleum Institute, petitioned EPA for regulatory relief during the COVID-19 crisis, EPA provided some relief on March 26, 2020. Susan Bodine, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, issued a memorandum to “all governmental and private sector partners” announcing that EPA “will exercise [its] enforcement discretion … if regulated entities take the steps applicable to their situations, as set forth in this policy.” For noncompliance that occurs during the time the policy is in place, the policy announced in the memorandum “will apply to such noncompliance in lieu of an otherwise applicable EPA enforcement response policy.”
Importantly, the policy is retroactive to March 13, 2020. EPA will apply the policy to actions, inactions, or omissions that occur while the policy is in effect even after the policy terminates.
Although the policy announces that EPA will utilize its enforcement discretion, it placed numerous conditions on the application of that discretion. A failure to meet the necessary conditions will likely result in an enforcement action by EPA. If you need help and assistance regarding compliance obligations during the COVID-19 crisis, please contact us or seek other legal assistance. Continue reading “UPDATE – Regulatory Relief in the Environmental Arena Lags Behind”
At this time, the primary environmental regulatory agencies have done very little to assist regulated entities address the impacts of COVID-19 on personnel and compliance. While the governors urge or mandate that people stay at home, EPA, the Louisiana Department of Environmental Quality (LDEQ), and Texas Commission of Environmental Quality (TCEQ) have, for the most part, not relaxed monitoring and reporting requirements. However, the American Petroleum Institute (API) has petitioned EPA for regulatory relief.
In Texas, Governor Abbott has urged people to stay at home but, as of this writing, has not issued an order. In Louisiana, though, Governor Edwards did issue an order on March 22, 2020. Proclamation No. 33 JBE 2020. It states that “all individuals … are under a general stay-at-home order and are directed to stay home unless performing an essential activity.” To determine what is an essential activity, the Governor adopted the Department of Homeland Security’s guidance issued through the Cybersecurity & Infrastructure Security Agency (CISA). See www.cisa.gov/identifying-critical-infrastructure-during-covid-19. Continue reading “Regulatory Relief in the Environmental Arena Lags Behind”
The US Department of Justice announced it will no longer include environmental projects in settlements of environmental cases in which civil penalties are sought. This decision casts great doubt on the future of Supplemental Environmental Projects, or SEPs. Over the years, SEPs have been popular with EPA and industry, proven valuable in settling cases, and directed resources in a manner that benefits the environment.
In its 2015 Update of its SEP Policy, EPA defined a SEP as “an environmentally beneficial project or activity that is not required by law, but that a defendant agrees to undertake as part of the settlement of an enforcement action.” The project goes beyond what could legally be required in order for the defendant to return to compliance and secures environmental and/or public health benefits in addition to those achieved by compliance with applicable laws. Continue reading “Are SEPs On Their Way Out?”
Nearly three years after issuing an executive order on the subject, the Trump Administration has finalized the Navigable Waters Protection Rule to narrow the scope of waters subject to federal regulation under the Clean Water Act.
In 2015, the Obama Administration finalized the Clean Waters Rule which generally expanded the jurisdiction of EPA and the Corps of Engineers over “waters of the United States.” The rule was challenged in district and appellate courts throughout the country. After various court rulings, including one by the Supreme Court, the Clean Waters Rule became effective in only about half the states, creating a patchwork of regulation. Upon assuming office, President Trump issued an executive order in which he directed that a new rule be considered which mirrored the more limited jurisdictional view announced by Justice Antonin Scalia in prior rulings. Not surprisingly, the Navigable Waters Protection Rule adopts the narrower view.
Continue reading “The Scope of Jurisdictional Waters Has Been Narrowed”