Will EPA achieve its core mission?

President Trump has signaled a desire to reduce the burden caused by environmental regulations. An executive order issued Jan. 30 requires that two rules be identified for repeal for every new rule proposed. He issued another executive order Feb. 24 announcing that it is the official policy of the U.S. to alleviate unnecessary regulatory burdens. At the same time, though, the president has stated he wants to reinvigorate the manufacturing and oil and gas development sectors, while also shortening the environmental review process for major infrastructure projects. Continue reading “Will EPA achieve its core mission?”

ALERT: The Trump Administration’s First Week

President Trump and his staff have taken several steps to implement his environmental agenda.

As reported previously (see Freeze on Regulations), Mr. Trump’s Chief of Staff, Reince Priebus, on January 20, 2017, issued a Memorandum requiring, among other things, that all federal agencies postpone the effective date of all regulations published in the Federal Register but not yet effective as of January 20, 2017. EPA, on January 23, 2017, complied, postponing the effective date of thirty rules until March 21, 2017. See 82 Fed. Reg. 8499 (Jan. 26, 2017). The thirty regulations include the:

  • Risk Management Program revisions (previously effective on March 14, 2017),
  • Renewable Fuel Standards for 2017 (previously effective on February 10, 2017), and
  • Addition of a subsurface intrusion component to the hazard ranking system (previously effective on February 8, 2017).

Continue reading “ALERT: The Trump Administration’s First Week”

EPA and Corps Expand Their Jurisdiction Over Waters and Wetlands

Over the objections of multiple national, state, and local groups, the EPA and the Corps of Engineers have published their final rule regarding the definition of ‘waters of the United States.’ Although they claim that the new definition merely ‘clarifies’ their existing jurisdiction, it actually expands their regulatory authority to waters and wetlands to an extent not contemplated when the Clean Water Act (CWA) was originally passed. The scope of jurisdiction is critically important because a costly and time-consuming permit is required to place materials in wetlands or other waters deemed jurisdictional. Continue reading “EPA and Corps Expand Their Jurisdiction Over Waters and Wetlands”

The Fifth Circuit Declines to Extend Sackett to Jurisdictional Determinations

In Belle Company v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014) [http://www.ca5.uscourts.gov/opinions/pub/13/13-30262-CV0.pdf], the Fifth Circuit distinguished the jurisdictional determination (JD) issued to Belle from the compliance order issued to the Sacketts and declined to extend “final agency action” status to a JD issued by the Corps. In Sackett v. EPA, 132 S. Ct. 1367 (2012) [http://www.supremecourt.gov/opinions/11pdf/10-1062.pdf], the Supreme Court ruled that a compliance order issued by the EPA was a final agency action and thus subject to judicial review under the Administrative Procedure Act (APA). Continue reading “The Fifth Circuit Declines to Extend Sackett to Jurisdictional Determinations”

Believe It Or Not, The Clean Water Act May Actually Help You

Most industrial sites have wastewater discharges, and most people know those discharges must be permitted under the Clean Water Act (CWA). What many people do not know, including some consultants, is the CWA has a “permit shield” that could protect your company or client from liability to a regulatory agency or as a result of a citizen suit by a third party. Continue reading “Believe It Or Not, The Clean Water Act May Actually Help You”

EPA, U.S. Corps Assert Jurisdiction over Isolated Waters, Wetlands

During the golden age of discovery, an explorer arriving at the mouth of an unknown river would plant his country’s flag and claim all lands drained by that river for his sovereign. In modern times, there is no need for any flags or ocean voyages. Our sovereign simply publishes a proposed rule to accomplish the same thing.

The Clean Water Act (CWA) prohibits discharges of dredged or fill material into “navigable waters,” which are defined in the CWA as the “waters of the United States.” Regulations published by the U.S. Army Corps of Engineers (Corps) provide an expansive definition of waters of the United States, which serves to delineate the scope of the Corps’ jurisdiction under the CWA over those waters, which include wetlands. A permit from the Corps is required to place material in wetlands or other waters deemed jurisdictional.

The Corps has released a proposed rule that provides an even more expansive definition of U.S. waters, which serves to expand its jurisdiction over tributaries and wetlands far removed from any traditional navigable waters. If the proposed rule becomes final as written, permits will be required for activities in areas that were not previously regulated and that could be dozens of miles from navigable waterways. Continue reading “EPA, U.S. Corps Assert Jurisdiction over Isolated Waters, Wetlands”

EPA Can Veto Corps’ Wetlands Permits “Whenever” It Wants

In a recent appellate court decision that is sure to create a great deal of uncertainty and hamper development efforts, the Court of Appeal for the D.C. Circuit approved EPA’s authority to veto permits issued by Army Corps of Engineers (Corps) well after they are issued. In fact, based on this ruling, these may do this ‘whenever’ they want. Mingo Logan Coal Company, Inc. v. EPA, No. 12-5150, April 23, 2013.

The Clean Water Act (CWA), Section 404(a), authorizes the Corps to issue permits for the discharge of fill material into waters of the United States at specified disposal sites. This authority, however, is subject to the CWA Section 404(c), which provides authority to EPA’s Administrator “to prohibit the specification (including the withdrawal of specification) of any” disposal site “whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect.” It is the timing of EPA’s actions (‘whenever he determines’) that will create problems. Continue reading “EPA Can Veto Corps’ Wetlands Permits “Whenever” It Wants”