The EPA and the Corps of Engineers have taken the first of two steps to repeal and replace the definition of ‘waters of the United States’ promulgated by the Obama Administration in 2015 (the 2015 Rule). The definition establishes the jurisdictional reach of the EPA and Corps under the Clean Water Act to regulate navigable waterways, tributaries, and their adjacent wetlands. The 2015 Rule had been widely criticized as being overly expansive because more waterways, tributaries, and wetlands were considered to be subject to jurisdiction.
When it was published, the 2015 Rule spawned lawsuits in multiple district courts and appellate courts, ultimately resulting in a patchwork of regulation. In 22 states, the 2015 Rule applied, but in the rest of the states, the pre-2015 rule applied. When the Trump Administration took office, it vowed to repeal the 2015 Rule (Step One) and replace it (Step Two) with a new definition that would clearly define where federal jurisdiction begins and ends in accordance with the CWA and Supreme Court precedent. The Step Two proposal for a new definition was published in December, 2018. Continue reading “The 2015 WOTUS Rule Is Repealed”
Section 401 of the Clean Water Act (CWA) states that a federal agency may not issue a permit to conduct any activity that may result in any discharge into waters of the U.S., unless the state where the discharge would originate either issues a water quality certification or waives the certification requirement. Under Section 401, an applicant for a federal permit must submit a request for a certification to the state, which has a reasonable period of time (not more than a year) to grant the certification, grant the certification with conditions, deny the certification or waive the opportunity.
Congress enacted Section 401 as an exercise in cooperative federalism to allow states to help protect the water quality of federally regulated waters within their borders in collaboration with federal agencies. In recent years, though, several states that oppose the construction of natural gas pipelines have denied Section 401 certifications or used Section 401 to delay the issuance of the federal permit. For example, upon submittal of the certification request, the state would request more and more information to avoid the beginning of the review timeframe.
Continue reading “The Upcoming Battle Over Water Quality Certifications”
A modern industrial facility requires a large tract of land ideally located in an area designated for industrial use that has access to an existing transportation matrix for raw materials and products. In Louisiana, for example, the industrial corridor along the Mississippi River offers ready access to natural gas pipelines, rail transportation, and barge and ship loading and unloading.
However, when such large tracts are available, there is inevitably a community within a mile or two of the proposed location. Further, local governments in these communities are increasingly enacting ordinances that mandate local approval of facilities. These two developments present hurdles to successfully obtaining the necessary authorizations to begin construction. Continue reading “A Few Hurdles to Facility Siting”
For years, EPA routinely announced national enforcement initiatives, focusing its enforcement and compliance resources on the most serious environmental violations at facilities across the nation. In August 2018, EPA announced that it intended to “evolve” the enforcement initiatives into compliance initiatives. EPA stated at the time that increased compliance is the ultimate goal and enforcement-oriented actions are not the only tool to achieve that goal.
Following up on its announcement, in June 2019 EPA issued its National Compliance Initiatives (NCIs) for fiscal year (FY) 2020-FY 2023, in which it established six priority areas as NCIs. EPA stated that it will utilize the full range of compliance assurance tools such as compliance assistance, self-audits and informal enforcement, but that formal enforcement will remain an important tool to address serious noncompliance and create general deterrence. Continue reading “EPA Turns from Enforcement to Compliance Initiatives”
The United States is producing more and more crude oil and natural gas and will do so for the foreseeable future. However, oil and gas produced in remote areas must be transported to refineries or other facilities for processing or tank terminals for export.
Pipelines are the preferred method of transportation, due to their cost-effectiveness and overall safety record. Additional pipelines are needed to handle existing and future demand. Increasingly, though, the pipeline permitting process has become a battleground in which those who wish to hinder the use of fossil fuels take advantage of the existing statutory and regulatory framework to achieve those ends. One requirement in the Clean Water Act has increasingly been used as a weapon. Continue reading “Streamlining Pipeline Permitting”
Due diligence conducted when acquiring assets in a commercial transaction, whether the assets include property with existing operating facilities or undeveloped property on which a facility is to be constructed, is absolutely essential to ensuring the property does not contain unknown environmental liabilities and is suitable for the buyer’s intended use. Of course, the level of due diligence and the time and money spent on it will vary depending on the size and nature of the acquisition. But it should never be less than enough to obtain sufficient information about potential liabilities and future uses so a buyer may make an informed decision. Continue reading “Considerations for Environmental Due Diligence”
Finding the correct location for your industrial facility, such as a petrochemical plant or a landfill, requires balancing multiple considerations, including access to transportation routes for raw materials or goods, the cost of the property, and a host of other factors or criteria. However, state and local governments in Louisiana have created their own siting requirements that extend well beyond normal economic considerations. Continue reading “Some Siting Considerations In Louisiana”
EPA and the Corps of Engineers have finally proposed a new definition of “waters of the United States” to replace the Obama-era definition. The proposed definition is consistent with the executive order issued by President Trump in February 2017, which sought a regulatory definition similar to the more restrictive view of jurisdiction suggested by Justice Scalia in the Rapanos decision. Continue reading “Definition of ‘Waters of the U.S.’ Finally Proposed”
Phase I Environmental Site Assessments (ESAs) are widely used by real estate purchasers to determine whether contamination exists on a property. There has been some debate as to whether sampling should be included as part of the ESA in order for a purchaser to obtain certain legal protections. Continue reading “To Sample or Not to Sample?”
EPA is taking steps to further compliance and reduce emissions in the upstream oil and gas sector. It announced it is developing, and seeking comments on, a New Owner Clean Air Act Audit Policy (CAA Policy). Once implemented, new owners may conduct an in-depth audit of newly acquired facilities, correct identified violations or issues, and obtain a full civil penalty waiver for violations existing prior to the acquisition of the facility. Continue reading “EPA Offers New Owners A New Hope”