With the federal government shutdown finally over after five weeks, the long-term effects are likely to have a lingering impact on regulatory and permitting programs for months to come. Even those federal agencies that were fully funded during the shutdown, such as the US Army Corps of Engineers (Corps), were stymied in their ability to undertake routine day-to-day operations during the lapse in appropriations. This post highlights two examples of the shutdown’s implications for regulatory reform and permitting in the natural resources arena. Continue Reading The Shutdown Trickle Down Effects
Last week, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) (together, the Agencies) issued a long-awaited proposal to redefine the “waters of the US” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act (CWA). The reach of the CWA is notoriously unclear, but knowing which areas on your property are jurisdictional and will require permits is critical to project planning and timelines. If finalized, the proposed rule would replace the Obama administration’s contentious 2015 WOTUS Rule and eliminate the regulatory patchwork that currently exists as the 2015 WOTUS Rule is being implemented in only certain parts of the country. Continue Reading EPA and Corps Release Long-Awaited Proposal to Redefine WOTUS
Can permitted, well-operated septic systems at vacation resorts give rise to liability under the Clean Water Act (CWA)? That is the question an Environmental Non-Governmental Organization (eNGO) is asking a federal district court to decide in two cases pending in Massachusetts federal court. Continue Reading eNGO Alleges Cape Cod Resorts Violate the Clean Water Act
WOTUS, an acronym that has received a lot of attention in recent years, stands for the “waters of the United States.” When Congress enacted the Clean Water Act (“CWA” or the “Act”) in 1972, it prohibited “the discharge of any pollutant by any person” into navigable waters without a permit. The Act defines navigable waters as the “waters of the United States, including the territorial seas.” 33 U.S.C. §§ 1311(a), 1362(7), (12). But Congress failed to, in turn, define the words “waters of the United States,” and the Supreme Court has noted that these “words themselves are hopelessly indeterminate.” Sackett v. EPA, 132 S. Ct. 1367, 1375 (2012) (J. Alito, concurring). The meaning of these words matters because violations of the CWA are subject to substantial criminal and civil penalties, so knowing whether a feature on your site is a WOTUS subject to federal jurisdiction has important consequences. Continue Reading Navigating the CWA’s Reach: What’s Happening with WOTUS?
Today, EPA and the Corps released a highly anticipated proposal to rescind the Obama Administration’s controversial 2015 Clean Water Rule. The June 2015 rule, which has been stayed since October 2015, would broadly define the scope of “waters of the U.S.” (WOTUS) subject to federal regulation and permitting requirements under the CWA. The proposed rescission is the first step of a two-step process to repeal and replace the 2015 Clean Water Rule with a new WOTUS rule. With today’s proposal, EPA and the Corps are proposing to officially rescind the 2015 rule and continue to implement the regulatory definition in place prior to the 2015 rule while they work to promulgate a new rule to define WOTUS.
On February 28, 2017, President Trump signed an Executive Order (EO) that sets into motion a process for the Administrator of the Environmental Protection Agency (EPA) and the Assistant Secretary of the Army for Civil Works (jointly, the “Agencies”) to review the Obama Administration’s Waters of the US (WOTUS) Rule. 80 Fed. Reg. 37,054 (June 29, 2015). The EO directs the Agencies to review the WOTUS Rule for consistency with the Clean Water Act (CWA) and the policies set forth in the EO, stating that “[i]t is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution,” while at the same time “promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles played by Congress and the States under the Constitution.” Following review, the EO instructs the Agencies to publish, as appropriate, a proposed rule for notice and comment rescinding or revising the WOTUS Rule.