Three new rules issued by the Trump Administration may allow project developers to better plan future projects, and may encourage preservation and conservation efforts for both private and federal landowners. These rules, issued by the U.S. Fish and Wildlife Service, National Marine Fisheries Service and the National Oceanic and Atmospheric Administration, revise how the federal government will address critical habitat designations, protections for threatened species and interagency coordination under the Endangered Species Act.
The U.S. Fish and Wildlife Service (FWS), National Marine Fisheries Service (NMFS) and the National Oceanic and Atmospheric Administration (NOAA) (the Agencies), have issued three rules revising how the federal government will address critical habitat designations, protections for threatened species and interagency coordination under the Endangered Species Act (ESA). The Agencies’ decisions have not yet been published in the Federal Register, but prepublication versions can be found here. The regulations will become effective 30 days after publication.
The definition of waters of the United States is central to the CWA. At its core, the Act bans “the discharge of any pollutant” except in compliance with other provisions of the Act, such as the National Pollutant Discharge Elimination System (“NPDES”) permitting program. 33 U.S.C. § 1311(a). “Discharge of a pollutant” is defined in relevant part as “any addition of any pollutant to navigable waters from any point source,” where (i) “navigable waters” are “the waters of the United States,” and (ii) a “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” See 33 U.S.C. §§ 1362(7), (12) and (14). (more…)
*This article originally appeared on the WLF Legal Pulse at wlflegalpulse.com on November 22, 2017.
Can an environmental organization file suit under the Resource Conservation and Recovery Act’s (“RCRA”) citizen-suit provision claiming harm from stormwater runoff which could be, but was not, subject to limits under a Clean Water Act (“CWA”) permit? In a November 2, 2017 decision, Ecological Rights Foundation v. Pacific Gas and Electric Company, the U.S. Court of Appeals for the Ninth Circuit held that it could. The ruling, which also rejected the defendant’s arguments opposing Article III standing, is a portentous development at a time when environmental groups are actively seeking out litigation opportunities to enforce federal regulations.
A September 27, 2017 decision by the U.S. Court of Appeals for the Tenth Circuit has created significant confusion on whether federal regulations governing hydraulic fracturing on federal and Indian lands are now in effect. At first blush, the decision appeared to be a victory for the states and industry groups that sued to block the regulations, but the court’s remedy — vacating a lower court decision striking down the rule — has left the U.S. Bureau of Land Management (BLM), states, industry and environmental groups with very different views about the current legal obligations for oil and gas companies operating on federal and Indian lands. (more…)
Topics discussed this week include:
- Environmental group brings Clean Water Act citizen suit against Shell and Motiva that alleges climate change-related harms.
- District court stays CERCLA unilateral administrative order.
- District court overturns Department of the Interior stay of rule governing royalties for oil, natural gas and coal production on federal and Indian lands.
- Second Circuit upholds New York State’s decision to deny Clean Water Act certification to proposed pipeline.
- C. Circuit holds that FERC should consider power plant emissions in pipeline environmental impact statement.
- Hurricane Harvey affects Gulf Coast energy and chemical resources.
Topics discussed this week include:
- Federal agencies reopen comment on Obama administration auto fuel efficiency standards.
- Environmental groups file legal challenges to TSCA rules.
- Tenth Circuit vacates EPA denial of small-refinery renewable fuels exemption.
- EPA begins revisions to power plant wastewater rules.
- DC Circuit rules EPA’s hydrofluorocarbon rule exceeds statutory authority.
In anticipation of the Department of Energy’s review of the nation’s power grid, stakeholder groups have recently published reports on the state of the U.S. power grid. The reports add to the debate over what mix of energy resources are needed to sustain a stable, secure and reliable supply of electricity in the United States.
An April 14, 2017 memo from Energy Secretary Rick Perry directing the Energy Department to “explore critical issues central to protecting the long-term reliability of the electric grid” has focused the debate. According to Secretary Perry, the 60-day review would assess whether federal policies have caused “the erosion of critical baseload resources.” This includes an assessment of whether reduced coal-fired power generation due “in part from regulatory burdens introduced by previous administrations” has hurt the supply of baseload power and will “undercut the performance of the grid well into the future.” (more…)
On June 22, the Environmental Protection Agency (EPA) took historic action under the Toxic Substances Control Act (TSCA), as amended last year by the Lautenberg Chemical Safety Act of 2016. First, EPA promulgated three final rules that will guide a new TSCA program to identify and evaluate chemicals in the United States by establishing (1) the procedures to “reset” the TSCA chemical inventory; (2) the procedures to prioritize the chemicals that will be evaluated; and (3) the methodology EPA will use for conducting chemical risk evaluations. Second, EPA released guidance for interested parties to submit their own risk evaluations. Last, EPA released their scope of work for the first chemicals that EPA will evaluate. (more…)
Yesterday, EPA and the U.S. Army Corps of Engineers began the formal process of repealing and replacing the Obama administration’s Clean Water Rule (“Rule”). Promulgated in 2015, the controversial Rule had broadly defined the term “waters of the United States,” which establishes the limits of jurisdiction under the federal Clean Water Act. In February of this year, President Trump signed an Executive Order that directed EPA and the Corps to review the 2015 Rule and issue a proposed rule rescinding or revising the Rule as appropriate and consistent with law. (more…)