Jan 29, 2020

EPA Announces Plans to Revoke Obama Waters of the United States Rule

Water Pollution

The EPA is dramatically reducing the amount of U.S. waterways that receive federal protection under the Clean Water Act (“Act”).  The biggest change is a controversial move to rollback federal limits on pollution in wetlands and smaller waterways that were introduced less than five years ago by the Obama administration. Under the revised rule, bodies of water which form only after rainfall or only flow part of the year, are not subject to federal control.  This exception also applies to waste treatment systems, groundwater, prior converted cropland and farm watering ponds.  In announcing the new rule, EPA administration Andrew Wheeler… Read more

Jun 5, 2019

Federal Judge Blocks Obama Administration Wetlands, Waters Rule

Wetlands - WOTUS rule

The U.S. District Court for the Southern District of Texas ruled on May 28, 2019, that the Obama administration erred when it crafted the Waters of the U.S. (“WOTUS”) regulation.  The court found that the final version of WOTUS rule deviated too far from a previous draft version which deprived the public of an opportunity to submit public comment on the final rule.  The ruling makes final a preliminary injunction issued last year blocking implementation of the 2015 rule.  The injunction applies to Texas, Lousiana, and Mississippi.  It is unlikely that the procedural error noted by the District Court will… Read more

Feb 13, 2019

Public Hearing Scheduled for Trump’s Water Rule Proposal

Trump's Water Rule Proposal - Contaminated Pond

The U.S. EPA announced on February 6 plans to hold public hearings in Kansas City on February 27 and 28 to discuss the Trump administration’s attempt to clarify which waters and wetlands receive protections under the Clean Water Act (“CWA”).  The water rule proposal is an attempt to rewrite the Obama administration’s Clean Water Rule which the Trump administration believes is overreaching in scope.  The proposed rule (RIN:2040-AF75), still protects rivers and lakes, but not isolated ponds and wetlands.  Protection of intermittent streams, would be based on a complicated formula and based on average flow in a typical year. For… Read more

Jul 18, 2013

US Supreme Court Declares Denial of Permit and Unconstitutional Taking

A sharply divided Court has declared that the denial of a permit for the development of a Florida wetland constituted an unconstitutional taking without just compensation. Justice Alito writing for the majority found that the denial of a land-use permit by the St. Johns River Management District violated the “essential nexus test” used by the court to determine when permit conditions, whether monetary or tangible property requirements, are justified. Under the terms of the proposed permit, the District required the developer to either, reduce the scale of its project and give up control of some of his property, or finance… Read more

Sep 17, 2012

Nationwide Permits for Dredge and Fill Activity Challenged

In February, the Corps of Engineers (“Corps”) issued revised versions of its 48 nationwide permits (“NWPs”), authorizing certain categories of dredge and fill activities in wetlands and water bodies under Section 404 of the Clean Water Act.  On the same day, the U.S. Fish and Wildlife Service (“FWS”) issued a Biological Opinion (“BiOP”) finding that the Corps’ NWPs do not adequately protect threatened or endangered species, and describing a series of reasonable and prudent alternatives (“RPAs”) to limit harms.  Because FWS consultation is required under the Endangered Species Act (“ESA”), the BiOP resulted in the legality of activities authorized by… Read more