Category Archives: Environmental Regulation

EPA’s Position on WOTUS On Hold Nationwide

In the ongoing battle over the scope of the EPA’s jurisdiction of waters of the US (WOTUS), the EPA’s enforcement of its current definition which includes small streams and wetlands has been stopped nationwide by a ruling of the Sixth US Circuit Court of Appeals .

In a prior ruling, the EPA’s definition was stopped in 12 states in which the states’ attorneys general had sued to stop enforcement (Click here). Additional states have joined the battle to block enforcement so that, in all, roughly half the states have blocked enforcement.

The recent ruling stopped enforcement nationwide as the court determines whether it has jurisdiction to consider lawsuits against the EPA’s definition. Click here for more from “The Guardian”.

Stay tuned.

Battle over “Waters of the US”

The Environmental Protection Agency (EPA) proposed a definition of waterways of the US which includes many smaller US waterways under its jurisdiction.

Not surprisingly, the EPA’s move has triggered resistance by groups opposed to the broad definition, with farmers leading the charge.

This website’s first article on this topic was dated April 16, 2014, click here.

Now, the latest development involves a case brought before a North Dakota Federal Judge by 12 states’ attorneys general who claimed that the EPA overstepped its powers by including the smaller US waterways in its jurisdiction.

On August 27th, the North Dakota Federal Judge ordered a delay in the EPA’s enforcement of the definition. This ruling was hailed as a major victory stopping the EPA in its tracks. Click here for a Press Release and an article by High Country News.

However, a week later, the same North Dakota Federal Judge revised the order to stop the EPA from enforcing its preferred definition of water of the US only in those 12 states whose states’ attorneys general had participated in the suit. Click here to read that press release.

The battle continues. We’ll keep you informed.

Congress Weighs In On EPA’s Jurisdiction Debate

Members of Senate and House committees met in an unusual joint session recently to address the topic of the EPA’s proposed definition of “waters of the United States” which dictates which waters are subject to EPA rules.

Those against the definition, including many farming interests, claim the definition amounts to an unwarranted expansion of EPA turf (click here).

In response, the EPA claims its proposed definition is no such expansion but only a clarification (click here).

The newly Republican-controlled Congress appears to be trying to influence the resolution while the regulations are in their comment period.

Based on the reported testimony from the EPA, however, there seems little willingness at the EPA to bow to Congress.

For background on the hearing, McClatchy Newspapers provides a helpful article (click here).

In an unrelated development, however, agricultural interests won their effort to get the EPA to withdraw a widely disliked interpretive rule that required farmers to comply with the USDA’s Natural Resource Conservation Service standards which had been voluntary guidelines until March of 2014.

Whether the USDA’s guidelines are voluntary or mandatory remains an issue under consideration in the EPA’s proposed definition discussed above.

Capital Press, the online magazine, provides useful background on this development (click here).



EPA Fires Back about Expansion Talk

The US Environmental Protection Agency (EPA) and US Army Corp of Engineers responded to criticism of its proposed definition of “waters of the United States” which determines whether a body of water or waterway is subject to Federal jurisdiction.

Articles and posts from law firms and mainstream media described the proposed definition as an expansion (click here for my prior post).

In an online response (click link here), the EPA sets out its position that its proposed definition is not an expansion of coverage but simply clarifies the existing definitions.

The interpretation of the definition will likely be battled in the courts where each of the EPA and its opponents have won and lost important cases (click here and here).

EPA Proposes Broad Definition of “Waters of the US”

Responding to court rulings, the US Environmental Protection Agency and the US Army Corps of Engineers has proposed a clarifying definition of “waters of the United States” which determines whether a body of water or waterway is subject to Federal jurisdiction.

Jeffer, Mangels, Butler & Mitchell, the law firm, provided a helpful article on this development which concludes, “One key element of the proposed rule would automatically subject nearly every natural and artificial stream and wetland that is adjacent to or near a traditional navigable water, interstate water, or territorial sea to federal jurisdiction.”

Click here to read the Jeffer Mangels’ article on JDSupra, the online legal magazine.

Click here to read a background article in the LA Times.

EPA’s Retroactive Veto Stands

The EPA has the power to retroactively veto Clean Water Act permits issued by the Army Corp of Engineers years prior.

The US Supreme Court has declined to review a case challenging that retroactive veto, therefore, a lower court’s ruling, that the EPA’s actions were within its power, stands.

The decision pleased environmentalists but it outraged businesses which invest capital in projects on the basis of permits lawfully obtained.

How actively the EPA wields this power is uncertain but the fact that the EPA has the power is significant.

Click here to read an article on this issue from Environmental & Energy Publishing.


Hydraulic Fracturing – Legal Developments

Latham & Watkins, the law firm, is hosting a webinar on legal developments in hydraulic fracturing, which while not solely a water topic, involves many water companies vying to clean up produced water for re-use.  In my experience, Latham’s webinars have been excellent.  Well worth the time.



A Complimentary 60-minute Webcast


Hydraulic Fracturing Update:
Legal Developments and Trends


Tuesday, March 18, 2014

9:00 a.m. Pacific  |  11:00 a.m. Central  |  Noon Eastern




Latham & Watkins invites you to a complimentary 60-minute webcast addressing recent key developments related to hydraulic fracturing, including:


·      New federal regulatory developments, including recent petitions requesting US EPA to extend chemicals laws to hydraulic fracturing



Please click here to register for the webcast. A confirmation message will be sent to your email address with instructions for logging on to the webcast.




·      Latest regulatory developments in California and other states


·      Recent developments in federal and state court litigation


·      International developments and proposals related to hydraulic fracturing



Joel Mack, Partner, Houston – Moderator


Ann Claassen, Counsel, Washington, D.C.

Sara Orr, Counsel, Washington, D.C.

Daniel Brunton, Counsel, San Diego

Julie Hatcher, Partner, Washington, D.C.

Nicole Vanderlaan Smith, Associate, Orange County



For more information and questions about this event, please contact Michele Bravo at or +1.213.892.3054.



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Ag Stormwater Runoff Not Regulated by EPA

downloadA Federal District Judge has clarified that agricultural stormwater discharge from certain agricultural businesses is exempt from permitting and regulation under the Federal Clean Water Act.

In a case with ramifications well beyond the Hardy County West Virginia poultry farmer and the Chesapeake Bay, the American Farm Bureau defeated the EPA and several environmental groups.

The court held that agricultural stormwater runoff from the poultry farm that did not qualify as a “confined animal feeding operations” (shortened to “CAFO”) was not subject to regulation.

Historically, the EPA has held that it can regulate medium and small CAFO on a case by case basis (link to EPA document).

The definition of a CAFO, however, includes elements which involve judgment (link to EPA definition).

Click here to go to the story for background.

Federal Jurisdiction to Expand

The Obama administration has just proposed a significant expansion of what is included as the “waters of the United States” over which the Federal government has jurisdiction under the Clean Water Act. 

The proposal, based on the position that bodies of water are interconnected, would have an impact on a wide range of entities, governmental and private, dealing with water and development issues.

Links to an overview by Bracewell & Giuliani, a law firm, as well as articles by the Environmental Protection Agency are provided below.


Court Strikes Down EPA’s Deferral Rule on Greenhouse Gas Emissions

In early July, 2013, the Court of Appeals for the D.C. Circuit, stuck down the EPA’s Deferral Rule which the Court ruled improperly distinguished between classes of greenhouse gases.  The EPA’s Deferral Rule exempted certain biogenic emissions that result naturally from the decomposition of waste associated with landfills, wastewater, manure management processes, feedstocks and ethanol production from regulation under the Tailoring and Timing Rules.  The Court’s action, therefore, raises the question of how biogenic emissions will be regulated.

Please click here to go the an article by Phillips Lyttle LLP, or copy and paste the link below: