Bracewell & Giuliani

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  1. The Final Waters of the US Rule: The Practical Bottom Line

    Tuesday, June 9, 2015 10:33 am by

    Two weeks ago, we started our series of posts examining the Obama Administration’s final rule redefining the waters subject to federal jurisdiction under the Clean Water Act by looking at the bottom line, legally, of the waters now considered to be always jurisdictional. We then examined the waters that will probably be (and may be) jurisdictional, as well as a few of the ambiguities remaining in the final rule and some that were resolved by the agencies before finalization. Following two posts on changes we believe the Administration should have made but didn’t and one examining the practical reality of proving jurisdiction under the significant nexus test, today’s post is our last, and we’ll finish 180 degrees from our first one. That post looked at the legal bottom line; today we give you our view of the practical one. (more…)

  2. The Final Waters of the US Rule: The Practical Application of the Significant Nexus Test

    Monday, June 8, 2015 9:33 am by

    This is our penultimate post on the Administration’s final Waters of the US rule. For those of you who have read our last 16 posts on the proposed and final rules (hi Mom!), you know we have concerns about the significant nexus test. Our concern is not just the breadth of the test, but its ambiguity and need for case-by-case application. For the regulated community, knowing when one must comply with the law is half the battle (at least). And the significant nexus test, based on neither science nor the language of the Clean Water Act, is an ambiguous, case-by case test.

    But apart from its ambiguity, there is the practical reality – the practical difficulty – of actually applying the test. Now that the test has been ensconced into regulation, we’ll take a quick look at the practical implications of applying of the test. (more…)

  3. The Final Waters of the US Rule: Traditionally Navigable Waters and the Possibility of Future Use

    Friday, June 5, 2015 8:17 am by

    Yesterday, we looked at one of the core definitions in the Waters of the U.S. rule – that of “wetlands” – and suggested that, while the agencies didn’t change it, perhaps they should have. Today we’ll look at another static term – “Traditionally Navigable Waters.” It, too, has been unchanged for the last three decades and probably should have been modified in the final rule. Given the term’s newfound significance in the regulatory structure, the failure of the Agencies to do so adds unnecessary complexity and confusion to the process of identifying jurisdictional waters. (more…)

  4. The Final Waters of the US Rule: What’s a Wetland?

    Thursday, June 4, 2015 8:29 am by

    TexasBarToday_TopTen_Badge_SmallFor the last week, we’ve looked at some of the clarifications made in, and ambiguities remaining after the Administration finalized, the final rule redefining federal jurisdiction under the Clean Water Act. So far, we’ve only addressed changes made by the Agencies, but today and tomorrow we will note two provisions they didn’t change. As a result, time has passed by these provisions, with possibly significant consequences. (more…)

  5. The Final Waters of the US Rule: The Administration’s Concessions and Clarifications

    Wednesday, June 3, 2015 10:30 am by

    We’re halfway through our series of blogs discussing the Administration’s final rule redefining the scope of waters subject to jurisdiction under the Clean Water Act. Our two posts earlier this week addressed some of the questions remaining even after the Administration clarified a number of ambiguities in the proposed rule. Today we’ll point out a few of the more notable clarifications, as well as some concessions the Administration made in light of public comments.

    Most significantly, as discussed in our first post, the administration has provided greater clarity as to what waters are jurisdictional based on their adjacency to tributaries. As proposed, the rule would have provided very scientifically-based definitions of “floodplain” and “riparian area” and included waters in those areas as jurisdictional ones. The final rule abandons those two terms, essentially substituting a 100-foot measure for the term “riparian area,” and up to 1,500 feet of the FEMA 100-foot floodplain for the term “floodplain.” This change will make it easier for laypersons to know what waters are jurisdictional under the rule. (more…)

  6. EPA Issues “Ambitious” Multi-Year Renewable Fuel Standard

    Tuesday, June 2, 2015 9:25 am by

    After much anticipation, on Friday, May 29, 2015, EPA finally released a multi-year renewable fuels standard (RFS) for 2014-2016. The volumes and percentages of renewable fuel that EPA proposed to comprise the transportation fuel pool for 2014-2016 are as follows: (more…)

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