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  1. The Final Waters of the US Rule: Remaining Ambiguity

    Tuesday, June 2, 2015 8:21 am by

    Our first two posts on the final Waters of the US rule noted that, in the final rule, the Administration has provided an additional degree of clarity in distinguishing between jurisdictional and non-jurisdictional waters, both by definition and in practice. But, as we discussed last year, the proposal was extremely ambiguous and a fair amount of ambiguity remains. Yesterday, we identified some of this ambiguity and today we will briefly summarize a bit more. (more…)


  2. The Final Waters of the US Rule: The Significant Nexus Test Is Here for Good

    Monday, June 1, 2015 9:02 am by

    Last week, we started with the bottom line of the Administration’s new Waters of the US Rule – describing the waters that are now always jurisdictional by definition and those probably always jurisdictional in practice. Today, we start to leave clarity behind and examine the waters that may be jurisdictional. Or may not be. For you “waters of the US” cognoscenti, you know what that means – we’re discussing how the Administration has finalized the “significant nexus” test. (more…)


  3. The Final Waters of the U.S. Rule: Waters That Aren’t Always Jurisdictional by Definition, but Probably Are in Practice

    Friday, May 29, 2015 9:25 am by

    Yesterday, we started our series of blog posts about the final WOTUS rule by taking advantage of the rule’s increased clarity to identify the waters that would always be considered jurisdictional. The rule’s definitions leave no doubt that certain waters will always be considered jurisdictional by EPA and the Corps. But there’s another group of waters that aren’t always jurisdictional by definition, but will most likely be so in practice. (more…)


  4. The Administration Finalizes the WOTUS Rule. First Things First – the Immediate Obligations.

    Thursday, May 28, 2015 9:49 am by

    Yesterday, the Obama administration finalized the waters of the US rule it proposed last spring. There’s a lot to be said about the final rule, and so this will be the first in a series of blog posts (just like for the proposal). But because the new rule creates a few immediate obligations, we’ll start this series with the punchline.

    The rule remains broad, but is somewhat more clear (more…)


  5. A permit system may finally arrive for the Migratory Bird Treaty Act – New Opportunities and Responsibilities

    Wednesday, May 27, 2015 5:06 pm by

    TexasBarToday_TopTen_Badge_SmallFor years, Federal Courts have held that individuals can be held criminally liable under the Migratory Bird Treaty Act (MBTA) for the death of birds regardless of whether they intended to harm them. While several courts have recently called into question this precedent, yesterday, the Fish and Wildlife Service (FWS) started a process that could help clarify liability under the Act. However, with this clarity will come additional regulatory obligations and the creation of a bright line between compliance and noncompliance.

    Like the Endangered Species Act (ESA), the MBTA imposes criminal liability for harming specifically-identified birds. Unlike the ESA, however, the MBTA does not currently have an extensive permitting system. As a result, most companies are unable to proactively ensure compliance with the MBTA unless they can avoid harming any migratory birds during their operations – and complete avoidance is extremely difficult when engaging in many industrial activities of any scale. Thus, entities operating wind energy, communication towers, oil and gas production, and electrical transmission facilities, for example, have generally adopted best management practices and hoped that their proactive efforts would result in lenient treatment by FWS if and when their operations accidentally harm migratory birds. (more…)


  6. Major Air Enforcement Action Against New Plant Owner Suggests the Value of EPA’s “New Owner Audit Policy”

    Thursday, May 21, 2015 11:41 am by and

    A new $1.3 million Clean Air Act penalty action by U.S. EPA and the Michigan Department of Environmental Quality against AK Steel Corporation has received significant public and media attention this week.  The proposed consent decree, filed with the court and opened for public comment on May 19th, includes significant cash penalties and supplemental environmental project requirements, along with burdensome obligations to establish an environmental management system, perform third party audits, and install costly new pollution controls.  Less often mentioned in this week’s stories about the consent decree is the fact that AK Steel just acquired the facility in question last year. (more…)


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