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  1. D.C. Circuit Hears Argument on 2013 Renewable Fuels Standard

    Tuesday, April 8, 2014 3:06 pm by

    On Monday, April 7, the D.C. Circuit heard oral argument in Monroe Energy v. EPA, No. 13-1265, which challenges the 2013 renewable fuels standards (RFS).  Judges Rogers, Griffith, and Pillard presided over the argument. Monroe Energy, an independent refiner, and trade associations API and AFPM challenged the 2013 RFS. PBF Holding Company LLC intervened on behalf of Petitioners, and multiple parties intervened on behalf of EPA. (more…)


  2. Proposed Waters of the U.S. Rule Changes the Question for Adjacent Wetlands

    Monday, April 7, 2014 12:55 pm by

    Prairie Pothole Wetlands
    Last week we discussed various elements of the U.S. EPA’s and Army Corps of Engineers’ proposed rule redefining Waters of the United States.  Today, we note a potentially wide-ranging impact of the rule regarding the identification of wetlands.

    Wetlands can be difficult for laypersons to identify, as some are wet for as little as 5-12% of the growing season. In mountainous areas of northern states, that can be as little as 4 days, so for much of the year they can be completely dry.  But wetlands are regulated like other waters and require a permit before they can be disturbed.  As a result, the greater the acreage of jurisdictional wetlands there are on a particular property, the more complex the permitting process will be. (more…)


  3. Spill Prevention under the Proposed Waters of the United States Rule

    Friday, April 4, 2014 8:00 am by and

    We’ve blogged about the scope of EPA’s proposed Waters of the United States rule and whether it provides any additional clarity to the current regulatory scheme.  With this post, we’ll start to outline some direct potential impacts on different segments of industry.  Today, we briefly examine what an expanded regulatory scope of waters could mean for industries required to comply with the Spill Prevention, Control, and Countermeasure (SPCC) Rule under the Oil Pollution Act and the Clean Water Act. (more…)


  4. Proposed “Waters of the U.S.” Rule: What Is Left of the Significant Nexus Test?

    Thursday, April 3, 2014 8:00 am by

    Yesterday, we continued examining the confusion inherent in EPA and the Corps’ proposed rule redefining “Waters of the U.S.”  Today we finish that analysis by asking what is left of the Significant Nexus test, if anything.

    As we discussed on Monday, the proposed rule tries to have its cake and eat it too.  The rule describes certain waters that are deemed always to have a significant nexus – and so are always jurisdictional – but also retains the significant nexus test for use on case-by-case basis.  As a reminder, under the proposed rule, “significant nexus” waters are jurisdictional if

    alone or in combination with other similarly situated waters in the region. . . [they] significantly affect[] the chemical, physical, or biological integrity of a [traditionally navigable or interstate water or the territorial seas]

    (Our emphasis). This test, which the agencies have been using since 2007 used to be opaque; its place in the new rule makes it even more so. (more…)


  5. Proposed “Waters of the U.S.” Rule: Clarity, Part 3

    Wednesday, April 2, 2014 8:00 am by

    On April 1, we looked at the opaque definitions of riparian area and floodplain in EPA and the Corps’ proposed rule redefining “Waters of the U.S.”  Unfortunately, part of the definition of another term – tributary – also raises more questions than it answers.

    We looked at part of the definition of tributary last Thursday, when examining the reach of the agencies’ jurisdiction upstream from traditionally navigable and interstate waters.  At the time, we discussed the portion of the definition that identifies a tributary as any feature with a bed and bank that contributes flow to any downstream jurisdictional water.  But that’s only part of the definition.  It continues: (more…)


  6. Proposed “Waters of the U.S.” Rule: Can Significant Nexus Be Clarified?

    Tuesday, April 1, 2014 8:46 am by

    On March 31, we discussed that, at best, EPA’s and the Corps’ proposed rule defining what waters fall under federal jurisdiction provides only partial clarity.  The agencies have done little to clarify the circumstances in which there is no federal jurisdiction.  They have done more to clarify when they do have jurisdiction.  But is the proposed rule clear enough?

    Recall that this question relates to the first of the two jurisdictional tests, which we discussed last Thursday – that a water is jurisdictional if is adjacent to tributaries of navigable waters.  Digging deeper into this test, the question is whether it provides any useful, additional clarity on top of that already provided by Justice Kennedy’s opinion in Rapanos. (more…)


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