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  1. 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…)


  2. 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…)


  3. Proposed “Waters of the U.S.” Rule Improves Regulatory Clarity – In Part

    Monday, March 31, 2014 9:49 am by

    On March 28, we looked at the question of whether the rule proposed by the U.S. EPA and Army Corps of Engineers redefining their Clean Water Act jurisdiction was just a restatement of the current law. Today we will look at another assertion the agencies make:  that the rule will increase regulatory clarity.  Setting aside the question of whether the definitions we looked at on Friday are clear (we’ll examine that tomorrow), the short answer is that the rule does increase clarity, in part – it provides additional clarity as to what waters are under federal jurisdiction; it provides very little clarity as to what waters are not.  So unfortunately, for many activities, the regulated community will still be left wondering whether it needs federal approvals. (more…)


  4. Lesser Prairie-Chicken Listed as Threatened Under Endangered Species Act

    Friday, March 28, 2014 11:50 am by

    On March 27, 2014, the U.S. Fish and Wildlife Service (USFWS) announced the final listing of the lesser prairie-chicken, a grassland bird that roams across key areas for oil and gas development in Texas, New Mexico, Oklahoma, Kansas and Colorado, as “threatened” under the Endangered Species Act (ESA).  At the same time, the USFWS issued a final special rule under section 4(d) of the ESA that is intended to limit the regulatory impacts of the listing on energy developers (e.g., oil and gas, wind, transmission) and landowners participating in approved range-wide conservation plans. (more…)


  5. EPA Proposes Its Waters of the U.S. Rule – Can It Survive the Supreme Court?

    7:48 am by

    Yesterday, we discussed the breadth of the U.S. Environmental Protection Agency’s and Army Corps of Engineers’ proposed rule defining what waters fall under federal jurisdiction. Their press release announcing the rule states that the proposed rule “does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.”  The real question is whether the rule survives Rapanos.

    As alluded to in the press release, Rapanos v. U.S.is the Supreme Court decision most recently narrowing the scope of the Clean Water Act.  Rapanos was an enforcement action against a developer for filling wetlands. The case centered around whether the wetlands at issue were jurisdictional. (more…)


  6. EPA’s Proposed Waters of the U.S. Rule: Does It Regulate Puddles?

    Thursday, March 27, 2014 10:21 am by

    Yesterday, we blogged about the EPA and Corps’ proposed rule defining what waters fall under federal jurisdiction. In a leaked draft, EPA was seen to have been contemplating explicitly excluding puddles from regulation, but, in the end, didn’t do so.  EPA provided an explanation as to why, but the rule is so broad, we think EPA’s explanation may not be completely relevant. In other words, because the rule is so broad, many puddles actually might fall under federal jurisdiction.

    The reason is the host of new definitions proposed by EPA. Previously undefined terms like tributary, neighboring, and floodplain are all now defined, and in a way that creates a web of federal jurisdiction. Here’s how: (more…)


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