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  1. 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…)


  2. 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…)


  3. 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…)


  4. 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…)


  5. 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…)


  6. 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…)


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