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  1. 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…)


  2. 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…)


  3. 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…)


  4. 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…)


  5. Oklahoma Enters the Fray of Endangered Species Sue-and-Settle

    Monday, March 24, 2014 4:14 pm by and

    On March 17, 2014, the State of Oklahoma sued the U.S. Department of the Interior, taking aim at the U.S. Fish and Wildlife Service’s habit of settling large Endangered Species Act cases with Environmental Non-Governmental Organizations. The lawsuit signals an important escalation in the fight against such settlements. ESA lawsuits have become a key tool to prevent or delay project development activities, including in the oil and gas industry.

    Over the last several years, FWS has repeatedly settled NGO lawsuits with consent agreements in which FWS commits to prioritize the NGOs’ chosen species for potential listing – and on a fixed timetable. The largest settlement resulted in FWS agreeing to examine 455 different species over the course of five years.

    lawsuithighlights several additional concerns with these settlements, including: (more…)


  6. DOT’s New NEPA Categorical Exclusion May Actually Speed Project Delivery

    Friday, January 17, 2014 10:52 am by

    Spurred on by Congress, on Monday, the Federal Highway and Transit Administrations adopted a categorical exclusion which may spare some projects a detailed review under the National Environmental Policy Act.  Specifically, projects that receive less than $5,000,000 in federal funding will be presumed not to have to undertake any NEPA review at all.

    The fact that there would be some type of CatEx along this line was never in doubt – in July 2012, Congress included a provision in Section 1317 of the highway bill (called “MAP-21”) specifically ordering DOT to (1) designate a CatEx for any project that receives less than $5 million in federal funding and (2) promulgate a rule to carry out the CatEx.  The question was how DOT would implement this mandate:  Would any project whatsoever that received less than $5 million be excluded, even if DOT had other major decisions to make on the project – decisions that would normally require NEPA review? (more…)


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