Author: Cathy Salmento

Will the Tailoring Rule Stay?

Swamp Stomp

Volume 17, Issue 7

Though the Tailoring Rule was not finalized until May 13, 2010, the reason the Environmental Protection Agency (EPA) created the rule dates back to President George W. Bush’s administration.  Under Bush’s term, the Supreme Court ruled that if the EPA designated emissions as a “hazardous air pollutant,” then the EPA was allowed to regulate the pollutant under the Clean Air Act.  The Clean Air Act states that if more than 10 tons of one hazardous air pollutant or 25 tons of a combination of hazardous air pollutants is or has the potential to be admitted by one source, than that source needs to have a permit from the EPA.

The measurement used for the Clean Air Act was tons not percentages, which is 1,000 times larger than tons.  This becomes a problem if a gas like carbon dioxide (CO2) is classified as a hazardous air pollutant because it is measured in percent not tons.  Under the Clean Air Act, if CO2 is classified as a hazardous air pollutant, then millions of sources including schools and churches would need to acquire permits.  The EPA is not equipped to handle that many requests for permits.  The EPA was not overloaded with permit requests under Bush’s administration because they did not classify CO2 as a hazardous air pollutant, so their only permit requests came from big industries.

That was not the case for the Obama administration.  The EPA under the Obama administration classified CO2 as a hazardous air pollutant, so they needed to come up with a solution to shrink the number of requests for permits.  Thus the controversial Tailoring Rule was created.  The Tailoring Rule increased the threshold for sources requiring permits for CO2 and other greenhouses gases to 100-250 tons per year, a hundred times increase to what is required by the Clean Air Act.  Additional the Tailoring Rule states that if a source was admitting greenhouse gases and other hazardous air pollutants than they would need a permit if their emissions exceeded 75,000 tons per year.  Sources would also need a permit if their greenhouse gas emissions exceeded 100,000 tons per year regardless of the amount of other hazardous air pollutants they emitted.

While this solved the EPA’s problem regarding the number of permit requests they would receive, the new was very controversial.  Regulatory agency are not supposed to be able to change laws, they are just supposed to enforce them.  The EPA is a regulatory agency and the Clean Air Act is a law.  By creating the Tailoring Rule, the EPA is changing the law so that they would not be overrun by the number of permit request they would get.  Legal analysts agree that the Tailoring Rule oversteps the EPA’s bounds but the Tailoring Rule is still in effect today.

With a new administration in the White House, the question becomes will the new administration keep or do away with the Tailoring Rule?  If they do away with the Tailoring Rule, will the EPA change the classification of CO2 and other greenhouses gases as hazardous air pollutants and if not, how will the EPA deal with the number of permit requests they will receive?  At the moment, we will just have to wait and see if the new administration will even address the Tailoring Rule or just let it be.

“Clean Air Act Permitting for Greenhouse Gases.” EPA. Environmental Protection Agency, 29 Nov. 2016. Web. 06 Feb. 2017.

“EPA’s “Tailoring” Rule.” Center for Climate and Energy Solutions. Center for Climate and Energy Solutions, n.d. Web. 06 Feb. 2017.

New EPA Program with $1 Billion Available for Water Infrastructure

Swamp Stomp

Volume 17, Issue 6

The U.S. Environmental Protection Agency (EPA) stated that about $1 billion in loans are now available to be used towards water infrastructure projects under the new Water Infrastructure Finance and Innovation Act (WIFIA) program.

The type of loans the EPA’s WIFIA program will provide are long-term, low-cost credit assistance and will come in the form of direct loans and loan guarantees to creditworthy water projects.  In addition to the State Revolving Funds and bond market, WIFIA is another way to receive funding on large infrastructure projects that cost at least $20 million.  The WIFIA program is open to state, local, and tribal governments; private entities; partnerships; and State Revolving Fund programs.  It has been estimated by EPA that funds appropriated to the WIFIA program can be leveraged at a ratio greater than 50 to one, this means the programs budget of $17 million could allow the EPA to make approximately $1 billion in loans and stimulate about $2 billion in total infrastructure investment.

“The launch of the Water Infrastructure Finance and Innovation Act program marks a huge step forward for modernizing our nation’s aging water infrastructure,” said EPA Administrator Gina McCarthy. “WIFIA gives us a new opportunity to provide billions of dollars in low-interest loans to communities to build large infrastructure projects, significantly accelerating investments that benefit our nation’s public health and water security for generations to come.”

The Environmental Protection Agency is only allowed to loan out the Water Infrastructure Finance and Innovation Act money on projects that improve water infrastructure.  Some examples of projects that are able to receive loans from WIFIA are:

  • drinking water treatment and distribution projects
  • wastewater conveyance and treatment projects
  • enhanced energy efficiency projects at drinking water and wastewater facilities
  • desalination, aquifer recharge, alternative water supply, and water recycling projects
  • drought prevention, reduction, or mitigation projects

To determine whether projects fall under Water Infrastructure Finance and Innovation Act funding, the Environmental Protection Agency will be considering the extent to which the project is nationally or regionally significant, helps maintain or protect public health or the environment, protects against extreme weather, and serves regions with significant water resource challenges.  Selections will be made by the EPA on a competitive basis.

It has been estimated by the Environmental Protection Agency that the United States needs about $660 billion in investments that go towards drinking water, wastewater, and storm water infrastructure over the next 20 years.

To find out more information about the Water Infrastructure Finance and Innovation Act program visit www.epa.gov/wifia.

Do you think the EPA should be putting their resources towards water infrastructure?  If not, what should the EPA be putting their time, money, and talents towards?  Do you think the EPA’s estimates about the amount needed to be invested towards drinking water, wastewater, and storm water infrastructure in the next 20 years is correct?  If not, why do you think the amount is too high or too low?

Source: “EPA Launches New Program With $1 Billion in Loans Available for Water Infrastructure Projects.” EPA. Environmental Protection Agency, 10 Jan. 2017. Web. 20 Jan. 2017.

Corps Revises and Renews Permits

Swamp Stomp

Volume 17, Issue 5

On January 6th, The U.S. Army Corps of Engineers (Corps) announced revised and renewed nationwide permits.  These permits allow holders to work in streams, wetlands and other waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.  These renew and revised nationwide permits will go into effect on March 19, 2017 thus rendering the old permits expired on March 18, 2017.

The 2017 nationwide permits can be found on January 6th’s Federal Register at https://www.federalregister.gov/documents/2017/01/06/2016-31355/issuance-and-reissuance-of-nationwide-permits, and the Army Corps of Engineers website at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx.

“Our goal in developing and authorizing nationwide permits every five years is to update them, and provide clarity and certainty for the regulated public while protecting the aquatic environment. Our nationwide permits are an important tool in encouraging project proponents to avoid and minimize impacts to wetlands, streams, and other aquatic resources,” said Maj. Gen. Ed Jackson, USACE Deputy Commanding General for Civil and Emergency Operations.

“The updated permits streamline the requirements of the Clean Water Act, and are informed by extensive feedback from the public and other key stakeholders. USACE is reissuing 50 permits and adding two new ones. These permits provide expedited review of projects that have minimal impact on the aquatic environment. Categories of activities that may be covered under the NWPs include linear transportation projects, bank stabilization activities, residential development, commercial and industrial developments, aids to navigation and certain maintenance activities” (Army…).

A significant portion of the nationwide permits announced on January 6th do not have any major changes since 2012, which is last time the nationwide permits were authorized in accordance with the law.

The Corps division commanders may add, after public review and consultation, regional conditions to nationwide permits.  This would be done to protect local aquatic ecosystems such as fens or bottomland hardwoods, or to minimize adverse effects on fish or shellfish spawning, wildlife nesting or other ecologically critical areas.

Some of the revised and new nationwide permits include:

  • Corps reissued 50 existing permits and added two new ones.
  • Nationwide permit 48 – The NWP 48 for Existing Commercial Shellfish Aquaculture Activities is revised to provide greater flexibility in its use. For example, NWP 48 now incorporates provisions that authorize activities that are consistent with other federal, state, tribal and local regulatory authorities. Incorporating these already authorized activities will reduce the number of activities that require review by individual USACE districts.
  • Nationwide Permit 53 – This new NWP covers the removal of low-head dams. The removal of these dams will restore rivers and streams, and will improve public safety by removing dams that can pose hazards to swimmers and to users of small recreational craft.
  • Nationwide Permit 54 – This new NWP covers the construction and maintenance of living shorelines, a technique to protect coastal property from erosion while providing some aquatic habitat and water quality benefits.

Do you agree with the revisions made by the Corps?

Source: “Army Corps of Engineers Revises and Renews Nationwide Permits.” U.S. Army Corps of Engineers. U.S. Army Corps of Engineers, 06 Jan. 2017. Web. 24 Jan. 2017.

Maryland gets $537,000 from EPA to Protect Wetlands

Swamp Stomp

Volume 17, Issue 4

On December 8, 2016, the U.S. Environmental Protection Agency (EPA) awarded the Maryland Department of the Environment (MDE) $537,000 to use towards a project creating a web-based system for submitting wetland permit applications, photographs, and plans for restoration projects electronically.

“Wetlands play a significant role in protecting our nation’s water supply,” said EPA Regional Administrator Shawn M. Garvin. “By taking action to protect and restore these valuable resources, MDE is protecting sources of drinking water, preventing flooding, and making us more resilient to climate change.”

“Wetlands are workhorses for protecting the Chesapeake Bay and increasing the quality of our lives throughout the state,” said Maryland Secretary of the Environment Ben Grumbles. “Web-based permitting for wetlands will improve customer service and deliver environmental results, such as cleaner water, healthier habitat, and more resilient communities.”

“The Clean Water Act recognizes the dangers of upstream pollution sources. As water flows downstream it can carry pollutants with it. Wetlands are instrumental in eliminating or treating pollution, and can have a huge impact on receiving waters located downstream” (McKinney).

Over the course of the year 2016, the EPA’s mid-Atlantic region announced the granting of $2.8 million to be used towards Wetland Program Development Grants.  Some of the other areas to receive these EPA grants were the Delaware Department of Natural Resources and Environmental Control, Virginia Institute of Marine Science, Virginia Department of Environmental Quality and the Pennsylvania Department of Environmental Protection.

The purpose of Wetland Program Development Grants are to use them to build and refine comprehensive wetland programs, with priority given to funding projects that address: developing a comprehensive monitoring and assessment program; improving the effectiveness of compensatory mitigation; and refining the protection of vulnerable wetlands and aquatic resources.

To learn more information about Wetland Program Development Grants go to http://water.epa.gov/grants_funding/wetlands/grantguidelines/index.cfm.

Source: McKinney, Jesse. ” EPA Awards $537,000 to Maryland to Protect Wetlands.” Maryland Department of the Environment. Maryland Department of the Environment, 08 Dec. 2016. Web. 09 Jan. 2017.

WOTUS Ruling Goes to the Supreme Court

Swamp Stomp

Volume 17, Issue 3

On Friday January 13, 2017, the Supreme Court announced that it will decide the proper channel to challenge the Obama administration’s new Waters of the United States” or WOTUS.  The Pacific Legal Foundation (PLF) believes that WOTUS “…threatens millions of property owners with unjustified federal oversight by vastly expanding the reach of the Clean Water Act in violation of federal law.”

Justices granted an industry petition asking the court to reconsider the 6th U17.S. Circuit Court of Appeals’ decision to hear legal challenges over Waters of the United States rule.

“More than 30 states and many industry and farm groups have challenged the joint U.S. EPA and Army Corps of Engineers rule redefining what waterways and wetlands receive automatic protection under the Clean Water Act” (Reilly).

The Supreme Court accepted the case of National Association of Manufacturers v. U.S. Department of Defense.  In the Sixth U.S. Circuit Court of Appeals, they ruled using a restrictive approach to judicial relief, which allows only federal courts of appeals to hear WOTUS challenges.  This means that angry landowners and others regulated by WOTUS cannot take legal action through federal trial courts, instead, their lawsuits would all go to the first appellate court to consider a challenge.

“In February, the Ohio based 6th Circuit ruled 2­1 that it had jurisdiction to hear the challenges. The 6th Circuit also issued a nationwide stay of the rule pending the resolution of the litigation” (Reilly).

This jurisdictional ruling was appealed to the Supreme Court by the National Association of Manufacturers.  They were later joined by the Pacific Legal Foundation, who joined as a direct litigant, on behalf of a number of landowners, farmers, and ranchers throughout the country.  The outcome of the Supreme Court’s ruling is very important because it could affect how and where plaintiffs may challenge questionable rulemaking under the Clean Water Act in future cases, and perhaps other laws as well.

The agreement by the Supreme Court to hear this case and review the Sixth Circuit’s ruling is not what the Obama administration was hoping to hear.  The administration has been fighting to keep the fights out of district courts that they feel may be more sympathetic towards those challenging the rule.

The fate of the Clean Water Act is even more up in the air due to the fact that it is expected that President-elect Donald Trump will work to get rid of the act once in office.

Not only is the Pacific Legal Foundation a part of this Supreme Court case, they are also challenging the WOTUS rule in the Sixth Circuit.

“The Supreme Court’s announcement is encouraging news for millions of landowners nationwide who have been uncertain where to file suits challenging federal regulations that define the scope of the Clean Water Act,” said PLF Principal Attorney M. Reed Hopper, who wrote PLF’s brief asking the court to hear the case.  “The Sixth Circuit read the Clean Water Act far too narrowly when it limited jurisdiction over WOTUS challenges to federal appellate courts. We expect the Supreme Court to overturn the Sixth Circuit decision.”

To learn more about this case and the Pacific Legal Foundation visit www.pacificlegal.org.

Sources: “PLF Applauds High Court Accepting WOTUS Jurisdictional Case.” Pacific Legal Foundation. Pacific Legal Foundation, 13 Jan. 2017. Web. 13 Jan. 2017.

Reilly, Amanda. “Justices Take up WOTUS Jurisdiction Dispute.” Greenwire. Greenwire, 13 Jan. 2017. Web. 13 Jan. 2017.

The EPA’s Attempt to Stop Media Use of WOTUS

Swamp Stomp

Volume 17, Issue 2

The Obama Administration’s final rule defining what wetlands and waterways deserved automatic Clean Water Act protection did not receive the reception they were hoping for.  In fact, they had to work very diligently in order to try to squish the journalist coined acronym ‘WOTUS,’ which they felt was unflattering and misleading.  WOTUS stands for the “Waters of the United States” rule.

In correspondence obtained by E&E News through the Freedom of Information Act, it was found that at least six reporters were told by U.S. Environmental Protection Agency (EPA) officials to stop using the acronym WOTUS and to instead call the rule the “Clean Water Rule.”

At the moment the EPA-Army Corps of Engineers regulation cannot do anything until a verdict is made by the 6th U.S. Circuit Court of Appeals on the merits of the regulation.  If the rule does make it through the Court of Appeals, President-elect Donald Trump has already stated that during the early part of his administration, he would do away with the rule.  At the moment, it appears like this would be hard for Trump to do and that it would take time.

The rule was first brought forward by the Obama administration in March 2014 and it was called the “Definition of Waters of the United States under the Clean Water Act,” a title playing on a critical phrase in the law, “navigable waters of the United States,” that specified areas subject to federal oversight.  Five months after the rule was announced, the EPA and the Corps dubbed the rule the Clean Water Rule, which was then included in the regulations formal title.

“WOTUS is a technical term that refers to the waters throughout the country that the rule examines,” EPA spokeswoman Monica Lee said in an email. “WOTUS was used as a placeholder in the beginning stages of the proposal. Clean Water Rule is what the agency uses on our website and in the Federal Register to refer to the rule.”

Much to the chagrin of the EPA’s Office of Public Affairs, the press did not take to the rule’s new name.  What was more problematic for the agency was that challengers of the rule were using WOTUS in their press releases.  These challengers included farm groups, real estate developers and congressional Republicans.

The EPA tried to put even more pressure on journalists to stop using the term WOTUS.  In at least one case, they tried to stop Politico water reporter Annie Snider to stop using the acronym by using her editors to pressure her.

“’For some reason, she refuses to call the rule by its name,’ then-EPA spokeswoman Liz Purchia told editors Nick Juliano and Matt Daily on Dec. 14, 2015, the day the Government Accountability Office issued a scathing legal opinion that EPA had broken lobbying laws in its promotion of the rule. Snider previously worked at E&E News.

As Snider was leaving E&E News for Politico in November 2015, EPA’s Lee asked her to instruct her replacement to use the rule’s full official name” (Stecker).

The administration wanted to get rid of the acronym because they feared it made it seem like the rule covered all U.S. Waters and made them federally regulated.

“We felt like those opposed to the rule were intentionally misleading the public and stakeholders about the extent of the rule,” said Purchia, a former associate administrator for the Office of Public Affairs and now at a communications firm.

Industry and agriculture groups that saw the rule as an attempt to regulate farming and development “were trying to create confusion and a negative association with the name Waters of the U.S.,” Purchia said in an email. “We were presenting a more accurate and direct explanation of the importance of why this rule existed in the first place, which was to protect water sources that communities and economies depend on.”

The opposition says that the EPA politicized the issue, not them.

“In an attempt to sell the country on an expansive new federal regulation, the Agencies coined a new term for their regulatory program — the ‘Clean Water Rule.’ This terminology implies that without this Rule, the nation’s waters will be ‘unclean,'” attorneys representing state petitioners wrote in a court brief. “All of the States have robust regulatory programs that protect and preserve the natural resources within their boundaries.”

What do you think about the acronym WOTUS?  Do you think the EPA or its challengers are right?

Source: Stecker, Tiffany. “How EPA Tried to Erase ‘WOTUS’ from Media Lexicon.” E&E News. E&E, 02 Dec. 2016. Web. 02 Jan. 2017.

U.S. Manufacturing Economy Boosted by Shale

Swamp Stomp

Happy New Year!!!

Volume 17, Issue 1

According to the findings of two recent economic reports done, the United States economy is being strengthened and U.S. manufacturing is becoming more competitive due to the increase in development of American natural gas.  The first report was done by researchers from the prestigious London School of Economics.  At the conclusion of their report, they found that natural gas development “has made U.S. manufacturing more competitive” and helped advance American manufacturing exports to the world.  These economic experts concluded “that the cost advantage due to the shale gas boom may have helped the US economy recover significantly faster than it would otherwise have done after the financial crisis of 2007/08.”

To make the report easier to read and understand, here are the key takeaways from the London School of Economics’ report:

  • The report finds an increase to manufacturing competitiveness: “Firms that manufacture energy-intensive products experienced a much more substantial cut in production costs and, hence, a boost to their competitiveness.”
  • It is cheaper to have domestic natural gas: “For every dollar increase in the price gap of natural gas between the United States and Europe, output in chemical manufacturing increased by 1.6%. In the face of nearly a $10 gap by the end of our sample period, this baseline result is large. … The shale gas boom provided energy intensive industries with a cost advantage over their international competitors.”
  • There has been an increase in manufacturing jobs: “Total manufacturing sector employment increased by around 356,000 jobs up to 2012. A comparison with previous research suggests that, for every two jobs created in direct relation to fracking, this indirect effect adds more than one additional job elsewhere in the economy.”
  • Boosts American manufacturing exports: “Given that the price gap widened to $10 by 2012, we find that average manufacturing exports have expanded by roughly 10% due to the shale gas boom. This amounts to roughly 4.4% of the overall value of exports of goods and services from the United States in 2012.”

A second study was published by the National Bureau of Economic Research, experts with the University of Pennsylvania.  These experts found that natural gas development has been the direct cause of a net increase of 4.6 million new American jobs.

The import facts from the National Bureau of Economic Research study:

  • Creates jobs: “In the aggregate, we estimate that during the shale oil period 4,600,000 (net) new jobs are linked with the development of shale oil technology. This represents a 4.2% increase in the number of jobs across the industries in our study, compared to the aggregate number of jobs at the beginning of the shale oil period.” (p. 4)
  • Can drive the economy long-term: “We find that…shale oil is an important contributor to the future U.S. economic growth.” (p. 48)

“Both economic reports further underscore the key message that MSC’s Dave Spigelmyer told Fox News late last week: The continued growth of natural gas development – and the safe modernization of infrastructure to move gas to market – presents tremendous opportunity for the Commonwealth’s economy and environment” (Shale…).

What do you think about the findings of these reports?  Should the U.S. invest more in natural gas development?  What are your concerns about natural gas development?

Source: “Shale Makes U.S. Manufacturers, Economy More Competitive.” Marcellus Shale Coalition. Marcellus Shale Coalition, 21 Dec. 2016. Web. 21 Dec. 2016.

Cleaning Waterways Helps Farmers

Swamp Stomp

Volume 16, Issue 52

In the mountains of Luray, in the northern part of the Shenandoah Valley, David Sours’ is one of many produce farms located in the Shenandoah and Rappahannock river watersheds which is benefiting from a grant supporting farm-to-table connections.

“Everybody believes local food is an easy thing and take it for granted but it is complicated, especially on the distribution side,” said Dale Gardner, field scientist and value chain facilitator. “People don’t realize how labor intensive it is.”

Virginia Tech’s College of Agriculture looks over the program which works to encourage best practices on farms in the northern area of the state.  Another program run by Virginia Tech is the “Virginia Market Ready Farm to Restaurant Workshop” which is open to farmers and producers all across Virginia.

Eric Bendfeldt, extension specialist, community viability, at Virginia Cooperative Extension, said, “Part of what we do is address how to build capacity for farmers to enter the restaurant and institution markets.”

Dale Gardner is tasked with improving the health of waterways by finding common ground around water quality improvements, soil quality, and farm-to-table relationships.  He is the primary contact working with farmers who grow produce, although “many of the same issues apply to livestock farmers,” he said.

The grant is funded by the National Fish and Wildlife Foundation and the U.S. Environmental Protection Agency and was awarded to Virginia Tech.  The grant is based on “the premise that helping farmers – or “producers” of agricultural products – to adopt and implement Best Management Practices (BMP’s) will ultimately improve their ability to access and retain a wider array of sustainability-minded distributors and consumers and become more profitable” (Farmers…).

Bendfeldt said, “The grant helps them encourage restaurants, institutions, and the general public to work with producers to buy local and regional food from farmers who are also good environmental stewards.”

“We’ve worked with more than 20 farmers who are adopting or developing continuous improvement plans to reduce nutrients and sediment from leaving their farm and entering waterways,” Bendfeldt said. “The overall goal is to create a culture of conservation from the farm-to-the-table so it’s a win for producers, consumers, businesses.”

This approach is a work in promise and the hope is that it will be used as a model for other areas to start their own sustainable food system and make this a commitment for all.  Bendfeldt said, “In the workshop we emphasize that you have to differentiate yourself in some way, through a brand, or label, or in telling your story. Are you a third or fourth generation farmer? Tell about the BMP’s you have installed and what you are doing to protect water quality and how you are being a good water steward.”

Farmer David Sours believes the improvements he made on his farm, especially strip tilling aimed at reducing soil erosion, resulted in “substantial economic impact for the good—it has reduced labor for us and has made some of my crops a little more economically feasible.”

Do you agree with the premise of the grant?  Do you think more communities should be focused on creating a sustainable food system?

Source: “Farmers Find Cleaning Waterways Can Help The Bottom Line.” The Roanoke Star. The Roanoke Star, 02 Nov. 2016. Web. 15 Dec. 2016.

Court Ruling Harmful to Landowners

Swamp Stomp

Volume 16, Issue 50

Earlier this spring, the Supreme Court ruled in favor of landowners.  The ruling meant that landowners could sue the federal government on disputes over federal protected waters.  At the time, this was seen as a major victory from landowners and developers.  Now though, legal experts believe that this ruling will make the permitting process more difficult for developers.

“The 8-0 ruling in Army Corps of Engineers v. Hawkes Co. Inc. gives landowners legal recourse to challenge “approved” jurisdictional determinations, which are formal decisions on whether jurisdictional wetlands are present on a tract of land” (Stecker).

The Supreme Court reasoned that the Army Corps’ approved jurisdictional determinations are “final agency actions” and because of this, when landowners disagree, the ruling becomes subject to legal review.

Contrary to what was thought at the time, some legal experts believe that this could decrease the number of decisions issued by the Army Corps, the agency responsible for making the determinations.  If this occurs, it will cause a delay of big projects and cause costs to go up.

“I think it’s a double-edged sword, that decision,” said Josh Bloom, an environmental attorney with Meyers Nave in Oakland, Calif. “I think it’s a little bit of ‘be careful what you wish for.'”

Before this ruling, the only way to appeal approved jurisdictional determinations was by going through the Army Corps’ administrative process.  What jurisdictional determination states is whether a project needs Clean Water Act and Rivers and Harbors Act permits before it can start.

The difference between approved jurisdictional determinations and preliminary jurisdictional determinations is that approved jurisdictional determinations are legally binding and preliminary jurisdictional determinations are not.

“On the one hand, when the regulated community started reading the opinion, they were happy,” said Andrew Stewart, an attorney with Vinson & Elkins. “On the other hand, when they went through the repercussions of the opinion and the potential to strongly incentivize preliminary [jurisdictional determinations], they weren’t as happy with the outcome.”

Pacific Legal Foundation attorney Reed Hopper, who argued on behalf of the Minnesota peat mining company Hawkes Co. Inc. at the Supreme Court, does not agree that the ruling will cause a decrease in the amount of Army Corps’ approved jurisdictional determinations.

Hopper believes that because most of these determinations are over quickly and without controversy that there is no reason for the Army Corps to slow down their process.

“If they did so, it would be counterproductive for them,” he said. The corps “wants to be able to assert jurisdiction.”

“In most cases, a developer will accept a preliminary determination of jurisdictional waters, which is advisory in nature and only discloses whether jurisdictional waters may be on the property. The developers will then proceed with permitting on the assumption that waters are present or not present.  But for large, complicated projects planned near wetlands, approved jurisdictional determinations are necessary. Approved determinations offer a five-year “safe harbor” of guaranteed certainty that can shield landowners from potential Clean Water Act violations” (Stecker).

The argument used by the Army Corps was that ruling in favor of the mining company would cause them to lead toward issuing preliminary jurisdictional determinations over approved?

Do you agree with the legal experts or Hopper?

Source: Stecker, Tiffany. “High Court Ruling for Landowners a ‘double-edged Sword'” WETLANDS. E&E Publishing, LLC, 1 Nov. 2016. Web. 23 Nov. 2016.

White House Releases Latest Regulatory Agenda

Swamp Stomp

Volume 16, Issue 49

On November 18th, the Obama Administration released its latest regulatory agenda, which details the plan for the remaining months of Obama’s tenure.

The agenda includes tools in order to support the U.S. Environmental Protection Agency’s (EPA) Clean Power Plan, as well as new rules on renewable fuels, ozone pollution, water infrastructure and coal mining.

The latest issue of the biannual “Unified Agenda of Federal and Regulatory and Deregulatory Actions” discusses short term as well as long term plans for every government agency.

It is believed that this agenda is President Obama’s way to cement his legacy.  This comes in the wake of President-elect Donald Trump’s promise to undo Obama’s policies on the environment.  Many experts predict that if Mr. Trump goes through with this promise, multiple lawsuits would be filled.

“History suggests Trump will pause rulemaking efforts, freezing pieces of Obama’s regulatory legacy not completed before inauguration. Trump’s team may initiate rulemaking to undo other actions” (Hess).

With President Obama soon vacating the office and President-elect Donald Trumping taking over, certain efforts may be delayed including the efforts related to endangerment findings that obligate EPA to limit emissions from the aviation sector.

“EPA for the first time published its schedule for proposed greenhouse gas emissions standards and test procedures for aircraft and aircraft engines. A notice of proposed rulemaking is planned for January 2018 — one year after Trump takes office” (Hess).

Regarding greenhouse gas, the EPA is moving forward with regulation that is aimed to support states that are cutting carbon pollution from the power sector.

By the end of the year the Environmental Protection Agency will also have put in place a finalized model of carbon trading rules, as well as six amendments to Section 111(d) of the Clean Air Act.  These amendments deal with the process for acting on state plans to meet carbon dioxide limits.

There has been no specific date provided, other than next year, for when the Clean Energy Incentive Program will be up and running.  The program is supposed to encourage early renewable power development and low-income energy efficiency projects.

In the works at the EPA is a plan to finalize a rule next month to require industrial facilities to submit reports on excess emissions, performance tests and other data electronically, part of a goal to modernize environmental oversight.

“The agency’s Office of Air and Radiation will hand off major revisions of emissions monitoring and reporting requirements for coal-fired power plants under its acid rain program to the Trump administration. A notice of proposed rulemaking is due November 2017” (Hess).

Not only is the EPA currently working on an aircraft engine emissions standards, it also has plans to issue a proposed endangerment finding, under Clean Air Act Section 231, on releases from aircraft operating on leaded fuel by December 2017.

With the change of administration, how much do you think the EPA can actually get done?

Source: Hess, Hannah. “Obama Blueprint Aims to Cement His Regulatory Legacy.” Governors’ Wind & Solar Energy Coalition. Governors’ Wind & Solar Energy Coalition, 21 Nov. 2016. Web. 30 Nov. 2016.