The economy may be stalled, but the use of Nationwide Permit (NWP) 12 just opened back up for non-oil and gas pipeline projects. A recent decision rocked the permitting community as a judge vacated NWP 12 outright because the U.S. Army Corps of Engineers (Corps) violated the Endangered Species Act (ESA) by not consulting with the U.S. Fish and Wildlife Service prior to reissuing NWP 12. However, earlier this week, Judge Morris amended the remedy provided in his April 15, 2020 order, which vacated all continuing use of NWP 12.
Continue Reading Nationwide Permit (NWP) 12 Re-Opened for Non-Oil and Gas Pipeline Projects

Husch Blackwell’s Environmental practice group has collected the latest enforcement actions from various federal and state agencies tasked with regulating environmental policy in one convenient location, available here. The group will update this resource periodically as new guidance and rulemakings are handed down.

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Due to its suddenness and severity, overnight the COVID-19 outbreak has rearranged the priorities of corporate legal departments. Things that were of top-of-list importance yesterday have likely been replaced by action items that were inconceivable just a few weeks ago. Additionally, the “all-hands-on-deck” approach to managing the crisis is likely to last for some time and perhaps longer than any of us could have imagined. There are going to be many legal issues of great strategic importance that simply won’t receive the attention they require; likewise, there will be day-to-day issues that could also be overlooked. Environmental monitoring and reporting requirements could be among those.
Continue Reading Environmental Compliance During COVID-19 Business Disruption

The most recent Environmental Protection Agency (“EPA”) Regulatory Agenda shows a further delay for the agency to finally promulgate long-awaited changes to its Chemical Accident Prevention Program, also known as the Risk Management Program (“RMP”).  After Obama made major changes, the Trump EPA delayed them and now seeks to reverse them. Want to understand this

As discussed in prior blog posts, the Federal Circuits became split (Part 1) in 2018 on whether the Clean Water Act (“CWA” or the “Act”) regulates discharges of pollutants from point sources that reach navigable waters through nonpoint sources, such as groundwater. Recently, the U.S. Supreme Court granted certiorari in one of those Circuit decisions (Part 2), and the case is still in front of the Supreme Court. While U.S. EPA had requested comments on this and other issues (Part 3), the agency’s current position was unknown until recently. On April 15, 2019, EPA released an interpretive statement and corresponding press release providing new guidance on whether the CWA permitting requirements apply to discharges directly to groundwater (78 Fed. Reg. 16810 (April 23, 2019)).

Continue Reading CWA Series: Do Discharges to Groundwater Require a Permit? EPA just changed its mind.

yellow blue smoke from two tubes of plantPer- and polyfluoroalkyl substances (“PFAS”) are synthetic chemicals used in a number of industrial processes and in the manufacturing of certain consumer goods because of their fire resistance and because they repel oil, stains, grease, and water. There are approximately 3,500 different compounds under the umbrella of PFAS. Some of these were used in firefighting foam, which in some places, including near airports, were spread over the ground to prevent forest fires. The most well-known versions, and considered to be of greatest concern, are long chain PFAS, perfluoroctanoic acid (“PFOA”) and perfluoroctane sulfonate (“PFOS”).
Continue Reading PFAS: A new source for regulatory concern

Previously, we reported the Federal Circuit split (Part 1) regarding indirect discharges to navigable waters through groundwater and the Supreme Court’s grant of certiorari in one of those cases (Part 2), which will hopefully settle whether the Clean Water Act (“CWA” or the “Act”) governs an indirect discharge to navigable waters. Whether the CWA applies to particular surface waters remains a hot topic almost 50 years since the modern-day CWA was passed in 1972, as the litigation continues over the Obama Administration’s rule (promulgated in 2015) defining the scope of the CWA, as well as the Trump Administration’s attempts to repeal that rule.  
Continue Reading CWA Series: In redefining the scope of the Clean Water Act, will the new WOTUS rule truly be a sea change?