December 5, 2019

Deferring to U.S. EPA’s Interpretive Statement, Court Finds That Groundwater Discharges are Not Regulated by Clean Water Act

Environmental Alert

(by Lisa Bruderly and Gary Steinbauer)

Another district court has weighed in on the continuing debate as to whether the Clean Water Act (CWA) regulates discharges to groundwater that then flow into a surface water. However, unlike previous decisions, the federal district court in Massachusetts has deferred to EPA’s Interpretive Statement on the subject, 84 Fed. Reg. 16810 (April 23, 2019), as its basis for holding that releases of pollutants to groundwater are categorically excluded from the CWA’s permitting requirements. Conservation Law Foundation v. Longwood Venues & Destinations, Inc., Civil Action No. 18-11821 (D. Mass. Nov. 26, 2019).

The Longwood Venues decision comes less than one month after the U.S. Supreme Court heard oral argument in the County of Maui v. Hawai’i Wildlife Fund matter, a pending case addressing this same subject. With the highly anticipated County of Maui decision expected in the summer of 2020, the decision in Longwood Venues provides defendants in citizen suits with a new basis for contesting alleged CWA liability for discharges that travel through groundwater before reaching a jurisdictional surface water. Neither the United States nor any other party in the Supreme Court’s County of Maui case has argued that EPA’s Interpretive Statement is entitled to deference as a reasonable interpretation of the CWA. Rather, these parties contend that the CWA unambiguously provides that discharges to groundwater are not within its scope.   Reliance on the Interpretive Statement injects new fodder into the ongoing debate and litigation over the scope of the CWA’s National Pollutant Discharge Elimination System (NPDES) permit program.

In Longwood Venues, an environmental group sued the owner of a beach club located in southern Cape Cod, claiming that sanitary wastewater released to the groundwater from the club’s onsite wastewater treatment plant was an unpermitted discharge under the CWA. …

December 5, 2019

A proactive approach: How to prepare for California’s sweeping privacy law

Emerging Technologies Legal Perspective

(by Justine Kasznica)

In 2018, California signed into law the first state-level comprehensive privacy act, the California Consumer Privacy Act of 2018 (CCPA), which will go into effect Jan. 1, 2020. In part due to the CCPA’s broad scope and reach beyond California, as well as the large fines and penalties for CCPA noncompliance, the law is influencing and setting a high bar for data protection practices nationwide. Since the CCPA was signed into law, several states have proposed or enacted similar legislation, turning privacy and cybersecurity into a patchwork of state-led experimentation.

We are seeing more states joining California and developing their own privacy laws, which will make it difficult for companies to track and comply with every state’s privacy act, not to mention the privacy regimes in non-U.S. jurisdictions, such as Europe’s General Data Protection Regulation (GDPR).

While some states are beginning to enact or consider uniform approaches to privacy and cybersecurity, such as the NAIC Model Law for Cybersecurity, it will take time for such models to emerge and achieve the requisite consensus. In the absence of a uniform federal and state approach to privacy, businesses need to take the initiative now and be aware of the various state, federal and foreign laws being introduced and enacted — even if their operations may not yet affected.

How does California’s privacy act work?

The California Consumer Privacy Act of 2018 (CCPA) protects consumers who are residents of California by giving them rights to disclosure, access, deletion, control (opt-out and portability rights) as well as imposing a prohibition on antidiscrimination. It also addresses the data privacy rights of children under the ages of 13 and 16. …

November 25, 2019

The Pennsylvania General Assembly Introduces the Pennsylvania Carbon Dioxide Cap and Trade Authorization Act

Environmental Alert

(by Kevin Garber and Jean Mosites)

On Wednesday, November 20, 2019, members of the Pennsylvania House and Senate referred bipartisan companion bills HB 2025 and SB 950, both known as the Pennsylvania Carbon Dioxide Cap and Trade Authorization Act, to their respective Environmental Resources and Energy Committees for consideration.

Sponsors Senator Joe Pittman (R-41) and Representative Jim Struzzi (R-62) announced the bills in a press conference on November 19, 2019 in response to Governor Tom Wolf’s October 3, 2019 Executive Order 2019-07.  That Order directed the Environmental Quality Board to propose, by July 31, 2020, a carbon dioxide cap and trade program for fossil-fuel-fired electric power generators which is at least as stringent as that developed under the  Regional Greenhouse Gas Initiative (RGGI). For more detail on RGGI, see Wolf Administration Announces Plan to Join Northeast Carbon Market.

The bills each provide a declaration of policy, procedures for the proper introduction of any program governing carbon dioxide emissions by the Pennsylvania Department of Environmental Protection, and the process for submitting that program to the General Assembly for approval.

No Current Authority to Regulate CO2 Emissions

Section 2 of the bills finds there is currently no statutory or constitutional authority allowing a state agency to regulate or impose a tax on carbon emissions, and therefore the General Assembly, in consultation with DEP and other agencies, must determine whether and how to do so.

No Rulemaking Without Specific Statutory Authority

Other than a measure required by federal law, Section 4 prohibits DEP from adopting any measure or taking any action to abate, control or limit carbon dioxide emissions (including joining or participating in RGGI or other state or regional greenhouse gas cap-and-trade program) or establishing a greenhouse gas cap-and-trade program unless the General Assembly specifically authorizes it by statute. …

November 22, 2019

A proactive approach: How to prepare for California’s sweeping privacy law

Smart Business

(by Jayne Gest with Justine Kasznica)

In 2018, California signed into law the first state-level comprehensive privacy act, the California Consumer Privacy Act of 2018 (CCPA), which goes into effect Jan. 1, 2020. Due to the CCPA’s broad scope and reach beyond California, as well as its large fines and penalties for noncompliance, the law is influencing and setting a high bar for data protection practices nationwide. Since the CCPA was signed, several states have proposed or enacted similar legislation, turning privacy and cybersecurity into a patchwork of state-led experimentation.

“More states are developing privacy laws, which will make it difficult for companies to track and comply with every state’s privacy act, not to mention the privacy regimes in non-U.S. jurisdictions, such as Europe’s General Data Protection Regulation (GDPR),” says Justine Kasznica, shareholder at Babst Calland.

In the absence of a uniform approach to privacy and cybersecurity, businesses need to be aware of the state, federal and foreign laws being introduced and enacted — even if their operations are not yet affected.

Smart Business spoke with Kasznica about how California’s privacy law, and others, will impact companies.

How does California’s privacy act work?

The CCPA protects consumers who are residents of California, giving them rights to disclosure, access, deletion and control (opt-out and portability rights), as well as imposing a prohibition on antidiscrimination. It also addresses the data privacy rights of children under the ages of 13 and 16.

The CCPA is modeled on the GDPR, articulating similar consumer rights (even if terms differ) and imposing business obligations and enforcement mechanisms. While compliance with GDPR may facilitate CCPA compliance, the two privacy regimes deviate in their definitions of personal information/data, scope of the rights protected, affected organizations, and penalties and enforcement. …

November 20, 2019

Smarter Produced Water Management Options: Can the Regulatory Landscape Keep Pace?

Natural Resources & Environment

(by Gary Steinbauer and Kevin Garber)

Unconventional natural gas development in the Marcellus and Utica shale plays has seen unprecedented growth since 2012. Ohio, Pennsylvania, and West Virginia are now among the top gas-producing states, with Pennsylvania emerging as the second-largest natural gas producer in 2018, behind Texas. U.S. Energy Information Administration, Natural Gas Marketed Production, www.eia.gov/dnav/ng/ng_prod_sum_a_EPG0_VGM_mmcf_a.htm (last visited Aug. 8, 2019). The historic rise in production comes with increased volumes of produced water and waste streams that must be managed by natural gas operators. Produced water is naturally occurring brine brought up to the surface from the hydrocarbon reservoir during extraction of natural gas. Although the volume of produced water varies by well and formation, produced water is by far the largest water source by volume generated in the gas production process. U.S. Environmental Protection Agency (EPA), Management of Exploration, Development and Production Wastes: Factors Informing a Decision on the Need for Regulatory Action (Apr. 2019), at 3–11, www.epa.gov/sites/production/files/2019-04/documents/management_of_exploration_development_and_ production_wastes_4-23-19.pdf. Many unconventional natural gas operators treat, reuse, and recycle produced water to increase their water usage efficiency, cut down on the costs of disposal, and recover valuable materials.

Implementing the most effective strategy for produced water management requires compliance with a complex web of interrelated federal and state laws, which include state oil and gas-related laws, local laws and ordinances, and environmental laws. This article explores the most commonly used management strategies for produced water in the Marcellus and Utica shale plays in these three states and analyzes the federal and state environmental regulatory regimes governing such management alternatives. It begins by examining the chemical characteristics and volume of produced water from an unconventional natural gas well. It then analyzes the federal and state environmental regulatory landscape for the most common ways that produced water is managed: (1) reuse or recycling within or outside the gas field; …

November 14, 2019

EPA’s Initiative Against Illegal Aftermarket Parts: Deleting Defeat Devices

Emerging Technologies Alert 

(by Julie Domike and Gina Falaschi)

One of the hottest topics of discussion at the November 12, 2019, National Enforcement Conference held by the American Bar Association’s Section on Environment, Energy and Resources was enforcement concerning aftermarket defeat devices. The Environmental Protection Agency’s (EPA) recent efforts have resulted in a marked upswing in cases – both civil and criminal – against parts manufacturers and installers of the devices, including some entities that are less than obvious targets.

Aftermarket parts are replacement or additional vehicle or engine parts not made by the original equipment manufacturer.  Most aftermarket parts do not violate the Clean Air Act, but some are designed to reduce or eliminate the effectiveness of required emissions controls on vehicles and engines.  These are defeat devices, and there is a market for such devices as they can dramatically increase fuel efficiency or boost engine power.  Among the most common users of these defeat devices are truck fleet owners and the shops that service them.  Many of the recent enforcement cases have been against companies or individuals that produce or install “tuners” – engine control module reprogrammers that disable emission control systems with preloaded software (“tunes”).  These defeat devices are obvious enforcement targets. However, other devices or software could also fall in this category, and therefore liability could extend to other aftermarket suppliers.

EPA’s Enforcement Against Aftermarket Defeat Devices

The EPA released its Fiscal Year 2020 – 2023 National Compliance Initiatives on June 7, 2019.  The memorandum from Assistant Administrator for Enforcement and Compliance Assurance Susan Parker Bodine explains the agency’s selection of “Stopping Aftermarket Defeat Devices for Vehicles and Engines” as a new compliance initiative.  The memorandum emphasizes that the Clean Air Act prohibits “tampering with emissions controls, as well as manufacturing, selling, and installing aftermarket devices intended to defeat those controls. …

November 11, 2019

PHMSA proposes allowing liquefied natural gas transport by rail

The PIOGA Press

(by Boyd Stephenson and James Curry)

On October 24, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) amending the Hazardous Materials Regulations (HMR) to allow the bulk transport of liquefied natural gas (LNG) in DOT-113C120W (DOT-113) specification railcars.

PHMSA issued the NPRM in response to a petition for rulemaking filed by the Association of American Railroads (AAR). Also, an April 10 Executive Order directed PHMSA to issue a final rule on bulk transportation of LNG by rail by May 2020. Comments on the NPRM are due by December 23.

Over the last decade, the number of LNG facilities and total storage and vaporization capacities have drastically increased. And, according to PHMSA, total liquefaction capacity increased by 939 percent due to new LNG export terminals. With this growth, PMHSA has recognized there may be a need for greater flexibility in the modes of transporting LNG.

While LNG is already authorized for transportation by highway and in maritime vessels, LNG may be transported by railcar only with a special permit from PHMSA or in smaller, portable tanks loaded onto a railcar. However, other cryogenic liquids that are chemically similar to LNG already are authorized to be transported by rail under the HMR.

Currently, there is a pending special permit renewal application to transport bulk LNG in DOT-113 specification railcars using requirements identical to those proposed in the NPRM. The comment period ended August 7, with PHMSA receiving nearly 3,000 comments. The agency has not yet acted on the application.

Proposed changes

In the NPRM, PHMSA proposes to:

• Amend the LNG entry on the Hazardous Materials Table (UN 1972, Methane, refrigerated liquid (cryogenic liquid), 2.1) to allow transportation of bulk LNG in rail tank cars under the terms of 49 C.F.R. …

November 11, 2019

PHMSA publishes three final rules substantially amending the federal pipeline safety regulations

The PIOGA Press

(by Ashleigh Krick and Boyd Stephenson)

On October 1, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published three long-awaited final rules amending the federal pipeline safety regulations. The first rule amends the federal safety standards for gas transmission lines. The second amends the federal safety standards for hazardous liquid pipelines. The third updates procedures for issuing emergency orders. These rules are summarized below.

Safety of gas transmission pipelines

The gas transmission rule, commonly referred to as the “Mega Rule,” is the first in a three-part series of rules that PHMSA will be issuing to substantially revise the current federal safety standards and establish new requirements for gas pipeline facilities. This rule responds to congressional mandates and National Transportation Safety Board recommendations that arose from the investigation a 2010 gas transmission line incident in San Bruno, California. The rule adopts new requirements for verifying pipeline materials, reconfirming maximum allowable operating pressure (MAOP) and performing periodic assessments of pipeline segments located outside of high consequence areas (HCAs). The rule also amends the integrity management (IM) requirements, establishes requirements for reporting MAOP exceedances, for using inline inspection (ILI) launcher and receivers, as well as related recordkeeping requirements. The rule takes effect on July 1, 2020, but includes staggered compliance deadlines that extend as far out as 15 years.

  • Materials verification. Operators will be required to conduct destructive and nondestructive tests to verify pipeline attributes when they do not have traceable, verifiable and complete records for such attributes in certain situations, such as MAOP reconfirmation, IM or repair requirements. The new requirements allow for collection of missing pipe attributes over time, whenever a pipeline segment is exposed for maintenance or repairs, until a minimum number of excavations are performed.

    • …

November 7, 2019

Potential Changes to Title VII Protections Against Discrimination ‘Because of … Sex’

The Legal Intelligencer

(by Stephen Korbel and Anna Skipper)

On Oct. 8, the U.S. Supreme Court heard oral argument on three cases addressing the scope of sex discrimination protections under Title VII of the Civil Rights Act of 1964 Section 7, 42 U.S.C. Section 2000e-2 (1964). Title VII makes it an unlawful practice for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his … sex,” or “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s … sex.”

Two consolidated cases, Altitude Express v. Zarda, 883 F.3d 100 (2d. Cir. 2018), cert. granted, 139 S. Ct. 1599, 203 L. Ed. 2d 754 (U.S. Apr. 22, 2019) (No. 17-1623) and Bostock v. Clayton County Board of Commissioners, 723 Fed. Appx. 964 (11th cir. 2018), cert. granted, 139 S. Ct. 1599, 203 L. Ed. 2d 754 (U.S. Apr. 22, 2019) (No. 17-1618), address whether discrimination on the basis of sexual orientation is a form of discrimination “because of … sex.” A third case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, 884 F.3d 560 (6th Cir. 2018) cert. granted in part, 139 S. Ct. 1599, 203 L. ED. 2d 754 (U.S. Apr. 22, 2019) (No. 18-107), addresses discrimination on the basis of gender  identity and transgender status.

In Zarda, the U.S. Court of Appeals for the Second Circuit held that an employee was entitled to bring a Title VII claim for discrimination based on sexual orientation as a subset of sex discrimination. …

November 6, 2019

PHMSA Publishes Long-Awaited Mega Rule for Gas Transmission Lines: Remaining Rule Topics

Pipeline Safety Alert

(by James Curry, Keith Coyle and Brianne Kurdock)

This is the last alert in a four-part Babst Calland series on PHMSA’s final rule amending the gas pipeline safety regulations at 49 C.F.R. Part 192 (Rule), published in the Federal Register on October 1, 2019.  The first alert reviewed new requirements for materials verification and reconfirmation of maximum allowable operating pressure (MAOP).  The second alert discussed PHMSA’s extension of integrity assessment requirements to areas outside high consequence areas (HCAs).  The third alert reviewed the new recordkeeping requirements.  This alert discusses the remaining rule topics: strengthening assessment requirements, extending the integrity management (IM) reassessment schedule, adding safety features to launchers and receivers, evaluating seismicity, and reporting MAOP exceedances.

Strengthening Assessment Requirements

PHMSA has incorporated a series of industry consensus standards regarding the use of in-line inspection (ILI) tools for pipeline assessments.  PHMSA has also expanded the array of assessment methods that operators may use, both for covered segments in HCAs and in non-HCA areas.

What’s in the Rule?

  • Incorporation by reference of NACE SP0102-2010, Inline Inspection of Pipelines, which relates to the design and construction of pipeline facilities to accommodate the passage of ILI devices, as well as the performance of ILI assessments (§§ 192.150 and 192.493).  Operators may use tethered or remotely controlled tools not explicitly noted in NACE SP0102, as long as they comply with the sections of that standard that are applicable given the technology.
  • Incorporation by reference of API STD 1163, In-Line Inspection Systems Qualification Standard, which sets out performance-based requirements for ILI procedures, personnel, equipment and software and ANSI/ASNT ILI-PQ, In-Line Inspection Personnel Qualification and Certification (§ 192.493).

    • …

November 1, 2019

Babst Calland – A Founding Partner of the Pittsburgh Legal Diversity & Inclusion Coalition

Babst Calland has joined with area law firms, in-house legal departments, and law schools to form the Pittsburgh Legal Diversity and Inclusion Coalition (PLDIC). The Coalition’s mission is to attract and retain people of all races and backgrounds to Pittsburgh, and assist employers in the legal industry for the purpose of increasing the hiring, retention and inclusion of diverse legal professionals. Managing Shareholder Donald C. Bluedorn II serves as an officer on the Coalition’s Board. The firm will work collaboratively with PLDIC and other member organizations to foster diversity and inclusion in the legal community.

In addition to Babst Calland, other current Coalition members include: Alcoa, Allegheny County Bar Association, Chevron, Duquesne Light Company, FedEx Ground, FHL Bank Pittsburgh, Highmark Health, Mine Safety Appliances, PPG, and U. S. Steel, and 18 other prominent law firms in Pittsburgh.

Click here to view a video with attorneys and law firms, discussing the legal profession in Pittsburgh and the importance of the Coalition’s work in the city.

October 31, 2019

Wolf Administration Announces Plan to Join Northeast Carbon Market

The Legal Intelligencer

(by Kevin Garber and Hannah Baldwin)

On Oct. 3, Gov. Tom Wolf issued Executive Order 2019-07 signifying his intention for Pennsylvania to join the Regional Greenhouse Gas Initiative (RGGI). The order instructs the Pennsylvania Department of Environmental Protection to “develop and present to the Pennsylvania Environmental Quality Board a proposed rulemaking package to abate, control or limit carbon dioxide emissions from fossil-fuel-fired electric power generators,” by no later than July 31, 2020. The order directs the proposed rulemaking to be “sufficiently consistent with the Regional Greenhouse Gas Initiative (RGGI) model rule,” such that allowances may be traded with holders of allowances from other RGGI states. Under the order, the DEP must also conduct a “robust public outreach process” ensuring the program results in reduced emissions, economic gains, and consumer savings, and must consult with PJM, the regional transmission organization that coordinates the movement of wholesale electricity within Pennsylvania and 12 other states, to promote the integration of the program.

What Is RGGI?

RGGI is the country’s first regional, market-based cap and trade program designed to reduce carbon dioxide emissions from power plants. The program was created through a memorandum of understanding (MOU) signed by the governors of Connecticut, Delaware, Maine, New Hampshire, New Jersey, New York and Vermont on Dec. 20, 2005. The MOU committed the signatory states to propose a carbon dioxide budget trading program for legislative and regulatory approval, by setting the initial base annual emissions cap for each state and providing that each state’s annual allocation would decline by 2.5% each year after 2015.
The MOU also provided for the creation of the regional organization, which has an executive board comprised of two members from each signatory state that serves as a forum for collective deliberation, emissions and allowance tracking, and technical support for determining offsets. …

October 31, 2019

PHMSA Proposes Allowing Liquefied Natural Gas Transport by Rail

Transportation Safety Alert

(by Boyd Stephenson and James Curry)

On October 24, 2019, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) proposing to amend the Hazardous Materials Regulations (HMR) to allow the bulk transport of liquefied natural gas (LNG) in DOT-113C120W (DOT-113) specification railcars.  PHMSA issued the NPRM in response to a petition for rulemaking filed by the Association of American Railroads (AAR).  Also, an April 10, 2019, Executive Order directed PHMSA to issue a final rule on bulk transportation of LNG by rail by May 2020.  Comments on the NPRM are due by December 23, 2019.

Over the last decade, the number of LNG facilities, and total storage and vaporization capacities have drastically increased.  And, according to PHMSA, total liquefaction capacity increased by 939% due to new LNG export terminals.  With this growth, PMHSA has recognized there may be a need for greater flexibility in the modes of transporting LNG.  While LNG is already authorized for transportation by highway and in maritime vessels, LNG may only be transported by railcar with a special permit from PHMSA or in smaller, portable tanks loaded onto a railcar.  However, other cryogenic liquids that are chemically similar to LNG are already authorized to be transported by rail under the HMR.

Currently, there is a pending special permit renewal application to transport bulk LNG in DOT-113 specification railcars using requirements identical to those proposed in the NPRM.  The comment period ended on August 7, 2019, with PHMSA receiving nearly 3,000 comments.  PHMSA has not yet acted on the special permit application.

Proposed Changes

In the NPRM, PHMSA proposes to:

  • Amend the LNG entry on the Hazardous Materials Table (UN 1972, Methane, refrigerated liquid (cryogenic liquid), 2.1) to allow transportation of bulk LNG in rail tank cars under the terms of 49 C.F.R.

    • …

October 28, 2019

PHMSA Publishes Long-Awaited Mega Rule for Gas Transmission Lines: Recordkeeping Requirements

Pipeline Safety Alert

(by James Curry, Keith Coyle and Brianne Kurdock)

This is the third alert in a four-part Babst Calland series on the Pipeline and Hazardous Materials Safety Administration’s (PHMSA or the Agency) final rule amending the federal safety standards for gas pipeline facilities (Rule). PHMSA published the Rule in the Federal Register on October 1, 2019. The first alert reviewed new requirements for materials verification and reconfirmation of maximum allowable operating pressure (MAOP). The second alert provided a summary of the integrity assessment requirements for areas outside of high consequence areas. This alert will summarize the new Part 192 recordkeeping requirements. Finally, Babst Calland will survey the remaining Rule topics.

New Part 192 Recordkeeping Requirements – 49 C.F.R. §§ 192.5, 192.67, 192.205, 192.127, 192.227, 192.517, 192.607, 192.619, and 192.624

At an earlier point in the rulemaking process, PHMSA proposed to establish several new retroactive recordkeeping requirements in Part 192. PHMSA also took the position that all records had to satisfy the reliable, traceable, verifiable, and complete (TVC) recordkeeping standard. A version of this standard was used by the National Transportation Safety Board (NTSB) in its recommendations after the 2010 San Bruno pipeline incident. PHMSA did not propose a definition of the TVC recordkeeping standard but instead referred to the agency’s TVC guidance issued in 2012.

In the Rule, PHMSA made significant changes to its proposed recordkeeping requirements including clarifying that the new recordkeeping requirements are prospective only and removing ‘reliable’ from TVC since that term was never used by the NTSB. PHMSA also drew distinctions in several regulations between the obligations that apply to operators of pipelines installed prior to July 1, 2020, which only require retention of existing records, and those installed after this date, further emphasizing the prospective nature of the new obligations. …

October 23, 2019

Final Repeal of the Clean Water Rule: the End or Another Beginning to the Regulatory Patchwork?

Environmental Alert

(by Lisa Bruderly and Gary Steinbauer)

On October 22, 2019, the U.S. Environmental Protection Agency (USEPA) and U.S. Army Corps of Engineers (Corps) published a final rule in the Federal Register repealing the Obama administration’s 2015 rule redefining “waters of the United States” (WOTUS) under the Clean Water Act, typically referred to as the “Clean Water Rule” (CWR).  In addition to repealing the CWR, the final rule will restore the regulatory definition of WOTUS that existed prior to the CWR for the 22 states (including Pennsylvania) where the CWR’s WOTUS definition is currently in effect.  The pre-CWR definition of WOTUS, along with agency guidance, are themselves controversial.  The final repeal rule becomes effective on December 23, 2019.

USEPA and the Corps released a pre-publication version of the final repeal rule on September 12, 2019.  Almost immediately, environmental groups and several states vowed to file lawsuits challenging the final repeal rule.  These lawsuits likely will be heard by multiple federal district courts throughout the country and could seek injunctions preventing the final repeal rule from taking effect.  While the intent of the final repeal rule is to end the existing regulatory patchwork where the CWR’s WOTUS definition currently is in effect in 22 states, the lawsuits challenging the final repeal rule could result in a different regulatory patchwork, further exacerbating the regulatory uncertainty surrounding the application definition of WOTUS.  In an interesting twist, the New Mexico Cattle Growers’ Association filed a lawsuit on October 22, 2019 in a federal district court in New Mexico, challenging the final repeal rule because the pre-CWR WOTUS definition and related agency guidance that it readopts are allegedly unlawful.

Babst Calland discussed the final repeal rule in detail in a previous Environmental Alert and will continue to actively monitor the shifting regulatory landscape involving the definition of WOTUS.  …

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