The Trump administration announced in December 2018 its proposed replacement rule defining “waters of the United States.” Under the proposed rule, the number of wetlands that fall outside of federal jurisdiction is expected to increase.

Phillip Bower and Megan McLean weigh in on what this means for state regulation of non-federal wetlands in the recent

Per- 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”).

On August 21, 2018, the Environmental Protection Agency (EPA) released a prepublication copy of its proposed Affordable Clean Energy (ACE) rule. If adopted, the rule would (1) establish emission guidelines for greenhouse gas emissions from existing electric utility generating units (EGUs); (2) revise the regulations governing how states implement the emission guidelines; and (3) revise the New Source Review (NSR) program to allow modification to existing EGUs without triggering permitting requirements.

The Clean Power Plan regulations adopted by the Obama administration would have limited GHG emissions by directing states to reduce emissions by applying a combination of three “building blocks” as the best system of emission reduction (BSER), which consisted of:

1)    Improving heat rate at affected coal-fired steam generating units;

2)    Substituting increased generation from lower-emitting natural gas combined cycle units for decreased generation from higher-emitting affected steam generating units; and

3)    Substituting increased generation from new zero-emitting renewable energy generating capacity for decreased generation from affected fossil fuel-fired generating units.

U.S. Environmental Protection Agency’s January 25 change to its “once in always in” policy will allow facilities that have historically been regulated as “major sources” of hazardous air pollutants to be reclassified as “area” sources if they have reduced their potential to emit to below major source thresholds. This is important because companies that are

On January 22, 2018, the U.S. Supreme Court unanimously held that challenges to the 2015 Waters of the United States Rule (the “WOTUS Rule” or “Rule”) belong in district court rather than the appellate court. The WOTUS Rule was developed by the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) to clarify which waters and wetlands fall under federal jurisdiction. Numerous parties challenged the Rule in both federal district courts and circuit courts of appeals. The circuit court actions were consolidated in the Court of Appeals for the Sixth Circuit. In 2016, the Sixth Circuit held that it had jurisdiction to hear petitions related to the legality of the Rule and issued a nationwide stay. This decision was appealed to the Supreme Court by industry groups who argued that, under the plain text of the Clean Water Act, the district courts were the proper jurisdiction.

In an opinion authored by Justice Sonia Sotomayor, the Court noted that the Clean Water Act lists seven specific categories of EPA actions that federal courts of appeals have the exclusive power to review and the Rule did not fall into a category on the list. The Court determined that it had “no basis to depart from the [Clean Water Act]’s plain language” despite arguments by the U.S. government (forwarded by both the Obama and Trump Administrations) that the Rule was “functionally related” to categories on the list and that efficiency, national uniformity, and other policy arguments weighed in favor of making the circuit courts of appeals the appropriate jurisdiction. The Court reversed and remanded the case to the Sixth Circuit, directing the court to dismiss the petitions for review that had been filed.

Because the Supreme Court’s decision was related to jurisdiction and not the merits of the Rule, what does this mean for the Rule’s future?

The Menominee Indian Tribe of Wisconsin has sued the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) over the proposed Aquila Resources Back Forty Mine, arguing that EPA and Corps have failed to take responsibility for reviewing wetland permits for the project. The lawsuit was expected since the Tribe filed a notice

On December 18, 2017, EPA Administrator Scott Pruitt signed an advanced notice of proposed rulemaking (“ANPRM”) to solicit input regarding the emissions guidelines limiting greenhouse gas (“GHG”) emissions from existing electric utility generating units (“EGUs”) that the U.S. Environmental Protection Agency (“USEPA”) is considering proposing.

The Clean Power Plan regulations adopted by the Obama administration would have limited GHG emissions by substituting generation from lower-emitting existing natural gas combined cycle units and zero-emitting renewable energy generating capacity.

Since 2001, Wisconsin law has required a permit to discharge fill into wetlands that do not fall under federal jurisdiction (“nonfederal wetlands”). Of the approximately five million acres of wetlands in Wisconsin, an estimated 10 to 30 percent are nonfederal wetlands.

State lawmakers held hearings on December 21 on proposed legislation, AB547/SB600, which would exempt

The U.S. EPA and U.S. Army Corps of Engineers have proposed to delay the effective date of the 2015 Waters of the United States (WOTUS) rule which clarifies which waters and wetlands fall under federal jurisdiction. According to the agencies, the delay is necessary to help avoid confusion among home builders, contractors, and miners.

The 2015 WOTUS rule has an effective date of August 28, 2015, but