By Lauren J. Rucinski

On Tuesday, December 11, 2018, the Environmental Protection Agency (“EPA”) and U.S. Army Corp. of Engineers (“ACE”) proposed a rule revising the definition of “waters of the United States.” The so-called WOTUS rule defines the scope of Clean Water Act (“CWA”) jurisdiction and the permitting requirements thereunder, and has been in the hot seat for the past two years under both the Trump Administration and a bevy of litigation.

The Obama Administration promulgated the WOTUS rule in 2015, which defined the term “waters of the United States” broadly to cover any lake, stream, wetland, etc. with a “significant nexus” to a navigable water.[1] The regulation was challenged in a number of federal district courts and courts of appeal.[2] Following his election, President Trump issued a February 2017 Presidential Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” requesting that the EPA and ACE repeal and replace the 2015 rule. In response, the agencies repealed the 2015 WOTUS Rule, which is the first step in the process.[3] This rule proposal is the “second step” in the process.

The proposed definition of WOTUS set forth in the proposed rule would replace the 2015 WOTUS rule.[4] Under the proposed rule, the following six “clear” categories of waters would be considered “waters of the United States”:

  1. Traditional navigable waters;
  2. Tributaries;
  3. Certain ditches;
  4. Certain lakes and ponds;
  5. Impoundments; and
  6. Adjacent wetlands.[5]

Each category is supplemented by examples and definitions. Of particular note to Louisiana industry is the sixth category: adjacent wetlands. According to the proposed rule, wetlands would need to “physically touch” or be connected by inundation or perennial flow (including over a levee or berm if applicable) to navigable waters in order to bring the area under CWA rules.

Although the question still remains whether these definitions provide any more clarity than the previous “significant nexus test” under the 2015 WOTUS rule, both the EPA and ACE are optimistic. EPA Acting Administrator Andrew Wheeler stated: “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”[6]

It is important to note that the State of Louisiana through the Louisiana Department of Environmental Quality (“LDEQ”) defines its own rule for “waters of the state.” The LDEQ rule is much broader and includes “both the surface and underground waters within the state of Louisiana including all rivers, streams, lakes, groundwaters, and all other water courses and waters within the confines of the state, and all bordering waters and the Gulf of Mexico.”[7]

The proposed rule can be found here and the public comment period will be open for the sixty days following the proposed rule’s publication in the Federal Register.

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[1] 80 Fed. Reg. 32054, June 29, 2015.

[2] See “A Plethora of Cases Could Affect WOTUS Rulemaking” (June 1, 2017) available at https://www.louisianalawblog.com/environmental-litigation-and-regulation/plethora-cases-affect-wotus-rulemaking/#_ftn1 (citing and discussing e.g., United States v. Robertson, No. CR 15-07-H-DWM, 2015 WL 7720480 (D. Mont. Nov. 30, 2015); Duarte Nursery Inc. v. Army Corps of Engineers, et al., 17 F. Supp. 3d 1013 (E.D.Cal. 2014); Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 199 L. Ed. 2d 501 (2018))  

[3] 83 Fed. Reg. 32227, July 12, 2018.

[4] https://www.epa.gov/wotus-rule/step-two-revise.

[5]https://www.epa.gov/sites/production/files/2018-12/documents/factsheet_-_wotus_revision_overview_12.10_1.pdf;

[6] https://www.epa.gov/newsreleases/epa-and-army-propose-new-waters-united-states-definition.

[7] LAC 33:IX.107.

By Troy Charpentier and Matthew Smith

After contesting the construction of the Dakota Access pipeline, environmental advocacy groups have turned their attention to the proposed Bayou Bridge pipeline in South Louisiana. The Bayou Bridge pipeline is a 162-mile-long, 24-inch-wide proposed pipeline which will cross the Atchafalaya Basin to connect facilities in Lake Charles, Louisiana to crude oil refineries in St. James Parish, Louisiana.

Earthjustice attorneys filed suit on January 11, 2018 on behalf of Atchafalaya Basinkeeper, Louisiana Crawfish Producers Association-West, Gulf Restoration Network, Waterkeeper Alliance, the Sierra Club, and the Delta Chapter of the Sierra Club against the U.S. Army Corps of Engineers challenging permits and authorizations issued by the Corps under § 404 of the Clean Water Act (“CWA”) and under the Rivers and Harbors Act (“RHA”) for construction and operation of the pipeline. The environmental groups contend that the Corps did not conduct a sufficient environmental assessment under the National Environmental Policy Act (“NEPA”) or consider various factors required by the CWA, RHA, and NEPA, including reasonable alternatives to the project, public interest, environmental impact, cumulative effects, and adequacy of mitigation.

Shortly after filing suit, the environmental groups filed Motions seeking a Temporary Restraining Order and Preliminary Injunction to halt construction of the Bayou Bridge pipeline. On January 30, 2018, Judge Shelly Dick of the Middle District of Louisiana denied the environmental groups’ Motion for Temporary Restraining Order, finding that, based on the current record, the groups could not demonstrate a substantial likelihood of success on the merits of their challenge to the issuance of the permits.

In doing so, the court noted the “significant deference” afforded to the Corps’ decision to issue the permits, and that “the existence of opposing views does not render the Corps’ decision arbitrary and capricious.” Despite the contentions of the environmental groups, the court found that it is “undisputed that the Corps held a public hearing and allowed for public comments in accordance with the law.” The court further reviewed a 92 page Environmental Assessment (“EA”) performed by the Corps prior to issuing the relevant permits and found that it “clearly addresses the specific complaints of several Plaintiffs, albeit obviously not to Plaintiffs’ satisfaction.” Specifically, the court found that (i) the EA “reflects that several alternatives were addressed and considered,” (ii) a significant portion of the EA is devoted to consideration of the CWA permit guidelines which the groups contend were not adequately considered, and (iii) the EA included consideration of public interest factors. Accordingly, the court found that “Simply having an opposing opinion, or disagreeing with the mitigation plans imposed, is insufficient to establish a substantial likelihood of success on the merits, especially in light of the high deference that the law requires the Court to afford the Corps.”

The next step in the environmental groups’ attempt to halt construction of the Bayou Bridge pipeline will be the hearing on their Motion for Preliminary Injunction, which is currently set for February 8, 2018.