Changes Proposed to Research and Data Used by EPA

As recently reported in a number of news outlets, Environmental Protection Agency (EPA) Administrator Scott Pruitt has proposed a rule within the EPA that would require the Agency to use research that is publicly available in promulgating new rules alleged to be “scientifically-based.”  This could be an important change to every company over which EPA …

Arizona Water Permitting Process Updated

Governor Ducey recently signed two bills passed by the Arizona legislature dealing with water quality programs. The first, SB1494 requires the Arizona Department of Environmental Quality (ADEQ) to establish an Underground Injection Control (UIC) Permit program. In doing so, the State will assume primacy for UIC permitting under the Safe Drinking Water Act. The ADEQ attempted …

EPA Centralizes Responsibility for Clean Water Act Jurisdictional Determinations

On March 30, 2018, EPA Administrator Scott Pruitt issued a memorandum and delegation of authority that move responsibility for the EPA’s role in Clean Water Act Jurisdictional Determinations to EPA’s Assistant Administrator for Water. Responsibility for this role previously resided with regional EPA administrators. Jurisdictional Determinations are a critical aspect of the “dredge-and-fill” permitting requirements under section 404 …

EPA Seeks Comment on Possible Regulation of Groundwater Discharges

The U.S. Environmental Protection Agency (EPA) recently requested public comments on whether pollutant discharges that reach “waters of the United States” are subject to regulation under the Clean Water Act (CWA) and require National Pollutant Discharge Elimination System (NPDES) permits. This announcement comes on the heels of a recent Ninth Circuit decision finding that certain …

Supreme Court Declines Review of Ninth Circuit Agua Caliente Decision – Reserved Tribal Water Rights Include Groundwater

On November 27, 2017, the Supreme Court denied review of the Ninth Circuit’s decision in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262 (9th Cir. 2017). In that case, an Indian tribe brought an action against a California water district and desert water agency seeking a declaration that it …

DAPL Developer Sues Environmental Groups

In a remarkable development around the contentious Dakota Access Pipeline (DAPL), the developer of the project, Energy Transfer Equity and Energy Transfer Partners, sued the environmental groups that opposed DAPL. Energy Transfer sued  Greenpeace International, Greenpeace Inc., Greenpeace Fund, Inc., BankTrack, and Earth First! alleging that the: group of co-conspirators (the “Enterprise”) manufactured and disseminated …

Trump Administration Working to Repeal and Replace the Clean Water Rule

Wetlands in front of the Lincoln Memorial, 1917, before construction of the reflecting pool On February 28, 2017, President Trump signed an executive order directing EPA to review the “Waters of the United States Rule” (the “WOTUS” Rule). Exec. Order No. 13778, 82 Fed. Reg. 12497 (Feb. 28, 2017). The order directed EPA and the …

Chevron Deference in Arizona?

In Arizona, like in Washington, a debate is unfolding about how courts should determine “questions of law”, and whether an agency’s construction of statutes is entitled to deference by the courts.  Some refer to this deference as Chevron Deference, stemming from a 1984 U.S. Supreme Court decision. The recent confirmation proceedings of Justice Neil Gorsuch triggered a spirited debate among policy makers and opinion writers about whether an agency’s reading of its statutes should be given any weight …