Updates in Environmental Law

1. Updates in Environmental Law SLMA Annual Meeting Savannah, GA Gary R. Sheehan Jr. Kilpatrick Townsend & Stockton LLP March 7, 2019

2. Discussion Outline • Clean Water Act • Clean Air Act • Endangered Species • Trump’s EPA, Year 3

3. Clean Water Act • WOTUS Rule • Original Rule issued in May 2015 • EPA Reconsideration Rulemaking • Ongoing Litigation of 2015 Rule: • February 2018, Sixth Circuit lifts prior Stay • Cases proceeding in multiple District Courts • Rule Stayed in SE States • January 2018, EPA issued 2-year delay • New Litigation against Stay • New WOTUS Rule proposed 2/14/19 • Comments due April 15

4. 2019 WOTUS Proposal • 6 Categories of WOTUS: • Traditional navigable waters: Large rivers and lakes, tidal waters, and the territorial seas used in interstate or foreign commerce. • Tributaries: Rivers and streams that flow to traditional navigable waters. These naturally occurring surface water channels must flow more often than just when it rains—that is, tributaries as proposed must be perennial or intermittent. Ephemeral features would not be tributaries under the proposal. • Certain ditches: “Artificial channels used to convey water” would be jurisdictional where they are traditional navigable waters, such as the Erie Canal, or subject to the ebb and flow of the tide. Ditches may also be jurisdictional where they satisfy conditions of the tributary definition as proposed and either 1) were constructed in a tributary or 2) were built in adjacent wetlands.

5. 2019 WOTUS Proposal • Certain lakes and ponds: Lakes and ponds would be jurisdictional where they are traditional navigable waters, or where they contribute perennial or intermittent flow to a traditional navigable water either directly or through other non-jurisdictional surface waters so long as those waters convey perennial or intermittent flow downstream. • Impoundments: Impoundments (reservoirs) of “waters of the United States” would be jurisdictional. • Adjacent wetlands: Wetlands that physically touch other jurisdictional waters would be “adjacent wetlands.” Wetlands with a surface water connection in a typical year that results from 1) inundation from a “water of the United States” to the wetland or 2) perennial or intermittent flow between the wetland and a “water of the United States” would also be “adjacent.” Wetlands that are near a jurisdictional water but don’t physically touch that water because they are separated, for example by a berm, levee, or upland, would be adjacent only where they have a surface water connection.

6. 2019 WOTUS Proposal • Exclusions: • Anything not explicitly listed as WOTUS. • Ephemeral features that contain water only during or in response to rainfall. • Groundwater. • Ditches that do not meet the proposed conditions necessary to be considered jurisdictional, including most farm and roadside ditches. • Prior converted cropland. • Stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off. • Wastewater recycling structures such as detention, retention and infiltration basins and ponds, where they are constructed in upland. • Wastewater and stormwater treatment systems, including all components, including lagoons and treatment ponds (such as settling or cooling ponds).

7. 2019 WOTUS Proposal • Where is this all going? • Endless litigation • Challenges to Switching Interpretations • Scalia’s “continuous connection” vs. Kennedy’s “significant nexus” • Courts and agency “deference” • Massive resistance from many States and non-profits • Confusion about what rule applies where

8. Clean Water Act Update cont. • Possible revisions to Multi-Sector General Permit for Industrial Stormwater • Forest Road Permitting • Silviculture Rule is settled • NPDES permits are not required • Wetlands Nationwide Permits • Final Rule effective 3/19/17 • State Water Quality Criteria • December 2018, EPA granted approval to “reconsider” Obama-era stringent WQ standards for Maine • Petition for Reconsideration pending for final rule in Washington • Similar path likely for Idaho

9. Clean Air Act Update • Plywood/Composite Wood MACT • Comments on ICR submitted February 2018 • Recent stakeholder meetings • EPA to conduct site visits? • Schedule delayed? • “Once In Always In” Policy Reversal for HAPs • Allows major HAP sources to become “area sources” • Formal proposal expected • 2018 Guidance Memo challenged in court • Biogenic Carbon Neutrality • FY2019 Appropriations Bill • Ensures agencies treat biomass as a carbon neutral “energy solution”

10. Clean Air Act Update cont. • Boiler MACT • Primary case is done, but litigation re Reconsideration is ongoing • EPA still working on Remand of portions of Rule • SSM SIP Call • SIP revisions were due 11/22/16 • Briefing complete; Oral Argument delayed indefinitely • Possible EPA Reconsideration? • NHSM Rulemaking • February 2018, EPA issues Rule listing treated railway ties as fuel, i.e., not a solid waste • March 2018, D.C. Circuit opinion adds flexibility to waste/fuel determination factors

11. Clean Air Act Update cont. • Clean Power Plan • December 2018, EPA Proposes Replacement - Treats biomass from “responsibly managed” forests as carbon neutral • Litigation re original CPP is Stayed • 2015 Ozone Standard • Oral argument on standards delayed indefinitely • EPA abandons reconsideration in favor of expedited handling of scheduled 5-year review (2020) • Implementation rules for 2008 and 2015 are in jeopardy due to September 2018 DC Circuit ruling

12. Endangered Species Act • July 2018 Proposal for Regulatory Reform, 3 Issues: • Whether economic impact data would be useful at the time of listing (law will continue to prohibit the consideration of economic impacts in actual listing decision); • Restoring the pre-2016 rule that limits consideration of unoccupied areas as critical habitat to situations where there is inadequate occupied habitat; and • Rescinding Interior’s “Blanket Rule” that automatically gave threatened species the same protections as endangered species.

13. Endangered Species Act Update • Tri-Colored Bat • 12-month status review to be completed soon • Very similar to NLEB situation • Northern Long-Eared Bat • Section 4(d) Rule finalized in January 2016 • Allows certain “incidental takes” from tree removal activities within WNS Zone with restricted areas • Environmental groups challenge both designation and 4(d) flexibility • Court decision expected soon • Eastern Diamondback Rattlesnake (and other pending species determinations) • New listings not likely • Statutory deadlines may impose schedule

14. EPA – Predictions from Early 2017 • Flurry of Executive Orders • Proposed Budget and Staff Cuts • Climate Change Denials/Friendly to Fossil Fuel Industry • Reign in Federal Overreach • Halt “Sue and Settle” practices and “Rulemakings by Guidance” • Repeal WOTUS

15. EPA Today • Administrator Wheeler • Former coal lobbyist • Contentious Senate approval from both sides of aisle • Huge drop in Enforcement in 2017 and 2018 • Abandonment of prior defense of Obama-era rules • Significant Deregulatory/Rollback Efforts Continue • WOTUS, Clean Power Plan, Mercury Rules, Fuel Efficiency Standards, Coal Ash reconsideration, etc.

16. EPA Today, cont. • Budget Cuts? • EPA Workforce Reduction? • Eliminate 2 of 10 Regional Offices? • Centralized enforcement decisions in HQ

17. What Does This Mean? • Federal activity down, but will States fill the gap? Or citizen groups? • Uncertain Impacts on Ongoing Rulemakings and Litigation • Organized resistance, statutory limitations, and strict Courts • Unintended consequences/backlash from Industry? • Regulatory War Against California? • Fuel efficiency standards • December 2018 Exec Order to open more federal lands for logging for “fire control”

18. QUESTIONS? Gary R. Sheehan Jr. gsheehan@kilpatricktownsend.com (w) 404-815-6192 (c) 404-520-0924