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Last week, EPA and the Corps issued a long-awaited proposal to redefine the “waters of the US” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act. The reach of the CWA is notoriously unclear, but knowing which areas on your property are jurisdictional and will require permits is critical to project planning and timelines. If finalized, the proposed rule would replace the Obama administration’s contentious 2015 WOTUS Rule and eliminate the regulatory patchwork that currently exists as the 2015 WOTUS Rule is being implemented in only certain parts of the country.
Continue Reading EPA and Corps Release Long-Awaited Proposal to Redefine WOTUS

As we highlighted in our March 2, 2018, post, the US District Court for the Middle District of Louisiana ordered the $750 million Bayou Bridge pipeline to halt construction within the Atchafalaya Basin when it concluded that the US Army Corps of Engineers’ environmental analysis likely violated the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA) due to the following deficiencies:

  • The Corps did not provide sufficient explanation for how the proposed off-site mitigation would compensate for the loss of wetlands impacted by construction; and
  • The Corps failed to sufficiently consider and address historical impacts to wetlands from past pipeline projects in the cumulative effects analysis.

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Continue Reading Fifth Circuit Vacates Preliminary Injunction on Appeal, Allowing Bayou Bridge Pipeline to Proceed

This week, the U.S. District Court for the Middle District of Louisiana granted a preliminary injunction, halting construction of the $750 million Bayou Bridge Pipeline. Judge Shelly D. Dick concluded that the U.S. Army Corps of Engineers, in authorizing the project, did not provide sufficient explanation for how the proposed off-site mitigation would compensate for the loss of wetlands impacted by construction. In addition, the Court found the Corps’ environmental analysis failed to sufficiently consider and address historical impacts to wetlands from similarly situated pipelines. Thus, the Court held that these deficiencies likely violated the National Environmental Policy Act (NEPA) and ordered the 162-mile oil pipeline to halt construction within the Atchafalaya Basin, a large wetland habitat for a variety of fish and wildlife species and a critical component of regulating flooding and stream recharge in the region. As we recently saw with the D.C. Circuit’s decision to vacate authorizations for the Sabal Trail Pipeline, this is another example of courts and environmental organizations relying on errors in a federal agency’s NEPA analysis to justify enjoining pipeline construction or operations.
Continue Reading Federal District Court Halts Construction of Louisiana Pipeline Due to Corps’ Failure to Explain Off-Site Mitigation

As reported in The Nickel Report, the United States Court of Appeals for the D.C. Circuit last week dismissed an interstate natural gas pipeline company’s challenge to the State of New York’s delay in issuing a water quality certification under section 401 of the federal Clean Water Act (CWA). The case is one of several pending across the country that involve a state’s authority to issue, deny, or waive a CWA water quality certification for interstate natural gas pipeline projects.
Continue Reading D.C. Circuit: FERC to Decide Water Quality Certification Waiver for Natural Gas Pipeline Projects