October 15, 2019

October 15, 2019

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October 14, 2019

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Déjà Vu: EPA, Army Corps Take First Step to Redefine “Waters of the U.S.”

Last week EPA and the U.S. Army Corps of Engineers announced that they again will be taking the first step in the long-awaited rulemaking process to redefine the scope of “waters of the United States” (WOTUS) under the federal Clean Water Act. This first step will repeal the Obama-era Clean Water Rule and re-implement the pre-2015 regulatory definition of WOTUS nationwide. It will take effect 60 days after publication in the Federal Register. 

The new repeal rule is the latest installment in the saga to define the scope of federal jurisdiction under the Clean Water Act. The rule reverses the Obama Administration’s controversial 2015 regulatory amendments to the definition of WOTUS, which have been the subject of numerous lawsuits from states and industry. If this all sounds familiar, that is because it is. In February 2018, the Trump Administration attempted to achieve the same outcome by issuing a similar rule that suspended the 2015 standards, but that move generated extensive litigation, resulting in the 2015 regulatory provisions applying in 22 states while the pre-2015 regulations applied in the other 28 states. This latest repeal rule makes another go at it and seeks to remove the competing regulatory standards that sprang from the litigation over its predecessor until the agencies can finalize the Trump Administration’s new definition of WOTUS. They expect to finalize that rule, which they proposed last December, sometime this winter.

Although the new repeal rule has not been published in the Federal Register yet, let alone taken effect, several states and environmental organizations already have announced that they will challenge it. Even if those lawsuits prove unsuccessful, the repeal rule will only have succeeded in temporarily reinstituting regulatory standards that were so confusing that two Administrations in a row have tried to replace them. As a result, the uncertainty that has plagued Clean Water Act regulation and permitting will remain for now.

© 2019 Beveridge & Diamond PC

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W Parker Moore, Environmental Lawyer, Beveridge & Diamond Law firm
Principal

Parker dedicates his practice to successful project development. He helps clients nationwide from every economic sector navigate issues arising under the Clean Water Act (CWA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA) and related environmental laws.  He also defends clients against agency enforcement actions and citizen suits, applying his substantive knowledge of natural resources law and project development to craft creative, sound and successful legal strategies. He co-chairs B&D’s...

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Kirstin K. Gruver Environmental litigation lawyer Beveridge Diamond
Associate

Kirstin maintains a diverse environmental litigation and regulatory practice, working with clients nationwide across industrial sectors with a focus on wetlands and water issues.

Prior to joining Beveridge & Diamond, Kirstin worked as a deputy prosecuting attorney at the Clark County Prosecutor's office. She also worked as a legal intern with the Department of Transportation, Maritime Administration, and as a summer clerk at Earthjustice.

Kirstin attended law school at the University of Washington School of Law, where she served as an extern at the Attorney General's Office of the University of Washington and as a legal intern at the University of Washington Tribal Defense Clinic. She also acted as the Notes & Comments Editor of the Washington Journal of Environmental Law & Policy.

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Associate

Lucy maintains a diverse environmental litigation and regulatory practice, which includes experience with water rights, the Clean Air Act, the Clean Water Act, and the Toxic Substances Control Act, as well as various Washington state statutes.

Prior to joining Beveridge & Diamond, Lucy worked as an associate attorney and a law clerk for the Mentor Law Group in Seattle, WA. She represented clients in water rights adjudication, litigation, and applications to state and federal agencies. She also worked with the State Environmental Policy Act, Washington State...

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