July 29, 2020

"On July 27, 2020, the U.S. Department of Justice (DOJ) issued a policy memorandum designed to stay the federal government’s hand in enforcing the Clean Water Act where states have initiated a civil judicial penalty proceeding under analogous state laws on the same core of operative facts.

The policy, “Civil Enforcement Discretion in Certain Clean Water Act Matters Involving Prior State Proceedings,” relies heavily on principles of federalism and efficiency – and the DOJ-wide policy against “piling-on” – to limit the reach of federal government enforcement. The memo notes that the statute explicitly precludes federal administrative enforcement where the state has taken administrative enforcement under comparable state authorities. But the statute is silent regarding any preclusive effect of state judicial action."

Niina H. Farah E&E News 

"Environmental groups are hauling the Trump administration to court for what they argue was a failure to follow the correct process for updating regulations on how to comply with the National Environmental Policy Act.

The lawsuits are the first of what will likely be a series of challenges against regulations that CEQ has argued would speed up and simplify the federal project permitting process (Energywire, July 16).

"Rather than make this drastic change deliberately and with the careful process the APA requires, CEQ cut every corner," 17 environmental groups wrote in a complaint filed this morning in the U.S. District Court for the Western District of Virginia."

“Today’s action makes changes to the closure regulations for coal ash storage that enhance protections for public health while giving electric utilities enough time to retrofit or replace unlined impoundment ponds,” said EPA Administrator Andrew Wheeler. “The public will also be better informed as EPA makes facility groundwater monitoring data more accessible and understandable.”

July 22, 2020

"The agencies submit their draft rules to OMB for review before releasing them to the public. So knowing what's at OMB gives us an insight into what's in the pipeline. Here are two that are of interest to CWA practitioners.

Corps' Nationwide 404 Permits. The current NWPs don't expire until 2022, but the Trump Administration has ordered an early review. The Corps is looking at nine specific NWPs related to the energy sector. This is consistent with the current administration's priorities, and should surprise no one. This could be quite controversial depending on how far they go, especially as related to pipelines, which have been aggressively challenged by some states and enviro groups in the last few years. The Corps also states that will "take a holistic look at" all of the existing 52 NWPs. "

July 24 2020

"EPA has agreed to limit its authority to regulate uranium mining practices that environmentalists say pollute groundwater.

In a memorandum of understanding with the Nuclear Regulatory Commission signed by Administrator Andrew Wheeler while visiting Wyoming yesterday, EPA agreed to limited authority over a process called in situ leach (ISL) recovery of uranium, in which minerals are first dissolved underground before being pumped to the surface, where they are processed."

Jennifer Yachnin, E&E News

"Native American tribes challenging President Trump's decision to slash the size of the Bears Ears National Monument are seizing on the recent Supreme Court decision in McGirt v. Oklahoma to bolster their case against the administration.

In documents filed in the U.S. District Court for the District of Columbia on Friday, the Native American Rights Fund and attorneys for individual tribes cited the high court's recent ruling that millions of acres in Oklahoma remain part of Native American reservations for criminal law purposes (Greenwire, July 9).

‘As the Tribes have explained, Congress reserved for itself the authority to revoke a monuments' objects and remove its lands. That past Presidents have unlawfully exercised a non-statutory power to exercise those powers does not amend the Antiquities Act,’ Landreth wrote. The Okahoman, however, reports that Muscogee (Creek) Nation and Seminole Nation have disavowed the agreement.”

July 21, 2020

"California farmers frustrated by Congress' failure to greenlight a politically sensitive irrigation drainage plan have revived a major legal challenge.

At the farmers' request, a federal judge yesterday lifted a long-running stay on a lawsuit filed in 2011. Millions of dollars, a major environmental cleanup and more could all once again hang in the balance.

The case filed in the U.S. Court of Federal Claims centers on the government's failure to complete a drainage system for the Westlands Water District, although the suits were not filed by the district."

CWAG adopted Resolution 2020-01 Asserting State Sovereignty Over the Allocation and Distribution of Water from Army Corps of Engineers’ Project Reservoirs for Consumptive Uses. This resolution is in response to the Army Corps of Engineers (Corps) effort last year to adopt a Proposed Rule on Use of U.S. Army Corps of Engineers Reservoir Projects for Domestic, Municipal & Industrial Water Supply (81 FR 91556). Although CWAG Attorneys General successfully petitioned for withdrawal of the proposed rule, there is concern the Corps will continue to require water supply contracts at individual Corps project reservoirs as a condition of granting access to water users seeking to divert natural flow for consumptive uses . The resolution expresses support for legislation to clarify that state law governs the allocation, distribution, and use of natural flow passing through Corps reservoirs. 

Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision.

Please note, The 2019 Edition now appears on Westlaw under the Secondary Sources/Texts & Treatises category. We anticipate that the hardbound version will be out later this month

Updated American Indian Law Deskbook Is Now Available

The American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.

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