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About Lowell

As an environmental litigator, Lowell Rothschild focuses his practice on natural resource issues such as wetlands, endangered species and environmental review under the National Environmental Policy Act (NEPA).

For more than 20 years, he has represented private, public, governmental and quasi-governmental clients working in the oil and gas, natural resource extraction, and infrastructure development sectors in obtaining and defending permits, as well as responding to allegations of legal noncompliance, through both internal investigations and litigation. Lowell’s practice has included cases before the U.S. Supreme Court, multiple federal circuit and district courts, and the U.S. Environmental Protection Agency (EPA) and Department of the Interior (DOI) administrative tribunals.

Outside of his natural resources work, Lowell’s litigation experience covers the range of environmental laws, including water quality, outer continental shelf lands, hazardous waste, and radiation. He also managed litigation as the primary in-house environmental counsel for one of the world’s largest integrated phosphate and potash (fertilizer) supplier.

Experience

Recent Notable Matters

Wetland mitigation banker — successfully defending the client’s banking agreement in federal litigation in Alaska and the Court of Federal Claims against allegations by a competitor that the agreement was issued in contravention of the law

Utah Department of Transportation — wetlands and NEPA litigation related to the construction of the Legacy Parkway outside of Salt Lake City

Mosaic Company — litigation over a wetland permit and environmental assessment for a 10,000-acre mine expansion

Developer of a private ski resort and golf course — defense against allegations of noncompliance with wetland laws

Timber company — facing allegations of noncompliance with wetland laws

Metropolitan Washington Council of Governments, the Washington, D.C. metropolitan planning organization (MPO) — defending its actions related to the EIS for the Inter-County Connector

Utah Department of Transportation — litigation regarding a road extension and new bridge to be constructed south of Salt Lake City

Salt Lake City MPO (the WFRC) — litigation regarding its Long-Range Transportation Plan

Nevada Department of Transportation and the Las Vegas MPO (the RTC) — EIS for their expansion of I-95 outside of Las Vegas

American Trucking Association — defense of certain NEPA requirements for Presidential action under NAFTA; case that led to the Supreme Court’s decision in the Public Citizen litigation

Real estate developer — litigating a critical habitat designation in California District Court

Client — participation in the litigation over the listing of the polar bear under the Endangered Species Act

Property developer — criminal investigation related to the alleged “take” of a bald eagle

Offshore contractor — precedent-setting litigation under the Outer Continental Shelf Lands Act

Upstream gas company — Department of Interior royalty revenue enforcement action testing an expanded new theory of liability

Rhee Bros., a grocery importer — million-dollar pesticide litigation against the EPA

Cast-iron pipe manufacturer — two different criminal prosecutions related to Clean Air Act permitting requirements

Chemical manufacturer — criminal investigation regarding alleged OSHA and Clean Air Act violations

National manufacturer — resolving a civil environmental complaint involving over 400 alleged violations at 28 different facilities in five different EPA regions across the U.S.

Potentially responsible parties — representation, as common counsel, several different groups of these potentially responsible parties litigating resolution of their Superfund liability

Major oil companies — two separate pieces of litigation, represented different oil companies in civil litigation related to their cleanup obligations at refineries in Texas and Virginia

Publications and Speeches

“Environmental Regulation of Land Development – Recent Developments in Wetlands, Species, Historic Preservation, NEPA and Mitigation Law,” Bloomberg BNA CLE Webinar, February 17, 2016.

“Expansive New Mitigation Requirements,” Oil & Gas Financial Journal, January 2016.

“The Waters of the United States Final Rule,” Houston Bar Association Environmental Section Monthly Luncheon, November 18, 2015.

“Water in the West: New Challenges, New Insights,” SNL Energy’s Western Power Summit, November 3, 2015.

“How Environmental Groups’ Evolving Anti-Fossil Fuel Strategy Makes Crude-by-Rail so Complicated,” American Fuel & Petrochemicals Association Annual Environmental Conference, October 19, 2015.

“The Waters of the United States Final Rule, Water and Energy: Challenges and Opportunities in the Nexus,” Rice University’s Baker Center for Public Policy, October 14, 2015.

“The New Waters of the United States Final Rule: Water Jurisdictions, Significant Nexus and Policy Implications,” Bloomberg BNA CLE Webinar, July 28, 2015.

“OSHA vs. PHMSA: The Tangled Web of Jurisdiction Over Midstream Operations,” North American Oil & Gas Pipelines, July 20, 2015.

“Hawkes Co. and the Public Policy Rationale for Allowing Court Review of Jurisdictional Determinations,” National Wetlands Newsletter, Environmental Law Institute, July/August 2015.

Wetlands Deskbook, 4th Edition, Environmental Law Institute Press, January 2015.

“Environmental Rights: Regulations to Come - How proposed rules on endangered species and clean water will have impacts on oil and gas projects throughout the major plays in the United States,” Energy Executive Magazine, Winter/Spring 2015.

“Upcoming Regulations: 8 Rule Proposals to Watch for in 2015,” Energy Executive Magazine, Winter/Spring 2015.

“The 8 Rule Proposals to Watch for in 2015: Environmental Regulation of the Oil and Gas Industry Continues,” Bracewell Webinar, November 20, 2014.

“Business Emergencies - Encountering and Responding to a Crisis,” Bracewell Webinar, November 18, 2014.

“EPA in Wonderland: A Journey Down the Waters of the U.S. Rabbit Hole,” Bloomberg BNA Water Law & Policy Monitor, October 16, 2014; Response of Bracewell’s Lowell Rothschild to the NRDC’s Jon Devine, Bloomberg BNA Water Law & Policy Monitor, October 16, 2014.

“Waters of the United States,” 5th Law of Shale Plays Conference, September 5, 2014.

“Waters of the United States,” 26th Annual Texas Environmental Superconference, August 7, 2014.

“Working In Water? Proposed Rule Confuses the Issue of Wet or Dry,” Construction Executive, June 24, 2014.

“Strategic Delays: Keystone XL Pipeline Involves Balancing Multiple Constituencies,” Energy Executive, April 7, 2014.

“Oklahoma Enters Fray of Endangered Species Sue-and-Settle,” Energy Executive, April 8, 2014.

“Environmental Roadblocks: Strategies Aim to Derail Natural Gas Infrastructure Projects,” Oil & Gas Financial Journal, November 12, 2013.

“Environmental Implications of DOE’s Approval of Fourth LNG Export Project,” Oil & Gas Financial Journal, September 30, 2013.

“Practitioners’ Tales: Recent Experiences With NHPA Section 106 and FHWA Section 4(f),” Transportation Research Board’s 52nd Annual Workshop on Transportation Law, July 22, 2013.

“Two Polar Bear Decisions in Two Weeks,” Power Magazine, June 3, 2013.

“FWS Plan Could Have Negative Impact On Development Projects,” Oil & Gas Financial Journal, April 2013.

Credentials

Education

University of Minnesota Law School,
J.D.
1993
magna cum laude
University of Virginia,
B.A.
1990

Bar Admissions

Texas
District of Columbia
California
Minnesota

News

News

OSHA vs. PHMSA: Tangled Web of Jurisdiction

July 20, 2015
North American Pipelines - Online

EPA Critique Buoys Keystone Critics After Congress Backs Project

February 5, 2015
Center for Biological Diversity

EPA Critique Buoys Keystone Critics After Congress Backs Project

January 30, 2015
Bloomberg News - Washington Bureau

EPA in Wonderland: A Journey Down the Waters of the U.S. Rabbit Hole

October 16, 2014
Bloomberg BNA: Water Law & Policy Monitor

Keystone Backers Find Nebraska Judge Not Only Hurdle

February 20, 2014
Bloomberg News - Washington Bureau

Obama's Keystone Options Shrink as State Downplays Impact

February 1, 2014
Bloomberg Businessweek Online

Admin to propose water rules that may affect energy and others

October 22, 2013
Windpower Engineering Online

EPA BRISTOL BAY WATERSHED ASSESSMENT

August 1, 2013
Congressional Testimony - CQ Transcriptions

EPA Maintains Its Focus on Climate Change

October 8, 2012
Energy Legal Blog

Insights

Insights

Obama Administration Adopts Wide-Ranging Natural Resource Mitigation Requirements

November 3, 2015

Earlier today, the Obama Administration adopted an expansive set of mitigation requirements for all its natural resource management agencies. Under the voluntary policy, the Department of Defense, Department of the Interior, Department of Agriculture, Environmental Protection Agency, and National Oceanic and Atmospheric Administration will aim "to avoid and then minimize harmful effects to land, water, wildlife, and other ecological resources (natural resources) caused by land- or water-disturbing activities, and to ensure that any remaining harmful effects" are effectively mitigated. The...

The Sage Grouse Isn't Added to the List of Endangered Species. And so. . . ?

September 24, 2015

As the trade and mainstream press has widely reported, yesterday, the US Fish and Wildlife Service (FWS) decided against placing the Greater Sage Grouse on the endangered species list. This is big news, if for no other reason than that grouse habitat covers hundreds of thousand square miles area across a dozen states: Certainly, the FWS's decision not to list the sage grouse spares a large geographic area of oil and gas land, rangeland, federal land, and otherwise developable area from restrictions under ESA. But, more fundamentally, FWS's decision formalizes the "success" of industry's...

Endangered Species Listing of Lesser Prairie Chicken Rejected in Widely Precedential Decision

September 3, 2015

The endangered species listing of the Lesser Prairie Chicken (LPC) was set aside by a Texas federal court on Tuesday in litigation closely watched by oil and gas interests in the Permian Basin as well as ranchers, farmers and others in west Texas, New Mexico, Oklahoma, Kansas and Colorado. And, while the Court's decision is important to those entities, it will likely have an impact far beyond those areas, as one of the first court decisions to thoroughly evaluate nascent efforts by industry to fend off a spate of new potential Endangered Species Act (ESA) listings. At issue in the case was...

Update on the Waters of the US "“ Put Away the Tape Measure and Get a Map

August 27, 2015

As those of you who have read our prior blog posts know, one of the primary changes between the proposed and final rules redefining the scope of jurisdictional waters under the Clean Water Act is the more objective measurements contained in the final rule. The proposed rule defined adjacent (and therefore jurisdictional) waters as those within certain scientific boundaries - floodplains and riparian areas, for example, which were defined based on their ecological and hydrological relation to traditionally-navigable and other similar waters. The final rule eliminated the need for this...

The Final Waters of the US Rule: The Practical Bottom Line

June 9, 2015

Two weeks ago, we started our series of posts examining the Obama Administration's final rule redefining the waters subject to federal jurisdiction under the Clean Water Act by looking at the bottom line, legally, of the waters now considered to be always jurisdictional. We then examined the waters that will probably be (and may be ) jurisdictional, as well as a few of the ambiguities remaining in the final rule and some that were resolved by the agencies before finalization. Following two posts on changes we believe the Administration should have made but didn't and one examining the...

The Final Waters of the US Rule: The Practical Application of the Significant Nexus Test

June 8, 2015

This is our penultimate post on the Administration's final Waters of the US rule. For those of you who have read our last 16 posts on the proposed and final rules (hi Mom!), you know we have concerns about the significant nexus test. Our concern is not just the breadth of the test, but its ambiguity and need for case-by-case application. For the regulated community, knowing when one must comply with the law is half the battle (at least). And the significant nexus test, based on neither science nor the language of the Clean Water Act, is an ambiguous, case-by case test. But apart from its...

The Final Waters of the US Rule: Traditionally Navigable Waters and the Possibility of Future Use

June 5, 2015

Yesterday, we looked at one of the core definitions in the Waters of the U.S. rule - that of "wetlands" - and suggested that, while the agencies didn't change it, perhaps they should have. Today we'll look at another static term - "Traditionally Navigable Waters." It, too, has been unchanged for the last three decades and probably should have been modified in the final rule. Given the term's newfound significance in the regulatory structure, the failure of the Agencies to do so adds unnecessary complexity and confusion to the process of identifying jurisdictional waters. First, we have to...

The Final Waters of the US Rule: What's a Wetland?

June 4, 2015

For the last week, we've looked at some of the clarifications made in, and ambiguities remaining after the Administration finalized, the final rule redefining federal jurisdiction under the Clean Water Act. So far, we've only addressed changes made by the Agencies, but today and tomorrow we will note two provisions they didn't change. As a result, time has passed by these provisions, with possibly significant consequences. The first static provision is the definition of "wetlands." As most of you know, while the final rule affects the entirety of the Clean Water Act, much of the controversy...

The Final Waters of the US Rule: The Administration's Concessions and Clarifications

June 3, 2015

We're halfway through our series of blogs discussing the Administration's final rule redefining the scope of waters subject to jurisdiction under the Clean Water Act. Our two posts earlier this week addressed some of the questions remaining even after the Administration clarified a number of ambiguities in the proposed rule. Today we'll point out a few of the more notable clarifications, as well as some concessions the Administration made in light of public comments. Most significantly, as discussed in our first post, the administration has provided greater clarity as to what waters are...

The Final Waters of the US Rule: Remaining Ambiguity

June 2, 2015

Our first two posts on the final Waters of the US rule noted that, in the final rule, the Administration has provided an additional degree of clarity in distinguishing between jurisdictional and non-jurisdictional waters, both by definition and in practice . But, as we discussed last year, the proposal was extremely ambiguous and a fair amount of ambiguity remains. Yesterday, we identified some of this ambiguity and today we will briefly summarize a bit more. "Traditionally Navigable Waters." A good part of this rule keys off these waters. TNWs are one of the three types of core waters (...

The Final Waters of the US Rule: The Significant Nexus Test Is Here for Good

June 1, 2015

Last week, we started with the bottom line of the Administration's new Waters of the US Rule - describing the waters that are now always jurisdictional by definition and those probably always jurisdictional in practice . Today, we start to leave clarity behind and examine the waters that may be jurisdictional. Or may not be. For you "waters of the US" cognoscenti, you know what that means - we're discussing how the Administration has finalized the "significant nexus" test. In a later post, we'll address the policy implications of the Administration enshrining the "significant nexus" into...

The Final Waters of the U.S. Rule: Waters That Aren't Always Jurisdictional by Definition, but Probably Are in Practice

May 29, 2015

Yesterday , we started our series of blog posts about the final WOTUS rule by taking advantage of the rule's increased clarity to identify the waters that would always be considered jurisdictional. The rule's definitions leave no doubt that certain waters will always be considered jurisdictional by EPA and the Corps. But there's another group of waters that aren't always jurisdictional by definition, but will most likely be so in practice. As you'll recall from last year's scintillating series of posts about the proposed rule, the proposal's structure was twofold: It identified waters that...

The Administration Finalizes the WOTUS Rule. First Things First "“ the Immediate Obligations.

May 28, 2015

Yesterday, the Obama administration finalized the waters of the US rule it proposed last spring. There's a lot to be said about the final rule, and so this will be the first in a series of blog posts (just like for the proposal). But because the new rule creates a few immediate obligations, we'll start this series with the punchline. The rule remains broad, but is somewhat more clear In our view, the rule remains a very broad expression of the Administration's view of it's authority under the Clean Water Act. The good news is that, compared to the proposal , the final rule provides a level of...

A permit system may finally arrive for the Migratory Bird Treaty Act - New Opportunities and Responsibilities

May 27, 2015

For years, Federal Courts have held that individuals can be held criminally liable under the Migratory Bird Treaty Act (MBTA) for the death of birds regardless of whether they intended to harm them. While several courts have recently called into question this precedent, yesterday, the Fish and Wildlife Service (FWS) started a process that could help clarify liability under the Act. However, with this clarity will come additional regulatory obligations and the creation of a bright line between compliance and noncompliance. Like the Endangered Species Act (ESA), the MBTA imposes criminal...

Pleasing No One, Fish and Wildlife Service Lists the Gunnison Sage-Grouse as Threatened

November 12, 2014

In the latest listing driven by a huge July 2011 settlement with environmental NGOs, the U.S. Fish and Wildlife Service earlier today announced it would list the Gunnison sage-grouse as threatened under the Endangered Species Act (ESA). The listing comes in the face of objections from both sides. Colorado's Governor and both its senators - all Democrats - had worked hard to prevent the listing, while environmentalists warned in advance that they would sue over a threatened listing, demanding that the bird be listed as endangered, not just threatened. Concurrent with the listing, FWS announced...

Sackett Two Years Later: Wetland Jurisdictional Determinations Still Not Appealable

September 25, 2014

When the U.S. Supreme Court decided in Sackett v. EPA that Environmental Protection Agency (EPA) wetland compliance orders were appealable, one question was how far would other courts extend the Supreme Court's reasoning? Two years later, the answer is becoming clear on at least one front: courts continue to hold that wetland jurisdictional determinations are not appealable. In Belle Company v. U.S. Army Corps of Engineers , the Fifth Circuit was the latest court to say so. For years, most courts have refused to hear appeals from U.S. Army Corps of Engineers (Corps) determinations that...

Courts Affirm Limits on Scope of Environmental Review

August 22, 2014

Ruling on a pipeline project and a mine project, two different federal courts issued decisions Monday affirming limits on the scope of environmental review. The pipeline case was a challenge to Enbridge's Flanagan South pipeline, designed to transport tar sands crude from Illinois to Oklahoma. The mine case involved Raven Crest Contracting's Boone North No. 5 coal mine in West Virginia. Neither decision breaks new ground; their significance lies in reaffirming that NEPA analysis should be confined to the scope of the federal agencies' control over the project in question. These cases...

DOT Proposes Crude-by-Rail Safety Changes

July 23, 2014

Earlier today, the Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) released two proposals designed to enhance the safety of the transportation of crude by rail . The first, short proposal seeks comments on a potential rulemaking which would increase the oil-spill planning required for crude by rail transport. The second, more lengthy proposal seeks comments on a suite of enhancements intended to enhance the safety of rail transportation itself. The first, oil-spill planning notice results from current regulatory language that only requires spill...

EPA's Power-Plant Cooling Water Rule Takes a Surprise Endangered Species Turn

May 23, 2014

A surprise awaits those who reach page 334 of the 559-page preamble to EPA's final cooling-water-intake rule - a potentially significant expansion of the Endangered Species Act. The rule, which EPA has not yet officially published, is intended to protect aquatic species affected by cooling water intake at power plants and other large facilities. It is the result of a lawsuit by environmental groups, settled by EPA, and delayed on several occasions . Most recently, the rule was hung up as a result of concerns voiced by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (...

Gunnison Sage Grouse Continues Its Wobbly Path Toward Listing

May 14, 2014

Last week, the Gunnison Sage Grouse took another detour on its road to being listed under the Endangered Species Act (ESA), as a federal court agreed to the US Fish and Wildlife Service's (FWS) request to postpone a listing decision by six months. A listing - and the concurrent protection of over 1.7 million acres in western Colorado and southeastern Utah - would have significant impacts on oil and gas and grazing activities in the region. The grouse's wobbly path toward listing is therefore being closely watched by the oil and gas industry, ranchers and environmentalists alike, but also...

Administration Proposes Significant Expansion of Endangered Species Act

May 12, 2014

Earlier this morning, the Obama Administration proposed two new rules which would significantly expand the scope of the Endangered Species Act and, therefore, limit development in areas where endangered and threatened species are - or might eventually be - found. The new rules relate to one of the two main restrictions found in the ESA - that federal actions cannot adversely affect habitat critical to listed species - and would affect the oil and gas upstream and midstream sectors along with other major project development activities. Most people familiar with the ESA know that, once a...

Proposed Waters of the U.S. Rule Changes the Question for Adjacent Wetlands

April 7, 2014

Last week we discussed various elements of the U.S. EPA's and Army Corps of Engineers' proposed rule redefining Waters of the United States. Today, we note a potentially wide-ranging impact of the rule regarding the identification of wetlands. Wetlands can be difficult for laypersons to identify, as some are wet for as little as 5-12% of the growing season. In mountainous areas of northern states, that can be as little as 4 days, so for much of the year they can be completely dry. But wetlands are regulated like other waters and require a permit before they can be disturbed. As a result, the...

Proposed "Waters of the U.S." Rule: What Is Left of the Significant Nexus Test?

April 3, 2014

Yesterday , we continued examining the confusion inherent in EPA and the Corps' proposed rule redefining "Waters of the U.S." Today we finish that analysis by asking what is left of the Significant Nexus test, if anything. As we discussed on Monday , the proposed rule tries to have its cake and eat it too. The rule describes certain waters that are deemed always to have a significant nexus - and so are always jurisdictional - but also retains the significant nexus test for use on case-by-case basis. As a reminder, under the proposed rule, "significant nexus" waters are jurisdictional if...

Proposed "Waters of the U.S." Rule: Clarity, Part 3

April 2, 2014

On April 1 , we looked at the opaque definitions of riparian area and floodplain in EPA and the Corps' proposed rule redefining "Waters of the U.S." Unfortunately, part of the definition of another term - tributary - also raises more questions than it answers. We looked at part of the definition of tributary last Thursday , when examining the reach of the agencies' jurisdiction upstream from traditionally navigable and interstate waters. At the time, we discussed the portion of the definition that identifies a tributary as any feature with a bed and bank that contributes flow to any...

Proposed "Waters of the U.S." Rule: Can Significant Nexus Be Clarified?

April 1, 2014

On March 31 , we discussed that, at best, EPA's and the Corps' proposed rule defining what waters fall under federal jurisdiction provides only partial clarity. The agencies have done little to clarify the circumstances in which there is no federal jurisdiction. They have done more to clarify when they do have jurisdiction. But is the proposed rule clear enough? Recall that this question relates to the first of the two jurisdictional tests, which we discussed last Thursday - that a water is jurisdictional if is adjacent to tributaries of navigable waters. Digging deeper into this test, the...

Proposed "Waters of the U.S." Rule Improves Regulatory Clarity - In Part

March 31, 2014

On March 28, we looked at the question of whether the rule proposed by the U.S. EPA and Army Corps of Engineers redefining their Clean Water Act jurisdiction was just a restatement of the current law. Today we will look at another assertion the agencies make: that the rule will increase regulatory clarity . Setting aside the question of whether the definitions we looked at on Friday are clear (we'll examine that tomorrow), the short answer is that the rule does increase clarity, in part - it provides additional clarity as to what waters are under federal jurisdiction; it provides very little...

EPA Proposes Its Waters of the U.S. Rule "“ Can It Survive the Supreme Court?

March 28, 2014

Yesterday, we discussed the breadth of the U.S. Environmental Protection Agency's and Army Corps of Engineers' proposed rule defining what waters fall under federal jurisdiction. Their press release announcing the rule states that the proposed rule "does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court's more narrow reading of Clean Water Act jurisdiction." The real question is whether the rule survives Rapanos. As alluded to in the press release, Rapanos v. U.S. is the Supreme Court decision most...

EPA's Proposed Waters of the U.S. Rule: Does It Regulate Puddles?

March 27, 2014

Yesterday, we blogged about the EPA and Corps' proposed rule defining what waters fall under federal jurisdiction. In a leaked draft , EPA was seen to have been contemplating explicitly excluding puddles from regulation, but, in the end, didn't do so. EPA provided an explanation as to why, but the rule is so broad, we think EPA's explanation may not be completely relevant. In other words, because the rule is so broad, many puddles actually might fall under federal jurisdiction. The reason is the host of new definitions proposed by EPA. Previously undefined terms like tributary , neighboring...

EPA Proposes Its Waters of the U.S. Rule, Leaving No Puddle Unregulated

March 26, 2014

Yesterday, four months after the draft was leaked, the U.S. Environmental Protection Agency and Army Corps of Engineers announced the release of their proposed rule defining what waters fall under federal jurisdiction. Over a decade in the making, the rule, once finalized, will literally redefine the landscape of federal water pollution regulation, impacting laws governing wetlands fill, water discharge permits, oil spill liability, spill contingency planning, hazardous substance spill response, and more. It will impact municipalities, states, and industry of every type, from natural resource...

Oklahoma Enters the Fray of Endangered Species Sue-and-Settle

March 24, 2014

On March 17, 2014, the State of Oklahoma sued the U.S. Department of the Interior, taking aim at the U.S. Fish and Wildlife Service's habit of settling large Endangered Species Act cases with Environmental Non-Governmental Organizations. The lawsuit signals an important escalation in the fight against such settlements. ESA lawsuits have become a key tool to prevent or delay project development activities, including in the oil and gas industry. Over the last several years, FWS has repeatedly settled NGO lawsuits with consent agreements in which FWS commits to prioritize the NGOs' chosen...

DOT's New NEPA Categorical Exclusion May Actually Speed Project Delivery

January 17, 2014

Spurred on by Congress, on Monday, the Federal Highway and Transit Administrations adopted a categorical exclusion which may spare some projects a detailed review under the National Environmental Policy Act. Specifically, projects that receive less than $5,000,000 in federal funding will be presumed not to have to undertake any NEPA review at all. The fact that there would be some type of CatEx along this line was never in doubt - in July 2012, Congress included a provision in Section 1317 of the highway bill (called "MAP-21") specifically ordering DOT to (1) designate a CatEx for any...

Draft Clean Water Jurisdiction Rule Leaked

November 13, 2013

Rule Could Have Significant Impact on Infrastructure, Energy and Land Development On September 18, we blogged about the pending release of a draft rule which would establish the scope of waters subject to the federal Clean Water Act - a rule which could have significant impacts on entities engaged in infrastructure or other land development activities, such as upstream and midstream oil and gas development, highway projects and real estate developers. While still not yet formally proposed, a leaked version of the draft rule has surfaced, providing insight on what the US Environmental...

Coast Guard Looks to Expand Safety and Environmental Management Systems to Vessels on the OCS

September 18, 2013

On September 10, 2013, the U.S. Coast Guard published an Advance Notice of Proposed Rulemaking (APNRM) in the Federal Register stating its intent to propose regulations that will require vessels engaged in exploration, development or production activities on the Outer Continental Shelf (OCS) to develop, implement, and maintain a vessel-specific Safety and Environmental Management System (SEMS). The proposed rulemaking would be far-reaching as the Coast Guard estimates that approximately 2,200 foreign and domestic vessels engaged in OCS activities could be affected by this regulatory action,...

Licensing Efficiency and Environmental Streamlining comes to Small Hydro Projects

August 12, 2013

Early Friday evening, President Obama signed into law two bills which aim to speed the licensing and environmental approval of low-impact hydropower projects. One bill is focused on projects under 5 megawatts constructed in manmade conduits - tunnels, canals, pipelines, aqueducts, flumes, ditches, or similar water conveyances - operated for the distribution of water for agricultural, municipal, or industrial consumption. These facilities no longer require FERC licensing, and therefore should be able to move forward much more expeditiously. Another provision allows slightly larger facilities...

Two Polar Bear Decisions in Two Weeks: Their Significance for Climate Change, Endangered Species and Project Development

March 14, 2013

The end of February saw a flurry of news regarding the status of the Polar Bear under the Endangered Species Act. On February 20, the US Fish and Wildlife Service reissued its so-called "4(d)" rule regarding the Bear, outlining the rules "necessary and advisable" to protect it. Nine days later, the U.S. Court of Appeals for the DC Circuit upheld FWS's listing of the Polar Bear as a "threatened" species under the ESA. Each development is significant in its own right; together, they offer solid guidance as to where FWS is heading on using the ESA to address climate change and how climate...

PHMSA Inspections to Focus on Integrity Management Program Evaluations

December 6, 2012

Effective immediately, Pipeline and Hazardous Materials Safety Administration (PHMSA) inspections will emphasize the review of operator methods for integrity management (IM) program evaluations, the agency said in an Advisory Bulletin released earlier today. PHMSA also stated that it will carefully evaluate whether operators have meaningful metrics to identify how well they are implementing their IM programs, how well their systems are responding to their IM programs, and how well their systems' integrity is maintained. The Advisory Bulletin is not surprising in light of concerns that the...

Will Decker Hobble Future Attempts at Clean Water Act Permit Streamlining?

November 7, 2012

This session, the Supreme Court is hearing a case to which you probably hadn't paid much attention, even if you focus on environmental law - Decker v. Northwest Environmental Defense Center . But you should, since Decker could significantly help - or hurt - future attempts by EPA to streamline the Clean Water Act permitting program. Decker may also affect the direction of Clean Water Act citizen suits across the board - a possibility that just increased with a recent Eleventh Circuit decision. Decker is a citizen lawsuit challenging water discharges from logging roads without a CWA permit,...

EPA Maintains Its Focus on Climate Change

October 8, 2012

We're all busy and often barely have enough time to focus on the day-to-day crush, set ablaze by the emergency of the day; the latter taking all of our remaining energy and focus. In the process, we can lose sight of the issues we already know, expect, and understand "well enough." The result is that these "expected" items can slowly change over time, morphing into something quite different without attracting our attention. One of these items - just to put it back on your radar - is EPA's views on the impacts of climate change on energy projects and how those impacts have to be analyzed...

Fifth Circuit Limits Wetland Permit Citizen Suits

September 11, 2012

In a case with potentially significant repercussions, on April 25, 2012, the Fifth Circuit ruled that private citizens cannot sue under the Clean Water Act's citizen suit provisions to enforce the terms of a U.S. Army Corps of Engineers wetland permit (as opposed to suits for the filling of a wetland without a permit). In Atchafalaya Basinkeeper v. Chustz , the court was faced with a lawsuit by private citizens alleging that the Atchafalaya Basin Program had failed to comply with the terms of its Section 404 wetland permit, issued by the Corps under CWA §1344 to allow the Basin Program to...

Corps Gets Second Chance to Obtain Endangered Species Protection for Nationwide Permits

August 14, 2012

Those looking for a silver lining in the cloud hanging over the Army Corps of Engineers' Nationwide Permits (NWPs) found it last week, when it was disclosed that the Fish and Wildlife Service (FWS) had agreed to revisit its determination that the NWPs don't adequately protect endangered species. At issue is whether the NWPs will be truly useful for those seeking to fill wetlands in areas where endangered species may be found. Unfortunately, despite the silver lining, it will likely be some time before this cloud completely dissipates. The NWPs are the Corps' expedited permitting mechanism,...

Court Upholds Key Use of Wetland Permit for Utility Lines, Denies Initial Challenges to Keystone Pipeline

August 7, 2012

On Sunday, August 5, in a closely-watched decision, an Oklahoma Federal Court denied Sierra Club's request to stop the Keystone Pipeline's southern leg. The decision was obviously an important step in the construction of the pipeline, but, just as importantly for the rest of the utility industry, it upheld the Army Corps of Engineers' use of Nationwide Permit 12 to allow small wetland impacts at multiple water crossings along the pipeline's route. Before the Court was Sierra Club's request for a preliminary injunction to halt construction of the project's 458-mile southern leg from Oklahoma...

Despite Sackett Ruling, Industry Still Faces Challenges with EPA in Permitting and Enforcement Matters

July 19, 2012

In March 2012, the U.S. Supreme Court issued its much-anticipated ruling in Sackett v. EPA , a case which had the potential to significantly change the way the EPA enforces the environmental laws. Despite a unanimous decision against it, EPA has been publicly stating that the case will not significantly change its enforcement approach. The question remains: is the agency underestimating the Sackett decision or will it truly be business as usual? EPA's Enforcement Scheme Despite a large and dedicated workforce, EPA faces a number of obstacles in effectively enforcing environmental laws. First...

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