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WOTUS Ruling Goes to the Supreme Court

Swamp Stomp

Volume 17, Issue 3

On Friday January 13, 2017, the Supreme Court announced that it will decide the proper channel to challenge the Obama administration’s new Waters of the United States” or WOTUS.  The Pacific Legal Foundation (PLF) believes that WOTUS “…threatens millions of property owners with unjustified federal oversight by vastly expanding the reach of the Clean Water Act in violation of federal law.”

Justices granted an industry petition asking the court to reconsider the 6th U17.S. Circuit Court of Appeals’ decision to hear legal challenges over Waters of the United States rule.

“More than 30 states and many industry and farm groups have challenged the joint U.S. EPA and Army Corps of Engineers rule redefining what waterways and wetlands receive automatic protection under the Clean Water Act” (Reilly).

The Supreme Court accepted the case of National Association of Manufacturers v. U.S. Department of Defense.  In the Sixth U.S. Circuit Court of Appeals, they ruled using a restrictive approach to judicial relief, which allows only federal courts of appeals to hear WOTUS challenges.  This means that angry landowners and others regulated by WOTUS cannot take legal action through federal trial courts, instead, their lawsuits would all go to the first appellate court to consider a challenge.

“In February, the Ohio based 6th Circuit ruled 2­1 that it had jurisdiction to hear the challenges. The 6th Circuit also issued a nationwide stay of the rule pending the resolution of the litigation” (Reilly).

This jurisdictional ruling was appealed to the Supreme Court by the National Association of Manufacturers.  They were later joined by the Pacific Legal Foundation, who joined as a direct litigant, on behalf of a number of landowners, farmers, and ranchers throughout the country.  The outcome of the Supreme Court’s ruling is very important because it could affect how and where plaintiffs may challenge questionable rulemaking under the Clean Water Act in future cases, and perhaps other laws as well.

The agreement by the Supreme Court to hear this case and review the Sixth Circuit’s ruling is not what the Obama administration was hoping to hear.  The administration has been fighting to keep the fights out of district courts that they feel may be more sympathetic towards those challenging the rule.

The fate of the Clean Water Act is even more up in the air due to the fact that it is expected that President-elect Donald Trump will work to get rid of the act once in office.

Not only is the Pacific Legal Foundation a part of this Supreme Court case, they are also challenging the WOTUS rule in the Sixth Circuit.

“The Supreme Court’s announcement is encouraging news for millions of landowners nationwide who have been uncertain where to file suits challenging federal regulations that define the scope of the Clean Water Act,” said PLF Principal Attorney M. Reed Hopper, who wrote PLF’s brief asking the court to hear the case.  “The Sixth Circuit read the Clean Water Act far too narrowly when it limited jurisdiction over WOTUS challenges to federal appellate courts. We expect the Supreme Court to overturn the Sixth Circuit decision.”

To learn more about this case and the Pacific Legal Foundation visit www.pacificlegal.org.

Sources: “PLF Applauds High Court Accepting WOTUS Jurisdictional Case.” Pacific Legal Foundation. Pacific Legal Foundation, 13 Jan. 2017. Web. 13 Jan. 2017.

Reilly, Amanda. “Justices Take up WOTUS Jurisdiction Dispute.” Greenwire. Greenwire, 13 Jan. 2017. Web. 13 Jan. 2017.

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The EPA’s Attempt to Stop Media Use of WOTUS

Swamp Stomp

Volume 17, Issue 2

The Obama Administration’s final rule defining what wetlands and waterways deserved automatic Clean Water Act protection did not receive the reception they were hoping for.  In fact, they had to work very diligently in order to try to squish the journalist coined acronym ‘WOTUS,’ which they felt was unflattering and misleading.  WOTUS stands for the “Waters of the United States” rule.

In correspondence obtained by E&E News through the Freedom of Information Act, it was found that at least six reporters were told by U.S. Environmental Protection Agency (EPA) officials to stop using the acronym WOTUS and to instead call the rule the “Clean Water Rule.”

At the moment the EPA-Army Corps of Engineers regulation cannot do anything until a verdict is made by the 6th U.S. Circuit Court of Appeals on the merits of the regulation.  If the rule does make it through the Court of Appeals, President-elect Donald Trump has already stated that during the early part of his administration, he would do away with the rule.  At the moment, it appears like this would be hard for Trump to do and that it would take time.

The rule was first brought forward by the Obama administration in March 2014 and it was called the “Definition of Waters of the United States under the Clean Water Act,” a title playing on a critical phrase in the law, “navigable waters of the United States,” that specified areas subject to federal oversight.  Five months after the rule was announced, the EPA and the Corps dubbed the rule the Clean Water Rule, which was then included in the regulations formal title.

“WOTUS is a technical term that refers to the waters throughout the country that the rule examines,” EPA spokeswoman Monica Lee said in an email. “WOTUS was used as a placeholder in the beginning stages of the proposal. Clean Water Rule is what the agency uses on our website and in the Federal Register to refer to the rule.”

Much to the chagrin of the EPA’s Office of Public Affairs, the press did not take to the rule’s new name.  What was more problematic for the agency was that challengers of the rule were using WOTUS in their press releases.  These challengers included farm groups, real estate developers and congressional Republicans.

The EPA tried to put even more pressure on journalists to stop using the term WOTUS.  In at least one case, they tried to stop Politico water reporter Annie Snider to stop using the acronym by using her editors to pressure her.

“’For some reason, she refuses to call the rule by its name,’ then-EPA spokeswoman Liz Purchia told editors Nick Juliano and Matt Daily on Dec. 14, 2015, the day the Government Accountability Office issued a scathing legal opinion that EPA had broken lobbying laws in its promotion of the rule. Snider previously worked at E&E News.

As Snider was leaving E&E News for Politico in November 2015, EPA’s Lee asked her to instruct her replacement to use the rule’s full official name” (Stecker).

The administration wanted to get rid of the acronym because they feared it made it seem like the rule covered all U.S. Waters and made them federally regulated.

“We felt like those opposed to the rule were intentionally misleading the public and stakeholders about the extent of the rule,” said Purchia, a former associate administrator for the Office of Public Affairs and now at a communications firm.

Industry and agriculture groups that saw the rule as an attempt to regulate farming and development “were trying to create confusion and a negative association with the name Waters of the U.S.,” Purchia said in an email. “We were presenting a more accurate and direct explanation of the importance of why this rule existed in the first place, which was to protect water sources that communities and economies depend on.”

The opposition says that the EPA politicized the issue, not them.

“In an attempt to sell the country on an expansive new federal regulation, the Agencies coined a new term for their regulatory program — the ‘Clean Water Rule.’ This terminology implies that without this Rule, the nation’s waters will be ‘unclean,'” attorneys representing state petitioners wrote in a court brief. “All of the States have robust regulatory programs that protect and preserve the natural resources within their boundaries.”

What do you think about the acronym WOTUS?  Do you think the EPA or its challengers are right?

Source: Stecker, Tiffany. “How EPA Tried to Erase ‘WOTUS’ from Media Lexicon.” E&E News. E&E, 02 Dec. 2016. Web. 02 Jan. 2017.

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Environmental Project Leader/Senior Environmental Scientist

Spangler Environmental, Inc., located in Raleigh, NC, has an immediate need for an Environmental Project Leader/Senior Environmental Scientist. Requires at least five years environmental land development, project budget, and team member management experience, with preferred technical field experience in Phase 1/2 site assessments, client and regulatory agency interaction management, wetland and stream origin delineation and permitting, and environmental due diligence for major land development projects. Minimum Bachelor’s Degree in environmental management-related field required, Master’s Degree preferred. Qualified candidates must demonstrate excellent organizational and communication skills, and must be able to demonstrate progressive responsibility in prior positions. Valid driver’s license and clean record required. EP per ASTM E1527-13, NCWAM/SAM and/or Stream Origin training certification preferred.

Acquisition of project portfolio from an Independent Consultant wanting to join an established firm is possible.

Also hiring Environmental Field Technicians with less experience, lesser degree; reply separately to same e-mail address.

All FT positions. Benefits/salary commensurate with skills and experience.

No phone calls–send detailed resume, references, salary history to [email protected]

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U.S. Manufacturing Economy Boosted by Shale

Swamp Stomp

Happy New Year!!!

Volume 17, Issue 1

According to the findings of two recent economic reports done, the United States economy is being strengthened and U.S. manufacturing is becoming more competitive due to the increase in development of American natural gas.  The first report was done by researchers from the prestigious London School of Economics.  At the conclusion of their report, they found that natural gas development “has made U.S. manufacturing more competitive” and helped advance American manufacturing exports to the world.  These economic experts concluded “that the cost advantage due to the shale gas boom may have helped the US economy recover significantly faster than it would otherwise have done after the financial crisis of 2007/08.”

To make the report easier to read and understand, here are the key takeaways from the London School of Economics’ report:

  • The report finds an increase to manufacturing competitiveness: “Firms that manufacture energy-intensive products experienced a much more substantial cut in production costs and, hence, a boost to their competitiveness.”
  • It is cheaper to have domestic natural gas: “For every dollar increase in the price gap of natural gas between the United States and Europe, output in chemical manufacturing increased by 1.6%. In the face of nearly a $10 gap by the end of our sample period, this baseline result is large. … The shale gas boom provided energy intensive industries with a cost advantage over their international competitors.”
  • There has been an increase in manufacturing jobs: “Total manufacturing sector employment increased by around 356,000 jobs up to 2012. A comparison with previous research suggests that, for every two jobs created in direct relation to fracking, this indirect effect adds more than one additional job elsewhere in the economy.”
  • Boosts American manufacturing exports: “Given that the price gap widened to $10 by 2012, we find that average manufacturing exports have expanded by roughly 10% due to the shale gas boom. This amounts to roughly 4.4% of the overall value of exports of goods and services from the United States in 2012.”

A second study was published by the National Bureau of Economic Research, experts with the University of Pennsylvania.  These experts found that natural gas development has been the direct cause of a net increase of 4.6 million new American jobs.

The import facts from the National Bureau of Economic Research study:

  • Creates jobs: “In the aggregate, we estimate that during the shale oil period 4,600,000 (net) new jobs are linked with the development of shale oil technology. This represents a 4.2% increase in the number of jobs across the industries in our study, compared to the aggregate number of jobs at the beginning of the shale oil period.” (p. 4)
  • Can drive the economy long-term: “We find that…shale oil is an important contributor to the future U.S. economic growth.” (p. 48)

“Both economic reports further underscore the key message that MSC’s Dave Spigelmyer told Fox News late last week: The continued growth of natural gas development – and the safe modernization of infrastructure to move gas to market – presents tremendous opportunity for the Commonwealth’s economy and environment” (Shale…).

What do you think about the findings of these reports?  Should the U.S. invest more in natural gas development?  What are your concerns about natural gas development?

Source: “Shale Makes U.S. Manufacturers, Economy More Competitive.” Marcellus Shale Coalition. Marcellus Shale Coalition, 21 Dec. 2016. Web. 21 Dec. 2016.

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Senior Wetland Scientist

Location: Charlotte, NC

CWS is looking for a Senior Wetland Scientist with 3-10 years of experience to work in our Charlotte, NC office.

Senior Wetland Scientist Job Purpose: Completes wetland consulting projects by organizing and controlling project elements.

Senior Wetland Scientist Job Duties:
Develops project objectives by reviewing project proposals and plans; conferring with management.
Determines project responsibilities by identifying project phases and elements; assigning personnel to phases and elements.
Determines project schedule and budget by studying project’s proposal and specifications; calculating time requirements; sequencing project elements.
Maintains project schedule by monitoring project progress and budget; coordinating activities and personnel; resolving problems.
Supervises all phases of a project from fieldwork to report completion.
Controls project costs by approving/reviewing time sheets and expenditures of junior staff.
Prepares project status reports by collecting, analyzing, and summarizing information and trends; recommending actions.
Mentors and trains staff and project-level personnel in Company policies and Standard Operating Procedures (SOP).
Updates and maintains Company SOPs for all of our consulting services.
Supervises the maintenance of project files and folders by enforcing company procedures (i.e. FILE Copy).
Builds company reputation by exceeding client’s expectations of a project’s schedule, budget, and quality of work.
Responsible for professional development of junior staff (i.e., outside training scheduling and budgeting, PWS application mentoring, etc…).

Senior Wetland Scientist Advancement Opportunity: Principal Scientist or Business Development Manager

CWS is a dynamic and progressive company with a diverse and growing staff providing wetland consulting and construction services. CWS offers a competitive salary and benefits package, excellent opportunities for advancement, and flexible working conditions. CWS is an Equal Opportunity Employer. Please submit resume, cover letter, and references to [email protected]

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Wetland Scientist

Location: Everett, WA
Contact: Please send resume and cover letter to [email protected] No phone calls please.
Shockey Planning Group is seeking a professional wetland scientist with experience in land use and environmental/regulatory permitting. PWS certification desired but not required. SPG was established in 1980 and provides an excellent professional work environment, competitive salary and excellent benefits. The position requires an independent and knowledgeable self-starter who can manage a project from start to finish with minimum supervision in a collaborative team environment.