March 2020 – Rich & Henderson, P.C., including Warren Rich, Tim Henderson, and Peter Hershey, were part of the litigation team that recently helped secure invalidation of the “Baltimore Clean Air Act” in the U.S. District Court for the District of Maryland in Wheelabrator Baltimore et al v. Mayor and City Council of Baltimore, 2020 U.S. Dist. LEXIS 53020 (D. Md. 2020). In a thorough and well-reasoned written opinion, Judge Russell struck down the ordinance on conflict pre-emption grounds, concluding that the City ordinance’s emission and other controls and requirements conflicted with the facilities’ Title V permits issued under the federal Clean Air Act and corresponding Maryland laws.
January 2020 – In a new rule finalized in January 2020, the Environmental Protection Agency and the Army Corps of Engineers revised the definition of the term “waters of the United States,” which dictates the jurisdictional reach of the federal Clean Water Act. The new rule appears to scale back the scope of a more expansive definition of the term proposed during the Obama Administration. Specifically, the new rule attempts to re-focus the jurisdictional scope of the Clean Water Act on four categories of waterways:
- Territorial seas and traditionally navigated bodies (larger rivers, bays, etc.);
- Perennial and intermittent streams feeding into navigable waterways;
- various types of lakes, ponds, and impoundments; and
- wetlands adjacent and sufficiently connected to the above-described water bodies.
The new rule also includes more robust exclusions for certain types of water bodies, including ephemeral streams, certain types of unconnected nontidal wetlands or low-lying wet areas, and certain impoundments and manmade water bodies, ditches, and other waters that lack a direct connection to traditional navigable waterways. The new rule will take effect in 60 days.