WAGLAC News and Updates
December 17, 2018

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
WAGLAC San Diego Meeting
February 18-20, 2019
The Westin San Diego
San Diego, CA
WAGLAC will be meeting in San Diego on February 19th and 20th. In addition to the roundtable discussion, Eric M. Katz, Supervising Deputy Attorney General Natural Resources Law Section of the Office of California Attorney General has been invited to speak on California Surface and Groundwater: New Developments in the Sacramento-San Joaquin Delta and the Sustainable Groundwater Management Act (SGMA). 

Please complete a registration form (located at the bottom of the meeting announcement) and email to CWAG Executive Assistant, Joy Orr at joy.orr@doj.ca.gov or fax to 916-323-0241 by no later than January 28th, 2019.
June 17-20, 2019
CWAG Annual Meeting
The Ritz Bacara
Santa Barbara, CA
EPA and Army Propose New "Waters of the United States" Definition
December 11, 2018

The U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) are proposing a definition of “waters of the United States” that clarifies federal authority under the Clean Water Act, which it hopes will result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development.

The agencies’ proposal is the second step in a two-step process to review and revise the definition of “waters of the United States” consistent with President Trump's February 2017 Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The Executive Order states that it is in the national interest to ensure that the nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution.

The agencies will take comment on the proposal for 60 days after publication in the Federal Register. EPA and the Army will also hold an informational webcast on January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.

More information including supporting documents, a pre-publication version of the Federal Register notice, the supporting analyses and fact sheets are available at: https://www.epa.gov/wotus-rule
In Case You Missed It: Trump WOTUS Proposal Heralded As Common Sense Approach To Clean Water Regulation
“EPA’s announcement is another step toward Trump fulfilling a campaign promise”
December 12, 2018

Recently, the U.S. Environmental Protection Agency and the Department of the Army, proposed a clear, understandable, and implementable definition of "waters of the United States" that clarifies federal authority under the Clean Water Act. Unlike the Obama administration's 2015 proposal, yesterday's proposed rule contains a straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development. This fulfills a promise President Trump made to the American people.

Click article button for more coverage from new WOTUS proposal
How does Trump compare to Obama on WOTUS?
E&E News
December 12, 2018

The Trump administration proposed a "waters of the U.S." rule recently, restricting Clean Water Act protection for a range of wetlands and waterways.

Supporters of the proposal say it would simplify Clean Water Act permitting for development in and near swamps, bogs, marshes and isolated waterways. Critics say it would hamstring federal oversight of resources that cleanse pollution, buffer storms and provide wildlife habitat.

How does President Trump's WOTUS definition compare to the Obama administration's equally controversial Clean Water Rule? E&E News created a sample watershed to illustrate how the two differ, click the button to see more.
Notice of Intent to Sue under Clean Water Act Section 505(a)(2) for Failure to Issue Response Planning Regulations for NonTransportation-Related Onshore Facilities for Worst-Case Spills of Hazardous Substances, as Required by Section 311(j)(5)(A)(i)  

On October 26th, the Natural Resources Defense Council (NRDC), Clean Water Action, Environmental Justice Health Alliance (EJHA) and the Just Transition Alliance sent a notice of intent to sue EPA alleging that it neglected a mandate under CWA section 311(j)(5)(A)i) (to adopt a rule that would impose new requirements to limit spills of oil and hazardous substances from onshore facilities. The notice of intent states: “Despite its duty to issue worst-case hazardous-substance spill regulations by August 1992, EPA missed its deadline. These regulations are now more than twenty-five years overdue. EPA's decades-long failure to issue worst-case hazardous-substance spill regulations therefore violates the Agency's nondiscretionary duty.”
Attorney General T.J. Donovan Continues Challenge To Federal Exemptions Of Mercury Products
December 14, 2018

Vermont Attorney General T.J. Donovan announced that the State of Vermont recently filed its brief to the Second Circuit Court of Appeals continuing its challenge of a decision by the United States Environmental Protection Agency (EPA) to exempt several large categories of mercury products from “inventory reporting.” Inventory reporting is the practice of an entity reporting to the EPA a complete inventory of all mercury and mercury-containing products in its possession and put in commerce. Mercury exposures at high levels can harm the brain, heart, kidneys, lungs and immune systems of people of all ages, and mercury in the bloodstream of developing babies and young children may harm their nervous systems and ability to think and learn.

Earlier this year, the EPA issued its final rule (the so-called “mercury rule”) on the reporting requirements for mercury products under federal law. The law requires a complete and accurate inventory of mercury supply, use, and trade in the United States. The EPA’s mercury rule will exempt any product that contains a mercury-added product as a component of the larger product. Examples of products containing a mercury-added product include a mercury battery in a watch or toy, or a mercury switch or relay in a lamp or pump. Many of these products are imported and are not manufactured in the U.S. Under the mercury rule, manufacturers of these mercury-added products will not have to report important information on the uses and amount or quantity of mercury contained inside.
Trump's Interior Chief Zinke to Step Down Amid Ethics Probes
December 15, 2018

Interior Secretary Ryan Zinke will leave the Trump administration at the end of the year amid a swirl of federal investigations into his travel, political activity and potential conflicts of interest.

President Donald Trump announced the secretary’s imminent departure on Twitter, without providing a rationale, following a Bloomberg News report that Zinke had notified the White House of his intention to resign. Trump said he would nominate a new Interior chief in the coming weeks.
Indian Law Deskbook Summaries Update

Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.
The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to  Clay.Smith@cwagweb.org or  afriedman@cwagweb.org. The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf. Contact Clay or Andrea Friedman with any questions.
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.
Topics include:
  • Definitions of Indians and Indian tribes
  • Indian lands
  • Criminal, civil regulatory, and civil adjudicatory jurisdiction
  • Civil rights
  • Indian water rights
  • Fish and wildlife
  • Environmental regulation
  • Taxation
  • Gaming
  • Indian Child Welfare Act and tribal-state cooperative agreements
CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.