News & Analysis as of

NPDES Supreme Court of the United States Waters of the United States

Mintz

Life's tragedy is we get old too soon and wise too late. Words that are going to be ringing in EPA's ears after its next visit to...

Mintz on

As predicted in February, our nation's highest court is about to hear its third Clean Water Act in four years.  Anyone who doubts the outcome of this case hasn't read the other two Supreme Court opinions and that brings to...more

Mintz

EPA's heart may be in the right place but it is cruisin' for a bruisin' in San Francisco

Mintz on

This week our nation's highest court was scheduled to discuss whether to hear the City and County of San Francisco's appeal of a split Ninth Circuit decision upholding an EPA NPDES permit issued to the City and County...more

Pillsbury Winthrop Shaw Pittman LLP

Confronting Regulatory Fluidity in the Post-Maui and Post-Sackett World of Water Regulation

Both regulators and the regulated community must remain alert to accommodate the constantly changing regulatory scheme created in the post-Sackett world. The application of Maui and Sackett in recent months confirms the...more

Foley Hoag LLP - Environmental Law

Post-Sackett, Who Will Speak for the Clean Water Act?

Earlier this month, in Lewis v. United States the 5th Circuit issued a decision interpreting the Supreme Court’s decision in Sackett v. EPA. The 5th Circuit decision is a model of clarity and demonstrates what I’ll call the...more

Mintz

Oppenheimer isn't the only Los Alamos blockbuster this year. EPA has another one with its exercise of its Residual Designation...

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You may have thought the movie Oppenheimer would be the only blockbuster involving Los Alamos, New Mexico this year. But now EPA has invoked its rarely used Residual Designation Authority under section 402 of the Clean Water...more

Mintz

EPA's new Maui Functional Equivalence Guidance is guidance in name only as confusion continues to reign over the reach of the...

Mintz on

Just before the Thanksgiving holiday EPA issued draft guidance regarding when a discharge of a “pollutant” to groundwater is the “functional equivalent” of a discharge to a Water of the United States requiring a NPDES permit...more

Mitchell, Williams, Selig, Gates & Woodyard,...

Waters of the United States Clean Water Act: Aggregate Producers/Agricultural Organizations/Contractors File Judicial Challenge to...

A coalition of organizations representing various agricultural, construction, natural resources, and other interests filed a January 18th Complaint for Declaratory and Injunctive Relief (“Complaint”) in the United States...more

Foley Hoag LLP - Environmental Law

EPA and the Corps Promulgate a “Durable” WOTUS Rule — Proving Only That There Is a Difference Between Hope and Expectation

Last week, EPA and the Army Corps finally published their long-awaited rule defining “Waters of the United States.” Will the WOTUS rule finally provide the clarity for which we have been waiting, allowing the rule to be as...more

Mitchell, Williams, Selig, Gates & Woodyard,...

Waters of the United States/U.S. Environmental Protection Agency/Army Corps of Engineers Proposed Rule: 50 Republican Senators Ask...

The 50 Republican United States Senators sent a February 3rd letter to the Administrator of the United States Environmental Protection Agency (“EPA”) and Assistant Secretary of the Army for Civil Works (“Corps of Engineers”)...more

Mitchell, Williams, Selig, Gates & Woodyard,...

Waters of the United States/Clean Water Act: U.S. Supreme Court Grants Certiorari in Sackett v. U.S. Environmental Protection...

The United States Supreme Court (“SCT”) issued an order on January 24th granting a petition for a writ of certiorari to address the following question: Whether the Ninth Circuit set forth the proper test for determining...more

Foley Hoag LLP - Environmental Law

EPA Proposes to Use Science to Identify Waters of the United States. I’m Shocked, Shocked.

Last week, EPA and the Army Corps proposed a new rule to define what constitutes “waters of the United States.” Déjà vu all over again. Under the proposal, the agencies: are exercising their discretionary authority to...more

Mitchell, Williams, Selig, Gates & Woodyard,...

Waters of the United States/Clean Water Act: U.S. Environmental Protection Agency/Corps of Engineers Proposed Rule

The United States Environmental Protection Agency and the United States Corps of Engineers (collectively “EPA”) announced on November 19th a revised definition of waters of the United States (“WOTUS”). The agencies are...more

Mintz

The end of the road in Maui? - October 2021

Mintz on

Traveling the long and winding road to Hana in Maui is one of the most beautiful experiences one can have in the United States. I'm not sure anyone would say the same thing about the long and winding litigation road taken to...more

Mitchell, Williams, Selig, Gates & Woodyard,...

Does a Discharge to Groundwater Require a Clean Water Act NPDES Permit?: Federal Court Addresses Maui Issue on Remand

The United States District Court (District of Hawaii) (“Court”) addressed in a July 15th Order the question of whether a Maui County (“County”) wastewater discharge facility (“Facility”) should have obtained a Clean Water Act...more

Foley Hoag LLP - Environmental Law

Maui Needs a NPDES Permit; What’s Next for WOTUS?

Last week, District Judge Susan Mollway ruled that the County of Maui must obtain a NPDES permit for discharges to groundwater by the Lahaina Wastewater Reclamation Facility. It is the first trial court decision applying the...more

Morgan Lewis

EPA Narrowly Defines Discharges into Groundwater that Are Subject to Clean Water Act Permitting

Morgan Lewis on

Draft guidance from the US Environmental Protection Agency provides a clearer look at how the agency intends to apply the US Supreme Court's "functional equivalent" analysis to determine when National Pollutant Discharge...more

Holland & Hart LLP

EPA Draft Guidance on County of Maui, Hawaii v. Hawaii Wildlife Decision

Holland & Hart LLP on

Today, the Environmental Protection Agency (“EPA”) published notice of draft guidance (the “Draft Guidance”) intended to assist regulated entities and permitting authorities in applying the United States Supreme Court’s...more

Bracewell LLP

EPA Draft Guidance Memorandum on the Application of County of Maui

Bracewell LLP on

On December 8, 2020, the U.S. Environmental Protection Agency (“EPA”) released a draft guidance memorandum (“Draft Guidance”) to provide guidance to the regulated community and permitting authorities, including the EPA, on...more

Bricker Graydon LLP

US EPA issues draft guidance regarding NPDES permitting requirements following Maui Supreme Court decision

Bricker Graydon LLP on

On December 8, 2020, U.S. EPA announced issuance of draft guidance to clarify its view of how the U.S. Supreme Court’s recent County of Maui v. Hawaii Wildlife Fund decision should be applied to its Clean Water Act National...more

Troutman Pepper

EPA Seeks to Clarify Application of Maui and “Functional Equivalent” Test

Troutman Pepper on

On December 12, the United States Environmental Protection Agency (EPA or the Agency) issued draft guidance to clarify the application of the “functional equivalent” test created by the United States Supreme Court in County...more

Williams Mullen

Supreme Court Holds that NPDES Permit Can be Required for Discharges to Groundwater that Reach...

Williams Mullen on

As we have reported in previous articles, controversy over whether the Clean Water Act (CWA) regulates discharges of pollutants that travel through groundwater into surface waters has led to significant litigation across the...more

Jones Day

Supreme Court Rules Some Discharges to Groundwater Require Clean Water Act Permits

Jones Day on

The Situation: The Supreme Court held that a discharge through groundwater that is the functional equivalent of a direct discharge to navigable waters requires a Clean Water Act permit. The Result: Some discharges to...more

(ACOEL) | American College of Environmental...

SCOTUS Has Spoken: Kinda Sorta Direct Discharges Need A Permit

On April 23 the Supreme Court announced its decision in County of Maui v. Hawaii Wildlife Fund (No. 18-260), which addressed the fundamental issue of what is a discharge to navigable waters requiring a permit under the Clean...more

Hogan Lovells

New SCOTUS test for NPDES permitting under the CWA: County of Maui, Hawaii v. Hawaii Wildlife Fund et al.

Hogan Lovells on

On 23 April 2020 the Supreme Court, in a 6-3 opinion written by Justice Stephen Breyer, waded carefully into the very-muddied waters of Clean Water Act (CWA) jurisprudence when it issued a new test to determine when the...more

Sullivan & Worcester

Supreme Court Sets Test for Assessing NPDES Permit Requirement for Indirect Discharges of Pollutants Through Groundwater to...

Sullivan & Worcester on

In a busy week for environmental decisions, the Supreme Court of the United States ruled on April 23, 2020 on its second major case, County of Maui v. Hawai’i Wildlife Fund, finding a middle ground in its 6-3 decision on...more

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