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Wetlands and WOTUS: Implications of Sackett v. EPA

On May 25, 2023, the United States Supreme Court held that the term “waters of the United States” (“WOTUS”)—as used in the federal Clean Water Act (“CWA”), 33 U.S.C. § 1362(7)—means “streams, oceans, rivers, and lakes” and...more

Biden Administration Begins Comprehensive Review of Trump-Era Environmental Rules

On his first day in office, President Joe Biden issued an Executive Order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The Executive Order directs the Environment...more

EPA Publishes Draft Guidance on Applying Supreme Court's Decision in County of Maui v. Hawaii Wildlife Fund

The Environmental Protection Agency (EPA) recently published draft guidance on how to apply the “functional equivalent” test created by the Supreme Court in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020). The...more

EPA Limits State and Tribal Authority Under Section 401 of the Clean Water Act

On June 1, 2020, the US Environmental Protection Agency (“EPA”) announced a final rule narrowing the ability of states and Indian tribes to formally object to federally permitted projects based on state water quality...more

Supreme Court Establishes Permitting Standard for Discharges to Groundwater

On April 23, 2020, the Supreme Court ruled in County of Maui v. Hawaii Wildlife Fund that a federal permit is required under the Clean Water Act (CWA) when a discharge to groundwater is the “functional equivalent” of a...more

Unsettled Waters: Navigable Waters Protection Rule Narrows the Definition of “Waters of the United States”

On January 23, 2020, the Trump Administration issued a final rule revising the definition of “waters of the United States” (WOTUS) under the federal Clean Water Act (CWA). The Navigable Waters Protection Rule narrows the...more

Sixth Circuit Holds Clean Water Act Does Not Require Permits for Discharges to Groundwater

On September 24, 2018, the US Court of Appeals for the Sixth Circuit ruled that the Clean Water Act (CWA) does not require a National Pollution Discharge Elimination System (NPDES) permit for the discharges of pollutants to...more

Infrastructure Series: Paying for and Permitting Water Infrastructure

This is the fourth issue of WilmerHale's 10-in-10 Infrastructure Series. In this series, our attorneys share insights on current and emerging issues affecting infrastructure project developers in the United States....more

10-in-10 Infrastructure Series: Federal Agency Efforts to Streamline Permitting

This is the second issue of WilmerHale's 10-in-10 Infrastructure Series. In this series, our attorneys share insights on current and emerging issues affecting infrastructure project developers in the United States....more

SCOTUS: WOTUS Rule Suits Belong in District Courts

On January 22, 2018, the US Supreme Court unanimously held that challenges to the Obama-era Clean Water Rule, commonly referred to as the WOTUS Rule (for “waters of the United States”), must be filed in federal district...more

DOJ Directive Threatens Availability of Penalty Mitigation Approach

A June 5, 2017, Department of Justice (DOJ) policy directive threatens the ongoing availability of Supplemental Environmental Projects (SEPs) in civil environmental settlements. SEPs have traditionally provided a means by...more

President Trump Signs WOTUS Rule's Death Warrant

On February 28, 2017, President Trump signed an Executive Order to begin the process of rescinding or revising the infamous Waters of the United States (or WOTUS) Rule. Years in the making, the WOTUS Rule was supposed to...more

Supreme Court Provides for Judicial Review of Army Corps Determinations

On May 31, 2016, the Supreme Court of the United States held that final determinations by the U.S. Army Corps of Engineers regarding the presence or absence of “waters of the United States” can be appealed to the courts. The...more

EPA and Army Corps Issue Final Rule on "Waters of the United States"

Yesterday, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers released a final rule defining the scope of waters protected under the Clean Water Act, or “waters of the United States.”...more

Minimizing Risk Under the Clean Water Act

The Federal Water Pollution Control Act — more commonly known as the Clean Water Act — establishes a stringent regulatory and permitting regime governing the discharge of pollutants into rivers, streams, wetlands, and other...more

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