Just when Federal agencies and Administrative Law Professors thought it couldn't get any worse, the current majority of our nation's highest court on Monday released a third opinion in less than a week further diminishing the...more
This morning our nation's highest court agreed to hear an appeal by seven Utah Counties and a railroad company of a DC Circuit Court of Appeals decision. That DC Circuit decision revoked the Surface Transportation Board's...more
Judge Boyle of the Federal District Court for the Eastern District of North Carolina has denied the Pacific Legal Foundation's client an injunction against EPA's and the Corps of Engineers' most recent Waters of the United...more
Several “red” states and three energy industry NGOs have filed a motion for summary judgment in their Louisiana Federal Court challenge to EPA's 2023 rule regarding the state water quality certifications required under...more
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
5/29/2024
/ Appeals ,
Clean Water Act ,
Environmental Protection Agency (EPA) ,
Hawaii Wildlife Fund v County of Maui ,
NPDES ,
Sackett v EPA ,
SCOTUS ,
Storm Water ,
Wastewater ,
Water Quality ,
Waters of the United States
EPA issued a press release yesterday that caught my eye and if you're in the business of building things, including solar projects, it is worthy of your attention too. The press release announces a settlement between a solar...more
5/23/2024
/ Clean Water Act ,
Department of Environmental Protection ,
Environmental Protection Agency (EPA) ,
Hawaii Wildlife Fund v County of Maui ,
Penalties ,
Pollution Control ,
Sackett v EPA ,
SCOTUS ,
Solar Energy ,
Storm Water ,
Water ,
Waters of the United States
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
Sam Hess of Inside EPA has a fulsome report on EPA's everything but the kitchen sink attempt to avoid a nationwide freeze of its most recent definition of Waters of the United States in litigation filed by a North Carolina...more
5/13/2024
/ Clean Water Act ,
Enforcement ,
Environmental Protection Agency (EPA) ,
Hawaii Wildlife Fund v County of Maui ,
Navigable Waters ,
NGOs ,
Sackett v EPA ,
SCOTUS ,
US Army Corps of Engineers ,
Waters of the United States ,
Wetlands
We're approaching the first anniversary of the Supreme Court's decision in Sackett v. EPA holding that, contrary to the view of EPA and the Army Corps of Engineers for the past 40 years, the Clean Water Act protects only...more
Juan-Carlos Rodriguez is reporting on DOJ's and EPA's brief arguing that the Supreme Court should leave alone a split Ninth Circuit decision upholding a NPDES permit condition prohibiting the permittee, the City and County of...more
Last August, when EPA and the Army Corps of Engineers published their tenth attempt to determine the jurisdictional reach of the Clean Water Act, the Agencies said that regulation involved no exercise of discretion because it...more
The United States Supreme Court isn't done with the Clean Water Act and EPA's interpretation of it. This month the City and County of San Francisco asked the nation's highest court to overturn a split Ninth Circuit Court of...more
Just before the holidays I wrote about three Judges of the Fifth Circuit Court of Appeals who decided, over the Army Corps of Engineers' objection, to apply the Supreme Court's Sackett test for determining whether something...more
Garry Lewis owns 2000 acres in Livingston Parish, Louisiana and he has been fighting with the Army Corps of Engineers over whether any of those 2000 acres are wetlands subject to Federal Clean Water Act jurisdiction for over...more
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
When EPA published its most recent rule specifying the role of States and Tribes in the Federal permitting of discharges into Waters of the United States, I predicted it was only a matter of time before we'd see another...more
12/7/2023
/ Biden Administration ,
Clean Water Act ,
Discharge of Pollutants ,
Environmental Litigation ,
Environmental Protection Agency (EPA) ,
Louisiana ,
Sackett v EPA ,
SCOTUS ,
Section 401 ,
Tribal Governments ,
Trump Administration ,
Water Quality ,
Waters of the United States
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
11/28/2023
/ Clean Water Act ,
Discharge of Pollutants ,
Environmental Protection Agency (EPA) ,
Groundwater ,
Hawaii Wildlife Fund v County of Maui ,
New Guidance ,
NPDES ,
Sackett v EPA ,
SCOTUS ,
Waste Treatment Facilities ,
Waters of the United States
When EPA and the Corps of Engineers published their tenth attempt to determine the reach of the Federal Clean Water Act, I said the only question remaining was how many of the States and NGOs who challenged EPA's and the...more
Over two years ago I wrote about a lawsuit filed by a Connecticut-based solar farm developer with a summer home in Martha's Vineyard seeking to enjoin the Vineyard Wind project off the Massachusetts coast. This particular...more
Sam Hess of Inside EPA is reporting that Democrats in the House of Representatives and the Senate might be ready to work on legislation ending the longest running controversy in environmental law – the decades long battle...more
The Nantucket Residents Against Turbines, or ACKRat, have asked the First Circuit Court of Appeals to find that the Federal Bureau of Ocean Energy Management and the National Marine Fisheries Service acted "arbitrarily and...more
Sam Hess of Inside EPA reports that EPA and the Corps of Engineers are going to apply their tenth, post-Sackett, attempt to define Waters of the United States only in the states and territories that aren't subject to...more
The ever-vigilant Sam Hess of Inside EPA has posted an August presentation by an EPA official at the Association of Clean Water Administrators’ Annual Meeting. That presentation says that EPA has drafted new guidance based...more
Sam Hess's report in Inside EPA paints a nuanced picture of the apparently never ending controversy over the reach of the Clean Water Act. I can't help but offer a few reactions....more
Ahead of schedule, yesterday EPA and the US Army Corps of Engineers published their tenth attempt to specify the reach of the Federal Clean Water Act. The only question now is will its opponents file amended complaints in...more
8/30/2023
/ Clean Water Act ,
Environmental Protection Agency (EPA) ,
Hawaii Wildlife Fund v County of Maui ,
Jurisdiction ,
Navigable Waters ,
Sackett v EPA ,
SCOTUS ,
Surface Water ,
US Army Corps of Engineers ,
Waters of the United States ,
Wetlands