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
Anyone who has been practicing environmental law for more than a few years has had a case requiring a dive into the black hole that is CERCLA's statute of limitations which specifies the time within which someone seeking to...more
Last week the Waters Advocacy Coalition sent to the heads of the Environmental Protection Administration and the Corps of Engineers many "recommendations" regarding EPA's and the Corps' post-Sackett attempt to determine the...more
I'm surprised to see the Biden Administration EPA moving forward right now with a rule proposed during the Trump Administration to allow states to take over responsibility for the permitting of "dredge and fill" activities...more
7/20/2023
/ Biden Administration ,
Center for Biological Diversity ,
Clean Water Act ,
Discharge of Pollutants ,
Dredge and Fill ,
Environmental Protection Agency (EPA) ,
Proposed Rules ,
Sackett v EPA ,
SCOTUS ,
Section 404 ,
Trump Administration ,
Waters of the United States ,
Wetlands
Just before the July 4th holiday, I was wondering out loud what was to be gained by having a Federal District Court decide the merits of a challenge to EPA's eighth attempt to determine the reach of the Clean Water Act. ...more
7/12/2023
/ Clean Water Act ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
NGOs ,
Rapanos v US ,
Sackett ,
Sackett v EPA ,
SCOTUS ,
US Army Corps of Engineers ,
Waters of the United States ,
Wetlands
Sam Hess of Inside EPA reports that Idaho, Texas and several NGOs are pressing a District Court Judge in the Lone Star State to decide their challenge to the Biden Administration's Waters of the United States rule on the...more
Sam Hess at Inside EPA reports that the Army Corps of Engineers isn't going to begin issuing Jurisdictional Determinations until after the Environmental Protection Agency and the Corps publish yet another Waters of the United...more
Five Justices of our nation's highest court have now provided a definition of "Waters of the United States" that will be binding on the Executive and Judicial Branches at least until Congress says otherwise. As Justice...more
6/1/2023
/ Clean Water Act ,
Commerce Clause ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Federal Jurisdiction ,
Inland Waterways ,
Navigable Waters ,
Regulatory Reform ,
Sackett ,
Sackett v EPA ,
SCOTUS ,
US Army Corps of Engineers ,
Waters of the United States ,
Wetlands
So the Sacketts of Idaho are 2-0 in their visits to our nation's highest court and the jurisdictional reach of the Federal Clean Water Act is shorter than it has been for decades. The opinion of the majority has more in...more
ACK Rat's attempt to kill the Vineyard Wind project came closer to an unsuccessful end this week when Federal Judge Talwani granted a motion for summary judgment against ACK Rat and its founder that will end the case unless...more
Three Judges of the Sixth Circuit Court of Appeals have joined Judges in North Dakota and Texas in concluding that EPA's most recent attempt to establish the jurisdictional reach of the Clean Water Act is unlikely to survive...more
While we were all patiently waiting for the United States Supreme Court's opinion (or opinions) in Sackett v. EPA, Bloomberg Environment reports that EPA has another Clean Water Act surprise.
For those of you who have...more
With the signatures of two Federal District Court Judges, one in Texas and one in North Dakota, EPA's eighth attempt to determine the jurisdictional reach of the Clean Water Act is now the law in only 24 of our not so United...more
Sam Hess of Inside EPA points out that Judge Brown of Texas concluded that the United States Supreme Court's nearly forty year old precedent compelling the Judiciary to defer to Executive Branch interpretations of laws it is...more
EPA has now opposed the motions of the State of Kentucky and several industry groups to enjoin its eighth attempt to determine the jurisdictional reach of the Clean Water Act. Much of the content of that opposition is not...more
Sir Winston Churchill famously said "those that fail to learn from history are doomed to repeat it.” Of course he didn't have the nearly four decade long controversy over the reach of the Federal Clean Water Act in mind but...more
This week our nation's highest court will decide whether to review the 6th Circuit's conclusion that a declaratory judgment of liability starts the statute of limitations clock for the liable party to bring a contribution...more
This week Sam Hess of Inside EPA asked me if I had an opinion as to why there were fewer lawsuits (so far) challenging EPA's eighth attempt to durably determine the reach of the Federal Clean Water Act than there were...more
This week three Judges of the Ninth Circuit Court of Appeals agreed that a District Court Judge exceeded his authority in vacating an EPA regulation without first determining that the regulation was unlawful.
The Trump...more
Inside EPA reports that some House Democrats are criticizing their Republican colleagues for attempting to repeal EPA's eighth attempt to determine the reach of the Federal Clean Water Act by regulation. Like recent rules by...more
Three Judges of the DC Circuit Court of Appeals have dismissed the American Chemistry Council's complaint challenging EPA's interim health advisory levels for PFAS in drinking water. The ACC's case was dismissed, not for...more
Everyone expected that EPA's eighth attempt to define the reach of the Federal Clean Water Act would end up in court. I have to admit that I was a bit surprised that two groups of plaintiffs filed their lengthy complaints...more
Backwards, forwards, square and round. So goes a lyric by the late great Jeff Beck who died this week. Mr. Beck wasn't writing about the decades long war over the jurisdictional reach of the Federal Clean Water Act but the...more