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
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
EPA picked another Clean Water Act fight with the United States Supreme Court last week and I don't understand why EPA thinks it is a fight it can win. As many of you know, the jurisdictional reach of the Clean Water Act is...more
Law 360 is reporting on yesterday's hearing in the United States' litigation against the State of Texas to cause the removal of an unpermitted “marine barrier” placed by the State of Texas in the Rio Grande River. Putting...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
Last week a DC Federal Judge vacated EPA's approval of the State of Florida's application to assume the Army Corps of Engineers' authority to issue “dredge and fill” permits under Section 404 of the Federal Clean Water Act....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
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
Law 360 is reporting this morning on an NGO petition to the Army Corps of Engineers demanding that it not apply a Nationwide Permit covering the construction of "pipelines that transport water, sewage, and ‘other substances’”...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
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
This week, in North Carolina Coastal Fisheries Reform Group, et al., v. Capt. Gaston LLC, a three judge panel of the Fourth Circuit Court of Appeals agreed with a District Court Judge that when shrimpers use nets to catch...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
Inside EPA reports that EPA Assistant Administrator Radhika Fox has told Congress that we can expect a new Waters of the United States regulation in September. Assistant Administrator Fox promises that the new regulation...more
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
Just before the July 4th holiday I was wondering what opponents to EPA's and the Army Corps of Engineers' now moribund Waters of the United States regulation hoped to gain by having a Federal District Court Judge in the Lone...more
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
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
Law360 is reporting that a Federal District Court Judge in South Carolina is allowing NGOs, including the South Carolina Coastal Conservation League, to continue their Clean Water Act citizen suit against the Army Corps of...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