[WEBINAR] Fairly (or Unfairly?) Traceable: Are Discharges Through Groundwater Subject to the Clean Water Act?
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
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
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
The United States Environmental Protection Agency (“EPA”) is issuing for public comment draft guidance on applying the United States Supreme Court decision in County of Maui vs. Hawaii Wildlife Fund. EPA had previously...more
Just before the Thanksgiving holiday EPA issued draft guidance regarding when a discharge of a “pollutant” to groundwater is the “functional equivalent” of a discharge to a Water of the United States requiring a NPDES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
The Clean Water Act (“CWA”) regulates the discharge of certain “pollutants” into waters of the United States (“WOTUS”). Should shrimp trawlers be subject to the regulatory framework under the CWA when they return “bycatch”...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
The United States Supreme Court decided last week in Sackett v. Environmental Protection Agency that a word does not mean what the dictionary, Congress, or two federal agencies have for 45 years understood it to mean....more
Maui has finally made its way to Colorado. In what appears to be the first application of County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020) in the state, the District of Colorado recently held that certain...more
A United States District Court (W.D. Washington) (“Court”) addressed in an October 31st Order a Clean Water Act citizen suit action seeking an injunction to remedy alleged illegal discharge of pollutants into a lake and its...more
A little over a month ago EPA's Science Advisory Board decided "EPA could benefit from SAB review of the science supporting [EPA's] proposed definition of Waters of the United States.” As many of you know, EPA's proposal is...more
Almost two years to the day after the United States Supreme Court's decision in Maui v. Hawaii Wildlife Fund, the First Circuit Court of Appeals rendered its decision in The Blackstone Headwaters Coalition v. Gallo Builders. ...more
In last year’s Land Use, Environmental & Natural Resources Update 2021 Update, we reported on the U.S. Supreme Court’s decision in County of Maui v. Hawai’i Wildlife Fund (County of Maui), 590 U.S. __; 140 S. Ct. 2778 (2020),...more
On January 24, 2022, the U.S. Supreme Court agreed to hear a case on the scope and authority of the Clean Water Act (“CWA”). The Court granted certiorari in the case of Sackett v. U.S. Environmental Protection Agency,...more
The social commentator Will Rogers famously said that a "farmer has to be an optimist or he wouldn’t still be a farmer." Those words certainly ring true when one reads EPA's Farm, Ranch, and Rural Communities Advisory...more
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
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
Since the U.S. Supreme Court decided the County of Maui v. Hawaii Wildlife Fund case in April 2020, the legal landscape of "navigable waters of the U.S." has eroded quickly. With Maui, the Supreme Court created a test for...more
The latest season of Clean Water Act (CWA) changes are now streaming from the courts and federal agencies. The Biden administration and lower courts have picked up where prior administrations and the U.S. Supreme Court left...more
The United States Environmental Protection Agency (“EPA”) rescinded a guidance document it had previously issued titled: Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act...more
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
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
In a ruling July 15, U.S. District Judge Susan Oki Mollway ordered Maui County to obtain a permit under the Clean Water Act (CWA) consistent with the analysis established by the Supreme Court’s April 2020 ruling that...more
Late yesterday, Federal Judge Susan Oki Mollway, of the District of Hawaii, ruled that the County of Maui needs a Federal Clean Water Act NPDES permit for its groundwater discharge of treated water from its waste water...more
The Ninth Circuit reversed a conviction for three counts of violations under the Clean Water Act because the district court failed to instruct the jury that the defendant needed to knowingly discharge material “into water” to...more