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
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
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
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
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
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
Lara Beaven of Inside PFAS Policy is reporting on another PFAS citizen suit under the Federal Clean Water Act. This one, by Tennessee Riverkeeper, alleges that PFAS are being discharged from a former Lebanon, Tennessee...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
The United States Small Business Administration Office of Advocacy (“SBA”) submitted December 21st comments addressing the United States Environmental Protection Agency’s (“EPA”) document titled: Draft Guidance...more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
The U.S. Environmental Protection Agency (EPA or Agency), on November 27, 2023, released its draft guidance addressing its proposed interpretation to apply the Supreme Court decision in County of Maui v. Hawaii Wildlife Fund,...more
On November 20, with no fanfare at all, not even a press release, U.S. Environmental Protection Agency (EPA) issued its Draft Guidance: Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean...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
The U.S. Environmental Protection Agency (EPA) announced release of its Draft Guidance Regarding NPDES Permitting of Certain Discharges through Groundwater to Surface Waters (Draft Guidance) on Nov. 20, 2023, notice of which...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
Protect PT and Three Rivers Waterkeeper (collectively, “Three Rivers”) filed a document before the United States Environmental Protection Agency (“EPA”) Environmental Appeals Board styled: Petition for Review by Protect...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
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
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
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
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
On January 18, 2023, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) published a final rule (2023 Rule) revising the definition of “waters of the United States” (WOTUS) as used in the...more
Bobby Magill of Bloomberg has published a concise summary of the two hours in the Supreme Court yesterday during which attorneys for the United States of America and the Sacketts of Idaho were grilled on the reach of the...more
Many years ago the Conservation Law Foundation sued the Federal Environmental Protection Agency in an attempt to cause EPA to exercise its "residual designation authority" under the Federal Clean Water Act to require permits...more