Just last week, on October 3, 2022, Sackett v. EPA found itself once again before the U.S. Supreme Court for oral arguments, its first appearance at SCOTUS having been a decade before. In January 2022, when the Supreme Court agreed to hear Sackett for a second time following remand, the petitioner Sacketts had amended their complaint in order to challenge the subject compliance order issued by the U.S. Environmental Protection Agency prohibiting the Sacketts from modifying the wetlands on their property on the basis that …Continue Reading
Category: Clean Water Act
Recommending Federal Discharge Standards for PFAS in Aquatic Life
Known as “forever” chemicals, many PFAS compounds are found in the blood of people and animals all over the world. They also present at low levels in various food products and in the water, air, fish and soil in many areas.
Many environmental advocates have called for the U.S. Environmental Protection Agency (EPA) to set enforceable federal discharge standards for PFAS under the Clean Water Act. Currently, no such federal regulations exist. Water utilities in various states have expressed concern that these types of regulations …Continue Reading
SCOTUS to Clarify Controlling Test for Wetlands under Clean Water Act
On Monday, January 24, 2022, the Supreme Court of the United States announced that it will clarify the governing standard for determining whether wetlands are “Waters of the United States” under the Clean Water Act in Sackett v. EPA. The court granted certiorari, limited to the following question: “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. §1362(7).”
The Sackett case involves an Idaho couple who purchased …Continue Reading
U.S. EPA Cannot Serve as Mere Bystander under the Clean Water Act
On December 29, 2021, the U.S. District Court for the Western District of Washington held that, under the Clean Water Act, the EPA does not serve as a “mere bystander” in cases where states refuse to or cannot take action to implement water quality standards that protect aquatic life. See Northwest Envtl. Advocates v. United States EPA (2021) U.S. Dist. LEXIS 247673. For many years, the courts have held that while the states have primary responsibility under the Clean Water Act, the EPA itself must …Continue Reading
EPA Rescinds Guidance on “Functional Equivalent”
On September 15, 2021, the Biden administration announced it was rescinding the Trump administration’s guidance on the Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund and the Clean Water Act (CWA), § 402: National Pollutant Discharge Elimination System (NPDES).
In County of Maui v. Hawaii Wildlife Fund (590 US –, 140 S Ct 1462 ), the U.S. Supreme Court addressed whether the CWA’s NPDES requires a discharger to acquire “a permit when pollutants originate from a point source but are conveyed to …Continue Reading
The EPA’s Campaign to Transform WOTUS from Ephemeral to Resolute
If we are being honest, when it comes to the Clean Water Act, “navigable” is just one of those words that makes us all a bit tongue tied—not just because it’s tricky to pronounce, but because it is even more vexing to define, especially when we look to make sense of the regulatory definition of “waters of the United States.” Unpacking the definition of navigable and federally protected waters has indeed been the perennial work of scholars, judges, lawyers, and politicians alike since the CWA’s …Continue Reading
Does Florida’s Plan to Take Over the Federal Wetlands Permitting Process Hold Water?
On December 17, 2020, two years after the Florida legislature overwhelmingly passed a bill serving as an initial step to promote the transfer of permitting authority from the U.S. Army Corps of Engineers to the state of Florida, the U.S. Environmental Protection Agency (EPA) granted the Sunshine State’s request and approved a plan transferring federal authority to the state to issue permits for projects affecting the state’s wetlands. Florida will be only the third state in the United States to be granted such broad permitting …Continue Reading
Supreme Court Limits Prohibition on Streamlined Pipeline Permitting Process
Last week, Supreme Court Justice Elena Kagan issued an Order for the Supreme Court on a stay application, limiting a lower court decision that prohibited new pipeline projects from using Nationwide Permit 12 (NWP 12), a permit used for certain types of discharges in oil and gas infrastructure projects. The stay of the lower court decision does not apply to the Keystone XL pipeline project, which is the subject of a pending appeal in the U.S. Court of Appeals for the Ninth Circuit. The stay …Continue Reading
Outside of Colorado, the Navigable Waters Protection Rule Takes Effect
As previously discussed in the Environmental Law Monitor, the Trump Administration has taken action throughout 2020 to narrow the scope of which wetlands and waterways are protected under the Clean Water Act (CWA). The recently limited rule took effect on June 22, 2020, which in essence, opens the doors for developers anxious to get to work ahead of future legal action and the 2020 presidential election.
The EPA first unveiled its planned Navigable Waters Protection Rule in January 2020. The regulation, also known as …Continue Reading
Pencils Down! New EPA Rule Limits States’ Time and Ability to Review Energy Infrastructure Projects
On June 1, the United States Environmental Protection Agency announced it had enacted a rule to limit states’ ability to block the construction of energy infrastructure projects. Under the rule, first proposed in August 2019, the EPA will alter Section 401 of the U.S. Clean Water Act to make it impossible for a state to block a water permit for a project for reasons other than direct impacts of discharges into state waters and set a one-year deadline for a decision. The proposed rule can …Continue Reading