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 [2019]), 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 …

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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 …

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wetlands; Florida; Everglades

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 …

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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 …

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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 …

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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 …

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States Bring WOTUS Rule Back to Court

The state of California continued its crusade against the Trump Administration this month, filing a lawsuit against the U.S. EPA, challenging the agency’s replacement for the defunct 2015 Waters of the United States Rule (WOTUS). Sixteen other states joined the lawsuit, which was filed in the Northern District of California. The Army Corps of Engineers (ACE) was also named as a defendant in the lawsuit.

The definition of “Waters of the United States” (WOTUS) as used in the Clean Water Act has been disputed for …

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CWA Alert: High Court Establishes New “Functional Equivalent” Test for Permitting Related to Groundwater Discharge

Last week, the United States Supreme Court provided additional guidance regarding the application of the Clean Water Act. In short, the Clean Water Act requires the federal government to regulate certain groundwater pollutants that find their way into navigable waters such as oceans, rivers and streams. 

The recent Supreme Court opinion has been considered by many to constitute a compromise of opposing positions, as it rejects the Trump Administration’s goals of lesser regulation, but also eliminates a Ninth Circuit court ruling that would have increased permitting requirements related to …

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Clean Water Act Alert – U.S. EPA Releases Its Proposed 2020 NPDES Multi-Sector General Permit

The regulated industry needs to be aware that the U.S. EPA, last week, published its proposed 2020 National Pollutant Discharge Elimination System (NPDES) Multi-Sector General Permit (MSGP). The MSGP authorizes stormwater discharges associated with industrial activities in areas where EPA is the permitting authority.

Under Section 402(p) of the Clean Water Act, EPA has been directed to regulate stormwater discharges under the NPDES program–the program by which EPA and authorized states grant permits for discharges from a point source. The MSGP is a general NPDES …

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EPA Finalizes Controversial Navigable Waters Protection Rule

Last week the U.S. Environmental Protection Agency announced the final version of a new rule called the Navigable Waters Protection Rule, which will define the “waters of the United States” (WOTUS) under the Clean Water Act (CWA). The WOTUS definition is important as it determines which of the nation’s waterways falls within the jurisdiction of the CWA, the federal law that regulates the discharge of pollutants to the country’s surface waters. The recent announcement regarding the Navigable Waters Protection Rule is the second of two steps in the …

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