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
5/29/2024
/ Appeals ,
Clean Water Act ,
Environmental Protection Agency (EPA) ,
Hawaii Wildlife Fund v County of Maui ,
NPDES ,
Sackett v EPA ,
SCOTUS ,
Storm Water ,
Wastewater ,
Water Quality ,
Waters of the United States
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
5/23/2024
/ Clean Water Act ,
Department of Environmental Protection ,
Environmental Protection Agency (EPA) ,
Hawaii Wildlife Fund v County of Maui ,
Penalties ,
Pollution Control ,
Sackett v EPA ,
SCOTUS ,
Solar Energy ,
Storm Water ,
Water ,
Waters of the United States
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
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
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
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
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
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
11/28/2023
/ Clean Water Act ,
Discharge of Pollutants ,
Environmental Protection Agency (EPA) ,
Groundwater ,
Hawaii Wildlife Fund v County of Maui ,
New Guidance ,
NPDES ,
Sackett v EPA ,
SCOTUS ,
Waste Treatment Facilities ,
Waters of the United States
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
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
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
This week a Federal Judge in Montana threw out a NGO's citizen suit against the Yellowstone Mountain Club for what the NGO claimed were unpermitted discharges of nitrogen to a Water of the United States. I wrote about this...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
Surprising no one, lawyers for EPA and the US Army Corps of Engineers have implored the Supreme Court to affirm the Ninth Circuit Court of Appeals' application of Justice Kennedy's "significant nexus" test for determining the...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
A Magistrate Judge and EPA continue to strongly disagree about the application of the Safe Drinking Water Act to septic systems and cesspools in New York State Parks. The Magistrate Judge has concluded, both before and after...more
Last week another NGO filed suit against another operator of a wastewater treatment facility, this one in the mountains of Montana, complaining of "excess" nitrogen in the treated effluent from the wastewater treatment...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
The County of Maui had another day in court this week, this time pleading with Federal District Judge Mollway to reconsider her renewed decision that the discharge of treated effluent from the Maui waste water treatment...more