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
We're approaching the first anniversary of the Supreme Court's decision in Sackett v. EPA holding that, contrary to the view of EPA and the Army Corps of Engineers for the past 40 years, the Clean Water Act protects only...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
Last August, when EPA and the Army Corps of Engineers published their tenth attempt to determine the jurisdictional reach of the Clean Water Act, the Agencies said that regulation involved no exercise of discretion because it...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
Garry Lewis owns 2000 acres in Livingston Parish, Louisiana and he has been fighting with the Army Corps of Engineers over whether any of those 2000 acres are wetlands subject to Federal Clean Water Act jurisdiction for over...more
The Healey-Driscoll Administration's announcement of its ResilientCoasts Initiative garnered a lot of attention, as it should have. If you believe the scientists (and, if you don't, you might as well stop reading here), we...more
Sam Hess's report in Inside EPA paints a nuanced picture of the apparently never ending controversy over the reach of the Clean Water Act. I can't help but offer a few reactions....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
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
7/20/2023
/ Biden Administration ,
Center for Biological Diversity ,
Clean Water Act ,
Discharge of Pollutants ,
Dredge and Fill ,
Environmental Protection Agency (EPA) ,
Proposed Rules ,
Sackett v EPA ,
SCOTUS ,
Section 404 ,
Trump Administration ,
Waters of the United States ,
Wetlands
Just before the July 4th holiday, I was wondering out loud what was to be gained by having a Federal District Court decide the merits of a challenge to EPA's eighth attempt to determine the reach of the Clean Water Act. ...more
7/12/2023
/ Clean Water Act ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
NGOs ,
Rapanos v US ,
Sackett ,
Sackett v EPA ,
SCOTUS ,
US Army Corps of Engineers ,
Waters of the United States ,
Wetlands
Sam Hess of Inside EPA reports that Idaho, Texas and several NGOs are pressing a District Court Judge in the Lone Star State to decide their challenge to the Biden Administration's Waters of the United States rule on the...more
Five Justices of our nation's highest court have now provided a definition of "Waters of the United States" that will be binding on the Executive and Judicial Branches at least until Congress says otherwise. As Justice...more
6/1/2023
/ Clean Water Act ,
Commerce Clause ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Federal Jurisdiction ,
Inland Waterways ,
Navigable Waters ,
Regulatory Reform ,
Sackett ,
Sackett v EPA ,
SCOTUS ,
US Army Corps of Engineers ,
Waters of the United States ,
Wetlands
Yesterday the Sconset Beach Preservation Fund announced it would comply with a Nantucket Conservation Commission enforcement order and remove a ”soft” coastal bank stabilization project it had constructed on the eastern bluff...more
This morning the Supreme Court of the United States heard from the Sacketts of Idaho for the second time. For sixteen years the Sacketts have been in the Federal Courts in connection with their attempt to build a house on a...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
Until today someone appealing a decision by a local conservation commission under both the Massachusetts wetlands protection act and a local wetland protection bylaw had to appeal the decision under the Massachusetts law to...more
Ducks Unlimited estimates that the United States has lost approximately 16.8 million acres of wetlands since the mid-1950s. Although the rate of wetland filling has slowed since the passage of the Federal Clean Water Act,...more
The Dean of Environmental Law bloggers, Seth Jaffe, does me the honor of a thoughtful response to my concern about whether EPA's and the Army Corps of Engineers' proposed definition of Waters of the United States, and...more