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
This week our nation's highest court was scheduled to discuss whether to hear the City and County of San Francisco's appeal of a split Ninth Circuit decision upholding an EPA NPDES permit issued to the City and County...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
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
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
Earlier this month, in Lewis v. United States the 5th Circuit issued a decision interpreting the Supreme Court’s decision in Sackett v. EPA. The 5th Circuit decision is a model of clarity and demonstrates what I’ll call the...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Just before the Thanksgiving holiday EPA issued draft guidance regarding when a discharge of a “pollutant” to groundwater is the “functional equivalent” of a discharge to a Water of the United States requiring a NPDES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
EPA is publishing its final rule specifying the role of States and Tribes in the Federal licensing or permitting of activities that may result in a "discharge" into a "Water of the United States". Like EPA's recent tenth...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
On August 30, 2023, the United States Corps of Engineers (Corps) and Environmental Protection Agency (EPA) released a prepublication version of their final rulemaking amending their previous definition of “waters of the...more