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After last year’s Supreme Court's decision in Sackett v. Environmental Protection Agency, there remains confusion regarding how the ruling affects economic development projects such as residential and commercial building,...more
The United States District Court for the Eastern District of Virginia (“Court”) addressed in an August 15th Opinion a Clean Water Act jurisdictional question. See United States v. Chameleon, LLC, No. 3:23-CV-763–HEH, 2024 WL...more
Welcome to the August edition of Nutter’s Environment & Energy Insights, a monthly update of current trends in environment and energy law. This month we cover: EPA’s new Facility Response Plan requirements for potential...more
For 40 years, the Chevron Doctrine has been a prominent precedent in administrative law allowing courts to defer to an agency’s interpretation of an ambiguous statute or regulation. The Chevron Doctrine has been overturned by...more
Judge Boyle of the Federal District Court for the Eastern District of North Carolina has denied the Pacific Legal Foundation's client an injunction against EPA's and the Corps of Engineers' most recent Waters of the United...more
The United States Army Corps of Engineers (“Corps”) Vicksburg District issued a May 29th Special Public Notice (“SPN”) styled: Vicksburg District Regulatory Update - ...more
The environmental organization Earthjustice has developed charts that provide the organization’s views on the impact of the United States Supreme Court decision Sackett v. EPA on the scope of the Clean Water Act term waters...more
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
The United States Army Corps of Engineers (“Corps”) and United States Environmental Protection Agency (“EPA”) issued on April 25th document titled: Coordination Process Update: Joint Coordination Memoranda to the Field...more
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
The Office of Assistant Secretary Civil Works of the U.S. Army Corps of Engineers (“Corps”) issued a March 22nd Memorandum titled: Civil Works Actions to Sustain and Advance the Nation’s Waters and Wetlands After the...more
The U.S. Army Corps of Engineers (ACE) on March 22, 2024, announced its plans for enhancing the protection of the country's wetlands following the U.S. Supreme Court's Sackett v. EPA decision. In Sackett, the Supreme Court...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
Following the U.S. Supreme Court’s decision in the Sackett case in May of 2023, the U.S. EPA (“EPA”) and the U.S. Army Corps (“Army Corps”) have amended federal regulations to conform to Sackett and the Army Corps has resumed...more
Over three years ago, the Trump administration’s Environmental Protection Agency (EPA) gave Clean Water Act 404 permitting powers to the State of Florida. A few days ago, a judge at the U.S. District Court for the District 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
In the decision Sackett v. EPA, the U.S. Supreme Court provided a clear statement regarding what wetlands are subject to regulation under the Clean Water Act, holding that the Clean Water Act “extends to only those wetlands...more
The United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) addressed in a December 18, 2023, Consolidated Opinion whether certain Louisiana wetlands were subject to Clean Water Act jurisdiction. See Lewis v....more
Recent federal court decisions have changed the way wetlands are regulated in the United States. Here's what you need to know. A Shift in Wetland Regulation: The Sackett Decision and Its Impact In 2023, the U.S. Supreme...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 United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) in a November 20th Opinion addressed an issue involving the applicability of the Section 402 Clean Water Act National Pollutant Discharge Elimination...more
When EPA and the Corps of Engineers published their tenth attempt to determine the reach of the Federal Clean Water Act, I said the only question remaining was how many of the States and NGOs who challenged EPA's and the...more
One hundred eighteen Democratic members of the United States House of Representatives (“House”) introduced legislation titled: Clean Water Act of 2023(H.R. 5983) The stated purpose of H.R. 5983 is to address the...more
The third major development of 2023 for defining "Waters of the United States" ("WOTUS") has arrived. First, in early 2023, the United States Environmental Protection Agency ("EPA") and the United States Army Corps of...more