The U.S. Environmental Protection Agency and the Army Corps of Engineers have jointly issued new regulations to redefine what types of water bodies are covered by the Clean Water Act. Dubbed the “Navigable Waters Protection Rule,” the new regulations are the culmination of the Trump administration’s efforts to undo the broad interpretation of federal jurisdiction
Regulation Finalizes Repeal of Obama-Era Clean Water Rule
A new final regulation issued on September 12, 2019 by the Environmental Protection Agency and the Army Corps of Engineers repealed the Obama administration’s 2015 “Clean Water Rule,” but did little to clear up longstanding confusion over the scope of federal authority and jurisdiction under the Clean Water Act. The current regulation simply repeals
Court Decision Compounds Confusion Over Scope of Clean Water Act Jurisdiction
A decision by the U.S. District Court for the Southern District of Georgia issued on August 21, 2019, highlights the continuing confusion over the definition of “waters of the United States” under the Clean Water Act. The decision declared the Obama administration’s 2015 “Clean Water Rule” to be an impermissible construction of the statutory language
EPA Proposes Narrowing of Water Quality Certification Authority Under Clean Water Act
The Environmental Protection Agency has issued a lengthy proposed rule clarifying the substantive and procedural requirements for water quality certifications under Section 401 of the Clean Water Act. EPA Administrator Andrew Wheeler announced that the changes are “intended to increase the predictability and timeliness of Section 401 certification by clarifying timeframes for certification, the scope
29th Annual Briefing on Land Use and Development Law — Materials Available
Perkins Coie attorneys, including regular contributors to this report, recently presented the 29th Annual Land Use & Development Law Briefing in San Francisco, Palo Alto and Walnut Creek. The presentation focused on 2018 legal developments and trends in land use, affordable housing, CEQA, wetlands and endangered species. The final presentation in this year’s series
EPA Delays Applicability of Clean Water Rule While Challenges to Rule Proceed in District Courts
As reported in our prior Update, in a decision issued on January 22, the U.S. Supreme Court ruled in National Association of Manufacturers v. Department of Defense, 138 S. Ct. 617, that challenges to the Obama administration’s 2015 Clean Water Rule must be brought in federal district courts, rather than directly in the federal courts of appeals. The Court’s decision will likely prolong the ongoing litigation over the validity of the Rule.
Shortly after the Court’s decision, the Trump administration delayed the Rule’s applicability date for two years while it works on rulemakings to rescind and replace the Rule.
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Clean Water Act Permit May Be Required for Pollution Discharged Indirectly into Navigable Waters
A Clean Water Act permit is required for discharging wastewater from injection wells into groundwater where wastewater is “fairly traceable” to navigable waters, the U.S. Court of Appeals for the Ninth Circuit held in Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018).
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Clean Water Act Requires Permit for Pollution Discharges from Oyster Hatchery’s Pipes
The Clean Water Act requires a permit to discharge pollutants through pipes, ditches, and channels from an oyster hatchery, even though the facility would not be subject to the Act’s permitting requirements as a “concentrated aquatic animal production facility,” the U.S. Court of Appeals for the Ninth Circuit held in Olympic Forest Coalition v. Coast Seafoods Co., 884 F.3d 901 (9th Cir. 2018).
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