A district court recently dismissed multiple Clean Water Act citizen suit claims under the concurrent-remedies doctrine, confirming that the doctrine continues to be “alive, well, and strong” as a potential defense to environmental claims.
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EPA and Army Corps Issue New “WOTUS” Rule While Supreme Court Considers Jurisdiction Over Adjacent Wetlands
Yesterday, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps) (together, the Agencies) published a final rule revising the definition of “waters of the United States” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act (CWA). This rule is the latest attempt by the Agencies to craft a durable rule defining WOTUS. The new rule, which largely mirrors the 2021 proposal, asserts a broader geographic scope of federal jurisdiction than the 2020 Navigable Waters Protection Rule (NWPR). In particular, the Agencies adopt the broadest possible interpretation of the Supreme Court’s decision in Rapanos (through incorporation of both the plurality’s “relatively permanent” test and Justice Kennedy’s “significant nexus” test). The final rule would, for the first time, codify aspects of the Agencies’ 2008 Rapanos Guidance and would rely on the significant nexus test’s case-by-case approach for evaluating jurisdiction for tributaries, wetlands, and other waters. The Agencies released the final rule while the Supreme Court considers the scope of CWA authority over a major category of WOTUS, “adjacent wetlands,” in Sackett v. EPA, and the Supreme Court could hand down a decision in the coming months that could require changes to the rule.
Army Corps Finalizes Nationwide Permit Renewal for Expedited Clean Water Act Permitting
On December 27, 2021, the US Army Corps of Engineers (Corps) issued a final nationwide permit (NWP) rule renewing a critical permitting tool for both the government and the regulated community. To comply with the Clean Water Act (CWA or the Act), projects with minimal adverse environmental effects can obtain authorization for the discharge of dredged or fill material into “waters of the United States” (WOTUS) through the Corps’ streamlined NWP process. With this rule, the Corps reissued 40 existing NWPs and one new NWP. These 41 NWPs will combine with 16 NWPs issued on January 13, 2021 to authorize use of the full suite of NWPs through March 14, 2026.
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Top 5 Frequently Asked Questions About Florida’s Assumption of Clean Water Act 404 Program
As we previously reported, for the first time in over 25 years, the U.S. Environmental Protection Agency (EPA) has approved the formal transfer of Clean Water Act (CWA) section 404 permitting authority to a state. On December 22, 2020, the State of Florida – only the third state to receive such approval – “assumed” 404 permitting authority from the U.S. Army Corps of Engineers (Corps) in certain waters of the United States (WOTUS). Since that time, CWA section 404 permit applicants have faced a number of questions about the scope and process of assumed 404 permitting. Five of the top questions are listed below, followed by their answers.
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Florida Receives EPA Approval to Assume Clean Water Act Section 404 Program
Before yesterday only two states had received approval to administer the Clean Water Act (CWA) section 404 program (Michigan and New Jersey), and no state had received approval since 1994. Now, for the first time in over 25 years, the U.S. Environmental Protection Agency (EPA) has approved the formal transfer of section 404 permitting authority to a third state: Florida. Once EPA’s approval is published in the Federal Register, the Florida Department of Environmental Protection (FDEP) will “assume” 404 permitting authority from the U.S. Army Corps of Engineers (Corps) in certain waters, significantly altering the 404 permitting process in Florida. EPA’s decision has broader implications for the 404 program on a national scale, as other states, including Oregon and Minnesota, consider whether to pursue assumption.
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EPA Finalizes CWA Section 401 Water Quality Certification Regulation
On June 1, EPA Administrator signed a final rule seeking to increase predictability for applicants by clarifying the Clean Water Act section 401 state water quality certification process.
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EPA Issues Final Report on Oil and Gas Extraction Wastewater Management
Last week, the U.S. Environmental Protection Agency (“EPA”) issued its final report addressing the input received by various stakeholders relating to the management of wastewater from the oil and gas industry. The report entitled Summary of Input on Oil and Gas Extraction Wastewater Management Practices Under the Clean Water Act is the culmination of a stakeholder engagement process that began in 2018 (“Final Report”).
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Agencies Release Final Rule Clarifying Federal Jurisdiction Under the Clean Water Act
On January 23, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released their new regulatory definition of “the waters of the U.S.” (WOTUS) clarifying the geographic scope of federal jurisdiction under the Clean Water Act.
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Supreme Court Addresses the Scope of CWA Jurisdiction Once Again
One of the Supreme Court’s recurring environmental law topics is the scope of Clean Water Act (CWA) jurisdiction. Various aspects of CWA jurisdiction and implementation have been addressed over the years by the Court, including the meaning of “navigable waters” in U.S. v. Riverside Bayview Homes, Inc. (1985); Solid Waste Agency of N. Cook Cnty v. Army Corps of Eng’rs (2001); and Rapanos v. U.S. (2006), and judicial review of agency actions related to the applicability of the CWA dredge and fill permit program in Sackett v. EPA (2012) and U.S. Army Corps of Eng’rs v. Hawkes Co. (2016). Most recently, the Supreme Court heard oral argument on November 6 in County of Maui v. Hawai’i Wildlife Fund, et al., a case that addresses the applicability of the CWA’s prohibition on “point source” discharges to “navigable waters” to releases from point sources to groundwater. The Court granted certiorari to address whether releases from point sources that are carried to navigable waters by groundwater are regulated under the federal NPDES permit program or under state non-point source management programs.
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EPA Proposes to Increase Predictability and Timeliness of Water Quality Certification Process
On August 22, EPA issued a proposed rule seeking to increase predictability for applicants by clarifying the Clean Water Act section 401 state water quality certification process.
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