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In the past two weeks, two federal district courts reached seemingly opposite conclusions regarding the implementation of the U.S. Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ (“the Agencies”) Navigable Waters Protection Rule (“the Rule”). The Rule, which took effect on June 22, narrows the term “waters of the United States” and, thereby, the scope of waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The Rule has been a top priority for the Trump Administration under its two-step process to repeal the Obama Administration’s 2015 rule, which expanded the scope of the CWA, and replace it with a rule that provides more distinct clarity as to which waters are jurisdictional. States, environmental groups, and other interested parties have filed lawsuits across the country challenging the Rule and requested courts issue preliminary injunctions to prevent it from taking effect.
Continue Reading Federal Courts Reach Opposite Conclusions Regarding Implementation of the Navigable Waters Protection Rule

Today the U.S. Supreme Court issued its long-awaited opinion in County of Maui v. Hawaii Wildlife Fund, addressing whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The issue has historically been controversial and subject to much litigation.

In a 6-3 split, with Justice Breyer delivering the opinion of the Court, the Court rejected the Ninth Circuit’s “fairly traceable” test for determining when discharges from point sources to groundwater that reach surface waters are subject to Clean Water Act (CWA) permitting, instead laying out a narrower test focusing on whether a discharge to groundwater is the “functional equivalent of a direct discharge.”  The CWA defines point sources as any “discrete conveyance . . . from which pollutants are or may be discharged,” including pipes, channels, and wells. The Court found middle ground on the issue, citing to EPA’s long history of permitting pollution discharges from point sources that reached navigable waters only after traveling through groundwater and to several factors that should be considered on a case-by-case basis.
Continue Reading Supreme Court Issues New “Functional Equivalent” Test for Clean Water Act Permitting Coverage of Discharges to Groundwater

On April 21, 2020 the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) published the final rule narrowing the meaning of the Clean Water Act (“CWA”) term “waters of the United States,” which represents the culmination of one of President Trump’s key environmental agenda items. The Trump Administration’s repeal and replace approach clears up years of uncertainty in the wake of the Obama Administration’s 2015 rule. The final rule, called the “Navigable Waters Protection Rule,” will become effective on June 22, 2020.
Continue Reading Trump Administration Publishes Final Navigable Waters Protection Rule