HDR Utility Services Director Trent Stober joins Dave and Anna to close out their PFAS miniseries, focusing on the real-world application of regulatory developments in the water sector. Trent provides perspective on how engineering consultants advise their water and wastewater utility customers on risk management, integrated planning, and other response strategies to the developing PFAS regulatory framework.

Continue Reading PFAS in Focus: Forever-Engineering With Trent Stober, HDR

Dave Ross and Anna Wildeman provide high-level reactions to the Supreme Court’s oral arguments in the Sackett v. EPA case, the latest legal battle in a long-running dispute over the meaning of the phrase “waters of the United States” under the Clean Water Act. They discuss the Court’s surprising focus on a little-known parenthetical in the section 404 program, EPA’s potential reactions to the arguments, and whether anyone can reasonably predict the outcome of the case in what may be the most closely watched environmental decision of the current term.

Continue Reading Reflections on Sackett

This article was republished in Pratt’s Energy Law Report (Vol. 22-10, November-December 2022).

On June 1, the Environmental Protection Agency (EPA) released a pre-publication version of its proposal to re-write the Clean Water Act Section 401 rule (Certification Proposal), which, if finalized, is expected to have far-reaching impacts on hydroelectric licensing and relicensing. The Certification Proposal is intended by EPA to replace the version of the rule finalized under the Trump administration in 2020 (2020 Rule). While the Certification Proposal maintains some aspects of the 2020 Rule, it differs in some significant areas and in many ways reverts back to the 1971 regulations.

Continue Reading EPA’s Clean Water Act Certification Proposal to Significantly Impact Hydropower Licensing

On December 27, 2021, the U.S. Army Corps of Engineers (Corps) issued a final rule reissuing 40 existing Nationwide Permits (NWPs) with modifications and issuing a new NWP for water reclamation and reuse facilities. The 40 existing NWPs that the Corps reissued includes NWP 17, which authorizes the discharge of dredged or fill material associated with certain small hydroelectric projects.

Continue Reading Army Corps Finalizes Modified and New Nationwide Permits, Including for Certain Hydropower Projects

As the U.S. Environmental Protection Agency (EPA) prepares its Clean Water Act (CWA) Section 401 rule proposal, litigation regarding the 2020 Trump-era rule (Certification Rule) continues. Currently, the issue of whether to re-instate the Certification Rule is proceeding before U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit). The U.S. District Court for the Northern District of California had vacated and remanded the Certification Rule, and intervenors and several states appealed the vacatur. Appellants, including several industry groups, have filed motions to stay the District Court’s vacatur pending the outcome of the appeal and are now awaiting the Ninth Circuit’s ruling that could, at least temporarily, re-instate the Certification Rule.

Continue Reading Clean Water Act Section 401 Certification Rule Litigation Continues

Dave Ross talks with Radhika Fox as she marks her one year anniversary as EPA’s Assistant Administrator for Water. They discuss how her prior experiences prepared her for the role at EPA and her desire to change the narrative around water by connecting it back to the community. They also look at her first year accomplishments, the recently passed infrastructure bill, the 50th anniversary of the Clean Water Act, and more.

Continue Reading Diving In: An Interview With Radhika Fox, Assistant Administrator, Office of Water

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the “Corps”) (together the “Agencies”) have continued working on a proposed rule to revise the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA or Act), which will soon move to the next stage of agency consideration.[1] The outcome of these rulemaking efforts will impact countless regulated parties, from solar developers to manufacturers, and heavily regulated industry.

Continue Reading Biden Administration Presses Forward With Revised WOTUS Rule

On October 21, the U.S. District Court for the Northern District of California vacated and remanded the U.S. Environmental Protection Agency’s (EPA) 2020 Clean Water Act Section 401 final rule (Certification Rule).

In response to the court’s ruling, EPA is implementing the previous water quality certification rule nationwide, which had been in effect since 1971, while it develops a new rule.

Pursuant to Section 401 of the Clean Water Act (CWA), no federal license or permit that may result in a discharge to U.S. waters may be issued unless the state or authorized Tribe, where the discharge will originate, issues a water quality certification or waives the certification requirement.
Continue Reading Court Decision to Vacate, Remand State Water Quality 401 Certification Rule

Landowners and permit applicants received an email notification this week that the Army Corps of Engineers (Army Corps) would not be processing their requests for coverage under a variety of Clean Water Act (CWA) Section 404 Nationwide Permits (NWPs). NWPs are general permits that authorize activities under Clean Water Act Section 404 that “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.” CWA Section 404 (e)(1).

Continue Reading Army Corps Halts Coverage Under Nationwide Permits

A recent decision by the U.S. District Court for the District of Arizona vacated and remanded the 2020 Navigable Waters Protection Rule (NWPR) issued by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) (together, “Agencies”) that clarified the scope of federal jurisdictional “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). Before the promulgation of the NWPR, there had been several rulemakings and much litigation on this complicated issue, causing nationwide confusion on the application of a uniform standard. In 2015, the Obama administration promulgated a WOTUS rule that had been the subject of significant litigation, which the Trump administration had repealed (the “Repeal Rule”). The NWPR sought to provide certainty as to which waterbodies meet the features of WOTUS by creating clear categories of jurisdictional waterbodies.

Continue Reading District Court Vacates Navigable Waters Protection Rule