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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.
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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.
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Continue Reading Clean Water Act Section 401 Certification Rule Litigation Continues

Anna Wildeman welcomes Oklahoma Secretary of Energy and Environment Ken Wagner to the podcast. In this episode Ken, Dave Ross, and Anna touch on the diversification of Oklahoma’s energy portfolio, including its pursuit of renewable energy sources, such as hydrogen, and its confluence with the water sector.
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Continue Reading H2Oklahoma: Interview with Secretary Ken Wagner

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.
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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.
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Continue Reading Biden Administration Presses Forward With Revised WOTUS Rule

On January 11, the U.S. Environmental Protection Agency (EPA) issued a new interpretation of its coal combustion residual (CCR) regulations: CCR landfills or surface impoundments “cannot be closed with coal ash in contact with groundwater.” Although EPA claims it has “consistently held” this interpretation, this is the first time EPA has expressly articulated this view. Perhaps acknowledging the novelty of its position, EPA also announced its intent to “review … state-level CCR program applications to ensure they are as protective as federal regulations” and to proceed toward a federal CCR permitting framework.
Continue Reading EPA Announces Key CCR Policy Amid Alternative Closure Determinations

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

In a landmark ruling signaling a new lens with which to view the treatment of interstate water allocation, the U.S. Supreme Court issued a decision on November 22 in Mississippi v. Tennessee, et al., 595 U.S. ___ (Case No. 21o143) rejecting Mississippi’s claim to sole ownership of waters of the Middle Claiborne Aquifer within that state’s borders. Instead, the Court held that the traditional remedy of equitable apportionment used to allocate surface waters of streams and rivers should apply. The case represents the first time that the Court has held that equitable apportionment applies to groundwater, which may open the door to new disputes among border states who claim equal rights to underground water resources.
Continue Reading Equitable Apportionment of Interstate Waters Sinks to New Levels

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).
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Continue Reading Army Corps Halts Coverage Under Nationwide Permits