The California legislature continues to advance Senate Bill 601 (SB 601), the “Right to Clean Water Act,”[1] which aims to safeguard protections for California’s streams and wetlands that lost federal protection under the Clean Water Act (CWA) as a result of the Supreme Court’s 2023 Sackett v. U.S. EPA decision. If approved, SB 601 would expand enforcement to include citizen suits and increase penalties for unpermitted discharges to state waters.
Nationwide WOTUS Certainty in Sight
EPA and the U.S. Army Corps of Engineers’ new rule repealing the 2015 “Clean Water Rule,” will be published in the Federal Register tomorrow.
The “repeal rule” will take effect December 20, 2019, providing nationwide consistency regarding the jurisdiction of Waters of the U.S. and ending the current…
EPA Proposes Sweeping Changes to Clean Water Act Section 401 Water Quality Regulations
On Friday, August 9, the Environmental Protection Agency (“EPA”) unveiled a pre-publication version of a notice of proposed rulemaking (“NOPR”) to clarify state water quality certification (“certification”) procedures under Section 401 of the Clean Water Act (“CWA”) to allow for increased regulatory certainty in federal licensing and permitting activities, and particularly authorization of infrastructure projects. EPA Administrator Andrew Wheeler announced on Friday that the “proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act.” The NOPR proposes substantive changes to the scope of state water quality certification authority under the CWA and the procedures governing these certifications, focusing on the plain language of the statute and at times departing from prior case law precedent.
Significant components of the NOPR are summarized below. EPA has established a 60-day period for public comment on the proposed rule, from the date of publication in the Federal Register. In light of the substantial modifications to the scope, substance and procedures related to state water quality certification, the NOPR presents a unique opportunity for utilities, manufacturers, developers, and other regulated business entities to help shape a significant regulatory program.
Petition to the Supreme Court to Review WOTUS Jurisdiction Quandary
On Friday, October 7, 2016, several industry trade organizations and associations, as respondents, filed a brief requesting that the U.S. Supreme Court review the fractured decision of the Sixth Circuit to exercise jurisdiction over various challenges to the EPA-Army Corps issued Waters of the United States (”WOTUS”) Rule under the Clean Water Act (“CWA”).