Sackett II and its Ripple Effects: Uncertainty Remains for Developers and Communities
June 27th, 2024 — by Patricia McKee — Category: Clean Water Act
In May 2023, the U.S. Supreme Court issued an opinion in Sackett v. EPA (2023), also known as Sackett II, significantly curtailing federal regulatory authority for wetlands. The Court adopted a stricter definition of “waters of the United States,” including only those wetlands with a continuous surface connection to traditional interstate navigable waters. This rule has subsequently faced legal challenges.
Which Rule Rules? In re Clean Water Act Rulemaking
January 20th, 2022 — by Caroline Heavey — Category: Clean Water Act
In 2020, the Trump administration revised the Clean Water Act (CWA) Section 401 Certification Rule (Trump 2020 Rule) for the first time since 1971. Subsequently, the Biden administration took office and the Environmental Protection Agency (EPA) began revising the Trump 2020 Rule. A district court had to determine whether to set aside the 2020 Rule while the Environmental Protection Agency (EPA) made revisions.
In September 2021, the Environmental Protection Agency (EPA) initiated steps to protect waters in Bristol Bay, Alaska. Under authority conferred by the Clean Water Act (CWA), the EPA initiated a CWA Section 404(c) action to prohibit the discharge of dredged or fill materials into certain waters within Bristol Bay, a watershed of approximately 900 square miles that supports the largest salmon fishery in North America.
This summer, construction of the Line 3 pipeline generated a lot of controversy, with several protests demanding a stop to construction. Enbridge, a large energy infrastructure company, is planning to construct a 340-mile pipeline called Line 3. The pipeline construction is planned to replace an outdated, existing pipeline that stretches from Alberta, Canada to the Wisconsin coast on Lake Michigan.
Last month, a Hawai’i district court became the first court to issue a decision applying the U.S. Supreme Court’s new functional equivalent test for the scope of the Clean Water Act. The case was between Hawai’i Wildlife Fund, several environmental organizations, and the County of Maui.
On April 26, 2021, the U.S. Supreme Court heard oral arguments in Guam v. United States, No. 20-382. Guam is appealing a ruling by the U.S. Circuit Court of Appeals for the District of Columbia that the territory is time-barred from seeking reimbursement from the U.S. Navy for the cost of cleaning up the Ordot Landfill.
On January 13, 2021, the U.S. Army Corps of Engineers (Corps) published a Final Rule for modified and new Nationwide Permits (NWPs). Among the new NWPs were three relevant to mariculture operations: NWP 48 for shellfish, NWP 55 for seaweed, and NWP 56 for finfish. The new NWPs will become effective on March 15, 2021.
In October of 2020, the Environmental Protection Agency (EPA) published a proposed rule establishing standards for incidental discharges from vessels in waters of the United States. This is the first proposed rule to come out of the Vessel Incidental Discharge Act (VIDA), which was signed into law by President Trump in December 2018.
On December 14, 2020, the Environmental Protection Agency (EPA) proposed amendments to a part of the Clean Water Act (CWA) regulation. The regulations pertain to enforcement standards for state and tribal programs under the CWA.
In a 6-3 opinion by Justice Stephen Breyer, the U.S. Supreme Court held that the federal Clean Water Act (CWA) requires the federal government to regulate some groundwater pollutants that discharge into navigable waters. (Cty. of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260, 2020 WL 1941966 (U.S. Apr. 23, 2020)). The CWA prohibits the addition of any pollutant from a point source to navigable waters without the appropriate permit. In this case, the Supreme Court had to determine whether a permit is necessary “when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, here, ‘groundwater.’”
In June 2017, the Puget Soundkeeper Alliance, the Washington Environmental Council, and the Suquamish Native American tribe filed a lawsuit against the U.S. Navy in the U.S. District Court for the Western District of Washington alleging that its ship cleaning activity violated the federal Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA).
Last fall, Puget Soundkeeper (Soundkeeper) filed suit against the Port of Seattle (Port) and its tenant, Total Terminals International, under the citizen suit provisions of the Clean Water Act (CWA). Soundkeeper alleged that stormwater discharges from the marine cargo terminal exceeded the limits imposed by the Industrial Stormwater General Permit (ISGP) that covers the facility. The Port filed a motion to dismiss for lack of jurisdiction. The Port claimed that Soundkeeper failed to comply with a CWA notice requirement and argued that only the permittee, Total Terminals, could be held liable for violations of the discharge permit.
On Tuesday, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers issued a proposed rule defining “waters of the United States” (WOTUS). The phrase determines the scope of federal jurisdiction under the Clean Water Act (CWA). Congress enacted the CWA without defining WOTUS, and its meaning has been debated and litigated extensively.
