Back to the Future: What is a Water of the United States?
On December 30, 2022, the U.S. Environmental Protection Agency (“EPA”) and Department of the Army jointly announced their latest final rule (the “2022 Rule”) on the definition of “waters of the United States” (“WOTUS”) under the Clean Water Act’s authority to regulate…
Court Resuscitates NWP 12 But Only for Non-Pipeline Projects
The United States District Court for the District of Montana breathed partial life back into Nationwide Permit 12 (NWP 12) in its May 11, 2020 decision limiting the scope of its April 15, 2020 vacatur of NWP 12 to new construction of…
POSTED IN: Articles
U.S. Supreme Court Establishes Middle Ground on Clean Water Act Regulation of Point Source Pollutant Discharge and Travel Via Groundwater
In County of Maui v. Hawaii Wildlife Fund,[1] the United States Supreme Court provided its latest decision on the regulatory reach of the federal government to control discharge of pollutants into navigable waters under the Clean Water Act (“CWA”). Justice Breyer, writing…
POSTED IN: Articles
The Corps’ NWP 12 for Pipelines and Transmission Lines is Vacated and Enjoined
The United States District Court for the District of Montana, Great Falls Division, issued an order on April 15, 2020 in the ongoing litigation regarding permitting of the Keystone XL pipeline that has far-reaching implications for pipeline, electric utility line, and other…
POSTED IN: Articles
Executive Order on the Clean Water Rule
The Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the Unites States” (WOTUS) Rule issued on February 28, 20171 articulated the Trump administration’s policy on navigable waters, and attempted to roll back…
POSTED IN: Articles
Executive Order Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects
On his second day in office, President Trump issued several executive orders and memoranda intended to overhaul the environmental review and approval process for pipeline and other infrastructure projects. Among them was EO 13755, intended to expedite environmental reviews and approvals for…
POSTED IN: Articles
Tule Wind Farm Passes NEPA Test, Again
On March 6, 2017, the United States District Court for the Southern District of California rejected a challenge to a wind project in southeastern San Diego County, with known potential impacts to golden eagles.1 The project consisted of two phases, Phase I which…
POSTED IN: Articles
The U.S. Supreme Court Confirms You Can Challenge the Corps’ Clean Water Act Jurisdictional Determination Without First Going Through a Permit or Enforcement Process
The U.S. Supreme Court has unanimously held that a U.S. Army Corps of Engineers’ (“Corps”) “approved jurisdictional determination” (“approved JD”) under Section 404 of the Clean Water Act (“CWA”) is a final agency action judicially reviewable under the Administrative Procedure Act[1. 5…
POSTED IN: Articles
The FAST Act Seeks to Expedite Multi-Agency NEPA Compliance for Large Infrastructure Projects
A new law offers the prospect of faster Federal approvals and limitations on judicial challenges for certain large infrastructure projects that must comply with the National Environmental Policy Act (“NEPA”). In December 2015, Congress enacted and President Obama signed into law the…
POSTED IN: Articles
Can You Challenge the Corps’ Clean Water Act Jurisdictional Determinations Without First Going Through the Permit Process?
The United States Supreme Court has agreed to review an appeal from a decision by the Eighth Circuit Court of Appeals that found that the Corps of Engineers’ Approved Jurisdictional Determinations (“JD”) are final agency actions and are immediately appealable under the…
POSTED IN: Articles