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On April 23 the Supreme Court announced its decision in County of Maui v. Hawaii Wildlife Fund (No. 18-260), which addressed the fundamental issue of what is a discharge to navigable waters requiring a permit under the Clean Water Act.  The case arose in the context of the County’s discharges of wastewater to wells that traveled through groundwater to the Pacific Ocean.  Justice Breyer’s opinion for the Court held that a permit is needed when there is the “functional equivalent” of a direct discharge.
Continue Reading SCOTUS Has Spoken: Kinda Sorta Direct Discharges Need A Permit

Companies seeking approval for pipelines got some encouraging news from a Trump Administration proposal to cut back on states’ authority to block pipelines by withholding state water quality approvals, but environmentalists and states continue to express skepticism and are likely to sue. On August 22, the EPA proposed its Updating Regulations on Water Quality Certification  (“Proposed Rule”) to replace and update the existing water quality certification process under Section 401 of the Clean Water Act (“CWA”). The EPA’s Proposed Rule comes in response to Executive Order 13868, Promoting Energy Infrastructure and Economic Growth, issued on April 10, 2019 to “reduce regulatory uncertainties that currently make energy infrastructure projects expensive and that discourage new investment.” To ensure “the timely construction of the infrastructure needed to move our energy resources through domestic and international commerce,” the Administration directed the EPA to update Section 401 for purposes of achieving a more “efficient permitting process.”…
Continue Reading The Environmental Protection Agency’s (EPA) Proposed Changes to State and Tribal Certification Authority under Clean Water Act Section 401

On May 21, 2015, the Office of Management and Budget (OMB) released the Obama Administration’s Spring Unified Agenda, providing greater details about the President’s strategy to rely on executive actions for carrying out his energy and environmental initiatives. The agenda’s release—specifying the upcoming actions that the Administration will be taking by regulation—comes at a…