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Missouri River floodplain

With parts of the Midwest setting records for wet weather this month, many eyes have turned toward the shorelines of the Great Lakes, which are experiencing an extended period of near-record high water levels. High water has wreaked havoc on public and private shorelines alike, eroding beaches, damaging seawalls, and threatening buildings. For many property owners, installation or repair of infrastructure such as breakwaters or bulkheads may be an attractive solution to limit future losses. But owners and their contractors must be careful to comply with state and federal laws that require permits for construction that impacts a navigable waterway.…
Continue Reading Without Careful Permitting, Erosion Control Projects Can Lead to a Flood of Legal Headaches

word doctrine printed on paper macro

A district court judge adopted the rarely applied “constructive submission” doctrine, which could ultimately give advocacy groups leverage over states that ignore Clean Water Act (CWA) requirements. This decision may embolden advocacy groups and comes at a time when, as noted in previous posts on this blog, enforcement actions brought by public citizens continue to grow as an effective means of enforcing environmental laws and regulations.…
Continue Reading Advocacy Groups Have a New Opening to Enforce the CWA When States Do Not Act

renewable energy: wind turbines and modern solar panels (HDRi)

With city after city setting 100 percent clean energy goals and states following in lockstep, opportunities are growing for renewable energy companies to develop utility-scale projects. Project development includes the need for energy infrastructure such as transmission lines, for example.…
Continue Reading Executive Orders Speed Infrastructure Permitting and Create Opportunities for Utility-Scale Renewable Projects

The Trump Administration revealed the new and long-awaited “waters of the United States” or “WOTUS” rule last week, which is designed to clear confusion on one of the most hotly debated topics in environmental law today – the scope of federal jurisdiction under the Clean Water Act (CWA).…
Continue Reading Long-Awaited WOTUS Rule Addresses Uncertainty, But May Face Litigation Ahead

Last Thursday, the South Carolina District Court reinstated the Obama-era definition of “waters of the United States” (WOTUS) in roughly half the country, furthering the ambiguity in the never-ending saga over how to define WOTUS under the Clean Water Act. South Carolina Coastal Conservation League, et. al. v. Andrew Wheeler, et. al., No. 2:18-cv-00330, at *14 (D.S.C. Aug. 16, 2018). In its decision, the court invalidated the Trump Administration’s Executive Order suspending the Obama Administration’s WOTUS rule (the “Suspension Order”).
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Continue Reading District Court Issues Injunction on President Trump’s “Suspension Order” of the WOTUS Definition

Last week, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit unanimously rejected challenges by environmental and industry groups to the Environmental Protection Agency’s (EPA) Clean Water Act (CWA) cooling water intake structure permit rule (Rule) in Cooling Water Intake Structure Coalition (CWISC), et al., v. EPA, et al. The panel’s ruling upholds the Rule and affirms broad deference to the EPA and wildlife agencies on both their factual findings and legal interpretations.…
Continue Reading Court Upholds CWA Intake Structure Rule

The Clean Water Act (CWA) term “waters of the United States” (WOTUS) has become an evolving term with an often squishy definition leading to considerable litigation – with last month’s Seventh Circuit decision providing new insight on both the definition and the concept of administrative deference in Orchard Hill Building Co. v. United States Army Corps of Engineers.
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Continue Reading WOTUS Wars: New Lessons from the Seventh Circuit

As citizen scientists and environmental non-governmental organizations (NGOs) have stepped up to fill what they have called an enforcement gap since President Trump took office, the NGO playbook has become more complex and creative than perhaps ever before. A recent Fourth Circuit stay is another example of litigation against governments as a routine playbook strategy likely to continue on the horizon, in addition to the primarily used litigation tactics against private parties to further NGO interests in the past.
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Continue Reading Fourth Circuit Decision Illustrates Growing Environmental NGO Involvement in Policymaking

This week, the Fourth Circuit issued a decision in Upstate Forever v. Kinder Morgan Energy Partners, L.P. that addresses three key issues arising in many federal Clean Water Act (CWA) cases:

  1. How, as a legal matter, courts treat “historic” contamination under the CWA;
  2. Whether good-faith remedial efforts undertaken under the supervision of relevant agencies by themselves strip federal jurisdiction over citizen suits under similar legal authority; and
  3. Whether CWA-regulated “pollutants” need to discharge directly into CWA-regulated “navigable waters” to violate the CWA.

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Continue Reading Fourth Circuit Decision Addresses Three Key Clean Water Issues