EPA Centralizes Responsibility for Clean Water Act Jurisdictional Determinations

On March 30, 2018, EPA Administrator Scott Pruitt issued a memorandum and delegation of authority that move responsibility for the EPA’s role in Clean Water Act Jurisdictional Determinations to EPA’s Assistant Administrator for Water. Responsibility for this role previously resided with regional EPA administrators. Jurisdictional Determinations are a critical aspect of the “dredge-and-fill” permitting requirements under section 404 …

EPA Seeks Comment on Possible Regulation of Groundwater Discharges

The U.S. Environmental Protection Agency (EPA) recently requested public comments on whether pollutant discharges that reach “waters of the United States” are subject to regulation under the Clean Water Act (CWA) and require National Pollutant Discharge Elimination System (NPDES) permits. This announcement comes on the heels of a recent Ninth Circuit decision finding that certain …

Supreme Court Declines Review of Ninth Circuit Agua Caliente Decision – Reserved Tribal Water Rights Include Groundwater

On November 27, 2017, the Supreme Court denied review of the Ninth Circuit’s decision in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262 (9th Cir. 2017). In that case, an Indian tribe brought an action against a California water district and desert water agency seeking a declaration that it …

DAPL Developer Sues Environmental Groups

In a remarkable development around the contentious Dakota Access Pipeline (DAPL), the developer of the project, Energy Transfer Equity and Energy Transfer Partners, sued the environmental groups that opposed DAPL. Energy Transfer sued  Greenpeace International, Greenpeace Inc., Greenpeace Fund, Inc., BankTrack, and Earth First! alleging that the: group of co-conspirators (the “Enterprise”) manufactured and disseminated …

Trump Administration Working to Repeal and Replace the Clean Water Rule

Wetlands in front of the Lincoln Memorial, 1917, before construction of the reflecting pool On February 28, 2017, President Trump signed an executive order directing EPA to review the “Waters of the United States Rule” (the “WOTUS” Rule). Exec. Order No. 13778, 82 Fed. Reg. 12497 (Feb. 28, 2017). The order directed EPA and the …

Chevron Deference in Arizona?

In Arizona, like in Washington, a debate is unfolding about how courts should determine “questions of law”, and whether an agency’s construction of statutes is entitled to deference by the courts.  Some refer to this deference as Chevron Deference, stemming from a 1984 U.S. Supreme Court decision. The recent confirmation proceedings of Justice Neil Gorsuch triggered a spirited debate among policy makers and opinion writers about whether an agency’s reading of its statutes should be given any weight …

Arizona Supreme Court Permits Innovation in Ratemaking

On August 8, 2016, the Arizona Supreme Court upheld a decision by the Arizona Corporation Commission (Commission) allowing a private water utility to impose a monthly surcharge on customers to help pay for deteriorating infrastructure.  That monthly surcharge is known as the System Improvements Benefit, or SIB, and is loosely based on the  system improvement …

State Attorneys General Take Issue with Inclusion of Clean Water Rule in Proposed Reissuance of Nationwide Permits

The Attorneys General for Alabama, Georgia, Florida, Kansas, Michigan, Ohio, Oklahoma, South Carolina, Tennessee, West Virginia, and Wisconsin sent a comment letter to the Army Corps of Engineers contesting the inclusion of the Clean Water Rule (also known as the Waters of the United States Rule, or “WOTUS” Rule) in the proposed reissuance of certain …