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 …

EPA Revises NPDES General Permit for Discharges from Construction Activities

The Clean Water Act places restrictions on the discharge of pollutants to the navigable waters of the United States.  Section 402(a) of the Clean Water Act, 33 U.S.C. § 1251 et seq., authorizes the United States’ Environmental Protection Agency (EPA) to issue National Pollutant Discharge Elimination System (NPDES) permits for discharges from various point sources …

Supreme Court Decides Army Corps v. Hawkes: Clean Water Act Jurisdictional Determinations are Reviewable Final Agency Action

In a unanimous decision released today, the Supreme Court found that Jurisdictional Determinations (JDs) made by the Army Corps of Engineers (Corps) under the Clean Water Act constitute “final agency action” and are therefore reviewable in federal court under the Administrative Procedure Act. U.S. Army Corps of Engineers v. Hawkes Co., No. 15-290, slip op. …

The ‘Commoditization’ of Water in The West

The treatment of water as a commodity, rather than a utility service, is gaining momentum in the western U.S. A recent Pro Publica/The Atlantic (February 9, 2016) article addresses the acquisition of water by hedge fund investors as commodity investments, instead of water service. A New York City hedge fund manager, Disque Dean Jr., has …

Who Controls the Water? The Answer is Now On Hold.

With due respect to Norman Maclean’s famous quote, environmental lawyers and the regulated public continue to be “haunted by waters.” The question of “who controls the water?” is raging throughout the nation, and is playing out in a number of federal courts.  At issue is the “Waters of the United States” rule issued in late …

IDEA Campus Energy Conference Revealed Glimpses of Energy Future

The International District Energy Association’s (IDEA) 28th Annual Campus Energy Conference in Denver last week revealed a lot about our energy future. Microgrids, water use within energy systems, creative and expanded use of combined heat and power (CHP) and more topics all were featured during the conference. Microgrid presentations covered applications in hospitals, universities, military …