On April 28, the U.S. Court of Appeals for the First Circuit, sitting en banc, overturned its own 30-year-old precedent on the Clean Water Act (CWA), North & South Rivers Watershed Ass’n v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991). Under Town of Scituate, “diligent prosecution” of a federal administrative
The Tide
Short alerts designed to keep legal and water sector professionals up-to-date on important developments
Supreme Court Re-Instates the Clean Water Act Section 401 Certification Rule
By Chuck Sensiba, Morgan Gerard & Misha Tseytlin on
Posted in The Tide
Today, in a 5-4 decision, the Supreme Court re-instated the U.S. Environmental Protection Agency’s (EPA’s) 2020 Clean Water Act (CWA) section 401 rule (Certification Rule). The Court stayed a decision by the U.S. District Court for the Northern District of California, which had vacated and remanded the Certification Rule back to EPA without first…
Draft 401 Certification Rule Proposal Sent to OMB
By Anna Wildeman & Dave Ross on
Posted in The Tide
On March 25, EPA sent a proposed Clean Water Act Section 401 Water Quality Certification rule to the Office of Management and Budget (OMB) for interagency review. Once cleared by OMB, the proposal will be published in the Federal Register for public review and comment. According to the OMB dashboard, EPA considers this proposed…
EPA Budget Includes CCS Injection Program Investment
By Anna Wildeman & Dave Ross on
Posted in The Tide
EPA’s budget, approved by Congress last week, increases investment in the agency’s Safe Drinking Water Act Underground Injection Control (UIC) program. A joint statement accompanying the budget specifies that $5 million is available for EPA to develop expertise and capacity in the UIC Class VI well program, and these dollars should be used to process…
EPA Issues Guidance for Use of Infrastructure Dollars
By Anna Wildeman & Dave Ross on
Posted in The Tide
EPA’s Office of Water recently issued guidance on the Implementation of the Clean Water and Drinking Water State Revolving Loan Fund Provisions of the Bipartisan Infrastructure Law. The memorandum itself is eight pages long and covers a range of issues, including reiterating the inherent flexibility in state revolving fund programs, which allows states to prioritize the use of federal funds based on local water needs. The guidance also encourages agencies to prioritize increasing investment in disadvantaged communities, while using the funding to address emerging contaminants, replace lead lines, and improve the climate resilience of water infrastructure. Additionally, the guidance promotes investment in America’s water workforce — a frequently overlooked priority initiated in the prior administration that is designed to shore up an essential but aging water sector workforce.
…
Continue reading EPA Issues Guidance for Use of Infrastructure Dollars
EPA IRIS Program Releases Draft Review of PFHxA (Another PFAS)
EPA’s Integrated Risk Information System (IRIS) program released a draft toxicological review of perfluorohexanoic acid (PFHxA) today, signaling another step in the agency’s ongoing research and regulatory initiatives focused on per- and polyfluoroalkyl substances (PFAS). This particular PFAS will be interesting to monitor because it is a breakdown product of other PFAS that may enter…
Supreme Court to Revisit WOTUS Definition Once Again
By William Droze on
Posted in The Tide
On Monday, January 24, in Michael Sackett et al. v. U.S. Environmental Protection Agency et al., (Case No. 21-454), the U.S. Supreme Court granted certiorari to determine if the Ninth Circuit used the right test to determine whether wetlands are subject to federal jurisdiction under the Clean Water Act. Idaho landowners, the Sacketts, disputed the…
Fifth Unregulated Contaminant Monitoring Rule
By Houston Shaner on
Posted in The Tide
On December 27, 2021, the U.S. Environmental Protection Agency published the final Fifth Unregulated Contaminant Monitoring Rule (UCMR). The Fifth UCMR will collect nationwide data on the occurrence of lithium and 29 per- and poly fluoroalkyl substances in public drinking water systems. Data will be collected between 2023 and 2025 and reported in 2026.
Army Corps of Engineers Finalizes Remaining Nationwide Permits
By Brooks Smith on
Posted in The Tide
On December 27 the U.S. Army Corps of Engineers finalized 41 Nationwide Permits that had been pending since earlier this year. These new permits take effect on February 25, 2022, and will be on the same 5-year renewal cycle as the 16 Nationwide Permits issued at the beginning of the year.
EPA Issues Section 401 Q&A
By Anna Wildeman on
Posted in The Tide
On Friday, December 17, the Environmental Protection Agency (EPA) quietly issued a Q&A document concerning the vacatur of the 2020 Section 401 Certification Rule (2020 Rule). The Q&A confirms EPA’s view that the 1971 certification regulation is now in effect nationwide, but does not present a policy or legal rationale for this decision. Although much…