The economy may be stalled, but the use of Nationwide Permit (NWP) 12 just opened back up for non-oil and gas pipeline projects. A recent decision rocked the permitting community as a judge vacated NWP 12 outright because the U.S. Army Corps of Engineers (Corps) violated the Endangered Species Act (ESA) by not consulting with the U.S. Fish and Wildlife Service prior to reissuing NWP 12. However, earlier this week, Judge Morris amended the remedy provided in his April 15, 2020 order, which vacated all continuing use of NWP 12.
Continue Reading Nationwide Permit (NWP) 12 Re-Opened for Non-Oil and Gas Pipeline Projects

As discussed in prior blog posts, the Federal Circuits became split (Part 1) in 2018 on whether the Clean Water Act (“CWA” or the “Act”) regulates discharges of pollutants from point sources that reach navigable waters through nonpoint sources, such as groundwater. Recently, the U.S. Supreme Court granted certiorari in one of those Circuit decisions (Part 2), and the case is still in front of the Supreme Court. While U.S. EPA had requested comments on this and other issues (Part 3), the agency’s current position was unknown until recently. On April 15, 2019, EPA released an interpretive statement and corresponding press release providing new guidance on whether the CWA permitting requirements apply to discharges directly to groundwater (78 Fed. Reg. 16810 (April 23, 2019)).

Continue Reading CWA Series: Do Discharges to Groundwater Require a Permit? EPA just changed its mind.

The Trump administration announced in December 2018 its proposed replacement rule defining “waters of the United States.” Under the proposed rule, the number of wetlands that fall outside of federal jurisdiction is expected to increase.

Phillip Bower and Megan McLean weigh in on what this means for state regulation of non-federal wetlands in the recent

Previously, we reported the Federal Circuit split (Part 1) regarding indirect discharges to navigable waters through groundwater and the Supreme Court’s grant of certiorari in one of those cases (Part 2), which will hopefully settle whether the Clean Water Act (“CWA” or the “Act”) governs an indirect discharge to navigable waters. Whether the CWA applies to particular surface waters remains a hot topic almost 50 years since the modern-day CWA was passed in 1972, as the litigation continues over the Obama Administration’s rule (promulgated in 2015) defining the scope of the CWA, as well as the Trump Administration’s attempts to repeal that rule.  
Continue Reading CWA Series: In redefining the scope of the Clean Water Act, will the new WOTUS rule truly be a sea change?

Rock Products magazine recently published an article by Daniel Fanning discussing a proposed rule revising the definition of “waters of the United States” and its potential effects. The rule is intended “to increase CWA program predictability and consistency.” Will this change impact your operations?

Continue Reading What Are ‘Waters of the United States’?

Under the CWA, the discharge of pollutants, meaning the “addition of any pollutant to navigable waters from any point source,” without a permit is prohibited. Previously, we reported on the circuit split (Part 1) between the Fourth, Sixth, and Ninth Federal Circuit Court of Appeals regarding whether indirect discharges to WOTUS through groundwater required a CWA permit.
Continue Reading CWA Series: SCOTUS Agrees to Grant Certiorari on Indirect Discharge Question

As mentioned in a prior blog post, the Menominee Indian Tribe of Wisconsin (“Tribe”) sued the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) over the proposed Aquila Resources Back Forty Mine (“Mine”) located in Michigan, arguing that EPA and Corps have failed to take responsibility under the Clean Water Act

Husch Blackwell’s Daniel Fanning and Coty Hopinks-Baul provide interesting insights in the latest post from the CWA Series on whether or not a permit is required for discharges to groundwater under the Clean Water Act.
Read more here.

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