Water Regulation Practice
Issue Alerts
Federal District Court Declares Washington Tribes’ Treaty Fishing Right Requires the State of Washington to Refrain from Building or Operating Culverts that Block Fish Passage
Matthew Love, Ivy Anderson, Tyson KadeAugust 29, 2007
The U.S. District Court for the Western District of Washington issued a summary judgment order declaring that the Western Washington Tribes’ treaty right of taking fish imposes a duty upon the State of Washington to refrain from building or maintaining any culverts that block anadromous fish migration.
Ninth Circuit Adopts Justice Kennedy’s “Significant Nexus” Test As Described in Rapanos
Sheri Spang, Steve RichardsonAugust 27, 2007
On August 6, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court holding that activities involving a pond located adjacent to a navigable water of the United States, but with typically no surface connection, are subject to the Clean Water Act.
EPA and the U.S. Army Corps of Engineers Issue Joint Guidance on Wetlands Jurisdiction
Sheri Spang, Steven RichardsonJune 7, 2007
On June 5th, the Environmental Protection Agency and the U.S. Army Corps of Engineersissued joint wetlands guidance to their field offices to identify those waters over which the agencies will assert jurisdiction under § 404 of the Clean Water Act.
District Court Strikes Down Clean Water Act Tulloch II Dredging Rule
Steve Richardson, Sam KalenFebruary 2, 2007
The United States District Court for the District of Columbia found that two federal environmental agencies had exceeded their statutory authority and invalidated the “Tulloch II” rule. The rule presumed that the use of “mechanized earth-moving equipment” would result in the discharge of dredged or fill material into waters of the United States and thus would require a permit pursuant to the Clean Water Act.
Second Circuit Invalidates Key Provisions of EPA’s Phase II Cooling Water Intake Rule
Mona Tandon, Sam KalenJanuary 31, 2007
The U.S. Court of Appeals for the Second Circuit vacated in part, and remanded in part, a final rule promulgated by the Environmental Protection Agency intended to protect aquatic organisms from cooling water intake structures at large, existing power-producing facilities.
Articles
Colorado River Management Plan Update
Jonathan SimonThe Grand Canyon River Runner
May 2008
On January 11, 2008, nearly a month and a half after the federal district court in Arizona wholly rejected their challenge to the new Colorado River Management Plan issued by the National Park Service (NPS) in February 2006, the plaintiffs in that lawsuit appealed that court's ruling to the Ninth Circuit Court of Appeals. While the NPS and other stakeholders hoped that the court's decision would provide a basis for the agency to move forward and work with all user groups in continuing to implement the new plan, the appeal ensures that the underlying issues will remain mired in controversy before the courts for some time to come.
Colorado River Management Plan Update
Colorado River Management PlanJonathan Simon
The Grand Canyon River Runner
November 1, 2007
In February 2006, the NPS issued a new CRMP that revised and updated the previous river management plan developed in 1980 and revised in 1981 and 1989.
Wetlands & The Clean Water Act
Howard Bleichfeld, Sam Collinson, Chris MillsThe Water Report
February 15, 2006
The limits of federal jurisdiction are important to developers, irrigation districts, state and local governments, utilities and any other entity seeking to plan and build a project affecting wetlands. The wetlands permitting process under section 404 of the CWA is time consuming, expensive, and controversial. Once jurisdiction under the program is claimed, it is all too easy for the sponsor of a project to lose control over its timing and design. Moreover, application for a CWA section 404 permit often triggers extensive consultation with the US Fish and Wildlife Service under section 7 of the federal Endangered Species Act. In addition, because the Court’s decision will apply to the entire CWA, the jurisdiction of other programs also could be affected, including the National Pollutant Discharge Elimination System (NPDES) Program under CWA section 402, and the Oil Pollution Act.