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Maui’s “Functional Equivalent” Test: Courts Are Still Feeling Their Way

Law and Environment

Earlier this month, the 9 th Circuit vacated the District Court judgment in a Clean Water Act citizens’ suit, because the basis for the judgment had been undermined by the Supreme Court decision in Maui. In Corona Clay , the defendant had conceded that its discharge ultimately reached surface water.

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Supreme Court Issues Decision Sharply Limiting Clean Water Act Jurisdiction over Wetlands

E2 Law Blog

The wetlands at issue are separated by a 30-foot road from an unnamed tributary that feeds into a non-navigable creek that feeds into Priest Lake, a navigable but wholly intrastate water body. In so holding, the majority expressly rejects the “significant nexus” test espoused by Justice Kennedy in his concurring opinion in Rapanos v.

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U.S. Supreme Court Narrows the Scope of the Clean Water Act by Limiting EPA’s Jurisdiction over Wetlands

MGKF Law

While the 9-0 decision was unanimous in judgment by holding that the Sacketts’ wetland was not subject to federal jurisdiction, the court was sharply divided as to the test to determine when an adjacent wetland qualifies as a Water of the United States (or “WOTUS”). United States, 547 U.S. 715, 754 (2006). See 88 Fed.

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Supreme Court Curtails Federal Wetlands Protections; Developers Still Must Consider State and Local Wetlands Laws

Law and Environment

Environmental Protection Agency , which significantly narrowed the Clean Water Act’s (“CWA”) test for determining whether wetlands are protected “waters of the United States” and the federal permitting requirements for development projects in covered wetlands areas.

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With Friends Like These. Another Federal Appeals Court Takes Clean Water Act Enforcement Out of EPA’s Hands

Acoel

The panel’s legal gymnastics to reach this conclusion could be the basis for an entire law school seminar. While this is true, the panel fails to mention that EPA has also told a District Court in the Ninth Circuit that the regulation should remain the law while EPA is doing its reconsidering. One thing seems certain.

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Taking Bets: The Supreme Court Is Just About to Split NPDES and Section 404 Permitting Under the Clean Water Act

Acoel

The Supreme Court is stepping once more into Clean Water Actwaters of the United States,” more popularly known as WOTUS. If you’re a Clean Water Act wonk, there may be a little voice in the back of your head yelling, “Theeeey’re baaack!”

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2023 WOTUS Rule Enjoined in Texas and Idaho (Or “Here We Go Again”)

Acoel

The court also acknowledged that the Supreme Court is currently considering the scope of jurisdiction under the Clean Water Act. The court specifically pointed out that, unlike Justice Kennedy’s test, the 2023 WOTUS rule defines “interstate waters” as jurisdictional regardless of navigability.

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