1972 Clean Water Act
On Monday, October 3, the Supreme Court began its new term by hearing a case concerning the rights of property owners and the interests of the Environmental Protection Agency’s (EPA) Clean Water Act. When Michael and Chantell Sackett purchased land in Idaho in 2004, they did so with the intention of building a home on the property. Their plans were quashed when the EPA stepped in and declared that the land the couple purchased constituted a wetland, subject to regulation under the EPA’s Clean Water Act because the land is located 300 feet from a large lake. The Court is now faced with the question; how far can the government regulate water in the United States? Additionally, what counts as ‘waters of the United States”? Although the Court is not expected to make a decision regarding this case until June of 2023, the repercussions of the court siding with the Sacketts could be detrimental.
On January 14, 2021, the United States Environmental Protection Agency (“EPA”) issued a Guidance Memorandum (hereinafter “Memo”) addressing the recent decision of the Supreme Court of the United States in the case County of Maui v. Hawai’i Wildlife Foundation, 140 S. Ct. 1462 (2020) regarding the regulation of water pollution under the Clean Water Act (CWA or “the Act”). The Memo outlined how the Court’s recent ruling in the County of Maui applies to the National Pollutant Discharge Elimination System (“NPDES”) permit program created under Section 402 of the Clean Water Act (hereinafter “Section 402”). The intent of the EPA in publishing the Memo is to help clarify the effect of the Court’s ruling in County of Maui for owners and operators of facilities subject to the regulation of the CWA, the primary regulatory framework for governing water pollution in the United States. The ruling in County of Maui expands the types of discharge that are subject to the CWA’s regulatory permit program and illuminates the steps required of facility owners and operators to comply with that framework.
Trump Tower is one of many buildings along the Chicago River that uses river water for its cooling systems. Trump Tower is the second largest intake system from the river. Illinois Attorney General, Madigan, filed a lawsuit against the property to ensure that such a large quantity user is not allowed to continue to violate the law. As the value of riverfront property rise, and development continues, enforcement of these types of permits is likely to increase.
The Obama administration’s “Clean Water Rule” was designed to control pollution in approximately 60% of the country’s bodies of water. The Rule primarily extended current federal regulations to smaller bodies of water, requiring that pollution of rivers and wetlands be held to the same environmental penalties as larger bodies of water. However, the Trump administration has suspended enforcement of the regulation for two years. During that time, they will re-consider the definition of “waters of the United States.” The Trump administration intends to release a new version this year.