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Does the Clean Water Act Regulate Discharges of Pollutants to Hydrologically Connected Groundwater? Federal Courts Disagree

January 27, 2016

The Clean Water Act (“CWA”) prohibits the discharge of pollutants into “waters of the United States”[1] without a valid National Pollutant Discharge Elimination System (“NPDES”) permit.[2] The statute offers notoriously scant guidance as to what “waters of the United States” actually means. More

The Legacy of Sackett v. EPA: Supreme Court to Review Challenges to Army Corps’ Wetland Jurisdictional Determinations under CWA

January 27, 2016

Parties facing jurisdictional determinations (“JD”) made by the U.S. More

Congress’s Budget Compromise Lifts Crude Oil Export Ban and Extends Wind and Solar Tax Credits

January 21, 2016

On December 18, President Obama signed H.R. 2029, the “Consolidated Appropriations Act, 2016,” a nearly 900-page compromise budget bill. In an era noted for legislative stalemate, Congress brought the bill to the President’s desk the old-fashioned way: by including something for everyone. More

A New Approach by USFWS Over Wind Energy Avian Issues

January 21, 2016

In December of 2014, just six months after obtaining the first eagle take permit for a wind project, EDF Renewable Energy (EDF RE) completed negotiations over, and subsequently signed, an agreement (Agreement) with the United States Fish and Wildlife Service (USFWS) that exempts eight of EDF RE’s wind projects from liability for the past take of birds protected under the Migratory Bird Treaty A More

The President’s Environmental “Net Benefit Goal” – The White House Sets a New Approach to Mitigation

November 16, 2015

On November 3, 2015, President Obama issued a memorandum to the Secretaries of Defense, Interior and Agriculture, and the Administrators of the Environmental Protection Agency and National Oceanic and Atmospheric Administration directing them to revise their existing policies to incorporate a new “net benefit goal” for mitigating impacts from natural resource use.More

Environmental Insurance Alert—Change to Evidence Rules Threatens Policyholders’ Ability to Recover Under Historic Insurance Policies

September 2, 2015

As previously discussed in this newsletter,[1] historical insurance policies can cover environmental liabilities arising out of claims ranging from Superfund Sites (for example, the Portland Harbor and Lower Duwamish Waterway Superfund Sites) to the cleanup of a neighborhood gas station. More

Energy and Natural Resources Committee Sends Contrasting Energy Bills to Senate

August 26, 2015

On July 30, the Senate Energy and Natural Resources Committee voted to send to the full Senate two energy bills that originated in the Committee. One, the Energy Policy Modernization Act of 2015 (EPMA) is broad in its substantive scope, incremental in its approach, and received bipartisan support in the Committee. More

The Threat of Wildfire on Development in the West

August 26, 2015

I. Introduction

The threat of wildfire continues to grow across the western U.S. Fires are getting larger, causing more damage and cost more money to control and suppress. Several of the worst fire seasons in decades have occurred since 2000, with the problem growing each year. A number of fundamental factors contribute to the significant growth of wildfire threats. More

U.S. Fish & Wildlife Proposes Incidental Take Rule for Migratory Birds

June 17, 2015

On May 26, 2015, the United States Fish and Wildlife Service (FWS) issued a Notice of Intent (Notice) that initiated environmental review of a proposal to regulate the incidental take of most of the bird species found in the United States.[1] More

CERCLA Liability for Air Emissions? Ninth Circuit to Hear Appeal of District Court Decision That Could Expand Superfund Statute’s Reach

April 19, 2015

On December 31, 2014, the United States District Court for the Eastern District of Washington issued an order that has potential significantly to expand the reach of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[1] In Pakootas v. More

Got Mold? A Brief Guide to Liability and Notice Requirements

March 5, 2008

Thousands of mold-related lawsuits have been filed in the United States during the last decade. Prior to 2000, most mold claims were routinely settled for relatively nominal amounts of $5,000 or less. Today, mold claims by commercial developers and homeowners routinely exceed $100,000, and some are resolved for much higher amounts. More

Interior’s Sage Grouse Plans Raise Concerns for Industry, Politicians in 10 Western States

June 2, 2015

The Bureau of Land Management (BLM) and the U.S. More

EPA Issues New Multi-Sector General Permit for Stormwater Discharges

July 1, 2015

EPA recently issued a new multi-sector general permit under the Clean Water Act (“CWA”) governing stormwater discharges from industrial facilities.[1] The new permit is available to twenty-nine sectors of industry in jurisdictions where EPA is the permitting authority.[2] The permit has several key changes, including requ More

Sale of Used Transformers Does Not Give Rise to “Arranger Liability,” Fourth Circuit Holds

April 18, 2015

The Fourth Circuit Court of Appeals has become the most recent circuit court to weigh in on the distinction between when a party can be held liable as an “arranger” under CERCLA and when the party instead sells a “useful product” that contains hazardous substances. In Consolidation Coal Co. v. More

Adapting to Drought and Climate Change in the Upper Klamath Basin Comprehensive Agreement

July 1, 2015

Oregon’s Klamath Basin has long been known as a hotbed for water conflict. More