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Issue #2679
Issue #2679 Special Report
HIGHLIGHTS
On September 10, the House T&I Subcommittee on Water Resources and Environment reviewed the Corps’ implementation of recent WRDAs. Members focused on the Corps’ use of advanced forecasting and FIRO, nationwide applicability of FIRO, and clarity on WOTUS.
On September 5, the Ninth Circuit upheld a district court ruling that California’s Grasslands Bypass Project qualifies for the Clean Water Act’s agricultural return flow exemption, despite commingling with agricultural nonpoint source pollution. The Court found plaintiffs’ interpretation would effectively nullify the exemption, affirming that discharges remain exempt if they do not include additional point source discharges unrelated to crop production.
On September 16, EPA notified the U.S. District Court for North Dakota that it will no longer defend its 2024 Tribal Reserved Rights Rule, agreeing with states that the rule exceeded the agency’s Clean Water Act authority. EPA now supports vacatur of the rule, citing the Supreme Court’s Loper Bright decision and affirming that states, not EPA, have the primary responsibility for setting water quality standards.
On August 6, EPA closed comments on implementation challenges with the 2023 CWA §401 Water Quality Certification Improvement Rule, receiving a range of state views. States generally agreed on protecting state authority, the value of pre-filing meetings, clearer criteria for neighboring jurisdiction reviews, and the importance of cooperative federalism. California, Nevada, and Washington supported retaining the 2023 Rule’s activity-inclusive scope, while Idaho and Wyoming urged narrower interpretations tied closely to the discharge itself.