On Wednesday, January 25, 2024, the U.S. District Court for the Northern District of California dismissed a challenge to a 2020 rule by the Environmental Protection Agency (EPA) revising regulatory requirements for water quality certification under Section 401 of the Clean Water Act. That rule came under challenge by environmental groups and Democratic-led states and was initially vacated by the district court but then reinstated by the Ninth Circuit in 2023 and remanded to the district court for additional review. However, on September 27, 2023, EPA promulgated a new rule that superseded the 2020 rule and replaced it with new Section 401 requirements, rendering challenges to the 2020 rule moot. Even as this 2023 rule is being challenged, the court stated that at present, there is no longer a pending controversy as to which effective relief can be granted. But because the 2020 rule was dismissed without prejudice, the court stated that if the 2023 rule is enjoined and the 2020 rule were to be resurrected, plaintiffs can reinitiate their challenge. Additional information on the issue is provided in prior posts on the vacatur here and 2023 rule here.
On Monday, the U.S. Court of Appeals for the Fourth Circuit affirmed a ruling by the U.S. District Court for the District of South Carolina finding that shrimping trawlers that disturb ocean floor sediment and discard other fish and marine organisms, or “bycatch,” after extracting shrimp from their nets are not discharging a pollutant under the Clean Water Act (Act). In so doing, the court made clear that neither discarding bycatch nor kicking up sediment already on the ocean floor constitutes the discharge of a pollutant or dredge or fill material that would otherwise require a permit by the Act.