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In 2018, the Fourth, Sixth, and Ninth Circuits addressed whether groundwater with a sufficient hydrological connection to navigable surface water should fall within the scope of the Clean Water Act. In two simultaneously released decisions, the Sixth Circuit held that the Clean Water Act does not apply to hydrologically connected groundwater. Conversely, the Fourth and Ninth Circuits agreed that the Clean Water Act does cover hydrologically connected groundwater.
The National Environmental Policy Act requires federal agencies to engage in a public participation process when making decisions that affect the environment. The technical complexity of the NEPA public participation process blocks the public from participating in an agency’s decision-making process, and agencies often struggle to take public comments seriously while creating Environmental Impact Statements.
This past June 2018, the U.S. Supreme Court affirmed a Ninth Circuit decision interpreting the treaties of twenty-one tribes in western Washington to include a right to not have salmon habitat so depleted that it prevented significant salmon numbers from reaching the tribes’ accustomed fishing grounds. The basis of this litigation was Washington State’s culverts, structures built to allow roads to cross over streams.
Native American tribes have an extensive history of resisting uranium extraction on and near their reservations. Over the years, tribes have employed a myriad of approaches to combat efforts to license new uranium extraction projects. These efforts include pursuing extraction bans, advancing human rights violation arguments, and intervening on project licensing proceedings before the Nuclear Regulatory Commission.