Another Ninth Circuit Clean Water Act Decision Promises More Litigation

Yesterday a split three-judge panel of the Ninth Circuit Court of Appeals determined that a clay manufacturer is entitled to a new trial of Federal Clean Water Act claims against it because the District Court had instructed the jury in the first trial to follow the Ninth Circuit's old Maui "fairly traceable" test for determining the reach of the Federal Clean Water Act instead of the Supreme Court's new "functional equivalence" test for determining the same thing.  So after years of litigation and two sets of EPA regulations also purporting to determine the reach of the Federal Clean Water Act, the parties now face more litigation and the rest of us continue to face the uncertainty inherent in the case by case determination of the reach of the Federal law.  That uncertainty will continue at least until one of the other two branches of the Federal Government do their jobs.