On Dec. 11, 2018, EPA and the U.S. Army Corps of Engineers (the Agencies) released a proposal to revise the regulatory definition of “waters of the United States” (WOTUS), as found in the federal Clean Water Act (CWA). The proposal represents another chapter in the long-running debate over the scope of federal authority. The CWA … Continue Reading
Kathleen Kline authored an article in The Legal Intelligencer titled “Recent Opinions Hold Differing Views on Point Source Discharges Into Waters.” The article explores two recent opinions from the U.S. Court of Appeals for the Sixth Circuit regarding the growing cacophony over Clean Water Act jurisdiction, both holding that the act does not regulate pollution that reaches surface … Continue Reading
In two recent decisions, Hawai’i Wildlife Fund v. County of Maui and EQT Production v. Department of Environmental Protection, courts have considered the nuances of “water‐to-water theory” and what constitutes a single discharge. While these cases may seem particularly distinct, one decided in the U.S. Court of Appeals for the Ninth Circuit regarding discharges into … Continue Reading
While litigants and the U.S. Environmental Protection Agency (EPA) continue to debate the fate of the agency’s 2015 rule defining jurisdictional waters under the Clean Water Act (Act), environmentalists have scored a victory – one that may cause a widespread re-evaluation of permitting status. Last week the Ninth U.S. Circuit Court of Appeals upheld a … Continue Reading
We write to follow up on last month’s blog post, GT Alert, and webinar on the April 13 issuance of a federal register notice by the U.S. Environmental Protection Agency (EPA) calling for submissions to identify regulations for repeal, replacement, or modification. The agency set a 30-day timeframe for response. Despite that tight timeframe, the … Continue Reading
Last week, a federal district court in Rhode Island dismissed a citizen suit that sought to radically expand Clean Water Act stormwater permitting programs. In Conservation Law Found’n v. U.S. Environmental Protection Agency, Civil Action No. 15-165-ML, the plaintiff attempted to invoke a rarely used provision in the Clean Water to mandate that the U.S. … Continue Reading
On May 31, 2016, in a unanimous ruling, the United States Supreme Court held that the Army Corps’ determination as to whether “protected waters,” subject to Clean Water Act regulations, are present on a property is subject to judicial review. See United States Army Corps of Engineers v. Hawkes Co., Inc. No. 15-290 (U.S. May … Continue Reading
Recently, lawyers from Philadelphia’s Environmental Practice Group attended the Pennsylvania Environmental Law Forum in Harrisburg, Pennsylvania. Organized by the Pennsylvania Bar Institute, the annual Forum includes educational presentations by experienced practitioners along with networking events. Jillian Kirn gave a presentation on cooling water intake structures commonly used by industrial facilities, such as power plants, and the … Continue Reading
Massachusetts Governor Charlie Baker has filed legislation that moves Massachusetts one step closer to a long-desired goal: authorization to administer the Clean Water Act NPDES permitting program. Currently, Massachusetts is one of only four states (in addition to Idaho, New Hampshire, and New Mexico) that has not been “delegated” this authority. A number of the … Continue Reading
In the latest chapter of the ongoing Clean Water Rule saga, the Sixth Circuit Court of Appeals today stayed implementation of that rule. Jointly promulgated by USEPA and the Army Corps of Engineers on June 29, 2015 (80 Fed. Reg. 37,054), the Clean Water Rule went into effect on August 25, 2015. The rule substantially … Continue Reading
More than 40 years after Congress passed the landmark Clean Water Act, the jurisdictional reach of that statute remains a contentious legal and political issue. By prohibiting the discharge of pollutants to “navigable waters” without a permit, the Act expressly limits its protections to “navigable waters.” The statute defines “navigable waters” as “waters of the … Continue Reading
By Steve Russo and Adam Silverman Yesterday, the Appellate Division’s Second Department of the Supreme Court of New York issued an important decision relating to municipal stormwater control programs and the use of general permits under the Clean Water Act in Natural Resources Defense Council v. New York State Dept. of Environmental Conservation, Nos. 2012-02913 … Continue Reading
For those following stormwater regulatory issues, 2013 is proving to be a very interesting year. Last week, the U.S. Supreme Court upheld a regulation exempting stormwater flows from logging roads from permitting under the Clean Water Act. This is the third federal court decision of the year to address the scope of federal authority to … Continue Reading
The Massachusetts Supreme Judicial Court (SJC) recently held that the redevelopment of land taken for urban renewal is not subject to legislative approval under Article 97 of the Massachusetts Constitution. This constitutional provision mandates that any disposition or change in use of lands held for certain public purposes must first be approved by a two-thirds … Continue Reading
A recent criminal enforcement case confirms that the answer to this question is “yes.” In what it acknowledged was one of the first such cases in the country, the U.S. Department of Justice (USDOJ) successfully prosecuted a construction contractor for criminal violations of a stormwater construction general permit covering discharges from a commercial development project in Washington. … Continue Reading
Last week was a busy week for federal stormwater regulators in New England, with the announcement that three separate stormwater-related enforcement cases had been settled. Two of these cases involved municipal sewer systems operated by Boston and Gloucester and the third involved a horse race track that the regulators determined was a concentrated animal feeding … Continue Reading
David Mandelbaum's monthly column in The Legal Intelligencer/Pennsylvania Law Weekly discusses Sackett v. EPA as does a recent GT Alert by Jerry Stouck and David Weinstein. Sackett allows pre-enforcement review of Clean Water Act enforcement orders.
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The U.S. EPA and the U.S. Corps of Engineers have extended the comment period on the proposed joint guidance issued on May 2, 2011. The proposed guidance describes how the agencies will identify waters subject to regulation under Section 404 of the Clean Water Act, expanding the scope of Clean Water Act jurisdiction under existing guidance.
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USEPA is sending out questionnaires to owners and developers as part of its initiative to develop regulations aimed at controlling post-construction stormwater discharges from commercial properties.
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