Tag Archives: Clean Water Act

Government Repeals Obama-Era Waters of the U.S. Rule: Major Supreme Court Decision to Come, but ‘Regulatory Patchwork’ Remains

On Sept. 12, 2019, the U.S. Environmental Protection Agency and the Department of the Army followed through on an early Trump administration promise to repeal a 2015 jurisdictional rule defining the scope of the government’s authority under the Clean Water Act. See Definition of “Waters of the United States”—Recodification of Pre-Existing Rules (pre-publication version). Dubbed … Continue Reading

Maryland Court of Appeals Limits Bases for Challenging CWA Permits under the Chesapeake Bay TMDL

A recent state appellate court decision sharply limited the bases on which Clean Water Act permittees may challenge permitting requirements imposed to comply with a federal Chesapeake Bay “Total Maximum Daily Load” (“TMDL”), often described as a watershed-wide “pollution diet.” The decision directly impacts municipalities with separate stormwater sewer (“MS4”) permits, as well as certain … Continue Reading

FDA Findings on PFAS Chemicals in U.S. Food and Drinking Water Supply

This week the U.S. Food and Drug Administration (FDA) confirmed it had conducted a study finding that certain types of per- and poly-fluoroalkyl substances (PFAS) have entered American food and drinking water supplies; however, “[c]urrent FDA testing has found that most foods have no or very low levels of PFAS.” The FDA’s efforts are ongoing … Continue Reading

Contradicting the Department of Justice, EPA Changes Stance on Groundwater Discharges

Contradicting the argument raised by the United States in a recent amicus brief in the U.S. Court of Appeals for the Ninth Circuit, the EPA finalized new guidance on April 12, 2019, concluding that the Clean Water Act “is best read as excluding all releases of pollutants from a point source to groundwater from NPDES … Continue Reading

In Honor of World Water Day…

March 22 is World Water Day! In honor of this day, here is a roundup of GT’s recent water-related insights: EPA Announces “Most Comprehensive Cross-Agency Action Plan for a Chemical of Concern” in History of EPA for PFAS New York to Propose Stringent Drinking Water Standards EPA’s New WOTUS Rule Recent Opinions Hold Differing Views … Continue Reading

EPA’s New WOTUS Rule

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

Recent Opinions Hold Differing Views on Point Source Discharges Into Waters

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

Five Questions Likely to Flow From ‘Water-to-Water’ Cases

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

Environmentalists Score Clean Water Act Victory Which May Affect Permitting Status

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

The EPA’s Call for Identification of Rules to be Changed Results in a Majority of Comments in Support of EPA Regulation

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

Federal Court Rejects Citizen Suit to Force Stormwater Permitting Program

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

Supreme Court Allows Immediate Challenges to Army Corps’ Clean Water Act Determinations

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

GT Philadelphia at the PA Environmental Law Forum

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 Takes Important Step Towards Clean Water Act Permitting Delegation

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

Sixth Circuit Court of Appeals Temporarily Stays Implementation of the Clean Water Rule

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

Clean Water Act Jurisdiction under the Newly Issued Clean Water Rule

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

NY Appellate Court Issues Important Decision for Municipal Stormwater Regulation

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

Stormwater’s Day in the Sun

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

Massachusetts High Court Limits the Scope of Article 97

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

Can You Really Go to Jail for Violating a Stormwater Permit?

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

Stormwater in New England: When It Rains, It Pours

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

EPA and Corps of Engineers Extend Comment Period for Revised Guidance on Identifying Waters Subject to the Clean Water Act

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. … Continue Reading
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