Category Archives: Water

Subscribe to Water RSS Feed

Potential New Tools to Sue for a Faster Cleanup

Soil or groundwater cleanups can take a long time. When one person conducts the cleanup and another has an interest in its completion, the two can disagree over the pace of the project. That is typically a three-party issue involving the regulator—for example, the Environmental Protection Agency or the Department of Environmental Protection. Resolving the … 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

Successive Owners and an Obligation to Restore a Stream

Earlier this month, the Pennsylvania Commonwealth Court decided Becker v. Department of Environmental Protection, No. 560 C.D. 2017 (Pa. Commw. Ct. Dec. 1, 2017), a case focused primarily on what constitutes a “watercourse” or “stream” under the Pennsylvania Dam Safety and Encroachments Act. However, the court also considered whether the Department of Environmental Protection (DEP) … Continue Reading

WOTUS and its 2-Step Repeal

Paul M. Seby, a shareholder in Greenberg Traurig’s Environmental Practice, authored the article, “WOTUS Is Caught in a Whirlpool of Litigation—Is It Coming Back Around?” published in The National Law Journal. This article examines the future of the 2015 “Waters of the United States” (WOTUS) Rule as the EPA and the Army Corps of Engineers … Continue Reading

Lessons of Hurricane Irma — State of Florida Focus on Hurricane Preparedness and Infrastructure

In response to the widespread impacts of Hurricane Irma in Florida (all coastlines and virtually every community), Speaker Corcoran of the Florida House of Representatives has created a new Committee on Hurricane Response and Preparedness. Speaker Pro Tempore Jeanette Nunez of Miami will chair the 16-member bipartisan Select Committee whose focus will be to gather … Continue Reading

Hurricanes Harvey & Irma: Controlling Water, Mold, Bacterial Fallout

Six Tips on Managing Water Damage, Mold Growth, and Bacterial Threats As Florida, Georgia, South Carolina, Texas, and other impacted areas begin the journey to recovery after Hurricanes Harvey and Irma, property owners are faced with the challenge of addressing water damage, preventing or remediating mold growth, and heading off bacterial threats from potentially contaminated … Continue Reading

Safe Drinking Water Act Does Not Preempt Flint Plaintiffs’ Section 1983 Claims

On July 28, 2017 the Sixth Circuit Court of Appeals reversed two lower court rulings and remanded two cases pertaining to the lead-contaminated water crisis in Flint, Michigan, concluding that plaintiffs’ claims under 42 U.S.C. § 1983 for deprivation of their federal rights were not preempted by the Safe Drinking Water Act (SDWA) (Beatrice Boler, … 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

Developments in Recent NY Medical Monitoring Claims

As readers of this blog know, we have been closely following developments regarding claims for medical monitoring.  (Medical Monitoring Claims in Illinois, Part 1; Medical Monitoring Claims in Illinois, Part 2.) A recent decision arising out of Hoosick Falls, New York, allowed Plaintiffs’ request for a medical monitoring fund to survive defendants’ motion to dismiss. On … Continue Reading

Perfluorinated Chemicals – Drinking Water & Fast Food Packaging

Manufacturers, users, and distributors of PFOS and PFOA have faced litigation across the United States by plaintiffs alleging contamination of drinking water.  The claims range from personal injury to diminution of property value.  A recent study of PFAS in fast food packaging suggests possible health concerns associated with using certain PFASs in fast food packaging.  … Continue Reading

EPA Issues Final Hydraulic Fracturing Report, Concluding that The Practice “Can Impact Drinking Water Resources under Some Circumstances”; Follow-on Federal Regulation Highly Unlikely

When Congress first tasked the Environmental Protection Agency in 2009 with studying the impacts of hydraulic fracturing on drinking water resources, pundits on both sides of the debate collectively held their breath: at last, they thought, there would be an independent, comprehensive, scientific study of the oil and gas extraction technique. Seven years in 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

U.S. EPA Declines to Require Permits for Stormwater Discharges from Commercial Properties

How to regulate stormwater discharges from impervious areas such as parking lots remains a hotly disputed environmental issue. Most recently, U.S. EPA Region 9 rejected a petition filed by environmental advocacy groups under the federal Clean Water Act calling for regulation of stormwater discharges into the Alamitos Bay/Los Cerritos Channel watershed in Los Angeles County … Continue Reading

Multiple Challenges Filed Against Massachusetts Small MS4 Stormwater General Permit

The long odyssey of the Massachusetts Small MS4 stormwater general permit continues – the latest chapter involving four separate appeals filed in two courts seeking to modify the permit’s terms.  Issued by U.S. EPA New England, the general permit authorizes stormwater discharges from small municipal separate storm sewer systems (“MS4”) located in Massachusetts. While the … Continue Reading

U.S. EPA Settles Public Interest Groups’ Challenge to Industrial Stormwater Multi-Sector General Permit

U.S. EPA recently entered into a settlement agreement with public interest groups regarding stormwater permitting requirements that will likely have significant consequences to industrial stormwater dischargers throughout the U.S.  In states not authorized to issue Clean Water Act permits (currently Massachusetts, New Hampshire, Idaho and New Mexico), USEPA retains responsibility for regulating stormwater discharges associated … Continue Reading

Army Corps’ Jurisdictional Determinations Are Immediately Appealable

As previously covered by this blog, on May 31, in a unanimous ruling, the eight-member U.S. Supreme Court held that a final determination by the U.S. Army Corps of Engineers (Army Corps) as to whether a property contains “waters of the United States,” subject to Clean Water Act regulations, is a final agency action subject … Continue Reading

Brexit: Environmental Law Implications for the Chemicals Sector

This note addresses the possible legal impact of Brexit on the chemicals sector.  It is one of a series of GTM Alerts designed to assist businesses in identifying the legal issues to consider and address in response to the UK’s referendum vote of 23 June 2016 to withdraw from the European Union.   While Brexit … 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

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

EPA Tightens Regs On Power Plant Wastewater Discharges

From Kathleen Kline of GT Philadelphia: On September 30, 2015, the United States Environmental Protection Agency (“EPA”) finalized a proposed rule to regulate wastewater discharges from power plants.  The new rule sets limits on dissolved pollutants permitted in these discharges, and focus on mercury, selenium, and arsenic—toxic metals previously unregulated in this context. Since the 1980s, … Continue Reading

Clean Water Rule: Confusion Rains Down

The Clean Water Rule, recently promulgated by the United States Environmental Protection Agency (USEPA) and the United States Army Corps of Engineers (Corps), continues to generate controversy, confusion and regulatory uncertainty.  Following decades of rulemakings and legal challenges over the scope of the Clean Water Act’s (CWA) jurisdiction, the Clean Water Rule is the most … Continue Reading

Third Circuit Upholds EPA’s Authority for Chesapeake Bay TMDL

The Third Circuit recently determined that EPA acted within its statutory authority in publishing the Chesapeake Bay TMDL in American Farm Bureau Federation v. United States Environmental Protection Agency, No. 13-4079 (3d Cir. July 6, 2015).  My column for the Pennsylvania Law Weekly discusses the decision and the implications for Pennsylvania, a state that did … Continue Reading
LexBlog