Rejecting the Trump administration’s novel 2019 interpretation that the Clean Water Act never requires permits for pollutant discharges to groundwater, the United States Supreme Court handed down, on April 23, its eagerly awaited decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, et al. The 6-3 majority held that Section 301 of the Clean … Continue Reading
In an April 15 ruling in Northern Plains Resource Council, et al. v. Army Corps of Engineers, Judge Brian Morris of the U.S. District Court for the District of Montana vacated the U.S. Army Corps of Engineers’ Clean Water Act Nationwide Permit 12 and enjoined the Corps from using NWP 12 to authorize any dredge … Continue Reading
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
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
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
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
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
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
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
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
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
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 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
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
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
On December 3rd, the DC Circuit heard oral argument in a Clean Air Act case that may set important precedents for EPA’s “risk and technology reviews” of existing Clean Air Act emission standards. National Association for Surface Finishing v. EPA involves a challenge to EPA’s revised chromium emission standards brought by Greenberg Traurig client … Continue Reading
The U.S. Environmental Protection Agency finalized standards today that are designed to protect fish and other aquatic life drawn each year into cooling water systems at large power plants and factories. The rule addresses impingement issues and heat damages that can be caused by cooling water intake structures at large industrial facilities and power plants. … Continue Reading
Yesterday (April 21, 2014) the rule jointly proposed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to define “waters of the United States” under the Clean Water Act (CWA), was published in the Federal Register. The 90-day period for public comment on the proposed rule starts today. The rule has … Continue Reading
In a long-running controversy over nutrient standards for Florida waterways, five environmental groups filed a notice of appeal yesterday in the U.S. Circuit Court of Appeals for the Eleventh Circuit challenging the order of U.S. district court Judge Hinkle. Click here for a copy of the notice of appeal. Specifically, the Florida Wildlife Federation, the … Continue Reading
