Jan 29, 2020

EPA Announces Plans to Revoke Obama Waters of the United States Rule

Water Pollution

The EPA is dramatically reducing the amount of U.S. waterways that receive federal protection under the Clean Water Act (“Act”).  The biggest change is a controversial move to rollback federal limits on pollution in wetlands and smaller waterways that were introduced less than five years ago by the Obama administration. Under the revised rule, bodies of water which form only after rainfall or only flow part of the year, are not subject to federal control.  This exception also applies to waste treatment systems, groundwater, prior converted cropland and farm watering ponds.  In announcing the new rule, EPA administration Andrew Wheeler… Read more


Sep 18, 2019

EPA Repeals 2015 Clean Water Rule

On September 12, 2019, the EPA signed a final rule repealing the Obama-era 2015 Clean Water Rule, temporarily reinstating the pre-2015 regulatory framework for determining which bodies of water are considered “Waters of the United States” qualifying for federal anti-pollution protections under the Clean Water Act. The pre-2015 regulations are currently in place in more than half the states, due to litigation over the Obama era rule. According to EPA Administrator Andrew Wheeler, the Trump administration is working on a replacement WOTUS rule, which is expected to take effect next year. Both the repeal and the anticipated new rule are… Read more


Mar 20, 2019

Groundwater Pollution Liability Under Clean Water Act to be Reviewed by U.S. Supreme Court

Groundwater Pollution

On February 19, the U.S. Supreme Court granted certiorari to review a unanimous decision by a panel of the Ninth Circuit Court of Appeals that underground wastewater injection into a groundwater channel that flows to the Pacific Ocean requires a permit under the Clean Water Act.  The Ninth Circuit decision, Hawai’i Wildlife Fund, et al v. County of Maui, 886 F.3d 737 (9th Cir. 2018), is one of two Circuit Court cases finding liability under the Clean Water Act for unpermitted discharges of pollutants to groundwater for which certiorari petitions are pending in the Supreme Court.  The Order issued on… Read more


Feb 13, 2019

Public Hearing Scheduled for Trump’s Water Rule Proposal

Trump's Water Rule Proposal - Contaminated Pond

The U.S. EPA announced on February 6 plans to hold public hearings in Kansas City on February 27 and 28 to discuss the Trump administration’s attempt to clarify which waters and wetlands receive protections under the Clean Water Act (“CWA”).  The water rule proposal is an attempt to rewrite the Obama administration’s Clean Water Rule which the Trump administration believes is overreaching in scope.  The proposed rule (RIN:2040-AF75), still protects rivers and lakes, but not isolated ponds and wetlands.  Protection of intermittent streams, would be based on a complicated formula and based on average flow in a typical year. For… Read more


Oct 31, 2018

Additional Stormwater Regulation on the Horizon in California—and Elsewhere?

Stormwater: clogged sewer

After a ruling by Judge Stephen V. Wilson of the U.S. District Court for the Central District of California in Los Angeles Waterkeeper, et al v. Pruitt, et al, case number 2:17-cv-03454 (August 9, 2018), additional permitting requirements for stormwater discharges may be on the horizon in California and elsewhere.  Judge Wilson’s ruling requires that where EPA has determined that stormwater discharges are contributing to water quality impairment in a watershed, it must “either (1) require NPDES permits for the discharges or (2) enforce [the Clean Water Act’s} total proscription of discharges of pollutants” without a permit. The Los Angeles… Read more


Mar 5, 2018

Federal Appellate Court Rules That CWA Applies To Groundwater Discharges

Groundwater in pipe

On February 1, 2018, the U.S. Court of Appeals for the Ninth Circuit issued a decision concluding that the federal Clean Water Act (CWA) applies to claims involving the discharge of pollutants to groundwater which ultimately migrate to surface waters. In Hawaii Wildlife Fund v. County of Maui, the Ninth Circuit (which covers federal courts in the states of Hawaii, California, Oregon, Alaska, Nevada, Idaho, Arizona, Montana and Washington) affirmed a lower court’s grant of summary judgment to the plaintiff environmental organizations and held that the defendant-county was in violation of the CWA in regard to its decades-old practice of… Read more


Jan 23, 2018

Supreme Court Rules Challenges to WOTUS Rule Must be Brought in District Court

Waters of the United States (WOTUS) Rule

In a unanimous decision issued on January 22, 2018, the Supreme Court held that challenges to the WOTUS Rule must be reviewed first in federal district court, reversing the Sixth Circuit’s ruling with instructions to dismiss for lack of jurisdiction. The Supreme Court’s decision results in a lift of the national stay of the WOTUS Rule ordered by the Sixth Circuit, which could make the Rule’s provisions enforceable, at least until another court issues a national stay of the Rule. In 2015, the EPA and Army Corps of Engineers proffered a definition of the term “waters of the United States”… Read more


Oct 10, 2017

TVA Appeals U.S. District Court Order for Removal of Coal Ash

Coal Energy Plant

The TVA has asked the U.S. Court of Appeals for the Sixth Circuit to review an August 4 Order by the U.S. District Court for the Middle District of Tennessee to dig up and remove coal ash from its Gallatin, Tennessee site.  In response to a lawsuit filed by conversation groups in April of 2015, the U.S. District Court agreed that violations of the Clean Water Act mandated “closure by removal” of the coal ash.  According to the TVA, the estimated cost to dig up and move the coal ash from its current location is $2 billion.  TVA officials have… Read more


Aug 23, 2017

Georgia Federal Court Rules That CWA Applies to Groundwater Discharges

Groundwater

On May 12, 2017, the U.S. District Court for the Middle District of Georgia issued a decision concluding that the federal Clean Water Act (CWA) applies to claims involving the discharge of pollutants to groundwater that it is hydrologically connected to surface waters.  In Flint Riverkeeper, Inc. v. Southern Mills, Inc., the district court denied the defendant’s motion to dismiss the plaintiffs’ citizen suit alleging violations of the CWA as a result of discharges of industrial wastewater from a land application system (LAS) operated by the defendant dyeing and finishing facility in Molena, Georgia.  The plaintiffs alleged, among other things,… Read more


Apr 7, 2017

Coal Ash Decision Expands Clean Water Act to Include Groundwater Discharges

groundwater Pipe

On March 23, the District Court for the Eastern District of Virginia held that Dominion Power’s discharge of pollutants via a groundwater pathway was in violation of the Federal Clean Water Act (CWA). Sierra Club had filed a citizen suit against Dominion, arguing that discharges from coal ash ponds and related facilities were discharging pollutants including arsenic via groundwater to the Elizabeth River. The decision is notable in that prior to the March 23 decision, very few courts had considered the issue of authority under the CWA to address discharges to groundwater. Generally, EPA and state agencies have not sought… Read more