Clean Water Act Archives

Mar 5, 2018

Federal Appellate Court Rules That CWA Applies To Groundwater Discharges

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

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

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

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

Mar 9, 2017

President Trump Issues Executive Order Regarding Waters of the U.S. Rule

President Donald Trump on February 28, 2017, issued an Executive Order directing review and revision or rescission of the “Clean Water Rule: Definition of ‘Waters of the United States,’” 80 Fed. Reg. 37054 (June 29, 2015). The Rule defines what “waters of the United States” are under the federal Clean Water Act for permitting purposes. Numerous states and other organizations had filed lawsuits challenging the Rule issued by the U.S. EPA during the President Obama administration and the Rule is currently stayed pending those legal challenges. Immediately following the Executive Order, the EPA and the Army Corps of Engineers provided… Read more

Jan 25, 2017

Water Transfer Rule Upheld

In a split 2-1 decision, the 2nd Circuit Court of Appeals affirmed EPA’s 2008 “Water Transfer Rule” which exempted water management facilities from obtaining Clean Water Act National Pollutant Discharge Elimination System permits. The Water Transfer Rule was an outgrowth of the 2004 Supreme Court decision in South Florida Water Management District v. Miccosukee Tribe, and is important for flood control projects, water supply particularly in arid areas, dams and hydropower generation, and related activities involving the necessary movement of water. Several environmental organizations and governments challenged the rule in the District Court for the Southern District of New York… Read more

Jan 5, 2016

Wetlands, Finality of Jurisdictional Determinations

On December 11, 2015, the U.S. Supreme Court agreed to review whether a Clean Water Act (CWA) jurisdictional determination issued by the U.S. Army Corps of Engineers (Corps) constitutes final agency action subject to judicial review. Previously, three federal appeals courts could not agree on whether the nonbinding, jurisdictional determination was final agency action that could be challenged in federal court under the Administrative Procedures Act (APA). While the CWA does not require the Corps to issue jurisdictional determinations, the approval of one indicates that the Corps will require the landowner to obtain a Section 404 Dredge and Fill Permit… Read more

Aug 24, 2015

Corps’ Memo Declares Economic, Technical Support Documents for New Water Rule Flawed

In a May 15, 2015 memorandum published just prior to the U.S. EPA’s issuance of regulations clarifying the scope of the Clean Water Act (“CWA”), the Corps of Engineers (“Corps”) claims that the economic and technical analysis provided by the Corps to the U.S. EPA regarding Section 404 permitting spanning fiscal years 2009 to 2014 was misapplied by the EPA in crafting the CWA rule which was jointly published on June 2015. The memo claims that the Corps provided the EPA with raw dredge-and-fill permitting data and that the Corps had no role in selecting or analyzing the data that… Read more

Aug 10, 2015

EPA Restricts Permit Shield in New Industrial Stormwater General Permit

In its updated Clean Water Act Multi-Sector General Permit for stormwater discharges from industrial activities issued June 5, EPA has explicitly provided that non-stormwater discharges of any pollutants are not authorized and will either have to be eliminated or covered by a separate individual NPDES permit. Substantial litigation has occurred under the previous version of the industrial stormwater general permit, which did not contain the explicit ban, over whether a permittee is shielded from liability for pollutants not specifically listed in its coverage under the general permit. Under the Fourth Circuit’s landmark decision in Piney Run Preservation Association v. County… Read more