As previously reported in SGR’s environmental and sustainability newsletter, the U.S. EPA and the U.S. Corps of Engineers jointly published a final clean water rule on June 29, 2015, intended to clarify the jurisdictional limits of federal water for purposes of the Clean Water Act. The rule, which takes effect on August 25, but which is considered final on July 13 for purposes of judicial review, is in danger of being unfunded by Congress when they return to session following the July 4 recess. The House is set to vote on the fiscal year 2016 spending bill for the Interior… Read more
Tag: Clean Water Act
WOTUS Rule Challenges
As previously reported in the Smith, Gambrell & Russell Environmental & Sustainability Newsletter, on June 29, 2015, the Environmental Protection Agency and the U.S. Army Corps of Engineers released their final rule defining the “waters of the United States” (WOTUS) and the jurisdictional scope of the Clean Water Act. The rule is in response to the U.S. Supreme Court’s 2006 decision in Rapanos v. United States, 547 U.S. 715 (2006), and will go into effect on August 28, 2015. The rule is expected to have significant impact on a number of industries, including farming, energy transmission, transportation, construction, and agriculture. On… Read more
EPA Developing Best Practices To Report Industrial Chemical Discharges
Plans to develop best management practices for Clean Water Act permit writers and pretreatment coordinators are underway as The Environmental Protection Agency responds to a September 2014 report by the EPA Inspector General that criticized the agency for being ineffective at regulating discharges of hazardous chemicals to and from wastewater treatment plants. The agency also plans to clarify reporting guidelines under 40 C.F.R. 403.12(j) and 403.12(p) that spell out reporting procedures for industrial users that discharge chemicals to treatment plants. Updates to a variety of pretreatment guidance documents including a 1994 manual for industrial users to conduct inspection and sampling… Read more
U.S. EPA Outlines National Strategy for Use of Green Infrastructure by Local Governments
Guidance recently issued by the U.S. EPA details the Obama administration’s national strategy for encouraging municipalities to utilize existing and new green infrastructure to help alleviate climate change. The EPA guidance document, which was released on February 22 and can be read in its entirety here, encourages municipalities to review local ordinances and planning documents to encourage the use of green infrastructure techniques which mimic natural processes such as the use of vegetation to slow down the flow of stormwater and to capture runoff before undiluted pollutants from paved surfaces can enter stormwater and combined sewer sanitary systems. Such techniques… Read more
Sixth Circuit Upholds Permit Shield Defense Under CWA General Permits
A Sixth Circuit Court of Appeals panel has ruled for the first time that the Clean Water Act’s (CWA) permit shield defense protects a permittee covered under a General Permit from a citizen suit alleging discharges of toxins not specifically authorized by the permit. The 2-1 ruling issued January 27 in Sierra Club v. ICG Hazard, No. 13-5086 (6th Cir. Jan. 27, 2015) is the first federal appellate decision extending the two-part permit shield test adopted by the Fourth Circuit in Piney Run Preservation Association v. County Commissioners of Carroll County, MD, 268 F. 3d 255 (4th Cir. 2001) to… Read more
EPA Plans to Increase Chemicals to be Monitored in CWA Permits
In response to a report of its Inspector General (IG), EPA has announced plans to require wastewater treatment plants to monitor additional chemical pollutants and notify regulators when limits are exceeded. Issued September 29, the final IG report, entitled “More Action is Needed to Protect Water Resources From Unmonitored Hazardous Chemicals”, identified a gap in monitoring and reporting on over 300 chemicals that would be considered hazardous waste under the Resource Conservation and Recovery Act (RCRA), but are exempted from regulation because they are discharged to wastewater treatment plants. However, most publicly owned treatment works (POTWs) do not monitor for… Read more
Fourth Circuit Court of Appeals Narrows Clean Water Act Permit Shield
Finding that mining industry arguments in the case would “tear a large hole” in the Clean Water Act, a unanimous panel of the Fourth Circuit Court of Appeals upheld the liability of A&G Coal Corp. for discharges of selenium that were not authorized by its National Pollutant Discharge Elimination System (NPDES) permit for its mining activities at a site in Virginia. Southern Appalachian Mountain Stewards (SAMS), et al. v. A&G Coal Corp. (4th Cir., July 11, 2014). A&G had argued that the Clean Water Act (CWA) permit shield, under which discharge of a pollutant does not violate the CWA provided… Read more
Proposed Rule on U.S. Jurisdictional Waters Facing Heavy Criticism
On April 21, 2014, the U.S. Army Corps of Engineers and the Environmental Protection Agency (“EPA”) proposed a rule defining the scope of waters protected under the Clean Water Act (“CWA”). The purpose of the rule was to provide clarification after a number of Supreme Court cases which had cast doubt on the existing understanding of what constitutes federal water. The proposed rule contains more than 100 exemptions from federal jurisdiction; however, critics note that the qualifications to those exemptions will mean that exempt status will have to be determined on a case-by-case basis. Click here to read the rule… Read more
Federal Court in NY Invalidates EPA Water Transfer Rule
A ruling by the U.S. District Court for the Southern District of New York on March 28, invalidating a Bush-era EPA rule exempting transfers of water between two water bodies from National Pollutant Discharge Elimination System (NPDES) permitting requirements, could expose entities involved in such transfers—irrigation districts, drinking water utilities, stormwater systems, cities, counties and others—to citizen suits and other Clean Water Act (CWA) enforcement proceedings. Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 44 ELR 20068 (S.D.N.Y., No. 08-CV-5606, -8430, 3/28/2014). The Court remanded EPA’s 2008 rule to EPA for reevaluation. In 2003, the Supreme Court ruled in South… Read more
Proposed Changes to the Clean Water Act
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers on Tuesday issued a proposal, clarifying key exemptions and directions under the Clean Water Act. The proposal is said to provide greater protections for seasonal and rain-dependent streams as well as wetlands near rivers and streams. Protection of other waters having more uncertain connections with downstream water “will be evaluated through a case-specific analysis of whether the connection is or is not significant,” the agencies said. The proposed rule will be open for public comment for 90 days from publication in the Federal Register. For more information regarding… Read more