On August 20, the Third Circuit U.S. Court of Appeals reversed a ruling by the U.S. District Court for the Western District of Pennsylvania that had dismissed a private tort lawsuit against a coal-fired power plant, alleging state tort law claims in negligence, nuisance and trespass. The Third Circuit held that under a 1987 U.S. Supreme Court case, International Paper Co. v. Oullette, allowing private tort suits against facilities holding Clean Water Act permits, such suits against facilities holding Clean Air Act permits are not preempted by the Clean Air Act. The court distinguished the 2011 Supreme Court case of… Read more
Tag: Clean Water Act
Environmental Groups Petition EPA to Regulate Runoff from Commercial and Institutional Sites
Ten environmental groups have petitioned the U.S. EPA to include commercial and institutional sites in the class of operations that require permitting under the National Pollutant Discharge Elimination System (“NPDES”). Currently, the Clean Water Act (“Act”) explicitly authorizes EPA to require NPDES permits for industrial and municipal discharges; however, there is no specific mention of commercial and institutional sites. The petitioners have alleged that, while not specifically mentioned in the Act, discharges from these operations could be regulated under the catch-all provision of the Act directing the EPA to require permits for any discharge the director determines “contributes to a… Read more
U.S. SUPREME COURT ISSUES NARROW DECISION IN CWA CASE
On January 8, 2013, the U.S. Supreme Court issued a unanimous decision in Los Angeles County Flood Control District v. NRDC, Inc., a closely watched case under the federal Clean Water Act (CWA) relating to pollutants from municipal storm water systems. Prior to the decision, there was speculation that the U.S. Supreme Court may use the case to address issues relating to the scope and jurisdiction of the CWA, but ultimately the Court issued a very narrow decision holding that the flow of water with pollutants from an improved portion of a navigable waterway into an unimproved portion of the… Read more
Nationwide Permits for Dredge and Fill Activity Challenged
In February, the Corps of Engineers (“Corps”) issued revised versions of its 48 nationwide permits (“NWPs”), authorizing certain categories of dredge and fill activities in wetlands and water bodies under Section 404 of the Clean Water Act. On the same day, the U.S. Fish and Wildlife Service (“FWS”) issued a Biological Opinion (“BiOP”) finding that the Corps’ NWPs do not adequately protect threatened or endangered species, and describing a series of reasonable and prudent alternatives (“RPAs”) to limit harms. Because FWS consultation is required under the Endangered Species Act (“ESA”), the BiOP resulted in the legality of activities authorized by… Read more
U.S. Supreme Court to Hear Scope of Clean Water Act Jurisdiction Case
In a break with longstanding EPA policy, the 9th Circuit has issued an opinion declaring that stormwater discharges from forest roads are regulated under the National Pollutant Discharge Elimination System (“NPDES”) permitting process. Historically, the Environmental Protection Agency (“EPA”) has considered runoff of rain from forest roads outside of the scope of NPDES permitting, and it has been left to individual states to control runoff by implementing best management practices (“BMPs”). If the Supreme Court upholds the 9th Circuit ruling, the EPA’s longstanding position that runoff from forest roads does not require permits will be invalidated, and forest roads will… Read more
EPA: No Major Shift in Orders Issued Under Clean Water Act
Despite the U.S. Supreme Court ruling in March of this year, holding that compliance orders can be challenged in court, the EPA sees no major shift in its policy of issuing the orders under the Clean Water Act. In a seminar sponsored by the American Bar Association – American Law Institute, Mark Pollins, Director of EPA’s Water Enforcement Division, stated that the agency had no intention of stopping its use of the orders, and that he didn’t see a dramatic shift in how administration enforcement authority is used. In the wake of the Supreme Court ruling, however, Pollins said it… Read more
U.S. Supreme Court Issues Decision on Pre-Enforcement Judicial Review of EPA Compliance Orders
On March 21, 2012, the U.S. Supreme Court issued an unanimous decision in Sackett v. EPA, a closely watched case addressing the enforcement authority of the U.S. EPA under § 309 of the federal Clean Water Act (CWA). Without addressing the underlying substantive issue regarding the jurisdictional scope of the CWA, the Supreme Court held that a defendant is entitled to obtain judicial review of an EPA administrative compliance order prior to EPA taking any enforcement action regarding the order. In Sackett, two Idaho landowners received an administrative compliance order from EPA in which EPA (1) concluded that the Sacketts… Read more
Lenders: Beware of Potential Environmental Liabilities of Foreclosed Properties
Potential lender liability for contamination of foreclosed properties has been known for decades, and has been addressed by specific provisions in the federal Superfund law, among others. Less well known, but potentially as significant, is the liability a lender can incur by foreclosing on property that is under development, under the federal Clean Water Act and its state counterparts (the CWA). The CWA requires most construction projects to be permitted under either an individual NPDES permit, or a general permit for construction activities, either of which legalizes the discharge of stormwater runoff from sites under construction, as long as the… Read more
A recent federal ruling regarding the requirements of the Clean Water Act could affect how states manage water bodies within their jurisdiction.
The case of Anacostia Riverkeeper, Inc. v. EPA was brought by plaintiffs Anacostia Riverkeeper, Inc. and Friends of the Earth, Inc. to challenge U.S. Environmental Protection Agency’s (EPA) approval of a pollution control plan for the Anacostia River pursuant to the Clean Water Act (CWA). Under the CWA, states, including Washington D.C., are required to develop water quality standards for each navigable water body within their jurisdictions. These standards generally consist of expected uses of the water body and criteria defining the maximum level of pollution allowable to protect such uses. Following the implementation of technology-based pollution controls, the CWA… Read more
EPA Issues New Proposed CWA Jurisdiction Guidance
In its proposed Clean Water Act (CWA) jurisdiction guidance issued on April 27, EPA pulled back from its statement in an earlier draft guidance that the guidance would “increase significantly” the number of water bodies subject to the CWA. The proposed guidance did not, however, remove language about jurisdiction over tributaries to traditionally navigable waters and wetlands adjacent to those tributaries, to which lawmakers and industry had objected as an expansion of EPA’s view of jurisdiction from the Bush Administration. EPA’s guidance, proposed jointly with the Corps of Engineers, is being developed in response to widespread uncertainty about the jurisdictional… Read more