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: CWA
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
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
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