As I’ve previously discussed, whether a discharge to groundwater may be subject to Clean Water Act jurisdiction is currently in dispute. Now the 9th Circuit has weighed in, finding that point discharges to groundwater are subject to the Clean Water Act, so long as an ultimate discharge of pollutants to surface waters of the United States is “fairly traceable” to the discharge to groundwater. … More
Tag Archives: Waters of the United States
On Monday, the Supreme Court ruled that challenges to the WOTUS Rule must be heard in the district courts. At a certain level, the decision was easy and obvious – as evidenced by the absence of any dissent.
After all, the Clean Water Act does assign jurisdiction to the district courts of all cases under the Act other than in seven specifically identified categories,… More
On Monday, the 9th Circuit affirmed the conviction of a Joseph Robertson, Montana man who:
discharged dredged and fill material into the surrounding wetlands and an adjacent tributary, which flows to Cataract Creek. Cataract Creek is a tributary of the Boulder River, which in turn is a tributary of the Jefferson River—a traditionally navigable water of the United States.
This somewhat attenuated connection to a “traditionally navigable water” put the case in the crosshairs of those seeking to narrow the definition of “Waters of the United States.” Robertson appealed on two grounds relevant to this larger debate. … More
Earlier this week, EPA and the ACOE began implementing the Trump administration’s efforts to deconstruct the Obama rule defining “Waters of the United States” under the Clean Water Act. EPA and the ACOE submitted for Federal Register publication a proposed rule that would temporarily restore the WOTUS definition that existed prior to the promulgation of the Obama rule in 2015, while they go about drafting a narrower definition.… More
On Tuesday, President Trump issued another executive order on the environment, this time directing EPA to revisit the EPA rule defining Waters of the United States under the Clean Water Act. It’s a curious order, for a number of reasons.
First, Section 1 of the EO states as “Policy” that “minimizing regulatory uncertainty” is in the national interest. Well, the purpose of the WOTUS rule was pretty much to reduce the regulatory uncertainty surrounding the definition of WOTUS. … More
While the litigation over the WOTUS rule wends its tortuous way through the courts, EPA and the Corps have not been idle. Earlier this month, they jointly issued a memorandum on their plans for improving the permitting process. Among other measures, they have reemphasized their commitment to transparency, by making all jurisdictional determinations available on a single web site. The web site is now up and running and includes all JDs issued beginning in September.… More
The Clean Water Act regulates discharges of pollutants to waters of the United States. That term is not understood to include groundwater. The Sierra Club was unhappy about alleged discharges to groundwater from coal ash disposal facilities at the Chesapeake Energy Center power plant. The plant had a solid waste permit for the disposal facilities under Virginia law and, one can at least infer, was in compliance with the solid waste permit.… More
The Sixth Circuit Stays the Waters of the United States Rule: Just a Plain Vanilla Preliminary Injunction — Not!
Today, the Sixth Circuit Court of Appeals issued a nationwide stay against implementation of the “Waters of the United States” rule. The case is so weird, in so many ways, that I don’t even think I can count them. Here are a few.
- The Court stayed the case, even though, as the dissent pointed out, there is question whether it even has jurisdiction to hear the appeal.…
Two Days, Three Decisions, One Big Mess: Welcome to Judicial Review of the Waters of the United States Rule
On Wednesday, Judge Irene Keeley of the Northern District of West Virginia held that district courts do not have jurisdiction to hear challenges to EPA’s rule defining waters of the United States, because courts of appeal have original jurisdiction over “any effluent limitation or other limitation.” Yesterday, Judge Lisa Wood of the Southern District of Georgia agreed.
Later yesterday, Judge Ralph Erickson of the District of North Dakota disagreed. … More
Anyone who reads this blog must have seen the explosion of reports in the trade press that EPA ignored significant criticism from the Army Corps of Engineers in promulgating its Waters of the United States rule. I have not seen the memoranda, but, based on the press reports, it appears that EPA ignored criticism both that it was too stringent in some areas and that it was not sufficiently stringent in others. … More
Yesterday, EPA and the Army Corps finally released their long-awaited rule defining “waters of the United States.” I’m actually with EPA and the Corps on this one. It’s an important rule, and I’m glad that EPA and the Corps did finally give up on the guidance approach and issue a rule, but here’s why I don’t see this as earth-shattering.
It’s All Connected: EPA Finally Determines that the Science Supports an Expansive Definition of Waters of the United States
On Thursday, EPA issued its final report on Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence. The Connectivity report is intended to support EPA’s rule clarifying the definition of waters of the United States. I know that groups on all sides will be providing their two cents, but of this I am sure enough to abandon my usual reluctance to speculate: This report will be more than sufficient to insulate EPA’s final rule from judicial challenge. … More
The Science Advisory Board has now provided its advice to EPA and the ACOE concerning their proposed rule clarifying the definition of “waters of the United States” under the Clean Water Act. In a brief letter that can only worry the National Farm Bureau and embolden those who thought that the EPA/ACOE proposal did not go far enough, the SAB concluded that:
the available science supports the conclusion that the types of water bodies identified as waters of the United States in the proposed rule exert strong influence on the physical,… More
Over the past few months, I worked with a number of colleagues from the American College of Environmental Lawyers to provide the Environmental Council of the States with a balanced review of the history and background of how the term “waters of the United States” has been defined and interpreted under the Clean Water Act. In announcing the release of the memorandum, Dick Pedersen, President of ECOS,… More
Last week, what appears to be a draft (so long that it is in two separate parts) of EPA’s proposed rule defining “waters of the United States” was widely circulated. Part of what I love about this story is that it is uncertain whether this is in fact the draft rule that EPA sent to OMB to review. On one hand, it has many of the hallmarks of an EPA proposed rule. … More