Category Archives: Water

Post-Sackett, Who Will Speak for the Clean Water Act?

Earlier this month, in Lewis v. United States the 5th Circuit issued a decision interpreting the Supreme Court’s decision in Sackett v. EPA.  The 5th Circuit decision is a model of clarity and demonstrates what I’ll call the good side of Sackett.  And clarity is definitely the right word here.  One might say clarity is the holy grail that critics of EPA’s and the Corps’ efforts to interpret WOTUS have focused on.… More

More Litigation Concerning Plastic Pollution: Can Claims Be Both Novel and Traditional at the Same Time?

Last month, I advised plastics manufacturers to prepare for more litigation.  Although I am generally loath to speculate, it already looks as though this prediction is coming true.  Earlier this month, PennEnvironment and Three Rivers Waterkeeper filed suit against BVPV Styrenics and its parent company.  BVPV manufactures expandable polystyrene at its facility in Monaca, Pennsylvania. 

The complaint alleges a number of violations of the Clean Water Act,… More

EPA Must Consult With Other Agencies Before Issuing Water Quality Criteria: Is This an Example of Congressional Use of Behavioral Economics?

Last month, Judge John Hunderaker held that the Endangered Species Act requires EPA to consult with the Fish and Wildlife Service and the National Marine Fisheries Service before issuing recommended water quality criteria.  He also vacated EPA’s 2016 chronic freshwater criterion for cadmium.  The case is potentially important for a number of reasons. 

First, it’s a thorough analysis of standing in cases where the plaintiffs claim a procedural injury – here,… More

Does EPA Have Authority to Include Narrative Criteria in NPDES Permits? Yes, For Now.

Earlier this week, the 9th Circuit Court of Appeals affirmed EPA’s NPDES permit issued to San Francisco’s Oceanside sewer system.  San Francisco had challenged the permit on the ground that EPA does not have authority to impose narrative prohibitions related to compliance with water quality criteria.  Here is the primary section subject to challenge: 

Discharge shall not cause or contribute to a violation of any applicable water quality standard for receiving waters adopted by the Regional Water Board,… More

The Wharf District Council “District Protection & Resiliency Plan”: There’s a Lot to Do

The Wharf District Council recently released its “District Protection and Resiliency Plan.”  My immediate reaction is just a quiet OMG regarding the size of the task.  Of course, that’s no excuse for inaction and I found the plan to be quite compelling. 

The Wharf District runs from Christopher Columbus Park to the Congress Street bridge.  Its landward boundary is basically Congress Street. … More

Supreme Court Curtails Federal Wetlands Protections; Developers Still Must Consider State and Local Wetlands Laws

On May 25, 2023, the Supreme Court issued its long-awaited decision in Sackett v. Environmental Protection Agency, which significantly narrowed the Clean Water Act’s (“CWA”) test for determining whether wetlands are protected “waters of the United States” and the federal permitting requirements for development projects in covered wetlands areas.

The Court’s Ruling

The Supreme Court’s ruling has two basic parts:

  1. It adopts Justice Scalia’s plurality opinion in Rapanos v.…
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Discretion is the Better Part of Valor; Court Dismisses Clean Water Act Citizen Suit Challenging POTW’s Enforcement Discretion

The scope of suits available to private citizens under the Clean Water Act is not unlimited.  A Federal District Court in Massachusetts recently made that clear in dismissing a citizen suit filed by the Conservation Law Foundation against the Massachusetts Water Resources Authority, which operates Boston’s Deer Island Sewage Treatment Plant, the second largest treatment plant in the country.  (Full disclosure: I represented the MWRA in that suit.) The Court rejected CLF’s claims that the MWRA was required to take enforcement action against every industrial user that discharged to the MWRA’s sewer system in violation of pretreatment regulations.… More

EPA Proposes Safe Drinking Water Act Standards for PFAS: Forever Chemicals Will Lead to Forever Superfund Sites

Yesterday, EPA proposed to regulate certain PFAS under the Safe Drinking Water Act.  EPA proposed Maximum Contaminant Level Goals for PFOA and PFOS of zero.  It proposed Maximum Contaminant Levels for PFOA and PFOS of 4.0 parts per trillion. 

EPA also proposed MCLGs and MCLs for PFNA, PFHxS, PFBS, and HFPO-DA (“GenX Chemicals”) based on a novel hazard index approach to these compounds as a group. … More

EPA and the Corps Promulgate a “Durable” WOTUS Rule — Proving Only That There Is a Difference Between Hope and Expectation

Last week, EPA and the Army Corps finally published their long-awaited rule defining “Waters of the United States.”  Will the WOTUS rule finally provide the clarity for which we have been waiting, allowing the rule to be as “durable” as the agencies claim, or will it instead be dead on arrival, made irrelevant by the upcoming Supreme Court decision in Sackett, which many observers expect will significantly narrow the scope of jurisdiction under the Clean Water Act? … More

Might the WOTUS Saga Drag On For a While Longer?

The Supreme Court heard oral argument today in the Sackett case, in which the Sacketts are hoping that SCOTUS will finally issue a clear decision narrowing the scope of jurisdiction under the Clean Water Act.  I have stayed out of the SCOTUS prediction game because I find such speculation to be a waste of time.  I generally agree with the position of Roy Kent on Ted Lasso. … More

Parts Per Trillion, We Hardly Knew Ye; Sell Hello to Parts Per Quadrillion

Just when we environmental old-timers were just getting used to talk about PFAS concentrations in the low parts per trillion range, EPA has moved us squarely into uncharted territory.  EPA has released new, interim, lifetime drinking water health advisories of 4 parts per quadrillion for PFOA and 20 parts per quadrillion for PFOS.  I’ll just note a couple of points: 

  • I think it sort of charming that EPA still states the health advisories in the units of parts per trillion (0.004 ppt for PFOA and 0.020 ppt for PFOS,…
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The Drumbeat of PFAS Litigation Is Getting Louder

On May 25th, Massachusetts filed suit against a number of companies alleged to have manufactured PFAS and/or aqueous film-forming foam.  Massachusetts joins a number of other states which have already brought similar claims.  Indeed, Massachusetts filed the case in South Carolina, where an existing multi-district litigation concerning PFAS is already in progress.

The complaint asserts a number of different claims, including trespass and nuisance,… More

Sometimes the Law Really Is Unambiguous — Clean Water Act Edition

Last week, the First Circuit Court of Appeals ruled that a person who enters into an administrative settlement with a state is immune from citizen suits seeking civil penalties, but not immune from suits for declaratory or injunctive relief.  I don’t think that the decision would even have been newsworthy, if it hadn’t required that the Court overrule its 1991 decision in North and South Rivers Watershed Ass’n v.… More

In a Grim World, Even a Sliver of Positive Environmental News Is a Good Thing

Earlier this week, the United Nations Environment Programme (doesn’t everything just look better with British spelling!) announced that 175 nations had approved a resolution titled “End plastic pollution:  Towards an international legally binding instrument.”  If the ambition of the resolution wasn’t clear from the title, perhaps this quote from the UNEP press release will make it so.

Today marks a triumph by planet earth over single-use plastics.… More

EPA Proposes to Use Science to Identify Waters of the United States. I’m Shocked, Shocked.

Last week, EPA and the Army Corps proposed a new rule to define what constitutes “waters of the United States.”  Déjà vu all over again.

Under the proposal, the agencies:

are exercising their discretionary authority to interpret “waters of the United States” to mean the waters defined by the longstanding 1986 regulations, with amendments to certain parts of those rules to reflect the agencies’ interpretation of the statutory limits on the scope of the “waters of the United States” and informed by Supreme Court case law.… More

More Action By EPA on PFAS; The Bad News Keeps Piling Up.

The news about PFAS keeps piling up, and the trend is pretty clear – none of it is good for manufacturers and significant users.  There were two important items this week.

First, EPA published its human health toxicity assessment for “GenX chemicals,” also known as hexafluoropropylene oxide (“HFPO”) dimer acid (and don’t forget its ammonium salt!).  EPA has pegged HFPO’s toxicity at 7-100 times higher than that of other PFAS compounds for which assessments already exist,… More

The Trump 401 Certification Rule is Vacated — Does Anyone Actually Care If Section 401 Works?

Late last week, Judge William Alsup vacated the Trump-era EPA amendments to the regulations governing water quality certifications under section 401 of the Clean Water Act.  EPA had requested remand, and made clear that it disagreed with the amendments promulgated in 2020, but it opposed vacatur.

Whatever one’s view of the merits of the 2020 rule, from the court’s perspective, faced with EPA’s current statements indicating substantial disagreement with significant elements of the 2020 rule,… More

The Law Is An Ass, RCRA Edition

Late last month, the 9th Circuit Court of Appeals ruled that a public water supplier could be liable in a citizens’ suit brought under the imminent and substantial endangerment provisions of RCRA, where the plaintiff alleged that the groundwater used by the supplier had been contaminated by the disposal of hexavalent chromium by a wood treatment facility upgradient of the supplier’s well field.

Blaming the victim doesn’t quite cover this. … More

Implementing Maui Remains a Case-by-Case Affair, at Least for Now

Last week, EPA withdrew guidance issued in the waning days of the Trump Administration interpreting the Supreme Court decision in County of Maui v. Hawaii Wildlife FundAs the masochists who follow the torturous case law we call Clean Water Act jurisprudence are well aware, SCOTUS ruled in Maui that discharges from point sources to groundwater that are the “functional equivalent” of a direct discharge to surface water are required to obtain NPDES permits.… More

The Trump WOTUS Rule Is Vacated; Now We Know What’s Next

Last week, I reported that Judge Rosemary Marquez had vacated the Trump administration’s Navigable Waters Protection Rule.  I also asked “what’s next”?  EPA and the Army Corps have now answered that question, at least for the short run.  In a brief announcement on EPA’s web page, EPA stated that:

the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice.… More

The Trump WOTUS Rule Is Vacated; What’s Next?

Yesterday, Judge Rosemary Marquez vacated the Navigable Waters Protection Rule, the misnomer also known as the Trump WOTUS rule.  In response to this citizens’ suit challenging NWPR, the Biden EPA and Army Corps of Engineers moved to remand the rule to the agencies, since they had already announced an intent to revisit the definition of WOTUS.  However, for reasons that I have never understood, the agencies sought remand without vacatur,… More

Can “Guidance” Ever Be Binding?

Last week, the 9th Circuit Court of Appeals rejected a challenge to EPA guidance that suggested a new statistical method, the Test of Significant Toxicity, for determining the toxicity of discharges subject to NPDES permits.  The Court found that, because it was “nonbinding guidance,” it was not final agency action and was thus not subject to judicial review under the Administrative Procedure Act.

May I ask my legal colleagues to wrap their heads around the concept of “nonbinding guidance?”  Doesn’t the existence of “nonbinding guidance” imply the existing of “binding guidance?”  If not,… More

Maui Needs a NPDES Permit; What’s Next for WOTUS?

Last week, District Judge Susan Mollway ruled that the County of Maui must obtain a NPDES permit for discharges to groundwater by the Lahaina Wastewater Reclamation Facility.  It is the first trial court decision applying the factors identified by Justice Breyer in the SCOTUS Maui decision. 

Judge Mollway found the most important factors to be what she considered to be the relative short distance from the discharge to the surface water (½ mile) and the relatively short time between the groundwater discharge and the surface water discharge (as little as 84 days and,… More

EPA Withdrawal of Its Proposed Veto of a 404 Permit Is Reviewable — This Should Not Be Earth-shattering News

Last week, the 9th Circuit Court of Appeals ruled that EPA’s decision to withdraw its proposed veto of the Army Corps’ Section 404 permit for the Pebble Mine project in Bristol Bay, Alaska, was subject to judicial review.  Although there was a dissent and the majority opinion was 39 pages, I don’t think that the case should have been so hard.

The Court noted the “strong presumption” that final agency action is subject to judicial review. … More

Criticizing WOTUS Is Like Shooting Fish in a Barrel

On Wednesday, EPA and the Army Corps of Engineers announced that they plan to revise the definition of “Waters of the United States”.  Simultaneously, DOJ moved to remand the Navigable Waters Protection Rule, in a challenge to the Trump-era rule brought by the Conservation Law Foundation.  Can you say “déjà vu all over again”?

This is such a target-rich environment that I almost don’t know where to begin – but I’ll try.… More

States Really, Really, Must Act on Water Quality Certification Applications Within One Year

The saga of judicial efforts to enforce the one-year limit on state review of applications for water quality certifications under Section 401 of the Clean Water Act shows no sign of reaching a conclusion.

First, in Hoopa Valley Tribe v. FERC, the D.C. Circuit held that an agreement between the applicant and the state pursuant to which the applicant repeatedly withdrew and resubmitted its 401 application could not escape the statutory time limit on state review.… More

The 4th Circuit Stays Construction of the Mountain Valley Pipeline — A Lesson in Preventing a Fait Accompli

Earlier this week, the 4th Circuit Court of Appeals stayed construction of the Mountain Valley Pipeline.  The Court did so with a two-sentence order stating that an opinion would follow.  The order was issued hours after oral argument.  Why the hurry?

It could be that, as reported by Bloomberg (subscription required), the plaintiffs had somehow learned of “a call in which pipeline officials told investors they would quickly trench through streams ‘before anything is challenged.’”

Ever since Robert Caro’s biography of Robert Moses,… More

The New Midas Touch — Everything He Touches Turns To Dung

Everyone noticed when President Trump issued an order earlier this month banning offshore oil and gas drilling in certain areas until 2032.  It was obvious to everyone that this was a campaign stunt, intended to improve his changes in Florida and North Carolina.  Of course, pretty much no one wants drilling in these areas and the order wouldn’t have been necessary but for Trump’s prior declaration that he was going to open up those areas to drilling.… More

Governor Jim Justice and the Progress of Man

On Monday, Judge David Faber found Bluestone Coal Corporation liable for 1,904 days of violations of its discharge permit at the Red Fox Surface Mine.  All of the violations related to excessive discharges of selenium.  Bluestone’s defense, rejected for a second time by Judge Faber, was that the existence of a consent decree precluded the separate action for enforcement of the permit.  However, the permit and its specific discharge limit for selenium only came into effect after the entry of the consent decree.… More

Woe Is WOTUS, Redux

Sometimes, history repeats itself.  Sometimes, that is not a good thing.

After the Obama WOTUS rule was promulgated in 2015, the challenges came fast and furious, and in multiple forums.  The Supreme Court, as I put it, adopted the “give me a break” theory over the “just plain nuts” theory, and ruled that challenges to the rule had to be heard in district courts. … More

SCOTUS Gets One Right: Discharges To Groundwater Require Permits, But Only If They Are the Functional Equivalent of a Direct Discharge to Surface Water

The Supreme Court ruled today that discharges to groundwater are subject to the permitting requirements of the Clean Water Act, but only where the “discharge is the functional equivalent of a direct discharge from the point source into navigable waters.”

I don’t often say this about Supreme Court environmental decisions, but I think that the Court got it exactly right.

The apparent dilemma for the Court was that,… More

Federalism and the Regulation of PFAS

There has been much angst at the state level that EPA has not moved faster to develop drinking water or cleanup standards for PFAS.  One of the states affected by the pace of EPA’s regulatory efforts is New Hampshire.  Taking up the mantle, New Hampshire enacted legislation requiring the Department of Environmental Services to take a variety of actions with respect to PFAS.  One required action is the development of a plan for the establishment of surface water quality standards for four PFAS compounds.… More

The Science Advisory Board Lives!

The attack on science by this administration is not news at this point.  Part of that attack has been to increase the number of industry scientists on EPA’s Science Advisory Board.  I have no objection per se to additional industry representation on the SAB; a lot of good science gets done by industry.  There are dangers, though.  When Tony Cox, who is neither a statistician nor an epidemiologist,… More

Can Market-based Approaches Help to Clean Up the Great Lakes? Why the Heck Not?

Earlier this week, EPA announced grants for the development of market-based programs to address water quality problems in the Great Lakes, as part of the Great Lakes Restoration Initiative.  I’ve spent more than a little time criticizing EPA’s actions under this Administration.  Having spent the better part of 30 years pushing for market-based approaches to environmental regulation, it has been more than a little distressing to have this president give regulatory reform such a bad name.… More

The Science Advisory Board Agrees With Me!

At the end of the December, the EPA Science Advisory Board posted the text of a letter that the SAB intends to send to Administrator Wheeler concerning the administration’s proposed revision to the WOTUS rule.  The SAB’s conclusions were not ambiguous.

The SAB finds that the proposed revised definition of WOTUS decreases protection for our Nation’s waters and does not support the objective of restoring and maintaining “the chemical,… More

Cooperative Federalism Still Requires Two To Tango

Earlier this month, the 9th Circuit Court of Appeals held that a long-term failure by a state to submit to EPA a TMDL for an impaired water can constitute a “constructive submission” of no TMDL, triggering an obligation on EPA’s part to reject the constructive submission and, in turn, to issue the requisite TMDL itself.

The logic of the decision is straightforward.  The Clean Water Act unambiguously imposes a non-discretionary duty on states to submit TMDLs for waters on the so-called “303(d) list.”  In turn,… More

More Evidence that Chevron Is Not a Liberal Plot

Yesterday, Judge William Young ruled that discharges to groundwater are not subject to Clean Water Act jurisdiction, even if they ultimately reach surface waters that are unambiguously waters of the United States.  He did not wade into the murky waters, as it were, of the Maui case or any of the various judicial theories for or against jurisdiction.  Instead, he took a simpler path.… More

TMDL — It Means Total Maximum Daily Load. Literally.

Earlier this week, Judge Christopher Cooper of the District Court for the District of the Columbia, struck down EPA’s approval of Total Maximum Daily Loads established by the District of Columbia for the Anacostia and Potomac Rivers.  Why?

Because the District’s TMDLs did not conform to the plain meaning of the words “Maximum” or “Daily.”  The decision is lengthy and complicated, because the statutory framework is complicated. … More

More Sauce For the Chevron Goose

Last week, EPA proposed revisions to its regulations governing the issuance of water quality certifications under § 401 of the Clean Water Act.  The regulations are long-overdue and, notwithstanding the source, some of the changes are appropriate.  Nonetheless, the key element of the revisions is the provision that would preclude state and tribal agencies from considering issues other than those related to the water quality impacts of discharge being permitted – and to include that provision,… More

Woe is WOTUS

When the Supreme Court decided that the district courts had jurisdiction over challenges to the Obama administration WOTUS rule, I described it as a victory of the “give me a break” doctrine of statutory interpretation over the “just plain nuts” theory.  I also noted that the Supreme Court had the luxury of ignoring the chaos that would ensue.

Whatever one may think of the merits of the competing theories,… More

EPA Weighs In On Whether Discharges to Groundwater Can Be Subject to the CWA — You Won’t Be Surprised at the Answer

On Monday, EPA issued an Interpretive Statement concluding that point source discharges to groundwater are never subject to NPDES permitting requirements.  EPA did a good job marshalling its arguments – much better than this EPA has done in a number of similar situations.

I have previously noted the difficulties associated with regulating point source discharges to groundwater under the NPDES program,… More

Can You Say “Pyrrhic Victory”?

In 2008, EPA issued an administrative order to Chantell and Michael Sackett, requiring them to remove what EPA had concluded was illegally placed fill on their property in Northern Idaho.  Litigation followed, including a fairly well-known Supreme Court decision.

After the Supreme Court ruled that the Sacketts were entitled to appeal the administrative order, the case was remanded to the District Court. … More

When Is A Regulatory Denial a Regulatory Taking? Not Very Often, At Least in Massachusetts

On Tuesday, the Massachusetts Appeals Court denied a regulatory takings claim brought by a plaintiff whose development plans for her property in Falmouth were denied by the Falmouth Conservation Commission.  Plaintiff’s evidence showed that the property was worth $700,000, if developable, and $60,000, if not.  

The Court ruled, in conformity with the “vast majority” of decisions in other states, that there is no right to a jury trial on the question whether a regulatory taking has occurred.… More

EPA’s National Compliance Initiatives — Say Goodbye to NSR Enforcement

Earlier this month, EPA released its recommendations for its National Compliance Initiatives for 2020-2023.  I face a dilemma in posting about the NCI, because I actually agree with the two biggest changes EPA is proposing.  This administration has given regulatory reform a bad name.  It’s sort of like a reverse “Nixon in China” situation.  These changes might be credible if they were made in any administration other than this one.… More

Deadlines For Permit Issuance Are Double-Edged Swords

On Friday, the D.C. Circuit Court of Appeals ruled that applicants for licenses under the Federal Power Act may not reach private agreements with states to circumvent the FPA requirement that states act on water quality certification requests under § 401 of the Clean Water Act within one year.

The facts are important here and somewhat convoluted.  The short version is that PacifiCorp operates a number of dams on the Klamath River. … More

The WOTUS Rule and the Purpose of the Clean Water Act

A lot of proverbial ink has been spilled regarding the Trump administration’s proposal to amend the definition of “waters of the United States” under the Clean Water Act.  The administration has focused on what it views as a more reasonable legal interpretation of the historical scope of the term.  It has also emphasized returning authority to the states and providing more certainty to landowners.

Environmentalists have focused on the broader interpretation that has historically been given to the term and that the Scalia opinion in Rapanos did not command a majority of the Court.… More

And Then There Were Three: Why Is Massachusetts Still Refusing to Seek NPDES Delegation?

As readers of this space know, I have been mystified by the opposition in Massachusetts to obtaining delegation of the NPDES Program.  In my temperate way, I have called it an embarrassment.

I have just learned that Idaho was recently delegated authority to operate the NPDES program.  Now, only Massachusetts, New Mexico, and New Hampshire remain undelegated.

The Boston Globe said that the current arrangement has worked. … More

Are Discharges to Groundwater Potentially Subject to the Clean Water Act? A Circuit Split Tees It Up.

The Sixth Circuit ruled earlier this week that discharges to groundwater are not subject to Clean Water Act jurisdiction.  We now have the requisite circuit split, opening the possibility of Supreme Court review.  For those who might still be open-minded, I commend both the majority and dissenting opinions in the 6th Circuit; they are each as clear and as persuasive as they could be.

Although I have long thought that it does not make sense to regulate discharges to groundwater under the CWA,… More

How Much Does Trump Even Care About Deregulation?

On Thursday, the Trump Administration’s “Suspension Rule,” which delayed implementation of the Obama Waters of the United States Rule for two years was struck down.  Judge David Norton of the District of South Carolina issued a nationwide injunction against the rule.

It’s important to note that the case was not about the merits of the WOTUS rule.  It was simply about the Trump administration’s failure to comply with the Administrative Procedure Act in promulgating the Suspension Rule.… More

The D.C. Circuit Holds that Hydroelectric Facilities May Not Ignore Historic Impacts In Relicensing

Earlier this month, the D.C. Circuit Court of Appeals issued a decision that is a must-read for anyone who will be needing at some point to relicense an existing hydroelectric facility.  The short version is the status quo may no longer be good enough and dam operators may have to improve on existing conditions in order to succeed in relicensing.  At a minimum, facility operators will have to take the cumulative impacts of dam operation into account in performing environmental assessments under NEPA required for relicensing.… More

WOTUS: Legal Issue or Scientific Issue?

Last week, EPA and the Army Corps issued a Supplemental Notice of Proposed Rulemaking in support of their efforts to get rid of the Obama WOTUS rule.  It’s a shrewd but cynical document.  It’s shrewd, because it fairly effectively shifts the focus from the scientific question to the legal question.  Instead of asking what waters must be regulated to ensure that waters of the United States are protected,… More

WOTUS, SCHMOTUS. Can the Corps Reach a Reasoned Jurisdictional Determination In Less Than 12 Years?

The debate over the definition of “Waters of the United States” goes on and on.  I tend to think that Kennedy’s “significant nexus” test was a reasonable approach to making sense of a vague statute.  I also think that the Obama administration definitional rule was supported by good science.

What we sometimes lose track of in the ongoing debate is that the definition – whatever we choose – matters,… More

Lake Erie and the Limits Of Cooperative Federalism in the Age of Trump

Last month, a decision in a case involving the Lake Erie toxic algae blooms demonstrated some “issues” concerning the nature of cooperative federalism.  Such blooms have been a problem for some time and pretty much everyone knows about the 2014 bloom, which left Toledo without water for several days.

Notwithstanding what pretty much everyone who can read or watch the news already knew,… More

NGOs Again Fail to Establish that EPA Has a Non-Discretionary Duty Under the CWA Stormwater Regulations

Last month, the 1st Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA had a non-discretionary duty to require persons owner property where stormwater runoff contributes to an exceedance of a TMDL to obtain NPDES permits.  Now, Judge George Russell has ruled that EPA does not have non-discretionary duty under the Clean Water Act to determine whether commercial, institutional, and industrial users contribute to a violation of water quality criteria in the Back River watershed. … More

The 9th Circuit Weighs In — Discharges to Groundwater Are Subject to the Clean Water Act

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

EPA Approvals of TMDLs Are Not “Drive-by Permitting Determinations”

Last week, the First Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA’s acceptance of TMDLs in Rhode Island and Massachusetts carried with it a concomitant obligation to require permits of landowners contributing to violations of the TMDLs.  Easy cases make good law.

CLF’s position was simple.  EPA’s approval of the TMDLs meant that EPA had determined that stormwater controls are needed. … More

Significant Nexus Lives! (For Now, In the 9th Circuit)

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

Opposing NPDES Delegation to Massachusetts Is So 20th Century

On Tuesday, the Boston Globe joined most local environmental organizations in opposing delegation of the NPDES program to Massachusetts.  How wrong is this?  Let me count the ways.

  1. Donald Trump
  1. Even recognizing, as the Globe points out, that presidential administrations are only four years, does anyone seriously expect the federal EPA budget to be anything other than massively underfunded for the foreseeable future?…
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When Is a Discharge to Groundwater Subject to the Clean Water Act? Can You Say “Significant Nexus”?

Whether the Clean Water Act regulates discharges to groundwater has been a topic of significant debate.  At this point, there seems to be something of a trend in the cases towards concluding it does, but it remains true that all of the courts of appeal that have addressed the issue have concluded that it does not.  As I have noted, the problem with the “yes” answer is that pretty much all groundwater eventually discharges to surface water,… More

How Imminent Are the Impacts of Climate Change in Everett?

Yesterday, Judge Mark Wolf dismissed part of the Conservation Law Foundation’s claims in its litigation against ExxonMobil concerning ExxonMobil’s Everett Terminal facility.  The opinion is both interesting and pleasurably concise – a rare combination!

Judge Wolf found that CLF had credibly alleged that the Terminal is violating its NPDES permit.  Importantly, he also found that CLF stated that there is:

substantial risk”… More

EPA Delays Compliance with Massachusetts MS4 Permit

On Thursday, EPA extended the compliance deadline for its General Permit for Small Municipal Separate Storm Sewer Systems for one year, until July 1, 2018.  The move almost certainly prompted a collective sigh of relief among both small municipalities directly subject to the rule and developers who would be indirectly impacted, as MS4s struggle to comply.

EPA gave several reasons for the delay:

  • The MS4 permit had been challenged,…
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Meet the New WOTUS. Same as the Old WOTUS.

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

Promulgation of TMDLs Does Not Create a Non-Discretionary Duty to Require NPDES Permits

When EPA approved total maximum daily loads for the Charles River, but failed to require NPDES permits for persons discharging stormwater to the Charles, CLF sued.  CLF alleged that EPA violated a non-discretionary duty when it failed to require the permits.  Last Friday, Judge Richard Stearns dismissed CLF’s suit.

EPA’s regulations provide that it will issue NPDES permits where it:

Determines that the discharge,… More

The Executive Order on the WOTUS Rule: Will It Really Reduce Regulatory Uncertainty?

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

Managing Water Releases From Dams to Protect Fish: A Tale of Good Legislation and Bad Engineering

Earlier this week, the 9th Circuit found that the Bureau of Reclamation had authority under 1955 legislation to order additional releases of water to the Trinity River from the Lewiston Dam beyond the amount designated in an official release schedule, where necessary to protect downstream fish populations.  The Court basically held that general language in the 1955 Act trumped later legislation that seemed to prescribe or at least authorize more limited releases.… More

EPA Has a Nondiscretionary Duty to Review West Virginia’s Failure to Submit TMDLs

Acting in response to state legislation, the West Virginia Department of Environmental Protection ceased work on promulgation of total maximum daily loads related to ionic toxicity.  Ionic toxicity is a consequence of mountaintop removal coal mining.  In case you weren’t aware, the coal industry has a certain amount of political clout in the Mountain State (and can they keep the nickname if they chop the tops off of all of their mountains?).… More

The Conservative Case For Chevron Deference

With GOP control of Congress and the White House, conservatives appear to have Chevron deference in their crosshairs.  Put simply, I don’t get it.  There are at least two good reasons why conservatives should prefer Chevron deference to no deference.

First, the alternative is for courts to decide all questions of agency authority.  But haven’t conservatives railed against unelected judges for years? … More

EPA Wins a Round Against CLF in Residual Designation Authority Litigation

Earlier this week, Judge Mary Lisi, of the District Court of Rhode Island, dismissed the Conservation Law Foundation’s Residual Designation Authority law suit against EPA.  CLF had asked the Court to order EPA to require permits from stormwater dischargers alleged by CLF to be contributing to exceedances of the Total Maximum Daily Load established by Rhode Island for certain impaired water bodies. spectacle-pond

CLF alleged that EPA’s approval of the TMDLs constituted a determination that certain stormwater dischargers were contributing to exceedances of water quality criteria and that the controls on these dischargers are necessary to meet the TMDL and thus attain the water quality criteria.… More

Did Trump’s Election Increase the Odds of NPDES Delegation in Massachusetts? I Sure Hope So.

As I noted last spring, the Baker administration had filed legislation to support NPDES delegation to Massachusetts.  At the time, I supported the delegation effort and pleaded with my friends in the environmental community to support it.  Sadly, my pleading fell on deaf ears and the legislation was not enacted.

In supporting the legislation, I pointed out that it would be foolish to oppose delegation on the ground that a Democratic administration in Washington would do a better job protecting the environment from evil polluters than a Republican administration in Boston.  … More

The Army Corps Is Nicer Than I Am

After the Supreme Court decided last spring that Army Corps of Engineers’ Jurisdictional Determinations are final agency action subject to judicial review, I advised the Corps to pick up its marbles and go home.  The statute does not require the Corps to issue JDs.  To me, if the Corps is going to subject itself to litigation every time it issues a JD, it might as well just stop.  … More

I Hate Home Rule

Massachusetts is a Home Rule state (Commonwealth, actually, but that’s a separate issue).  Our 351 cities and towns can pretty much legislate as they please, so long as the local action is not preempted.  Our state Wetlands Protection Act specifically allows municipalities to enact their own wetlands bylaws.  The result?

Today, our Appeals Court rejected an appeal from a property owner, and instead affirmed the Wayland Conservation Commission’s conclusion that the owner’s property contains wetlands as defined under the Wayland bylaw,… More

The Arbitrary and Capricious Standard Remains Deferential: The Corps’ Nationwide Permit 21 Survives Review

Late last week, the 11th Circuit Court of Appeals rejected challenges to the Army Corps’ Nationwide Permit 21, which allows small surface mining projects to proceed without individual permits under § 404.  black-warrior-river

The plaintiffs argued that NWP 21 was arbitrary and capricious because the Corps imposed numeric limitations on new projects – and described those limitations as “necessary” to prevent more than minimal environmental harm – but did not impose those same numeric limitations on existing projects.… More

Three Strikes and Mingo Logan Is Out: The D.C. Circuit Affirms EPA Withdrawal of Approval of Mountaintop Removal Disposal Sites

In 2013, the D.C. Circuit affirmed EPA’s authority to withdrawal approval of mountaintop mining disposal sites, even after the Army Corps has issued a Section 404 permit.  In 2014, the District Court rejected Mingo Logan’s challenge to EPA decision on the merits, finding that EPA’s withdrawal was not arbitrary and capricious.  Finally, early this week, the D.C. Circuit affirmed the District Court,… More

I Have Seen the Future and It Is Hot and Wet

The City of Boston has just released its “Climate Projections Consensus.”  It’s not a pretty picture.  Here are the lowlights:

  • Average summer temperatures will be 4-5 degrees F. warmer by 2050 Boston temps
  • Even with “moderate” emissions reductions, see level rise is likely to be between 1.5 feet and 2.5 feet by 2070.
  • The number of “extreme precipitation” events has been increasing and that increase will continue.…
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Corps Jurisdictional Determinations Are Final Agency Action: Now What?

In a decision that was not a surprise based on oral argument, the Supreme Court today ruled that Army Corps of Engineers Jurisdictional Determinations concerning “waters of the United States” Wetlandsare final agency action subject to judicial review under the APA.  As we previously noted, this continues the Court’s emphasis on the practical consequences of Corps decisions.  Indeed, Chief Justice Roberts noted that the Court’s decision:

Tracks the ‘pragmatic’ approach we have long taken to finality.… More

Better Late Than Never: Massachusetts Moves to Obtain NPDES Delegation

Like most federal environmental programs, NPDES program authority is largely delegated to the states.  Only four states aren’t delegated:  Idaho, Massachusetts, New Hampshire, and New Mexico.  How is it that progressive Massachusetts, always confident that it can do environmental regulation better than anyone else, never obtained delegated authority?

Like Tevye, I’ll tell you.  I don’t know.

I do know that it’s good news that Governor Baker just submitted legislation necessary for Massachusetts to assume NPDES delegation. … More

Courts Must Determine The Economic Benefit Of Noncompliance In Assessing CWA Penalties

It is well-known that the “economic benefit of noncompliance” is one of the factors to be evaluated in setting penalties under the Clean Water Act.  Thus, it is not surprising that, after an oil spill at Citgo’s facility in Lake Charles, Louisiana, LakeCharlesHorizontalthe 5th Circuit Court of Appeals was unhappy when the District Court “did not quantify the economic gain to Citgo, finding it virtually impossible to do so given the evidence.”  The 5th Circuit directed the District Court to “consider its analysis of the [penalty] factors afresh after making a reasonable approximately of economic benefit.”… More

What Is a Water of the United States? EPA and the Corps Make It Easier To Know What They Think

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

When Is A Discharge to Groundwater a Discharge to a Water of the United States?

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.  chesapeake-energy-center-aerial-highres-RESIZEDThe 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, alice in wonderlandin 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.…
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Pre-enforcement Review? Not Enough. How About Pre-issuance Review?

In Sackett, the Supreme Court ruled that EPA could not issue enforcement orders under the Clean Water Act without allowing the subjects of the order the right to bring a pre-enforcement challenge to such orders under the Administrative Procedure Act.  Now, in Ron Foster v. EPA, Judge John Copenhaver of the Southern District of West Virginia has ruled that Sackett’s victory was in fact hollow,… More

EPA Updates Effluent Limitations Guidelines and Standards For Steam Electric Generating Facilities – It’s Only Been 33 Years

On September 30, EPA released its long-awaited (long-feared?) final rule governing wastewater discharges from steam electric generating facilities.  2000px-Coal_fired_power_plant_diagram.svgThe trade press is presenting the rule as a victory for environmentalists (The Law360 headline was “Enviros Score Major Win in Final EPA Effluent Rules”) and I think that that’s probably a fair description.

Here is the quick summary of just the more important aspects of the rule for existing sources:

  • The most stringent aspects of the rule apply to coal-fired plants with a nameplate capacity great than 50 MW (there are less stringent requirements for oil-fired facilities and smaller coal-fired facilities)
  • For fly ash transport water,…
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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

EPA Hubris, July 2015 Edition

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

Easy Cases Make Good Law: The Third Circuit Affirms EPA’s Chesapeake Bay TMDL

On Monday, the Third Circuit Court of Appeals affirmed EPA’s TMDL for the Chesapeake Bay.  chesapeake-bayThis should not be news.  Although Judge Ambro comprehensively disposed of the appellants’ arguments in a thoughtful opinion, I think that the opinion probably could have been six pages rather than sixty.

The crux of the challengers’ arguments was that a TMDL must consist of a single number specifying the amount of a pollutant that a water body can accommodate without adverse impact. … More

The Stormwater Mess Continues in Massachusetts: CLF and CRWA Sue EPA

In February, we noted that the Conservation Law Foundation and the Charles River Watershed Association had threatened to sue EPA for failing to require that “commercial, industrial, institutional, and high density residential property dischargers of nutrient-polluted stormwater” obtain NPDES permits, and for failing to make a final determination on CLF’s and CRWA’s petition that EPA exercise its residual designation authority with respect to stormwater discharges in the Charles River Watershed.  … More

EPA Really Has A Lot Of Discretion In Deciding Whether to Promulgate Water Quality Standards

When a number of citizen groups petitioned EPA to determine that it is necessary under the Clean Water Act to promulgate water quality standards for nutrient pollution in the Mississippi River Basin miss3and the Northern Gulf of Mexico, EPA did not decide to issue the standards.  It did not decide not to issue the standards.  It decided not to decide.  Litigation ensued.

Earlier this week,… More

What’s a Court to Do When An Agency Admits Error? Vacate? Remand?

In Black Warrior Riverkeeper v. ACOE, decided this week by the 11th Circuit Court of Appeals, the Court was faced with a quandary.  “On the eve of oral argument”, in a case challenging The Army Corps of Engineers Nationwide Permit 21, which allows certain surface coal mining activities without an individual permit, the Army Corps of Engineers informed the Court that it had significantly underestimated the acreage that would be affected by NWP 21. … More

What’s a Significant Nexus? The Answer, My Friend, Is Flowin’ Through the Ditch.

Even assuming that the “significant nexus” test from Justice Kennedy’s concurring opinion in Rapanos defines waters of the United States subject to Clean Water Act jurisdiction, the question remains what establishes a significant nexus.  In a decision earlier this week, the 4th Circuit Court of Appeals provided some important guidance in answering this question.  The news is good for EPA and the Corps,… More

MassDEP — A Voice of Reason in the Stormwater Permitting Debate

EPA has been working to craft a general permit for small Municipal Separate Storm Sewer Systems for quite some time.  The most recent draft permit, published last September, has received significant comment, most recently from the Massachusetts Department of Environmental Protection.  While emphasizing cooperation and appreciate for EPA’s efforts at collaboration, it is difficult to read MassDEP’s comments as anything other than as a sign of significant concern about overreach by EPA.… More

Déjà Vu All Over Again: CLF and CWRA Try Once More to Get EPA to Regulate Stormwater Discharges to the Charles River

In 2008, EPA made a preliminary determination to use its residual designation authority (RDA) under the Clean Water Act to designate stormwater discharges from two or more acres of impervious surfaces in the Lower Charles River charles15Watershed and released a draft general permit to cover such discharges.  However, EPA never finalized that designation.

In 2013, the Conservation Law Foundation and other groups petitioned EPA Regions 1,… More

A Federal Court Rules that Increased Conductivity Impairs a Stream — How Shocking!

On Tuesday, Chief Judge Robert Chambers ruled that Fola Coal Company violated the Clean Water Act by discharging mine waste with sufficiently high levels of conductivity to cause or materially contribute to impairment of Stillhouse Branch.  The decision appears designed to be bullet-proof to any appeal.  Judge Chambers thoroughly explained why the opinion of the defendant’s expert should not be given “great weight,” why the plaintiffs’ experts were reliable,… More

General Permits Are Also Entitled to a Permit Shield

On Tuesday, the 6th Circuit Court of Appeals held that the “permit shield” provisions of the Clean Water Act protected ICG hazard from Sierra Club claims that effluent from ICG Hazard’s Thunder Ridge mine thunderridgecoalminecaused exceedances of Kentucky water quality criteria for selenium.  Thunder Ridge is covered by a general permit, not an individual site permit, and the Sierra Club argued that the shield should not apply. … More

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 StatesCorps_Regulatory_Jurisdiction.  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

Virginia Proposes Nutrient Trading Regulations: Established Concept, New Medium

This week, Virginia formally proposed Nutrient Trading Certification Regulations.  The program will establish a market in phosphorus and nitrogen removal credits.  Although the program is welcome news, it should be neither earthshattering nor controversial.  After all, as we noted more than two years ago, a study by the Chesapeake Bay Commission demonstrated that use of nutrient trading would substantially reduce the cost of  the Chesapeake Bay restoration project.… More

EPA Really Does Have Authority To Withdraw Specifications Under Section 404 of the Clean Water Act

Last year, the D.C. Circuit Court of Appeals ruled that EPA has authority to withdraw its approval for the specification of sites for the disposal of fill material, even after the Army Corps has issued a permit for the discharge under section 404 of the Clean Water Act. Now, Judge Amy Berman Jackson of the District Court for the District of Columbia has ruled that EPA properly exercised that authority with respect to the Spruce No.… More

EOEEA Releases Draft Ocean Management Plan Update: Now with Fees

The Massachusetts Executive Office of Energy and Environmental Affairs (EOEEA) recently released for public review and comment a draft update to the Ocean Management Plan for the Commonwealth. The Oceans Act, signed by Governor Patrick in 2008, required the Secretary of EOEEA to develop a comprehensive ocean management plan to be reviewed every five years. The first plan was released in 2009, and the recently released update is a result of this five year review.… More

The SAB Enters the “Waters of the United States” Fray: Guess Which Side the Scientists Support

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” BM-NeedToKnow-WetlandBanking-GALunder 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

NPDES Permits Are Construed Narrowly Against the Permittee

In July, we noted that the Clean Water Act’s permit shield defense would be construed narrowly, applying only where a permittee had clearly disclosed that the relevant pollutant to the agency.  This week, in Alaska Community Action on Toxics v. Aurora Energy Services, the 9th Circuit Court of Appeals treated the stormwater general permit in a similar manner, rejecting the defendants’ arguments that periodic discharges of coal from their coal-loading facility SewardCoalFacilitywere authorized under the stormwater general permit.… More

The SJC Gives “Great Deference” to the Energy Facilities Siting Board. That’s An Understatement

In two related decisions last week, the Supreme Judicial Court issued three important rulings, and handed the Brockton Power Company one major problem in its long-running effort to build a combined-cycle gas plant in Brockton.

First, in City of Brockton v. EFSB, the SJC rejected all of the challenges by the City of Brockton and certain citizens to the Energy Facilities Siting Board approval of the Brockton Power project.… More

Is Selenium the Coal Industry’s Kryptonite? Citizen Groups Obtain Summary Judgment Based on Water Quality Criteria Exceedances

Earlier this week, the Ohio Valley Environmental Coalition and other NGOs obtained summary judgment that Alex Energy had violated both its NPDES permit and its Surface Mining Permits due to exceedances of the West Virginia water quality standard for selenium. The permit did not contain effluent limitations for selenium. Nonetheless, the state NPDES permits incorporate by reference regulations stating that:

discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by [West Virginia Code of State Rules § 47-2].… More

EPA Wins Two Clean Water Cases in One Day: The Fourth Circuit Affirms a Narrow Construction of the Permit Shield Defense

Yesterday, I noted that the D.C. Circuit rejected challenges to EPA’s Enhanced Coordination Process and Final Guidance on Clean Water Act permitting for mining activities. It was not EPA’s only CWA victory. On the same day, the 4th Circuit Court of Appeals affirmed a decision narrowly construing the CWA’s permit shield defense.

Southern Appalachian Mountain Stewards sued A&G Coal over discharges of selenium from A&G’s Kelly Branch Surface Mine in Virginia.… More

The D.C. Circuit Rejects Challenge to EPA’s Final Guidance on CWA Coal Mining Permits: EPA Action Has to Be Really, Really, Final to Be Appealable

On Friday, the D.C. Circuit reversed Judge Reggie Walton’s decision from 2012 and affirmed EPA’s authority to adopt the “Enhanced Coordination Process” governing coordination with the Army Corps of Engineers in the processing of Clean Water Act permits. The Court also rejected challenges to its 2012 Final Guidance document regarding appropriate conditions on such permits.

The decision on the Enhanced Coordination Process seems rather obvious.… More

EPA Promulgates Final Cooling Water Intake Rule: Much Ado About Not Very Much?

On Monday, EPA finally announced promulgation of its long-awaited rule governing cooling water intake structures at existing facilities. The rule is certainly important, but it’s not earthshattering and it may be more significant for what it does not do than for what it does.

What does it do?

• Facilities that withdraw at least 2MGD must reduce impingement based on a finding that use of modified traveling screens with fish returns constitutes the best technology available (BTA).… More

Enforcement of Municipal Stormwater Ordinances Is Tricky Business: Failure to Enforce an Ordinance Required Under a Permit Is Not a Violation of the Permit

Stormwater pollution has become an increasingly important problem.  Part of the difficulty in solving it is that it’s not obvious who should be responsible.  Should cash-strapped municipalities be on the hook or should it be developers and others who own and maintain large properties with acres of impermeable surfaces?  Often, the answer given by EPA and state regulators is that municipal separate stormwater sewer systems, or MS4s are responsible, but they have the authority – and sometimes the obligation – to impose appropriate requirements on property owners.… More

Definitely a Victory For Regulations Over Guidance: EPA Issues Proposed Rule Defining Waters of The United States

Tthe Supreme Court issued its decision in Rapanos almost 8 years ago and EPA has been struggling ever since to figure out what “waters of the United States” are within the meaning of the Clean Water Act.  After several failed attempts at guidance, EPA finally acknowledged that this issue is too important and too contentious for guidance – and that it merits formal notice and comment regulation. … More

2 and 1/2 Strikes and the NGOs May Be Out: EPA Refuses to Exercise Residual Designation Authority

Stormwater regulation is a thorny issue.  There is widespread agreement that nutrient run-off can be a significant problem, but little agreement on what to do about it, since stormwater infrastructure is normally managed by cash-strapped municipalities, but the most cost-effective approach will often not be to require thousands of individual properties owners to make large separate capital expenditures (though best management practices can certainly often provide significant benefit).

The NRDC,… More

How Powerful is the Endangered Species Act? Just Ask the Delta Smelt

The Endangered Species Act is a powerful tool for the protection of threatened and endangered species and their habitats.  Just how powerful was made clear last week when the 9th Circuit Court of Appeals largely reversed a trial court opinion and essentially sustained actions taken by the Fish and Wildlife Service to protect the delta smelt.  Delta SmeltThe “reasonable and prudent alternatives” identified in the Biological Opinion issued by the FWS will result in substantially less water being exported from northern California to southern California.… More

The Song Remains the Same: Cape Wind Wins Another Case and the Opponents Declare Victory

Late last week, in Public Employees for Environmental Responsibility v. Beaudreu, Judge Reggie Walton gave Cape Wind and its federal co-defendants an almost across the board victory in a series of challenges by Cape Wind opponents to a variety of environmental decisions made by federal agencies.  We’ll see how many more of these victories Cape Wind can take.  Their opponents certainly aren’t going away.  In fact,… More

The Federal Tail Should Not Wag the Non-Federal Dog: The Sixth Circuit Concludes that the Corps’ Review of Mountaintop Removal Projects Is Limited

The Sixth Circuit Court of Appeals has ruled, in Kentuckians for the Commonwealth v. Army Corps of Engineers, that the scope of review by the Army Corps of Engineers of § 404 permit applications for fills related to mountaintop removal mining is limited to impacts directly related to the filling operations that require a permit, rather than the overall impacts of the mining project.

The case concerned a mountaintop removal project by Leeco in Perry County,… More

More Than Five Years Later, the Bush Administration Is Still Losing Environmental Cases

I previously noted that the record of the Bush administration in defending its rulemaking decisions was dangerously near the Mendoza Line.  Indeed, even four years after Bush left office, it was continuing to lose decisions.  Now, we can say that the record has extended to five years.  Last week, in National Parks Conservation Association v. Jewell, the United States District Court for the District of Columbia vacated the 2008 rule issued by the Office of Surface Mining Reclamation and Enforcement,… More

Cooperative Federalism Is Even Messier Than We Thought: 21 States Oppose the Chesapeake Bay TMDL

Last fall, the District Court for the Middle District of Pennsylvania affirmed EPA’s TMDL for the Chesapeake Bay.  As I noted at the time, Judge Rambo pointed to the sometimes “messy and cumbersome” nature of cooperative federalism in affirming the TMDL, stating that:

It is unavoidable that states and the federal government will occasionally disagree. EPA worked with the states to ensure that the proposed allocations were sufficient to achieve water quality standards. … More

Citizens Are Not Harmed By the Concept of Pollution Trading: A Challenge to the Chesapeake Bay TMDL Is Dismissed

On December 13, the District Court for the District of Columbia dismissed plaintiffs’ challenge in Food and Water Watch v. EPA to the Chesapeake Bay TMDL’s discussion of pollution trading and offsets.  As I had previously noted, the TMDL itself already survived judicial challenge.

In this case, plaintiffs alleged that they would be harmed by trading of effluent discharge rights,… More

Waters of the United States: Definitely a Regulation, Not Guidance

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

The Answer, My Friend, Is Not Blowin’ In The Wind: Waste From CAFO Ventilation Fans Does Not Require an NPDES Permit

Earlier this year, in her aptly named post “What the Cluck?”, Patricia Finn Braddock, noted that a state court in North Carolina had held that wastes from poultry farms, blown by ventilators from confinement houses and then washed into waters of the United States with stormwater flow, are subject to NPDES permit requirements.  Well, in a decision issued on October 23, Judge John Preston Bailey,… More

Cooperative Federalism is “Messy and Cumbersome” — EPA’s Chesapeake Bay TMDL is Upheld

Last Friday, in American Farm Bureau Federation v. EPA, Judge Sylvia Rambo upheld EPA’s Chesapeake Bay chesapeake-bayTMDL.  As Judge Rambo noted in her conclusion, while the environmental problems associated with the Chesapeake Bay are massive and the issues complicated, her review was not that difficult.

Notwithstanding the expansive administrative record, and the complexity of the numerous issues implicated herein, the court’s scope of review in this case is relatively narrow.… More

Yes, Indeed, A Victory For Regulation Over Guidance

EPA’s used its blog today to announce that it and the Army Corps of Engineers have sent to OMB a draft rule clarifying the scope of jurisdiction under the Clean Water Act.  It appears that EPA has finally given up on its controversial efforts to solve the Rapanos problem through guidance.  As I noted previously, when an agency is still working on its quick and easy guidance (with regulations to follow) eight years after the court decision that made the guidance necessary,… More

Standing Matters, TMDL Version

Last week, in Conservation Law Foundation v. EPA, Judge Mark Wolf ruled that CLF did not have standing to challenge EPA’s approval of total maximum daily loads promulgated for certain waters in and around Cape Cod.  Given the increasing number of citizen suits involving TMDL promulgation, the decision is important.

CLF asserted two claims.  First, it alleged that EPA wrongly classified certain sources,… More

More on the Permit Shield Defense: A Permittee Is — Gasp — Entitled to Rely on Regulations and Permits Issued by Delegated State Agencies

Late last month, we noted that a permittee may not rely on the permit shield defense unless it has clearly informed the permitting agency of the nature of its discharge.  Now we see the flip side.  In Wisconsin Resources Protection Council v. Flambeau Mining Company, the 7th Circuit Court of Appeals held that Flambeau Mining was entitled to rely on the permit shield defense with respect to its stormwater discharges,… More

What Is the Burden In Proving a Violation of a Stormwater Permit? If It Walks Like a Stormwater Discharge …

Those of us who do NPDES work know that enforcement, including citizen enforcement, against industrial point sources can often be all to straightforward.  The plaintiff marches into court with a pile of the defendant’s discharge monitoring reports and the liability phase may be over quickly.  Stormwater cases are different, as last week’s 9th Circuit decision in NRDC v. County of Los Angeles demonstrates.

The case had a number of twists and turns,… More

The Permit Shield Defense: No Shield Absent Full Disclosure

The Clean Water Act permit shield provision provides that compliance with an NPDES permit constitutes compliance with the CWA.  What happens when the permit does not mention a particular pollutant?  In Southern Appalachian Mountain Stewards v. A&G Coal, decided late last week, the Court made clear that the permittee must fully disclose information about its discharge of the pollutant to the permitting agency in order for the shield to be available.… More

The Problem with the Supreme Court’s Regulatory Takings Jurisprudence? It Doesn’t Require a Taking

The Supreme Court ruled today, in Koontz v. St. Johns River Water Management District, that a property owner who is denied a land use permit on the ground that he refused to pay money to compensate for the harm to be caused by his proposed property use states a claim for a regulatory taking, unless the regulator can establish a “nexus” and “rough proportionality” between the exaction and the alleged harm requiring mitigation.… More

When is the Meaning of a Statute Sufficiently Plain? The D.C. Circuit Restores EPA Authority to Withdraw Approval of Section 404 Permits

In a decision on Tuesday that must have sent shivers down the spine of every coal company executive, the D.C. Circuit Court of Appeals restored EPA’s authority to withdraw the specification of streams for the disposal of mountaintop mining wastes spruce mine– years after the Army Corps had issued the permit containing the specification.  Indeed, Daily Environment Report quoted National Mining Association CEO Hal Quinn as saying that the decision,… More

Coming to a Steam Electric Generating Plant Near You in May 2014 — New Effluent Limitation Guidelines

Last Friday, EPA announced release of its draft proposal to revise the effluent guidelines and standards for the steam electric power generating industry, last revised in 1982.  The proposal was in conformance with a litigation settlement with environmental groups, which also calls for a final rule by May 22, 2014.

The proposed rule actually sets out four different regulatory options, and they are sufficiently complicated that EPA’s Fact Sheet on the proposal does not even attempt to summarize them. … More

CZM Proposes Regulations to Implement Ocean Management Plan and Update Federal Consistency Review Program

The Massachusetts Office of Coastal Zone Management (CZM) recently released for public review and comment draft regulations designed to update federal consistency review requirements and implement the state’s Ocean Management Plan.

Governor Patrick signed the Oceans Act on May 28, 2008, requiring the Secretary of EOEEA to develop a comprehensive ocean management plan.  The Massachusetts Ocean Management Plan was released on December 31, 2009. … More

Stop the Presses: Utility Poles in Place Are Not Point Sources; Neither Are They Solid Waste

As we noted last month, the Supreme Court has determined that logging roads are not point sources subject to stormwater regulation under the Clean Water Act.  On Wednesday, in Ecological Rights Foundation v. Pacific Gas and Electric, the 9th Circuit Court of Appeals, relying in part on the decision in Decker v. Northwest Environmental Defense Center, held that releases of pentachlorophenol and other pesticides from in-place utility poles also do not constitute point source discharges. … More

EPA Proposes Revisions to the Construction and Development Effluent Guidelines: Time Again To Ask Whether EPA Will Get Any Credit For Being Flexible

Today, EPA formally proposed revisions to its effluent guidelines for stormwater discharges from construction and development point sources.  As we have previously noted, in response to concerns about the basis for EPA’s numeric turbidity standards, EPA had stayed the numeric standards.  It is now formally proposing to withdraw them.

EPA also responded to concerns that the rule contains certain exceptions where particular practices are infeasible,… More

EPA Loses Another Battle in the War Over Guidance: The Eighth Circuit Vacates EPA Policies on Mixing Zones and Bypasses

On Monday, EPA lost another battle in the war over guidance.  In Iowa League of Cities v. EPA, the 8th Circuit Court of Appeals vacated two letters that EPA had sent to Senator Charles Grassley concerning biological mixing zones and bypass of secondary treatment units at POTWs (also referred to as “blending”, because the POTWs blend wastewater that has not be subject to biological secondary treatment with wastewater that has,… More

Logging Road Runoff Does Not Require an NPDES Permit: The Supreme Court (For Now) Defers to EPA’s Interpretation of Its Own Regulations

Yesterday, in Decker v. Northwest Environmental Defense Center, the Supreme Court ruled that runoff from logging roads does not constitute a discharge from a point source that requires an NPDES permit.  The decision upholds EPA’s interpretation of its own regulations and overturns – what a surprise! – a 9th Circuit decision which had held that permits were necessary for logging runoff.

While EPA got the result that it wanted here,… More

MassDEP Regulatory Reform Release 2.0: Wetlands, Water, and Waterways

In addition to its MCP package, MassDEP has also released its formal regulatory reform proposals for its water, wastewater, wetlands, and waterways programs.  As with the MCP proposal, the water package took longer than it should have, and may not be perfect, but is definitely worth the wait.  MassDEP has provided two separate helpful summaries of the changes, one concerning wastewater issues and the other concerning wetlands,… More

A Victory For Regulation Over Guidance? Are EPA and the Corps Giving Up on Post-Rapanos Wetlands Guidance?

As readers of this blog know, EPA’s use of guidance is a pet peeve of mine.  The issue has arisen with particular force in connection with EPA’s efforts to define Clean Water Act jurisdiction following the Supreme Court decision in Rapanos.  When I last posted on this issue, I noted that any potential theoretical benefits to guidance were being outweighed by the practical reality that issuing guidance on such an important issue ends up taking on many of the trappings of regulation,… More

Is this the Future of Adaptation? Who Pays to Avoid the Cost of Coastal Flooding?

The New York Times reported today that Governor Cuomo is proposing to spend $400 million to buy out owners of property to avoid a recurrence of the damage caused by Hurricane Sandy.  I have to say that I have been persuaded over the past few years that we cannot put all our eggs in the mitigation basket, particularly since political gridlock in Washington has prevented much mitigation from occurring.… More

When Do Air Emissions Constitute a Discharge to Waters of the United States? Any Time the Emissions Reach Waters of the United States?

In a fascinating post today, my colleague from the American College of Environmental Lawyers, Patricia Finn Braddock, reported on a case at the intersection of the Clean Water Act and the Clean Air Act that could have significant implications for any source of air emissions that can credibly be alleged to affect waters of the United States.  The case is Rose Acre Farms v.… More

EPA Formally Withdraws Numeric Turbidity Standards from Its Stormwater Rule for Construction and Development Sites

Daily Environment Report announced yesterday that EPA notified BNA that, late last year, EPA reached a settlement with the Utility Water Act Group and the National Association of Home Builders resolving litigation over EPA’s rule imposing effluent limitations on the “Construction and Development Point Source Category” and over its Construction General Permit.

The most contentious aspect of EPA’s regulatory efforts in this area was EPA’s inclusion of numeric turbidity limits. … More

Dog Bites Man: Supreme Court Edition

In a curious, but unsurprising, decision yesterday, in Los Angeles County Flood Control District v. NRDC, the Supreme Court held that the flow of water containing pollutants from part of a river that has been culverted into a part of the river which still maintains natural banks is not a “discharge of a pollutant” within the meaning of the Clean Water Act.  The decision appears to be controlled by the Court’s prior decision in Florida Water Management District v.… More

The Wheels of Regulatory Reform May Grind Slowly, But In Massachusetts, At Least They Are Grinding

In April 2011, MassDEP launched a regulatory reform initiative. Yours truly participated in the original stakeholder group working with MassDEP to develop a list of potential reforms. Last week, MassDEP provided an update on the status of the reform package. While it has probably taken longer than Commissioner Kimmell had hoped, I am pleased to say that there is a lot of good stuff at this point, including some items that have been added since the original Action Plan was finalized in March 2012.… More

An Example of True Judicial Restraint: Judge Robert Chambers Affirms the Highland Mining 404 Permit

After my post on judicial restraint – and the lack thereof – in Texas v. EPA, the opinion issued last week by Judge Robert Chambers, in Ohio Valley Environmental Coalition v. United States Army Corps of Engineers, affirming the Corps’ § 404 permit for Highland Mining’s Reylas Surface Mine, seemed particularly notable. I cannot recall of similar example of a judge who was almost visibly restraining himself,… More

Challenging EPA NPDES Permitting Decisions Remains a Really, Really, Uphill Battle

The decision by the First Circuit Court of Appeals on Friday in Upper Blackstone Water Pollution Abatement Control District v. EPA confirms how difficult it is to challenge EPA NPDES permitting decisions. The case involves nutrient loadings in the Blackstone River and, ultimately, Narragansett Bay. As the opinion discusses, phosphorus in the Blackstone River and nitrogen in Narragansett Bay are causing severe eutrophication problems. As a result,… More

EPA Loses Another Battle in the War Over Guidance: Judge Walton Rejects EPA’s Final Guidance on Mountaintop Removal Permits Under the CWA

Yesterday, Judge Reggie Walton issued his final decision in National Mining Association v. Jackson. The decision is another blow to EPA’s efforts to regulate through guidance rather than notice and comment rule making.

The decision is not a surprise to anyone who has been following the case. As I noted early last year, Judge Walton telegraphed his views when he stated that even EPA’s Interim Guidance “qualified as final agency action because …… More

EPA Issues a § 316(b) Notice of Data Availability: Even Edison Electric Is Impressed

Late last week, EPA issued a Notice of Data Availability concerning its proposed rule for cooling water intake structures at existing facilities. The NODA stated that, since it had issued the proposed CWIS rule, it had received more than 80 studies providing additional data on CWIS structures at existing facilities. Those studies have led EPA to consider potential revisions to the rule prior to promulgation.

Some of the specific revisions now under consideration include:

  • The addition of site-specific impingement mortality controls
  • Compliance with impingement mortality limitations based on defined technologies such as closed cycle recirculating systems
  • Streamlined permitting for modified traveling screens
  • Clarification of credit for existing technologies
  • Potential limited exemptions for facilities with low impingement rates

In response,… More

Mayors Request Moratorium on Stormwater Enforcement — Will EPA Listen?

E&E News reported yesterday that the U.S. Conference of Mayors has requested a “moratorium” on Clean Water Act enforcement of stormwater limitations on municipalities. The report makes clear that the Mayors avoided an attack on either the CWA or the current EPA administration. Moreover, they acknowledged that there is still “much to be done to protect our water resources.”

Why the moratorium request, then? Two words – they’re broke. One of the mayors who spoke was Michael Bissonnette of Chicopee,… More

Here’s a Suprise — A Cap-and-Trade System For Nutrients Would Substantially Decrease the Cost of Nutrient Reductions in Chesapeake Bay

bayslammYesterday, the Chesapeake Bay Commission released a study showing that implementation of a nutrient trading system would dramatically reduce the cost to achieve nutrient reductions in Chesapeake Bay.
Pardon me if I seem to be posting a lot of dog bites man stories recently.

Although it should not come as a surprise that a trading system would permit nutrient reductions to be attained most cost-effectively,… More

EPA Really Doesn’t Seem Eager To Issue A Post-Construction Stormwater Rule

On Friday, E&E News reported that EPA had – for the fifth time – missed its deadline for proposing regulations governing stormwater discharge from post-construction activities. Apparently, EPA and the Chesapeake Bay Foundation, which was the plaintiff in the original litigation, are negotiating a new deadline. Good luck with that.

EPA is not in a good place at the moment. There is significant congressional opposition to any rule,… More

New Rapanos Guidance: Is It Guidance Or Is It Really Legislation?

Industry groups and environmentalists continue to do battle over EPA’s efforts to update its post-Rapanos guidanceGreenwire reports that 12 different groups have met with “the White House” in the past six weeks. As this process drags on, one cannot help but ask why this guidance is even being issued at all.

At an earlier point, I acknowledged that this might actually be an appropriate situation in which to use guidance,… More

The Subtext of Sackett v. EPA

In its unanimous decision yesterday in Sackett v. EPA, the Supreme Court’s communicates more than a little exasperation with its co-equal branches of government. Justice Alito’s concurrence is an outright broadside attacking Congress for failing over decades to clarify the scope of the Clean Water Act which enabled the Executive Branch in the form of an arrogant EPA to employ what Justice Scalia in the majority opinion describes as the “strong-arming of regulated parties”.… More

EPA Loses — Unanimously — In Sackett: How Broadly Does It Sweep?

For once, speculation about oral argument proved solid. The Supreme Court’s unanimous ruling today in Sackett v. EPA means that EPA must allow judicial review of enforcement orders issued pursuant to its authority under the Clean Water Act. The question now is what the true scope of the decision will be. That question really has two parts.

The first is what will happen to CWA enforcement. On that score,… More

One Small Step Forward For Mid-Atlantic Offshore Wind Development

offshore-wind-power-7259Yesterday, the Bureau of Ocean Energy Management issued a notice of availability for the Environmental Assessment it prepared in connection with the issuance of leases for wind energy development off the coast of New Jersey, Delaware, Maryland, and Virginia. The EA includes a Finding of No Significant Impact, or FONSI. In other words, BOEM concluded that the issuance of leases does not require a full blown Environmental Impact Report.… More

Lisa Jackson Says Public Pressure Will Clean Up Fracking. Really.

According to E&E News, Lisa Jackson said Friday that public pressure, not EPA regulation, will clean up fracking. 

Fracking fluids will get greener, water use will get down, all because the industry, quite frankly, will do it, must do it, and will feel the public pressure — not the EPA pressure — to do this in a responsible way.

Does she really mean it? Notwithstanding current pronouncements by the GOP Presidential candidates,… More

For Those of You Who Cannot Get Enough About Sackett

Just in case you are not sated with coverage about the Supreme Court argument in Sackett and the potential implications if EPA loses, I thought I would note that I did a brief (8 minutes) interview with LexBlog Network about the issues it presents. You can see it hereMore

More on the Frontlines of Adaptation

Last Friday, noting a story about the extent to which concerns about sea level rise from climate change might affect development in East Boston, I wondered whether battles over whether and how to adapt to climate change might be moving from the realm of the hypothetical to the realm of the real. Climate Wire has now begun a series of stories on how cities are planning for climate change. This week,… More

Is the Bell About to Toll on EPA’s Enforcement Order Authority? The Supreme Court Hears Oral Argument in Sackett

I am generally loath to speculate about what the Supreme Court will do based on oral argument, but the overwhelming reaction to the oral argument in Sackett v. EPA was that EPA is going to lose. What would a loss mean? In simplest terms, EPA would no longer be able to issue enforcement orders under the Clean Water Act without those orders being subject to judicial review. Such a decision would undeniably be significant. Everyone practicing in this area knows how coercive EPA enforcement orders can be. A person who thinks that he is not liable or that the order is inappropriate,… More

Has the Battle Begun? A Look at One of the Front Lines of the Adaptation Issue

A story in today’s Boston Globe makes clear that, at least in states where it is permissible to use the words “climate” and “change” in the same sentence, the battle over adaption may no longer be hypothetical. The neighborhood known as East Boston is one that might appropriately be described as having unfulfilled potential. Last month, at a Chamber of Commerce breakfast, Mayor Menino pledged to revive East Boston, specifically calling out five projects that have been on the drawing board for some time.… More

EPA Further Delays Issuance of Post-Construction Stormwater Regulation Proposal; Contractors and Developers Are Distraught (Not!)

Those following stormwater issues know that EPA is overdue to promulgate a proposed rule for stormwater controls at post-construction sites. The rule has been extremely controversial, with groups such as the Associated General Contractors arguing that EPA has no authority to promulgate post-construction rules. EPA was originally scheduled to issue the proposed rule by September 30. When EPA couldn’t meet that deadline, it negotiated an extension until December 2 (while stating that the deadline for the final rule,… More

Sauce For the Goose? Home Builders Lose a Standing Battle

Developers have cheered in recent years as the Supreme Court has tightened its standing rules. In a decision issued on Friday in National Association of Home Builders v. EPA, the Court of Appeals for the District of Columbia may have hoist the developers on their own petard.

After EPA and the Army Corps of Engineers issued a determination that two reaches of the Santa Cruz River constitute “traditional navigable waters” under the Clean Water Act,… More

Reliability Concerns? NERC Says Yes; EPA Blasts Flawed Assumptions

Yesterday, the North American Electric Reliability Corporation, or NERC, released its 2011 Long-Term Reliability Assessment. The NERC report identified environmental regulations as one “of the greatest risks” to reliability. Much of the focus of the concern was on EPA’s MACT rule for hazardous air pollutants and its 316(b) rule for cooling water intake structures. While expressing uncertainty about these not-yet finalized rules, the NERC report took an extremely cautious approach,… More

EPA Loses Another One: Enhanced Mountaintop Mining Reviews Struck Down

As part of its efforts to control the impact of mountaintop removal mining, EPA has implemented a number of changes – both procedural and substantive – into how § 404 permit applications for such activities will be reviewed. None of these changes have gone through notice and comment rulemaking. As we previously noted, Judge Reggie Walton already expressed skepticism about EPA’s mountaintop removal guidance. Last week, in the latest decision in National Mining Association v.… More

Coming Soon to Massachusetts: Adaptation to Climate Change

The abandonment of any discussion of climate change in Washington has not been followed in Massachusetts. Yesterday, Rick Sullivan, the Secretary of Energy and Environmental Affairs, released the Massachusetts Climate Change Adaptation Report, providing the fruits of a lengthy process in Massachusetts to look at the impacts of climate change on five areas: Natural Resources and Habitat; Key Infrastructure; Human Health and Welfare; Local Economy and Government;… More

Greenpeace Critiques Apparel Sector Companies for Failing to Manage Water Contamination by Suppliers

green_peace_china_01Some of the world’s most well-known apparel companies have come under criticism from Greenpeace for not sufficiently monitoring and limiting industrial wastewater discharges by suppliers.  In a new report called “Dirty Laundry“, Greenpeace highlights the wastewater discharges from two major manufacturers in China that supply products to a range of major brands — including Adidas, Bauer Hockey, Calvin Klein, Converse, Lacoste,… More

The Battle Over Guidance Is Joined Again: EPA Finalizes Its Mountaintop Removal Guidance

mountain_topThe fight about guidance and rules is in the news again. Yesterday, EPA finalized its guidance on Clean Water Act permitting with respect to mountaintop mining. As most of our readers know, EPA issued Interim Guidance in April 2010. In January 2011, in National Mining Association v. Jackson, Judge Reggie Walton, while denying plaintiff’s preliminary injunction, signaled that he thought that EPA’s Interim Guidance probably was a legislative rule that should have gone through notice and comment rule-making.… More

Perhaps the Justices Just Don’t Like GE: The Supreme Court Grants Certiorari to Review EPA’s Clean Water Act Order Authority

As I noted earlier this month, the Supreme Court denied GE’s certiorari petition seeking to challenge the constitutionality of EPA’s use of unilateral administrative orders issued under section 106 of CERCLA. It thus comes as something of a surprise that the Court today accepted a certiorari petition in Sackett v. EPA. The Sackets are appealing a decision by the 9th Circuit Court of Appeals holding that pre-enforcement review is not available to challenge unilateral administrative orders issued by EPA pursuant to section 319 of the Clean Water Act. Lest anyone think that this is simply the Court reining in that liberal 9th Circuit,… More

First Circuit Finds Coast Guard Violated NEPA in Attempt to Preempt Massachusetts Oil Spill Prevention Act

While not ones to unnecessarily toot our own horns, the First Circuit’s decision in United States et al. v. Coalition for Buzzards Bay et al. is worth a read. We (specifically, Buzzards Bay Guardian Jonathan Ettinger, Amy Boyd, and I) have been representing the recently-renamed Buzzards Bay Coalition in this case for a number of years and yesterday’s decision represents both a victory for the Coalition and an important First Circuit precedent with respect to the National Environmental Policy Act (NEPA).… More

EPA Issues New Rapanos Guidance: Perhaps the Agency Really Is Listening

I posted recently that EPA actually seems to be listening to comments from the regulated community and has changed course in some cases in response to those comments. The release by EPA and the Army Corps yesterday of their long-awaited revised guidance implementing the Supreme Court’s Rapanos decision confirms that EPA is in listening mode. Although I am not normally a fan, this new version seems an appropriate use of guidance.… More

EPA Is Still In Business: Proposes Draft Construction General Permit for Stormwater

For those of you who thought that the sky was about to fall in EPA as part of the budget battle, I’m able to report that EPA survived sufficiently intact to continue to issue new rules. Today, EPA proposed a draft revised construction general permit, or CGP, for stormwater discharges from construction sites disturbing at least one acre (or less, if the project is part of a common development plan that is greater than one acre). The revised CGP would replace the current CGP which is set to expire on June 30. EPA has proposed to extend the current CGP through January 31,… More

The Regulators Still Hold All the Cards: The SJC Affirms DEP’s Regulatory Authority Over Cooling Water Intake Structures

Sometimes I’m so timely I can’t stand it. This morning, I posted about the difficulty in challenging regulations under Massachusetts law. Later this morning, the SJC agreed. In Entergy v. DEP, the SJC upheld DEP’s authority to regulate cooling water intake structures under the state CWA. Funny how the SJC cited to the same language here as did Judge Sweeney in the Pepin case.

We will apply all rational presumptions in favor of the validity of the administration action and not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate.… More

EPA Announces Its Proposed Rule For Cooling Water Intake Structures: Do I Have To Compliment EPA Again?

Earlier this week, EPA announced its long-awaited revised proposal for a cooling water intake structure rule for existing facilities. Praise is much less interesting than criticism, and thus less conducive to entertaining blog posts, but I’m afraid EPA has left me no choice. Within the confines of what the Clean Water Act requires, EPA seems to have gotten this one pretty much right.

EPA has a useful summary of the rule here. I could certainly quarrel with aspects of the rule,… More

Muddling Through: Clean Water Act Edition

Last week, I discussed EPA’s efforts to “muddle through” on climate change in the absence of comprehensive legislation. This week, I think it’s the Clean Water Act’s turn. If there were any regulatory situation which required some serious muddling through at the moment, interpretation of the Supreme Court’s Rapanos decision almost is a match for the current climate mess. As most of my readers know, Rapanos was a 4-1-4 decision which left EPA,… More

Deja Vu All Over Again: Time For Another Rant About Guidance

As readers of this blog know, the question of guidance v. regulation is one near and dear to my heart. I generally disfavor guidance, because I think it offers none of the protections of the regulatory process and almost none of the flexibility that guidance is supposed to provide. Two issues are of particular concern. First, guidance is not supposed to announce new rules – only clarifying interpretation of existing rules. However,… More

Sometimes, Settlements Really Are Win-Win Propositions: An Innovative NDPES Settlement That Works For Everyone

GenOn KendallI don’t normally blog about cases in which I’m involved, but since this one made the front page of the Boston Globe, I suppose it’s sufficiently newsworthy. Yesterday, EPA announced that a settlement had been reached among EPA, MassDEP, our client GenOn Kendall, and the Charles River Watershed Association and the Conservation Law Foundation concerning the NPDES permit for Kendall Station. As a result of the settlement,… More

EPA Really Cares About Stormwater Enforcement

When EPA creates a web page solely addressing one stormwater settlement, you can safely assume that EPA thinks it is important and is trying to send a message. Thus, EPA’s announcement earlier this week of a settlement with Beazer Homes to resolve allegations that Beazer Homes violated federal stormwater requirements at construction sites in 21 – count ‘em, 21 – states should make everyone in the construction industry sit up and take notice.… More

What Are Citizen Groups Afraid Of? The Ninth Circuit Affirms Delegation of NPDES Authority to Alaska, Notwithstanding Alaska’s Fee-Shifting Provision

Almost all – 46 – states have delegated programs under the Clean Water Act. One criterion that EPA must determine has been satisfied before approving delegation is that the state has the ability to "abate violations of the permit … including civil and criminal penalties and other ways and means of enforcement."

EPA’s regulations provide that this criterion will be met if :

State law allows an opportunity for judicial review that is the same as that available to obtain judicial review in federal court of a federally-issued NPDES permit. A State will not meet this standard if it narrowly restricts the class of persons who may challenge the approval or denial of permits….… More

New Arsenic MCL in the Works? Will I Be Dead Before Any of My Sites are Clean?

As Superfund practitioners know, federal NPL sites are generally settled on the basis that the PRPs will first attain interim cleanup levels, though final cleanup levels are not determined until EPA is actually ready to issue its certification of completion of the remedy. Moreover, EPA insists that, should any ARARs change during the course of the cleanup, whatever standards are in effect at the time of site closure will be applied.… More

More on TMDLs, or Too Much Darn Litigation

Sometimes, the headline writes the story. EPA’s TMDL program under the Clean Water Act has been the subject of so much litigation since its inception that EPA has a web page devoted to the status of litigation on the establishment of TMDLs.

Bringing things close to home, the Conservation Law Foundation and the Coalition for Buzzards Bay filed suit late last month, challenging implementation by MassDEP and EPA of the TMDL program for certain embayments on Cape Cod and Nantucket. (Full disclosure time –… More

The SJC Really Means It: Only the Legislature Can Give Up the Public’s Ownership Interest in Tidelands

As many of you know, the Commonwealth’s tidelands licensing statute, Chapter 91, is one of my favorites, for no other reason than that it gives me the opportunity to talk about where the “waters ebbeth and floweth.”  Deriving from the Colonial Ordinances of 1641 and 1647, Chapter 91 is about as arcane as it gets – which, of course, lawyers are supposed to like.

The short version is that the Commonwealth holds the fee interest in “Commonwealth Tidelands” – those below the low water line. … More

Inching Closer to Cooling Water Intake Structure Regulation of Existing Facilities

Late July saw some movement on the cooling water intake structure (CWIS) front.

On Friday, July 23, in ConocoPhillips, et al. v. EPA, the Fifth Circuit granted EPA’s motion for a voluntary remand of the existing-facilities portion of its Phase III regulation. The Phase III rule, promulgated in 2006, addressed CWIS at existing small power plants and other facilities in certain industries, including the pulp and paper,… More

The Deck is Still Stacked in the Government’s Favor — Is This A Good Thing?

Last week, in City of Pittsfield v. EPA, the First Circuit Court of Appeals affirmed denial of a petition by the City of Pittsfield seeking review of an NPDES permit issued by EPA. The case makes no new law and, by itself, is not particularly remarkable.  Cases on NPDES permit appeals have held for some time that a permittee appealing an NPDES permit must set forth in detail in its petition basically every conceivable claim or argument that they might want to assert. Pretty much no detail is too small. The City of Pittsfield failed to do this,… More

A Combined Superfund and Stormwater Rant

Sometimes, the practice of environmental law just takes my breath away. A decision issued earlier last month in United States v. Washington DOT was about as stunning as it gets. Ruling on cross-motions for summary judgment, Judge Robert Bryan held that the Washington State Department of Transportation had “arranged” for the disposal of hazardous substances within the meaning of CERCLA by designing state highways with stormwater collection and drainage structures,… More

Coal Still in the Crosshairs

Two seemingly unrelated reports last week serve as a reminder that coal remains very much under siege. First, Earthjustice, on behalf of a number of environmental organizations, filed a petition with EPA under § 111 of the Clean Air Act requesting that EPA identify coal mines as an emissions source and, consequently, establish new source performance standards for coal mine emissions of methane and several other categories of pollutants. 

Second,… More

Water, Water, Everywhere: More Than a Drop to Treat

Last week, EPA released its Clean Watersheds Needs Survey 2008 Report to Congress. I have three immediate reactions to the Report. The first is that there are a lot of needs out there. The Report’s bottom line is that there is currently an expected shortfall of $298 billion over the next 20 years for clean water infrastructure. As Congress turns from short-term stimulus spending to long-term concerns about the deficit, it’s difficult to see Congress being eager to hear National Association of Clean Water Agencies Executive Director Ken Kirk say that

the federal government must become a long-term partner in developing a sustainable funding mechanism to address the growing infrastructure funding gap.… More

EPA’s Move to Regulate Stormwater Discharges from Development Gathers Steam; EPA Issues Mandatory Questionnaire For Public Comment

EPA is proceeding with its plan to establish a new program to regulate stormwater discharges from new development and redevelopment, with a target date for a final rule by November 2012. The next step: the reissuance of draft mandatory questionnaires that, once finalized, will be sent to various stakeholders, including approximately 738,000 owners and developers of residential, industrial and commercial sites. According to EPA, the “target population for the Owner/Developer Questionnaires is all development establishments in the United States,” as defined by 8 NAICS codes (see Part A.4 of EPA’s Supporting Statement for further information on whether your business would be covered).… More

EPA Keeps Up the Stormwater Drumbeat: Releases Draft Permit for Charles River Communities

EPA Region 1 continues to roll out new programs on the stormwater front, and this week’s development is particularly important for private property owners in the Charles River watershed. The agency released proposed amendments to the Residual Designation for the Charles River (“RDA”) and a Draft General Permit for Residually Designated Discharges. While the proposed permit only affects the Massachusetts communities of Milford, Bellingham, and Franklin, EPA has stated that it may expand the General Permit to include other Charles River communities in the future,… More

Yet More Bad News for Coal (Mining): EPA Issues Guidance Imposing Numeric Criteria For Discharges From Mountaintop Mining

Last week, EPA proposed to veto a permit for the No. 1 Spruce Mine in West Virginia. Yesterday, EPA went much farther, announcing new guidanceeffective immediately – which will impose numeric water quality based effluent limits, or WQBELs, on effluent from surface mining projects. EPA has at least tentatively concluded that high conductivity resulting from discharges of mountaintop fill has adversely affected streams downstream of surface mining operations.… More

Bad Day at Black (Coal) Rock

Last week, I noted that Gina McCarthy, EPA’s Assistant Administrator for Air and Radiation, suggested that, in the short run, the most significant pressure on inefficient energy sources would come, not from climate change legislation or from EPA GHG regulations, but instead from all of the conventional pollutant regulations that EPA expects to promulgate that will make use of coal much more expensive. While Gina was referring to a variety of air regulations,… More

Believe It Or Not, Sometimes MassDEP Does Things of Which the SJC Does Not Approve

Those of us who advise clients regarding compliance with environmental regulations have often been in the awkward position of agreeing with clients that the agency position is, shall we say, misguided, yet at the same time advising against legal challenge, because the judicial review deck is stacked so heavily in favor of the agency. (In another time or place, one might ask why this is so.)

Nevertheless, occasionally, the agency loses and,… More

Massachusetts Releases First in the Nation Ocean Management Plan

Earlier this week, Energy & Environmental Affairs Secretary Ian Bowles announced the release of the nation’s first ocean management plan. The plan is similar, but not identical to, the draft plan issued last July. Here are the highlights:
A Prohibited Area off the coast of the Cape Cod National Seashore, where most uses will be – you guessed it – prohibited
Multi-Use Areas, constituting approximately two-thirds of the planning area, where uses will be permitted if they comply with stringent standards for protecting marine resources
Renewable Energy Areas, where commercial- and community-scale wind projects have been found to be appropriate.

EPA Issues Construction Stormwater Rule — First National Standards With Numeric Limits

Yesterday, EPA released its effluent guidelines for construction sites. The guidelines establish the first national standard containing numeric limitations on stormwater discharges. The final standard imposed is 280 nephelometric turbidity units. It will apply to all construction sites greater than 20 acres in size as of 18 months following the effective date of the regulations (which will be 60 days after Federal Register promulgation) and sites larger than 10 acres 4 years after the effective date.… More

Perhaps The Next Coastal Project Won’t Take 10 Years: The First Circuit Preempts Some State Authority

Public and private developers spend a lot of time talking about NIMBY, or Not In My Backyard. With the increasing number of coastal development projects, ranging from wind farms to LNG facilities to plans for casinos, we should perhaps be talking about another acronym: NIMO, or Not In My Ocean. Yesterday, a decision from the First Circuit Court of Appeals in Weaver’s Cove LNG v. Rhode Island Coastal Resources Management Council gave some hope that NIMO will not mean that states can simply squelch development of ocean resources.… More

Another Bullet Aimed at Coal; Another Argument For Multi-pollutant and Multi-media regulation

On Tuesday, EPA announced its intention to issue new effluent guidelines for the Steam Electric Power Generating industry by sometime in 2012. The announcement follows an EPA study in 2008 which indicated that toxic metals, particularly those collected as part of flue gas desulfurization processes, can pose a problem in facility effluent. EPA’s announcement is not particularly surprising, given the ongoing study and given that EPA has not revised the guidelines since 1982. Indeed,… More

Is it Good News or Bad? MassDEP Wins an Adjudicatory Hearing Appeal

Although not breaking any new ground, a decision from the Massachusetts Appeals Court last week provides a helpful summary of the discretion typically given to MassDEP in making permitting decisions. In Healer v. Department of Environmental Protection, abutters to a proposed wastewater treatment facility in Falmouth sued MassDEP, claiming that the groundwater discharge from the leach field associated with the facility would damage drinking water supplies and nearby wetlands. The Court affirmed the MassDEP Commissioner’s rejection of the abutters’… More

Stormwater Discharges From Construction Activity: What Next From EPA?

Construction and development companies praying for an economic recovery next year have something else to worry about: pending new EPA regulations regarding stormwater discharges from construction activities – and claims from environmental groups that EPA’s proposal isn’t stringent enough.

EPA issued a proposal on November 28, 2008. That proposal is complex, but the aspect of it that has received the most attention is the requirement that certain construction sites greater than 30 acres meet numerical turbidity limits (specifically,… More

Next on the Federal Agenda: Ocean Zoning

I know it’s hard to believe, but some of you may not have realized that today is World Oceans Day. In connection with World Oceans Day, Senator Jay Rockefeller has written a letter to the White House in support of the concept of “ocean zoning.” Senator Rockefeller will also be holding hearings on the issue tomorrow. Among those testifying will be Deerin Babb-Brott, who is the Assistant Secretary in the Massachusetts Executive Office of Environmental Affairs and is in charge of Massachusetts’… More

One Step Closer to a Legislative Fix to Rapanos?

Particularly this week, one needs to make a conscious effort to remember that it is not “all climate, all the time” on the environmental front. While climate change is obviously the President’s top priority at the moment, the administration did take the time this week to send letters to congressional leaders voicing the its support for amendments to the Clean Water Act to eliminate uncertainty concerning the Act’s scope following the Supreme Court decision in Rapanos. … More

Be Careful What the EPA Administrator Wishes For: Is a Legislative Fix to Rapanos on the Horizon?

In an statement this week likely to send chills down the spine of developers, EPA Administrator Jackson called on Congress to provide a clearer definition of wetlands subject to permitting authority under the Clean Water Act. As most readers know, the 2006 Supreme Court decision in Rapanos v. United States narrowed the scope of regulatory jurisdiction over wetlands. Unfortunately, the absence of a majority decision in Rapanos means that,… More

Justice Triumphs: The Supreme Court Upholds EPA’s Authority to Consider Costs Under Section 316(b) of the Clean Water Act

As many readers of this blog will have already learned, the Supreme Court issued its long-awaited decision in Entergy v. Riverkeeper yesterday. The Court reversed the Second Circuit Court of Appeals and held that EPA was within its authority to consider cost-benefit analysis in setting standards for cooling water intake structures under § 316(b) of the Clean Water Act.

I’m definitely getting on my soapbox here,… More

More News From the Coal Front: Mountaintop Mining Takes One Hit — and May Face Another

This week, the practice of mountaintop removal – chopping the tops off mountains in order extract the coal – received two blows: one from EPA and one from Congress. First, EPA offices Region 3 and Region 4 announced that they plans to assess the Central Appalachia Mining’s Big Branch project in Pike County, Ky., and the Highland Mining Company’s Reylas mine in Logan County, W.Va., before permits are issued for those projects.… More

EPA and Maine DEP Announce New Stormwater Controls

Demonstrating that the recent announcement of new stormwater controls for the Charles River in Massachusetts were not an aberration, EPA, joining with the Maine DEP, announced last Friday that it will be imposing new stormwater regulations for discharges into Long Creek, which ultimately flows into Casco Bay.

Responding to petitions from the Conservation Law Foundation, EPA has exercised its Residual Designation Authority under its NPDES permitting regulations.… More

It’s Not All About Climate Change: Massachusetts DEP Proposes New Stormwater Permitting Regime

Although some of you may think that the regulatory agencies are now all climate change all the time, Massachusetts DEP has demonstrated that there is still life in some more traditional aspects of environmental regulation. MassDEP has just proposed sweeping new stormwater regulations that would go far beyond the traditional EPA model of regulating construction sites and stormwater discharges from industrial facilities.

DEP’s proposal is far too detailed for a blog post. For those interested in this issue,… More

EPA Issues New Industrial Stormwater Permit

On September 22, EPA issued a new Stormwater Multi-Sector General Permit (MSGP) to cover 4,100 facilities with discharges associated with an industrial activity. The permit replaces the MSGP that was issued in 2000 and expired in October 2005. The expired permit continued to be valid for facilities that were covered by the permit at the time it expired.

The new permit applies to states not authorized to implement EPA’s NPDES program,… More