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
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
On Wednesday, the 4th Circuit Court of Appeals reversed a District Court ruling and rejected the Sierra Club’s citizen suit against Virginia Electric Power alleging that releases of arsenic from a coal ash landfill and settling ponds at its Chesapeake Energy Center power plant 
violated the Clean Water Act and the plant’s NPDES permit. Notably, the issue that most concerned me at the time of the District Court opinion,… More
The Clean Water Act regulates discharges of pollutants to waters of the United States. That term is not understood to include groundwater. The Sierra Club was unhappy about alleged discharges to groundwater from coal ash disposal facilities at the Chesapeake Energy Center power plant. The plant had a solid waste permit for the disposal facilities under Virginia law and, one can at least infer, was in compliance with the solid waste permit.… More
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
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
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