Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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Latest Posts › Clean Water Act


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...more

11/11/2015 - Clean Water Act Groundwater Solid Waste Surface Water Waters of the United States

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...more

10/8/2015 - Administrative Procedure Act CERCLA Clean Air Act Clean Water Act Deprivation of Property Due Process Enforcement Actions EPA Penalties Sackett SCOTUS

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...more

8/28/2015 - Clean Water Act EPA Final Rules Injunctions Irreparable Harm Waters of the United States

EPA Defines “Waters of the United States”. The Sky Has Not Fallen.

Yesterday, EPA and the Army Corps finally released their long-awaited rule defining “waters of the United States.” I’m actually with EPA and the Corps on this one. It’s an important rule, and I’m glad that EPA and the Corps...more

5/29/2015 - Clean Water Act EPA US Army Corps of Engineers Waters of the United States

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 and the Northern Gulf of...more

4/13/2015 - Clean Water Act EPA Standard of Review

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...more

3/16/2015 - Clean Water Act EPA Federal Jurisdiction

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...more

2/12/2015 - Clean Water Act EPA Stormwater Discharge Permits

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...more

2/2/2015 - Chevron Deference Clean Water Act Coal Industry Discharge of Pollutants EPA

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...more

10/3/2014 - Appeals Clean Water Act EPA Industrial Discharges Mining Section 404 US Army Corps of Engineers

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” under the Clean Water Act. In a brief letter that can only...more

9/23/2014 - Clean Water Act EPA Farm Bureau Science Advisory Board US Army Corps of Engineers Waters of the United States

More Than (You Thought) You Ever Wanted To Know About Waters Of The United States

Over the past few months, I worked with a number of colleagues from the American College of Environmental Lawyers to provide the Environmental Council of the States with a balanced review of the history and background of how...more

9/17/2014 - Clean Water Act Waters of the United States

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...more

9/8/2014 - Clean Water Act Coal Contamination Discharge of Pollutants Environmental Liability Environmental Policies NPDES

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,...more

7/15/2014 - Clean Water Act Environmental Policies EPA Mining Water

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

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...more

7/14/2014 - Clean Water Act EPA Final Guidance Land-Use Permits Permits US Army Corps of Engineers

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

The 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...more

3/31/2014 - Clean Water Act Environmental Policies EPA Water

Coal Companies, Don’t Look Behind; EPA May Be Gaining on You

As the lawyers among our readers know, the denial of a certiorari petition does not establish precedent. However, that doesn’t make it unimportant. Yesterday, the Supreme Court denied cert. in Mingo Logan Coal Co. v. EPA. ...more

3/25/2014 - Clean Water Act Coal Discharge of Pollutants Energy Policy Environmental Policies EPA Water

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...more

2/7/2014 - Clean Water Act Environmental Policies EPA Pollution Control TMDL

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 TMDL. As Judge Rambo noted in her conclusion, while the environmental problems associated with the Chesapeake Bay are...more

9/19/2013 - Clean Water Act Environmental Claims EPA TMDL Water

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...more

9/18/2013 - Clean Water Act EPA OMB US Army Corps of Engineers

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...more

8/15/2013 - Clean Water Act Discharge of Pollutants Enforcement Industrial Stormwater Rule NPDES Permits Point Sources Storm Water Water

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 the permit does not mention a particular pollutant? In Southern Appalachian...more

7/30/2013 - Clean Water Act Coal Coal Mines Discharge of Pollutants Mining Permits

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

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...more

4/24/2013 - Chevron Chevron v NRDC Clean Water Act EPA Statutory Interpretation Waste

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 frequent 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...more

2/27/2013 - Clean Water Act EPA Obama Administration OMB Wetlands

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

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...more

2/4/2013 - Air Pollution Clean Air Act Clean Water Act Discharge of Pollutants Permits

EPA’s Authority to Set TMDLs Is Limited: Be Careful What You Wish For

Last week, in Virginia Department of Transportation v. EPA, Judge Liam O’Grady struck down EPA’s attempt to set a TMDL for the Accotink Creek in Virginia based on the rate of total stormwater discharge to the Creek, rather...more

1/9/2013 - Chevron Clean Water Act Discharge of Pollutants EPA Storm Water TMDL

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