News & Analysis as of

Aurora Energy Decision Deems Discharges Prohibited, Leaves Open Question of Permit Shield Applicability

On September 3, 2014, the United States Court of Appeals for the Ninth Circuit issued its opinion in Alaska Community Action on Toxics v. Aurora Energy Services, LLC, holding that the Clean Water Act General Permit for...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...more

Leaked EPA Draft Offers Insight into Upcoming Shale Wastewater Regulations

The rapid expansion of shale drilling in recent years has brought with it an increase in the wastewater that is generated during the fracking process. One fracking well can produce over one million gallons of wastewater in a...more

D.C. Circuit Validates EPA’s Consultation Process for Reviewing Clean Water Act Permits

On July 11, 2014, the United States Court of Appeals for the District of Columbia Circuit upheld the United States Environmental Protection Agency’s (EPA) “Enhanced Coordination Process,” which was developed with the United...more

EPA Re-gains “Green Light” to Regulate Permitting Procedures - D.C. Circuit overturns lower court decisions on EPA permitting...

Two district court orders declaring the federal Environmental Protection Agency acted illegally when it implemented certain permitting procedures for coal mining operations have been vacated by a federal court of appeals....more

Fourth Circuit Affirms Liability for Selenium Discharges - Rejects Permit Shield Defense

By a published decision released on July 11, 2014, the U.S. Court of Appeals for the Fourth Circuit affirmed a district court decision out of the Western District of Virginia finding that A & G Coal Corporation (“A & G”)...more

EPA and Army Corps Propose Expansive Regulation Identifying Jurisdictional Waters under the Clean Water Act

In response to the U.S. Supreme Court’s failure to establish definitive guidelines in a recent case, Rapanos v. U.S.,1 the U.S. EPA and the Army Corps of Engineers issued a proposed regulation2 redefining the “waters of the...more

EPA Promulgates Final Standards for Cooling Water Intake Structures

On May 19, 2014, the Environmental Protection Agency (EPA) released a long-delayed final rulemaking regulating cooling water intake structures at existing facilities under Section 316(b) of the Clean Water Act (CWA). For more...more

EPA Adopts Fish Protection Standards for Cooling Water Intake Structures

The regulation requires power plants and manufacturing facilities to demonstrate that their cooling water withdrawals minimize fish mortality. The U.S. Environmental Protection Agency (EPA) has issued regulations under...more

EPA Unveils Final Cooling Water Intake Structures Rule

On May 19, the U.S. Environmental Protection Agency (EPA) finalized its long-awaited rule under Section 316(b) of the Clean Water Act (CWA) imposing requirements for cooling water intake structures (CWIS) at power plants and...more

State Water Board to Adopt Revised Industrial Storm Water Permit on April 1, 2014

The California State Water Resources Control Board (State Board) recently notified the public that it will consider for adoption the final draft of the general NPDES permit that regulates storm water discharges associated...more

Do You Need To Permit Your Stormwater Discharge?

It has been more than 40 years since Congress created the National Pollutant Discharge Elimination System (NPDES) in the 1972 Clean Water Act. Yet, confusion remains about which activities and discharges actually require...more

EPA Enters into the 21st Century with New Clean Water Act Reporting Requirements

Clean Water Act Discharge Permits to go Electronic - Since the National Pollution Discharge Elimination System (NPDES) permit requirements were first adopted by EPA back in 1972, the program has undergone significant...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...more

Ninth Circuit Says Los Angeles County Flood Control District is Liable for River Pollution - Appellate Court Sidesteps Supreme...

The Ninth Circuit Court of Appeals ruled on August 8, 2013, that elevated pollutant levels in the Los Angeles and San Gabriel rivers represent a violation of the National Pollutant Discharge Elimination System (NPDES) permit...more

California State Water Board Issues New Draft Industrial Storm Water Permit

On July 19, 2013, the California State Water Resources Control Board released its long-awaited 2013 Draft NPDES Permit for the Discharge of Storm Water Associated With Industrial Activities (the "Draft Industrial General...more

Environmental Groups Seek to Impose Selenium Treatment Obligations on Property Owners

The Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and Sierra Club have filed five (5) lawsuits in the last two months in the U.S. District Court for the Southern District of West Virginia, alleging...more

Utility Pole Not A Point Source Under The Clean Water Act

Last week the Ninth Circuit held that utility poles are not “point sources” of stormwater discharge nor “associated with industrial activity,” and therefore do not require an NPDES permit to comply with the Clean Water Act....more

Supreme Court Upholds EPA's Logging Road Exception from Clean Water Act NPDES Permitting

On March 20, 2013, the U.S. Supreme Court issued an opinion in Decker v. Northwest Environmental Defense Center that addresses the issue of "whether the Clean Water Act and its implementing regulations require permits before...more

Supreme Court Reverses 9th Circuit on Logging Roads, Deferring to EPA on Its Industrial Stormwater Rule

On March 20, 2013, the U.S. Supreme Court held in a 7-1 decision that Clean Water Act permits are not required for stormwater runoff from logging roads. The decision in Decker v. Northwest Environmental Defense Center defers...more

No Permit Required For Timber Harvesting

The U. S. Supreme Court’s March 20, 2013, decision in Decker v. Northwest Environmental Defense Center is good news for the logging industry. The Clean Water Act (Act) and EPA’s Silvicultural Rule (Regulation) do not require...more

EPA Proposed Rule Withdraws Construction Stormwater Pollutant Numeric Limits

In a proposed rule to be published today, April 1, 2013, in the Federal Register, the United States Environmental Protection Agency will withdraw the numeric effluent limits for construction stormwater turbidity that the...more

U.S. Supreme Court: NPDES Permits Are Not Required For Logging Road Stormwater Runoff

The U.S. Supreme Court has reversed a 2010 Ninth Circuit Court of Appeals decision and reaffirmed that a federal Clean Water Act National Pollutant Discharge Elimination System (NPDES) point source discharge permit is not...more

Supreme Court Offers Comfort To Owners Of Dams And Water Control Facilities

In a ruling that has important implications for the hydropower industry, municipal water control systems, and dam owners everywhere, the U.S. Supreme Court strongly affirmed an earlier holding that a "discharge of a...more

Conveyance of Polluted Water Within River Involves No 'Discharge' Under Clean Water Act

The flow of polluted water from a concrete-lined portion of a river into a downstream portion of the same river does not involve a “discharge” for purposes of the Clean Water Act (“CWA”) and thus involves no CWA violation,...more

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