News & Analysis as of

Critical Habitat and the Endangered Species Act: Proposed Revisions to Fundamental Regulatory Concepts

On May 12, 2014, the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (collectively, the “Services”) issued notices of proposed rules and a proposed policy related to the designation of...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

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

2014 IGP Challenge Filed

A petition for Writ of Mandate was filed May 8 asking Alameda Superior Court to order the State Water Resources Control Board (SWRCB) to immediately reopen and modify the new Industrial General Permit (IGP), adopted April 1,...more

Federal Appellate Court Stays Initial Date for Meeting New Ballast Water Discharge Limits – But Only for Canadian Shipowners...

On April 9, 2014, the United States Court of Appeals for the Second Circuit granted a stay of the January 1, 2014 deadline for installation of ballast water treatment technology required by the U.S. Environmental Protection...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

Draft Regulations Would Dramatically Expand Clean Water Act Jurisdiction

The Environmental Protection Agency and the Army Corps of Engineers have presented a draft of joint regulations under the Clean Water Act to the Office of Management and Budget for an internal governmental review. While the...more

Ninth Circuit’s Fanciful Interpretation of the Clean Water Act Ripe for another Reversal?

Shortly after admonishing the Ninth Circuit for its strained interpretation of the Clean Water Act (“CWA”), the Supreme Court may be asked to repeat itself. On January 8, 2013, in Los Angeles County Flood Control District v....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 Reverses Prior Ruling: Pollution Levels In Monitoring Data Are Sufficient To Hold County Liable For Storm Water...

Urban storm water runoff has been recognized as one of the most significant sources of water pollution in the country. ...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

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

Water Quality Law Alert: CA State Water Control Board Opens Public Comment on "Final Draft" of Long-Anticipated Industrial Storm...

As previously reported by my colleague Melissa Foster, on July 19, 2013, the State Water Board published the "Final Draft" of the NPDES Industrial Storm Water General Permit, which is intended to replace the previous version...more

Court Allows EPA To Stop Ongoing Projects, Years After Permits Were Granted

In 2007, Mingo Logan Coal Company received a Clean Water Act permit from the U.S. Army Corps of Engineers to discharge dredged or fill material from a mountain top coal mine in West Virginia into three...more

D.C. Appeals Court Says EPA May Revoke Fill Permit After It Has Been Issued

In addressing an important legal issue of first impression, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the U.S. Environmental Protection Agency’s “veto” authority under Section 404(c) of the...more

Appeals Court Reinstates EPA “Veto” Over Corps’ Mining-Related Permit - Mingo Logan decision creates uncertainty in Clean Water...

In a surprising reversal, on April 23, 2013, the U.S. Court of Appeals for the District of Columbia Circuit overturned a lower court order issued on March 23, 2012, in the case of Mingo Logan Coal Company v. U.S. Envtl. Prot....more

D.C. Circuit Holds EPA Can Invalidate a Clean Water Act Section 404 Permit After It Is Issued

In a ruling that adds to the complexity of the federal regulatory landscape, the United States Court of Appeals for the District of Columbia held that the Environmental Protection Agency ("EPA") has the authority to...more

Do We Really Have A Section 404 Permit?

The United States Court of Appeals for the District of Columbia Circuit issued an opinion on April 23 in Mingo Logan Coal Co. v. United States Environmental Protection Agency upholding the Environmental Protection Agency’s...more

Supreme Court Willing to Reconsider Deference to Administrative Agencies

Most of the federal government's authority is exercised, on a day-to-day basis, through its administrative agencies. Central to the efficiency of those agencies — such as it is — is the judiciary's substantial deference to...more

California Environmental Law and Policy Update - April 11, 2013

Environmental and Policy Focus - ..Court rules CEQA streamlining provision unconstitutional: CourtHouse News - Apr 3 - A section of a California law aimed at streamlining construction projects by moving...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

EPA Issues 2013 Vessel General Permit

On March 28, 2013, the United States Environmental Protection Agency (EPA) published a new Clean Water Act Vessel General Permit (2013 VGP) that regulates discharges from commercial vessels greater than or equal to 79 feet in...more

Logging Roads Get A Pass – At Least For Now

Yesterday, in a 7-1 decision with Justice Scalia the lone dissenter, the U.S. Supreme Court handed a major victory to the forest products industry. As it does so often, the Court reversed a Ninth Circuit ruling that had...more

US District Court for the Middle District of Pennsylvania Enjoins PA Environmental Hearing Board From Hearing Appeal of...

In Tennessee Gas Pipeline Co., L.L.C. v. Delaware Riverkeeper Network, et al, No. 3:13-cv-46 (Feb. 5, 2013), Judge Robert D. Mariani issued an opinion granting an injunction sought by Tennessee Gas Pipeline Company, L.L.C....more

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