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...more
4/4/2019
/ Administrative Orders ,
Appeals ,
Arbitrary and Capricious ,
Clean Water Act ,
Environmental Protection Agency (EPA) ,
Motion for Summary Judgment ,
Navigable Waters ,
Property Owners ,
Remand ,
Significant Nexus Test ,
Waters of the United States ,
Wetlands
On January 25, 2019, 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...more
1/29/2019
/ Appeals ,
Certifications ,
Clean Water Act ,
Dams ,
Energy Sector ,
Federal Power Act ,
Filing Deadlines ,
Hydropower ,
License Applications ,
Permits ,
Water ,
Water Quality
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
The Sixth Circuit ruled earlier this week that discharges to groundwater are not subject Clean Water Act jurisdiction. We now have the requisite circuit split, opening the possibility of Supreme Court review. For those who...more
On Wednesday, September 12, 2018, 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...more
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...more
Earlier last week, the 4th Circuit Court of Appeals reversed a District Court opinion and held that West Virginia had not “constructively submitted” no TMDLs for waters affected by ionic toxicity. (And, yes, that sentence is...more
Last week, the 4th Circuit Court of Appeals – not the most liberal court in the land – joined the 9th Circuit in ruling that discharges from a point source to groundwater can be subject to the Clean Water Act. The decisions...more
President Trump’s infrastructure plan includes a number of important proposals. My initial reaction is consistent with my view of many of the President’s initiatives – he gives regulatory reform a bad name. We do need to...more
2/16/2018
/ Atomic Energy ,
Clean Water Act ,
Environmental Impact Report (EIR) ,
Environmental Protection Agency (EPA) ,
Infrastructure ,
Injunctive Relief ,
NEPA ,
Nuclear Power ,
Regulatory Reform ,
Trump Administration ,
US Army Corps of Engineers ,
Veto Rights
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...more
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...more
On January 22,2018, the Supreme Court ruled that challenges to the WOTUS Rule must be heard in the district courts. At a certain level, the decision was easy and obvious – as evidenced by the absence of any dissent.
...more
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...more
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...more
March 2nd, 2017, 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...more
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...more
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...more
On July 1, EPA promulgated an interim final rule making inflation adjustments to the civil penalties under statutes it administers. The adjustments are required by statute. The new amounts apply to violations that occurred...more
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” are final agency action subject...more
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...more
According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government. Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are...more
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...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...more
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 ,
Environmental Protection Agency (EPA) ,
Penalties ,
Sackett ,
SCOTUS
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