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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
In a curious, but unsurprising, decision yesterday, in Los Angeles County Flood Control District v. NRDC, the Supreme Court held that the flow of water containing pollutants from part of a river that has been culverted into a...more