Yesterday the Supreme Court of the United States issued its most significant Clean Water Act decision in more than a decade, resolving a split among lower courts over the reach of the Clean Water Act’s “point source” or National Pollutant Discharge Elimination System (NPDES) program. Pollutants travel to bodies of water in many ways: by pipe, ditch, or runoff, for example. The Clean Water Act defines some of those ways of moving pollutants as “point sources”—specifically, pipes, ditches, and similar “discernible, confined and discrete conveyance[s]”—and bans the “addition of any pollutant to navigable waters from any point source” without an NPDES permit. But no similar permitting requirement applies to pollution added from nonpoint sources, which is instead controlled by state and other federal environmental laws. 
Continue Reading County of Maui v. Hawai’i Wildlife Fund: Supreme Court Rejects Ninth Circuit’s Expansive Test for NPDES Permitting Under Clean Water Act, Requires Direct Discharges to Navigable Waters or Functional Equivalent of a Direct Discharge

On January 23, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released their new regulatory definition of “the waters of the U.S.” (WOTUS) clarifying the geographic scope of federal jurisdiction under the Clean Water Act.
Continue Reading Agencies Release Final Rule Clarifying Federal Jurisdiction Under the Clean Water Act

One of the Supreme Court’s recurring environmental law topics is the scope of Clean Water Act (CWA) jurisdiction. Various aspects of CWA jurisdiction and implementation have been addressed over the years by the Court, including the meaning of “navigable waters” in U.S. v. Riverside Bayview Homes, Inc. (1985); Solid Waste Agency of N. Cook Cnty v. Army Corps of Eng’rs (2001); and Rapanos v. U.S. (2006), and judicial review of agency actions related to the applicability of the CWA dredge and fill permit program in Sackett v. EPA (2012) and U.S. Army Corps of Eng’rs v. Hawkes Co. (2016). Most recently, the Supreme Court heard oral argument on November 6 in County of Maui v. Hawai’i Wildlife Fund, et al., a case that addresses the applicability of the CWA’s prohibition on “point source” discharges to “navigable waters” to releases from point sources to groundwater. The Court granted certiorari to address whether releases from point sources that are carried to navigable waters by groundwater are regulated under the federal NPDES permit program or under state non-point source management programs.
Continue Reading Supreme Court Addresses the Scope of CWA Jurisdiction Once Again

On November 4, 2019, the US Court of Appeals for the Eleventh Circuit upheld the Clean Water Act (CWA) section 404 permit issued by the US Army Corps of Engineers (Corps) for the extension of an existing phosphate mine in central Florida. Center for Biological Diversity v. U.S. Army Corps of Engineers, No. 18-10541 (11th Cir. Nov. 4, 2019). The Corps permit authorizes the discharge of dredged or fill material into waters of the United States that comprise a small portion of the mining extension. Opponents challenged the permit in the Middle District of Florida, claiming the issuance of the permit violated the CWA, the National Environmental Policy Act (NEPA) by not considering “downstream” effects, and the Endangered Species Act (ESA). The district court rejected all of the claims, and the Eleventh Circuit affirmed.
Continue Reading Eleventh Circuit Confirms Proper Scope of NEPA Review Governing Corps Clean Water Act Section 404 Permit

On August 22, EPA issued a proposed rule seeking to increase predictability for applicants by clarifying the Clean Water Act section 401 state water quality certification process.
Continue Reading EPA Proposes to Increase Predictability and Timeliness of Water Quality Certification Process

Under the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) and California’s Porter-Cologne Water Quality Control Act, industrial facilities in California are required to obtain coverage under the state’s NPDES general permit for discharges associated with industrial storm water activities (General Industrial Permit) or justify why they are exempt. For regulated facilities, including manufacturing facilities, landfills, mining operations, steam electric power generating facilities, hazardous waste facilities, and oil and gas facilities, failure to obtain coverage under the General Industrial Permit is a potential violation of the Clean Water Act (in addition to state law), which could expose the owner or operator of the facility to potential civil penalties of up to $54,833 per day. Enforcement, however, largely is dependent upon agency inspections or enforcement by citizen groups. Based on estimates by the California Coastkeeper Alliance, many facilities in California may have failed to enroll in the industrial storm water permit program.
Continue Reading You Say You Want a Business License? California Enacts New Law to Improve Compliance with Industrial Storm Water Permitting Requirements

Policy makers in California have pledged to resist Trump administration policy changes on environmental and other issues. Senate Bill 1 (SB 1), proposing the California Environmental, Public Health and Workers Defense Act of 2019, is the California legislature’s current preemptive response to the administration’s attempts to modify certain federal environmental and worker safety laws.

SB 1 has passed the California Senate. It is awaiting a final hearing in the State Assembly’s Appropriations Committee, likely sometime in mid‑to‑late August. After that, it moves to the Assembly floor, where a final vote is required by the end of California’s legislative session on September 13, 2019.
Continue Reading SB 1: California’s Attempt to Halt Federal Environmental and Worker Safety Deregulation

On May 15, EPA released its draft Study of Oil and Gas Extraction Wastewater Management under the Clean Water Act. The Draft Study addresses the results of an extensive review initiated last year to evaluate the management of oil and gas wastewaters generated at onshore facilities and to assess the need for additional discharge options for onshore oil and gas wastewater under the Clean Water Act. Although EPA has not yet adopted any recommendations for regulatory action, it is evident that EPA is continuing to take a hard look at the merits of authorizing broader discharges of produced water to surface waters than those currently allowed for onshore discharges under the CWA effluent guidelines (and generally referred to as the zero discharge standard).
Continue Reading Expanded Produced Water Discharge Options – On the Horizon?

In their ongoing efforts to require EPA to develop a hazardous substance spill program under the Clean Water Act, environmental groups allege in a new lawsuit that EPA must promulgate worst-case discharge regulations requiring certain facilities to develop facility response plans. What this means for EPA’s recent proposal not to develop a general CWA hazardous substance spill program and potentially regulated facilities remains to be seen.
Continue Reading Environmental Groups Sue EPA to Develop Worst-Case Hazardous Substance Spill Rules