Responding to an EPA collection request can be costly, time consuming and stressful for the target of the request—especially because failure to submit a timely and accurate response can result in significant civil or criminal penalties. On November 21, EPA’s Office of Water (OW) and Office of Civil Enforcement (OCE) issued new policies that, if followed, promise to make the process more reasoned and less burdensome.
Continue Reading

For decades, the precise scope of the Clean Water Act’s point source permitting program has been the subject of much controversy.  Over the past several years, the question of whether that program—known as the National Pollution Discharge Elimination System (“NPDES”)—regulates discharges to groundwater that is hydrologically connected to surface water has produced a number of conflicting decisions and a torrent of commentary and public debate.  The Fourth and Ninth Circuits recently concluded that the NPDES program regulates such discharges under certain circumstances, while the Sixth Circuit reached the opposite conclusion, setting up potential review of the issue in the United States Supreme Court.
Continue Reading

Continuing its vanguard approach to environmental regulation, California is poised to incorporate Total Maximum Daily Load (TMDL)-specific requirements into its industrial storm water general permit (IGP). TMDLs are pollutant- and water body-specific and establish the maximum amount of a pollutant a water body can receive while meeting water quality standards. Once effective, these new requirements will provide additional avenues of attack for the already active Clean Water Act citizen suit docket.
Continue Reading

The US District Court for the Middle District of Louisiana ordered the $750 million Bayou Bridge pipeline to halt construction within the Atchafalaya Basin when it concluded that the US Army Corps of Engineers’ environmental analysis likely violated the National Environmental Policy Act and the Clean Water Act due to the following deficiencies: the Corps did not provide sufficient explanation for how the proposed off-site mitigation would compensate for the loss of wetlands impacted by construction; and the Corps failed to sufficiently consider and address historical impacts to wetlands from past pipeline projects in the cumulative effects analysis. On appeal, however, the US Court of Appeals for the Fifth Circuit overturned the lower court.
Continue Reading

A second district court has agreed that challenges to the 2015 Waters of the United States (WOTUS) Rule are likely to succeed on the merits. The US District Court for the Southern District of Georgia issued an order on June 8 enjoining the WOTUS Rule in 11 states. Georgia v. Pruitt, No. 2:15-cv-00079 (S.D. Ga. 2018). The rule was previously enjoined by the US District Court for North Dakota in 13 states. North Dakota v. U.S. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015). The US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps) (“the Agencies”) recently promulgated a new applicability date for the 2015 WOTUS rule (Applicability Rule), preventing its implementation until February 2020, but there have been several lawsuits challenging the Applicability Rule. Now, regardless of the outcome of challenges to the Applicability Rule, the 2015 Rule cannot be applied in 24 states[1] until a court issues a final decision on the merits, either upholding or invalidating the Rule, or the Agencies finalize a repeal and/or replacement of the 2015 Rule.
Continue Reading

California is considering the first-in-the-nation general industrial stormwater permit incorporating Total Maximum Daily Load-related numeric action levels and numeric effluent limitations. Touted as an effort to promote green infrastructure and water reuse, this proposal could revamp how industry manages stormwater.
Continue Reading

In a decision issued on April 12, 2018, a Fourth Circuit panel held (2-1) that (1) even though a pipeline leak has been repaired and remediation is ongoing under the supervision of the state environmental agency, environmental groups have standing to sue the pipeline owner, and (2) plaintiffs’ allegation that groundwater continues to carry discharged pollutants to jurisdictional waters through a “direct hydrological connection” supports liability under the Clean Water Act.
Continue Reading

On March 12, 2018, the United States Court of Appeals for the Second Circuit affirmed a Federal Energy Regulatory Commission order finding that delays by the New York Department of Environmental Conservation in reviewing Millennium Pipeline Company’s application for water quality certification constituted waiver of NYDEC’s authority under the Clean Water Act.
Continue Reading

This week, the U.S. District Court for the Middle District of Louisiana granted a preliminary injunction halting construction of the $750 million Bayou Bridge Pipeline. Judge Shelly D. Dick concluded that the U.S. Army Corps of Engineers, in authorizing the project, did not provide sufficient explanation for how the proposed off-site mitigation would compensate for the loss of wetlands impacted by construction. In addition, the Court found the Corps’ environmental analysis failed to sufficiently consider and address historical impacts to wetlands from similarly situated pipelines. Thus, the Court held that these deficiencies likely violated the National Environmental Policy Act (NEPA) and ordered the 162-mile oil pipeline to halt construction within the Atchafalaya Basin, a large wetland habitat for a variety of fish and wildlife species and a critical component of regulating flooding and stream recharge in the region. As we recently saw with the D.C. Circuit’s decision to vacate authorizations for the Sabal Trail Pipeline, this is another example of courts and environmental organizations relying on errors in a federal agency’s NEPA analysis to justify enjoining pipeline construction or operations.
Continue Reading