As we previously reported, for the first time in over 25 years, the U.S. Environmental Protection Agency (EPA) has approved the formal transfer of Clean Water Act (CWA) section 404 permitting authority to a state.  On December 22, 2020, the State of Florida – only the third state to receive such approval – “assumed” 404 permitting authority from the U.S. Army Corps of Engineers (Corps) in certain waters of the United States (WOTUS).  Since that time, CWA section 404 permit applicants have faced a number of questions about the scope and process of assumed 404 permitting.  Five of the top questions are listed below, followed by their answers.

Continue Reading Top 5 Frequently Asked Questions About Florida’s Assumption of Clean Water Act 404 Program

Before yesterday only two states had received approval to administer the Clean Water Act (CWA) section 404 program (Michigan and New Jersey), and no state had received approval since 1994.  Now, for the first time in over 25 years, the U.S. Environmental Protection Agency (EPA) has approved the formal transfer of section 404 permitting authority to a third state: Florida.  Once EPA’s approval is published in the Federal Register, the Florida Department of Environmental Protection (FDEP) will “assume” 404 permitting authority from the U.S. Army Corps of Engineers (Corps) in certain waters, significantly altering the 404 permitting process in Florida.  EPA’s decision has broader implications for the 404 program on a national scale, as other states, including Oregon and Minnesota, consider whether to pursue assumption.

Continue Reading Florida Receives EPA Approval to Assume Clean Water Act Section 404 Program

Last week, the U.S. Environmental Protection Agency (“EPA”) issued its final report addressing the input received by various stakeholders relating to the management of wastewater from the oil and gas industry.  The report entitled Summary of Input on Oil and Gas Extraction Wastewater Management Practices Under the Clean Water Act is the culmination of a stakeholder engagement process that began in 2018 (“Final Report”).
Continue Reading EPA Issues Final Report on Oil and Gas Extraction Wastewater Management

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 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

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