Category Archives: Water

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EPA Announces Stay of Deadlines and Reconsideration of ELGs for Steam Electric Power Plants

GettyImages-182925285_bwOn April 12, 2017, the EPA announced that it will reconsider and administratively stay future deadlines of the 2015 final rule that set new, technology-based effluent limitations guidelines (ELGs) and standards for steam electric power plants under the Clean Water Act. The final rule places significant burden on affected segments of the steam electric power … Continue Reading

Virginia Ash Pond Seeps Violate CWA, But Do Not Warrant Civil Penalty

GettyImages-522560004-(1)A recent federal court ruling in a Sierra Club lawsuit against Dominion Virginia Power alleging violations of the Clean Water Act (CWA) raises key questions about how other courts will interpret “point source” and “navigable waters” relative to ash ponds and groundwater releases, and whether a reasoned cost-benefit analysis can be used to substantially mitigate … Continue Reading

Ag’s Big Win: A Follow Up

GettyImages-509493427The latest ruling in an Iowa case against Des Moines Water Works represents another win for farmers and the agricultural community. As we previously posted, in January the Iowa Supreme Court ruled against Des Moines Water Works on certified, state-law questions including whether drainage districts are immune from paying money damages. The case had come … Continue Reading

Monsanto Uses the Constitution to Challenge Warning Labels for Herbicide

Pouring water from pitcher into a glassMonsanto has, at least temporarily, lost its fight to avoid a Prop 65 warning label on its products containing glyphosate, a chemical used in the popular herbicide Roundup.  On January 27, 2017, a California judge tentatively dismissed Monsanto’s claims that the State of California unconstitutionally turned to an unelected, European organization to decide whether glyphosate … Continue Reading

Ag’s Big Win: Iowa Supreme Court Denies Water Utility’s State Law Claims against Drainage Districts

Closeup shot of a man pouring a glass of fresh water from a kitchen faucetIn a big win for the agricultural community, the Iowa Supreme Court recently ruled against Des Moines Water Works (DMWW) in its state law claims against upstream drainage districts for nitrate pollution in the Raccoon River. See Bd. of Water Works Trs. of Des Moines v. SAC Cty. Bd. of Supervisors, No. 16-0076, 2017 WL … Continue Reading

Oregon Federal Court Allows Children’s Climate Change Suit to Proceed

iStock-184602649_BWOn November 10, 2016, a federal district court in Oregon allowed litigation to proceed against the federal government based on its alleged failure to protect future generations against the threat of climate change. See Juliana v. United States, No. 15-1517, 2016 WL 6661146 (D. Or. Nov. 10, 2016). The decision represents the first time a court … Continue Reading

Senate Opens the Tap on Water Infrastructure Spending and Creates New Coal Ash Permit Program

Water splash.On Thursday, September 15, the Senate voted 95-3 in favor of the Water Resources Development Act of 2016, S. 2848 (WRDA). The headline feature of the bill is funding for cities dealing with lead emergencies like the one that affected Flint, Michigan, but the bill also contains provisions that are important to businesses in sectors … Continue Reading

Corps v. Hawkes: Supreme Court Rules Clean Water Act Jurisdictional Determinations are Final and Appealable Agency Actions

ENVIRO_iStock_000030775888_Large_BWIn this much-anticipated decision, on May 31, 2016, the U.S. Supreme Court unanimously sided with the property owner companies over the U.S. Army Corps of Engineers (“Corps”). The Court held that a Corps’ jurisdictional determination as to whether a property contains a jurisdictional wetland is immediately appealable because it constitutes a final agency action. This … Continue Reading

U.S. Supreme Court to Decide Split on Whether a U.S. Army Corps Wetland Jurisdictional Determination is a Final Agency Action

ENVIRO_iStock_000030775888_Large_BWOn December 11, 2015, the U.S. Supreme Court granted certiorari to determine whether a jurisdictional determination approved by the U.S. Army Corps of Engineers (Corps) is a final agency action ripe for judicial review.  The decision will resolve a circuit split between the Eighth and Fifth Circuits. In U.S. Army Corps of Eng’rs v. Hawkes … Continue Reading

Judge Rejects NCR Fox River Divisibility Defense in Reconsideration

ENVIRO_iStock_000030775888_Large_BWYesterday, a judge in the Eastern District of Wisconsin reversed his own ruling and held that NCR Corporation’s liability for the cleanup of polychlorinated biphenyls (PCBs) at the Fox River Superfund Site was not subject to divisibility.  Last May, the court held that NCR had proven that the environmental harm in Operable Unit 4 of … Continue Reading

EPA Tightens Pollution Controls for Steam Electric Power Plants

ENVIRO_iStock_000000949049_Large_BWOn September 30, 2015, the United States Environmental Protection Agency (EPA) issued the pre-publication notice of a final rule that sets new technology-based effluent limitations guidelines and standards (ELGs) for the steam electric power generating industry.  Both the final rule and the proposed rule published in June 2013 were issued pursuant to a schedule approved … Continue Reading

Supreme Court Asked to Review Total Maximum Daily Load Based on Lake Bed Sediment

View over Sauris lake in Italian AlpsOn September 15, 2015, several California property owners petitioned the United States Supreme Court to review a California appellate  decision permitting a regional water board to establish the total maximum daily load (TMDL) for pollutants in McGrath Lake based on the concentration of pollutants in lake bed sediment.  Conway v. State Water Res. Control Bd., … Continue Reading

Federal Courts Split on Staying EPA’s “Waters of the United States” Rule

ENVIRO_iStock_000011145669_Large_BWSeveral courts have ruled on motions for preliminary injunction to stay a new U.S. Environmental Protection Agency (EPA) Clean Water Act rule, with only one court granting an injunction. Thursday, August 27, 20015, a North Dakota federal court stayed the effectiveness of EPA’s rule clarifying the definition of “Waters of the United States” (WOTUS) under … Continue Reading

EPA Finds No Widespread Drinking Water Impact from Hydraulic Fracturing

iStock_000014869441_MediumOn June 4, the Environmental Protection Agency (EPA) released a draft of its landmark study to assess the impact of hydraulic fracturing on drinking water.  U.S. EPA Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (External Review Draft), EPA, Washington, DC, EPA/600/R-15/047, 2015. … Continue Reading

EPA Attempts to Clarify “Waters of the United States”

iStock_000003459434_LargeOn May 27, 2015, the EPA  and the U.S. Army Corps of Engineers issued their final version of the Clean Water Rule, which clarifies federal jurisdiction over bodies of water under the Clean Water Act (CWA).[1] More specifically, the rule clarifies the scope of “waters of the United States”, sometimes referred to as “WOTUS,” under … Continue Reading

Approved Jurisdictional Determinations Ripe for Judicial Review

Investigate and analyze.In a significant new decision, the Eighth Circuit Court of Appeals has held that a United States Army Corps of Engineers’ (Corps) Approved Jurisdictional Determination (JD) that a property constitutes “waters of the United States,” and thus requires a permit, is a final agency action under the Administrative Procedures Act (APA) and therefore is ripe … Continue Reading

Eastern District of Washington Holds that Contamination Caused by Direct Aerial Emissions May be Actionable Under CERCLA

In Pakootas v. Teck Cominco Metals, LTD, Plaintiffs filed suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against a Canadian mining company for disposing of slag and hazardous substances into the Upper Columbia River (UCR) and Lake Roosevelt, both in the U.S., where Plaintiffs fish, hunt and recreate. Pakootas v. Teck Cominco … Continue Reading

New Authorization for U.S. Army Corps of Engineers Will Allow Public Utilities and Natural Gas Companies to Fund Regulatory Programs

Yesterday, President Obama signed into law the Water Resources Reform Development Act (“WRRDA”), a traditional reauthorization bill that gives direction and guidance to the U.S. Army Corps of Engineers (“Corps of Engineers”) on varying aspects of the Corps of Engineers wide ranging programs.  Notably, the legislation will extend and expand the ability of the Corps … Continue Reading

USEPA Issues Final 316(b) Rules for Cooling Water Intake Structures at Existing Facilities

On Monday, May 19, the United States Environmental Protection Agency (USEPA) issued final rules under Section 316(b) of the Clean Water Act for existing[1] facilities that (a) use cooling water intake structures designed to withdraw at least 2 million gallons of water per day from waters of the U.S.; (b) have or are required to … Continue Reading

EPA and Army Corps Propose to Amend Bounds of Federal Jurisdiction over Wetlands and Other Water Bodies

On Tuesday, March 25, 2014, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers jointly announced a proposed rule to amend the regulatory definition of “waters of the United States,” which essentially governs the scope of federal jurisdiction under the Clean Water Act.  The proposed rule would redefine which areas are covered … Continue Reading