For decades, the extent of regulatory authority under the Clean Water Act (CWA) has been the subject of a great deal of litigation. Typically, the litigation involves a challenge to the authority of the Environmental Protection Agency (EPA) and the Army Corps of Engineers (the Corps) to require a CWA permit, by private parties – chiefly real estate developers and industry groups – seeking to constrain that authority and limit permitting requirements. A November 28, 2017 decision by the Ninth Circuit in the case of United States v. Robertson is the latest – but by no means the last – decision in a long line of cases wrangling over the definition of “waters of the United States” under the CWA. Continue Reading Ninth Circuit Decision Means Flood of Litigation Over “Waters of the U.S.” Definition Will Continue Despite Trump Administration Efforts

Last Thursday, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) proposed delaying implementation of the rule defining the term “Waters of the U.S.” (WOTUS) for two years. This is one of many moving pieces involving the WOTUS rule at this time, and another step by the agencies under the Trump administration towards maintaining the status quo and ensuring the 2015 rule is not implemented. Continue Reading The EPA and Army Propose to Delay WOTUS Rule until 2020

In response to utility industry requests, the Environmental Protection Agency (EPA) issued interim final guidance earlier this month that sets forth a process for state submission and criteria for approval of state-led Coal Combustion Residual (CCR) permit programs under the Water Infrastructure Improvements for the Nation Act. Continue Reading Utilities Empowered to Help Shape How Coal Ash is Regulated

Consistent with President Trump’s February 28, 2017 Executive Order, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) announced a joint proposal representing the first step of a two-part plan to implement a more narrow “waters of the U.S.” or “WOTUS” definition. The first step, published in the Federal Register on July 27, 2017, seeks to repeal the 2015 WOTUS rule, and replace prior rules. Continue Reading Next Steps in EPA Deferral to States: Waters of the U.S. Rule Repeal and Replacement

On 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 generating industry. While certain requirements of the new ELGs were generally set to become effective as soon as November 1, 2018 through incorporation into NPDES permits, the compliance timetable and future of the final rule is now unclear. Continue Reading EPA Announces Stay of Deadlines and Reconsideration of ELGs for Steam Electric Power Plants

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 civil penalties and remedy selection.

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

The 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 to the Iowa Supreme Court after the Federal District Court for the Northern District of Iowa had certified state-law questions. The ruling was a relief for the agricultural community, which had been concerned about the potential for large, economic liability associated with nutrient run-off.

Continue Reading Ag’s Big Win: A Follow Up

On February 28, 2017, President Trump signed an executive order directing EPA and the Army Corp of Engineers (the Corps) to rescind or revise the Obama administration’s Water of the United States (WOTUS) rule.

Continue Reading Will Trump’s Executive Order Be Smooth Sailing for the “Waters of the United States”?

Monsanto 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 posed a cancer risk. Continue Reading Monsanto Uses the Constitution to Challenge Warning Labels for Herbicide

In 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 382402 (Iowa Jan. 27, 2017). The ruling instructs the federal court to dismiss DMWW’s state law claims (leaving only DMWW’s federal claims, which concern whether the districts should be regarded as ‘point sources’ under the Clean Water Act (CWA)). The ruling means that even if DMWW wins on its federal claims, DMWW—and thus the citizens who consume DMWW water—will have to foot the bill for any future nitrate processing. Continue Reading Ag’s Big Win: Iowa Supreme Court Denies Water Utility’s State Law Claims against Drainage Districts