Category Archives: Water

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Next Steps in EPA Deferral to States: Waters of the U.S. Rule Repeal and Replacement

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 … Continue Reading

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

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 … Continue Reading

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

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

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 … Continue Reading

Monsanto Uses the Constitution to Challenge Warning Labels for Herbicide

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 … Continue Reading

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

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 … Continue Reading

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

On 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

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

In 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

On 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

Yesterday, 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

On 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

On 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

Several 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

On 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”

On 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

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