With parts of the Midwest setting records for wet weather this month, many eyes have turned toward the shorelines of the Great Lakes, which are experiencing an extended period of near-record high water levels. High water has wreaked havoc on public and private shorelines alike, eroding beaches, damaging seawalls, and threatening buildings. For many property owners, installation or repair of infrastructure such as breakwaters or bulkheads may be an attractive solution to limit future losses. But owners and their contractors must be careful to comply with state and federal laws that require permits for construction that impacts a navigable waterway.
Continue Reading Without Careful Permitting, Erosion Control Projects Can Lead to a Flood of Legal Headaches

A landmark Clean Water Act (CWA) decision by the U.S. Supreme Court presents an entirely new test to use to determine if a discharge requires federal permitting. Under the April 23 decision in Hawaii Wildlife Fund v. County of Maui, a National Pollutant Discharge Elimination System (NPDES) permit is required for groundwater discharges to “navigable waters” when the groundwater discharge is the “functional equivalent of a direct discharge” from a point source.
Continue Reading Supreme Court Applies Entirely New Test to Determine Clean Water Act Applicability in Highly Watched Case

The U.S. Environmental Protection Agency (EPA) announced last week its latest step in the implementation of its Action Plan—a preliminary regulatory determination regarding two per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The Action Plan was issued in February 2019 and outlined the agency’s efforts to address PFAS contamination in groundwater. This latest step comes on the heels of the EPA’s November 2019 proposal to add PFAS to the list of chemicals for which facilities must report use under the Emergency Planning and Community Right to Know Act (EPCRA).

Continue Reading EPA Takes One Step Closer to Regulating PFAS in Drinking Water

A district court judge adopted the rarely applied “constructive submission” doctrine, which could ultimately give advocacy groups leverage over states that ignore Clean Water Act (CWA) requirements. This decision may embolden advocacy groups and comes at a time when, as noted in previous posts on this blog, enforcement actions brought by public citizens continue to grow as an effective means of enforcing environmental laws and regulations.
Continue Reading Advocacy Groups Have a New Opening to Enforce the CWA When States Do Not Act

Perfluoroalkyl substances (PFAS) — long used in consumer and industrial products —  have recently been in the news and the subject of increased regulatory attention, resulting in proposed and implemented regulation on both the state and federal level. PFAS have been used in a variety of products including, fabric protectants, nonstick coatings on cookware, and fire-fighting foams.
Continue Reading Illinois EPA Proposes PFAS Groundwater Standards

Chicago has a long list of things to be proud of, but the current state of the city’s combined sewer system infrastructure is not at the top of that list. The Chicago Public Library reports that the sewer system dates back to the 1850s and currently installed pipes may be a century old.
Continue Reading Chicago’s Stormwater Inundation Presents Green Infrastructure Opportunities for Business

Municipalities and other local governments do not have free rein when it comes to regulating the environment, and the Second Circuit’s recent decision in Vermont Railway, Inc. v. Town of Shelburne is a clear reminder of that fact.

Continue Reading Second Circuit Derails Municipal Ordinance Targeted at Railway Operations

The Trump Administration revealed the new and long-awaited “waters of the United States” or “WOTUS” rule last week, which is designed to clear confusion on one of the most hotly debated topics in environmental law today – the scope of federal jurisdiction under the Clean Water Act (CWA).
Continue Reading Long-Awaited WOTUS Rule Addresses Uncertainty, But May Face Litigation Ahead

Last Thursday, the South Carolina District Court reinstated the Obama-era definition of “waters of the United States” (WOTUS) in roughly half the country, furthering the ambiguity in the never-ending saga over how to define WOTUS under the Clean Water Act. South Carolina Coastal Conservation League, et. al. v. Andrew Wheeler, et. al., No. 2:18-cv-00330, at *14 (D.S.C. Aug. 16, 2018). In its decision, the court invalidated the Trump Administration’s Executive Order suspending the Obama Administration’s WOTUS rule (the “Suspension Order”).

Continue Reading District Court Issues Injunction on President Trump’s “Suspension Order” of the WOTUS Definition

Administrative deference is a fundamental tenet of environmental law. A recent decision in Los Angeles Waterkeeper v. Pruitt, however, provides an important reminder that agency deference is bound by the four corners of the underlying statute. In this case, a district judge in the Central District of California awarded judgment to two environmental NGOs by compelling the EPA to exercise powers granted under the Clean Water Act’s residual designation authority (RDA), precluding the EPA from considering other factors not prescribed by the statute.

The decision is interesting because the Clean Water Act (CWA) RDA is something of a regulatory backwater, and it highlights an important practice-pointer going forward, which is that addressing explicit factors set forth in a statute matter more than broader agency policy preferences.
Continue Reading NGOs Win Recent Challenge on Permits for Industrial Facilities when EPA Overlooks Factors in the CWA Statute