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

Last week, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit unanimously rejected challenges by environmental and industry groups to the Environmental Protection Agency’s (EPA) Clean Water Act (CWA) cooling water intake structure permit rule (Rule) in Cooling Water Intake Structure Coalition (CWISC), et al., v. EPA, et al. The panel’s ruling upholds the Rule and affirms broad deference to the EPA and wildlife agencies on both their factual findings and legal interpretations. Continue Reading Court Upholds CWA Intake Structure Rule

The Clean Water Act (CWA) term “waters of the United States” (WOTUS) has become an evolving term with an often squishy definition leading to considerable litigation – with last month’s Seventh Circuit decision providing new insight on both the definition and the concept of administrative deference in Orchard Hill Building Co. v. United States Army Corps of Engineers.

Continue Reading WOTUS Wars: New Lessons from the Seventh Circuit

This week, the Fourth Circuit issued a decision in Upstate Forever v. Kinder Morgan Energy Partners, L.P. that addresses three key issues arising in many federal Clean Water Act (CWA) cases:

  1. How, as a legal matter, courts treat “historic” contamination under the CWA;
  2. Whether good-faith remedial efforts undertaken under the supervision of relevant agencies by themselves strip federal jurisdiction over citizen suits under similar legal authority; and
  3. Whether CWA-regulated “pollutants” need to discharge directly into CWA-regulated “navigable waters” to violate the CWA.

Continue Reading Fourth Circuit Decision Addresses Three Key Clean Water Issues

The Toxic Substances Control Act (TSCA) often seems like the forgotten federal environmental statute in that it gets less attention in the press and judicial decisions than statutes like the Clean Air Act, Clean Water Act, or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).  That said, a judge on the Northern District of California issued a high-profile TSCA decision worthy of some discussion. Continue Reading Federal Court Issues Key Decision on NGO Challenge to Use of Fluoride in Water

The Ninth Circuit issued its long-anticipated decision in the Hawai’i Wildlife Fund v. County of Maui case yesterday. County of Maui affirmed a decision awarding summary judgment to environmental groups based on what the court viewed to be undisputed proof that four effluent disposal wells at a wastewater disposal facility were known to discharge into the Pacific Ocean and that the County of Maui had failed to secure an National Pollutant Discharge Elimination System (NPDES) permit for them. Continue Reading Ninth Circuit Issues Decision in Novel Clean Water Act Case

Last month, the U.S. District Court for the Eastern District of Kentucky sided with a utility and dismissed a citizen suit based on the Resource Conservation and Recovery Act (RCRA) and Clean Water Act (CWA). The opinion contradicts other recent federal court decisions analyzing the applicability of the CWA to coal ash discharges through groundwater.

Continue Reading Kentucky Decision Has Implications for Utilities Fighting Citizen Suits

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