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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

Tipsoo Lake of MT.Rainier

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

Scenic view of beautiful sunset above the river at summer

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

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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

Filling up a glass with drinking water from kitchen tap

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

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Under a recent summary judgment decision from a federal district judge, the EPA must continuously examine the effects that certain Clean Air Act (CAA) regulations have on employment in the coal industry specifically and other industries more broadly. This means the EPA will be subject to increased requirements before taking action under the CAA. The ruling also suggests that additional requirements could be imposed on the EPA under similar provisions in other environmental statutes, such as the Clean Water Act, the Toxic Substances Control Act, the Solid Waste Disposal Act, and CERCLA. Continue Reading EPA Must Examine Effects of Clean Air Act Regulations on Jobs

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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 decision resolves a split among federal circuits and provides a remedy for property owners that receive an unfavorable jurisdictional determination (“JD”) without forcing them to first suffer potentially costly consequences. The Fifth and Eighth Circuits had been split on the issue.   Belle Co. v. U.S. Army Corps of Eng’rs, 761 F.3d 383 (5th Cir. 2014); Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994 (2014) (please see our April 21, 2105 blog post for a summary of the Eighth Circuit decision). Continue Reading <em>Corps v. Hawkes</em>: Supreme Court Rules Clean Water Act Jurisdictional Determinations are Final and Appealable Agency Actions

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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 Co. Inc. et al., the Eighth Circuit ruled in favor of the petitioner property owners and determined that courts have jurisdiction to review Corps’ jurisdictional determinations (JDs) about whether a body of water is subject to its authority under the Clean Water Act (CWA). Case No. 15-290, review granted 12/11/15. Continue Reading U.S. Supreme Court to Decide Split on Whether a U.S. Army Corps Wetland Jurisdictional Determination is a Final Agency Action

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On October 20, 2015, a district court held that a state enforcement action brought under the Clean Water Act (CWA) did not bar a citizen suit from proceeding against Duke Energy Carolinas, LLC (Duke Energy). Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, Case No. 1:14-cv-753 (M.D.N.C. Oct. 20, 2015).  For regulated industries, Yadkin Riverkeeper is a reminder that the diligent prosecution bar to citizen suits under federal environmental statutes is not absolute, and the existence of a government enforcement action alone may not be enough to bar a citizen suit. Continue Reading Too Little, Too Late: State Agency’s Enforcement Action Does Not Bar Citizen Suit