May 13, 2019
The U.S. EPA issued an interpretative rule on April 12 which establishes some long-sought clarity to the question of whether a discharge of pollutants into groundwater is subject to its regulation and permitting. The agency concluded that such discharges, even when the pollutants reach navigable waters regulated under the Clean Water Act, are not subject to its permitting authority under §402 of…
November 27, 2018
On November 14th, a federal district court dismissed a lawsuit filed by environmental groups against the owners of the Vermillion power plant, a retired coal-fired facility on the banks of the Middle Fork in Vermillion County, Illinois. Metals from coal ash were leaching from three unlined ponds into groundwater that flows to the Middle Fork, which happens to be both a federally and state…
November 20, 2018
The Answer Depends on the Jurisdiction
Let’s say you have an unlined pond. It doesn’t directly discharge to any river or stream and, as a result, you’ve never applied for an NPDES permit. But, let’s assume that pollutants in the pond percolate into groundwater. And let’s further assume that these pollutants eventually make their way, via groundwater, to a river or stream.
Does your pond…
September 20, 2018
Readers may recall that last month, August 23, 2018, we reported that a federal district court in South Carolina enjoined an EPA rule suspending the 2015 “waters of the United States rule”. EPA had proposed to suspend the 2015 rule and reinstate the previous 1982 regulation defining what constitutes a water of the United States. EPA did so in part to provide uniformity to the definition applied…
August 23, 2018
When I wake up and listen to National Public Radio report about a federal district court’s injunction of an EPA regulation, I conclude that someone besides a lawyer believes the decision is important. What was decided by the federal district court in Charleston, South Carolina on Thursday, August 16 was significant, but for a reason not reported.
Defining the “waters of the United States”…
June 29, 2018
EPA Administrator Scott Pruitt announced on June 26 that the agency will revise its regulations to limit EPA’s use of the §404(c) veto. This is the section of the Clean Water Act (CWA) that authorizes EPA to rescind dredge and fill permits issued by the Army Corps of Engineers. Although infrequently utilized since §404(c) was adopted in 1972, its use in January 2011 effectively curtailed the…
May 18, 2018
“[T]he fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past.” Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, Slip Op. at 18) (4th Cir. April 12, 2018)
The Clean Water Act prohibits unpermitted “discharges” from a “point source” to a “navigable water.” 33 U.S.C. § 1311(a). Although the definition of what constitutes…
February 14, 2018
“Consistent with our duty to uphold the rule of law with fair notice
and due process, this policy helps restore the appropriate role of guidance
documents and avoids rulemaking by enforcement.” – Associate
Attorney General Rachel Brand.
On January 25, 2018, Rachel Brand, Associate Attorney General, issued a memorandum (“Brand Memo”) evidencing new a policy that prohibits the Department of Justice…
September 6, 2017
On August 23rd, the federal Court of Appeals for the Third Circuit affirmed a decision by the Corps of Engineers to issue a Clean Water Act §404 permit to Tennessee Gas Pipeline Company to construct about 13 miles of “looped” pipeline in two counties in northeastern Pennsylvania (read the JK Energy & Environmental Monitor summary of Delaware Riverkeeper Network v. U.S. Army Corps of…
February 7, 2017
I have written previously (“Deciding Who Will Decide” January 18) about the complicated developments in the litigation over the “waters of the United States” rule (WOTUS) rule promulgated by the Corps of Engineers and EPA in 2015. The Sixth Circuit granted a motion by one of the parties in the case, the National Association of Manufacturers, on January 25 to suspend the…
January 26, 2017
The Congressional Review Act (“CRA”) allows Congress to disapprove so-called “midnight” rules of an outgoing administration. But, disapprovals require congressional approvals and are subject to presidential vetoes—making them of limited utility where a rule was issued by an agency of a current president. Thus, while Congress voted to disapprove several rules under the Obama administration,…
January 18, 2017
The controversy over EPA’s definition of “waters of the United States” (WOTUS) took another meander on January 13. United States Supreme Court surprised many by granting a petition for certiorari to decide which court – the federal district or circuit courts – have the authority to adjudicate disputes over a regulation defining a key term of the Clean Water Act (CWA). Ever since EPA and the Corps…
May 13, 2019
The U.S. EPA issued an interpretative rule on April 12 which establishes some long-sought clarity to the question of whether a discharge of pollutants into groundwater is subject to its regulation and permitting. The agency concluded that such discharges, even when the pollutants reach navigable waters regulated under the Clean Water Act, are not subject to its permitting authority under §402 of…
November 27, 2018
On November 14th, a federal district court dismissed a lawsuit filed by environmental groups against the owners of the Vermillion power plant, a retired coal-fired facility on the banks of the Middle Fork in Vermillion County, Illinois. Metals from coal ash were leaching from three unlined ponds into groundwater that flows to the Middle Fork, which happens to be both a federally and state…
November 20, 2018
The Answer Depends on the Jurisdiction
Let’s say you have an unlined pond. It doesn’t directly discharge to any river or stream and, as a result, you’ve never applied for an NPDES permit. But, let’s assume that pollutants in the pond percolate into groundwater. And let’s further assume that these pollutants eventually make their way, via groundwater, to a river or stream.
Does your pond…
September 20, 2018
Readers may recall that last month, August 23, 2018, we reported that a federal district court in South Carolina enjoined an EPA rule suspending the 2015 “waters of the United States rule”. EPA had proposed to suspend the 2015 rule and reinstate the previous 1982 regulation defining what constitutes a water of the United States. EPA did so in part to provide uniformity to the definition applied…
August 23, 2018
When I wake up and listen to National Public Radio report about a federal district court’s injunction of an EPA regulation, I conclude that someone besides a lawyer believes the decision is important. What was decided by the federal district court in Charleston, South Carolina on Thursday, August 16 was significant, but for a reason not reported.
Defining the “waters of the United States”…
June 29, 2018
EPA Administrator Scott Pruitt announced on June 26 that the agency will revise its regulations to limit EPA’s use of the §404(c) veto. This is the section of the Clean Water Act (CWA) that authorizes EPA to rescind dredge and fill permits issued by the Army Corps of Engineers. Although infrequently utilized since §404(c) was adopted in 1972, its use in January 2011 effectively curtailed the…
May 18, 2018
“[T]he fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past.” Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, Slip Op. at 18) (4th Cir. April 12, 2018)
The Clean Water Act prohibits unpermitted “discharges” from a “point source” to a “navigable water.” 33 U.S.C. § 1311(a). Although the definition of what constitutes…
February 14, 2018
“Consistent with our duty to uphold the rule of law with fair notice
and due process, this policy helps restore the appropriate role of guidance
documents and avoids rulemaking by enforcement.” – Associate
Attorney General Rachel Brand.
On January 25, 2018, Rachel Brand, Associate Attorney General, issued a memorandum (“Brand Memo”) evidencing new a policy that prohibits the Department of Justice…
September 6, 2017
On August 23rd, the federal Court of Appeals for the Third Circuit affirmed a decision by the Corps of Engineers to issue a Clean Water Act §404 permit to Tennessee Gas Pipeline Company to construct about 13 miles of “looped” pipeline in two counties in northeastern Pennsylvania (read the JK Energy & Environmental Monitor summary of Delaware Riverkeeper Network v. U.S. Army Corps of…
February 7, 2017
I have written previously (“Deciding Who Will Decide” January 18) about the complicated developments in the litigation over the “waters of the United States” rule (WOTUS) rule promulgated by the Corps of Engineers and EPA in 2015. The Sixth Circuit granted a motion by one of the parties in the case, the National Association of Manufacturers, on January 25 to suspend the…
January 26, 2017
The Congressional Review Act (“CRA”) allows Congress to disapprove so-called “midnight” rules of an outgoing administration. But, disapprovals require congressional approvals and are subject to presidential vetoes—making them of limited utility where a rule was issued by an agency of a current president. Thus, while Congress voted to disapprove several rules under the Obama administration,…
January 18, 2017
The controversy over EPA’s definition of “waters of the United States” (WOTUS) took another meander on January 13. United States Supreme Court surprised many by granting a petition for certiorari to decide which court – the federal district or circuit courts – have the authority to adjudicate disputes over a regulation defining a key term of the Clean Water Act (CWA). Ever since EPA and the Corps…
