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US Supreme Court Adopts “Functional Equivalent” Standard for Discharges of Pollutants to Surface Water Through Groundwater

Recently, in a 6-3 decision in County of Maui v. Hawaii Wildlife Fund (Maui), the United States Supreme Court held that a discharge of pollution to groundwater may be regulated under the Clean Water Act (CWA).  The Supreme Court’s review arose from a case involving a wastewater treatment and reclamation facility in Hawaii that injects … Continue Reading

US EPA and the Corps Finally Publish Their Definition of “Waters of the United States” Narrowing the Scope of Federal Jurisdiction Under the Clean Water Act

On April 21, 2020, the United States Environmental Protection Agency (US EPA) and the United States Army Corps of Engineers (Corps) published, in the Federal Register, their final rule (2020 Rule) revising the definition of “waters of the United States” and narrowing the scope of waters subject to federal regulation under the Clean Water Act. … Continue Reading

US EPA Offers Advice to NPDES Permittees on Documenting COVID-Related Noncompliance While Environmental Groups Seek More Stringent Reporting Requirements

On March 26, 2020, US EPA issued a temporary policy regarding enforcement of routine monitoring, recordkeeping, and reporting violations caused by the COVID-19 pandemic.  As discussed in an earlier blog post, US EPA’s temporary policy sets out the Agency’s overall policy to exercise of enforcement discretion during the COVID-19 pandemic and generally not seek penalties … Continue Reading

Ninth Circuit to Review Montana’s Nutrient Variance Approach: What You Need To Know

Control of nutrient loadings to US surface waters has widely proven to be a difficult task, and nutrient levels in many of our waterways continue to fail in satisfying the stated goals of the Clean Water Act.  In 2015, the State of Montana established stringent water quality standards for nutrients.  Recognizing the economic and social … Continue Reading

California Holds Technical PFAS Seminar to Inform Public of State of Science and Possible Future Drinking Water Regulations

Last month, the California State Water Resources Control Board (State Board) hosted a comprehensive two-day seminar on per- and polyflouroaklyl substances (PFAS) in California. PFAS are a family of an estimated 4,000-6,300 chemical compounds that have a variety of applications due to their stability in the environment.  Although some reports suggest that these chemicals are … Continue Reading

Potential Settlement Creates Uncertainty for US Supreme Court Case Regarding Clean Water Act Liability for Indirect Groundwater Discharges

On September 20, 2019, Maui County Council (Council) voted to settle the County’s pending appeal before the US Supreme Court of the Ninth Circuit’s decision in County of Maui v. Hawai‘i Wildlife Fund, et al. As previously reported here, the Ninth Circuit’s ruling held that the eventual migration of pollutants from permitted underground injection wells … Continue Reading

Groundwater Contaminant Regulation in California: State Water Board Lowers Notification Levels and Announces First Step Towards Developing an MCL for Certain Compounds

In June of 2018, the California State Water Resources Control Board (State Water Board) Division of Drinking Water (DDW) provided recommendations for PFOA and PFOS notification levels.  On July 13, 2018, the State Water Board released guidelines based on DDW’s recommendations for testing and reporting on two PFAS compounds—PFOA and PFOS. The interim notification level for … Continue Reading

Report Recommends Changes to US EPA’s General Permit for Industrial Stormwater Discharges Ahead of Reissuance

Stormwater permitting requirements for many industrial facilities are set forth in US EPA’s Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP) or state permits based on the MSGP.  US EPA last issued the permit in 2015, which expires on June 4, 2020.  While the current Administration does not appear to be predisposed … Continue Reading

August Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

We are pleased to share with you the latest edition of “frESH Law Horizons – Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”.  In our August edition, we summarise 29 developments in the environmental, safety and health sector.  Some of the top stories this month include: Court of Appeal dismisses … Continue Reading

US EPA Proposes Rule Narrowing States’ Ability to Block Pipeline Projects

On August 7, 2019, US EPA Administrator Andrew Wheeler signed the Agency’s newest proposal to amend the Clean Water Act (CWA) to streamline permitting of energy projects. Specifically, the proposed rule would amend the regulations concerning Section 401 of the CWA. It represents US EPA’s first comprehensive effort to promulgate federal rules governing the implementation … Continue Reading

US Supreme Court Schedules Oral Argument Regarding Clean Water Act Liability for Indirect Groundwater Discharges

Earlier this month, the US Supreme Court scheduled oral argument for November 6th in its review of the Ninth Circuit’s decision in County of Maui v. Hawai‘i Wildlife Fund, et al. The case has significant implications for the scope of the Clean Water Act (CWA), with the Ninth Circuit having ruled that the eventual migration … Continue Reading

Ohio Appeals Dismissal of the State’s Complaint Against Rover Pipeline LLC Due to Ohio EPA’s Failure to Timely Respond to Request for CWA Section 401 Certification

On March 12, 2019, Judge Kristin G. Farmer for the Stark County Court of Common Pleas dismissed the State of Ohio’s Third Amended Complaint against Rover Pipeline. The State alleged that Rover had committed widespread environmental violations during the construction of its 713-mile interstate natural gas pipeline. The court dismissed the complaint on the grounds that … Continue Reading

UK Supreme Court Considering Parent Company Liability for Environmental Harm Caused by Overseas Subsidiaries

In Vedanta Resource PLC and another v Lungowe and others the UK Supreme Court has held that a claim for negligence and breach of statutory duty against a mining company based in Zambia and its English parent can be heard by the UK courts. In so doing, this landmark decision has potentially opened the door to … Continue Reading

Four Things to Know About US EPA’s Draft WOTUS Rule

On February 14, 2019, the US Army Corps of Engineers and US EPA (Agencies) published in the Federal Register the proposed rule to revise the definition of “Waters of the United States,” the term that identifies the scope of federal jurisdiction under the Clean Water Act.  The proposed rule is the second step in a two-part process … Continue Reading

US EPA Approves Missouri’s Innovative Approach to Limiting Nutrient Pollution

In December 2018, the US EPA approved Missouri’s standards for limiting nutrient pollution in lakes and reservoirs in the state. The Agency’s approval comes after years of past debate and litigation between US EPA and Missouri over the state’s approach to nutrient criteria and, notably, represents a reversal from US EPA’s Obama-era opposition to the state’s … Continue Reading

After Shutdown, US EPA Announces New Hearing Date for the New WOTUS Rule

As a result of the recent lapse in appropriations, the US EPA and US Department of the Army (Army) delayed a planned January 23, 2019 hearing regarding the proposed new “Waters of the United States” (WOTUS) definition. Publication of the proposed rule and the start of the comment period on the rule were also postponed due … Continue Reading

Two Federal Courts Issue Decisions Against EPA “Suspension” Rule, Reviving and Protecting Obama-era Waters Rule

In the past two weeks, U.S. District Courts in South Carolina and Washington issued decisions that dealt additional blows to the Trump Administration’s efforts to unravel the 2015 Obama-era “waters of the United States” rule (“Obama Rule”).  In light of these rulings, the Obama Rule appears poised to remain effective in 22 states for at least … Continue Reading

Groundwater Remediation as Potential Tool to Combat Water Scarcity: Navigating Potential Conflicts Between CERCLA Remediation Considerations and Water Policy Issues

New water supplies in the western United States are likely to come from a panoply of non-traditional sources, including storm water capture, waste water recycling, desalination, infrastructure efficiency improvements, and other conservation measures. One potential new water source for municipalities is contaminated groundwater requiring environmental remediation, that, but for its low quality, could be used … Continue Reading

California Turning Away From Traditional Imported Water Sources and Toward More Resilient Localized Water Supplies

In 2014 California enacted the Sustainable Groundwater Management Act, which provides the framework for local water management agencies to develop and implement groundwater sustainability plans in order to sustainably manage the state’s groundwater within 20 years. This legislation was California’s first ever attempt to sustainably manage groundwater resources, a long overdue effort given that the state … Continue Reading

California Water Board Sues Federal Agency for Pollutants Entering the U.S. Via the Tijuana River

The San Diego Regional Water Quality Control Board (Water Board) filed a complaint on September 4, 2018 against the United States Section of the International Boundary Water Commission (IBWC), alleging violations of the Clean Water Act (CWA) related to contamination in the Tijuana River. Relying on a 1944 U.S./Mexico treaty, the complaint alleges that the … Continue Reading

Uncertainty Looms as Ohio Seeks to Address Lake Erie Impairment Issues Following Criticism from District Court

Ohio has reversed course on its prior decision not to include the open waters of Lake Erie in its 2016 impaired waters listing following an April 11 ruling by Judge James G. Carr of the U.S. District Court for the Northern District of Ohio.  The decision criticized the maneuvering of US EPA and Ohio EPA … Continue Reading

A Tilted Balance: Emerging Regulation of Nutrient Pollution in Ohio

Nutrient pollution has become a growing concern in the State of Ohio and elsewhere along the Great Lakes.  In the summer of 2014, large algae blooms in Lake Erie generated toxins that contaminated the City of Toledo’s drinking water.  In response, the City instructed 400,000 people not to drink or cook with tap water, prompting … Continue Reading

Flint Michigan Lead-Tainted Water Class Action Allowed to Continue

The US Supreme Court has denied review of a July 2017 Sixth Circuit ruling that revived two federal class action lawsuits seeking redress for plaintiffs alleging injury as a result of the lead-tainted water crises in Flint, Michigan.  In addition to ensuring that the Flint, Michigan water crises remains active in the national conversation, the Supreme Court’s … Continue Reading

US EPA and Army Corps of Engineers Propose Re-Codification of Definition of “Waters of the United States” Pre-Existing Rules

On July 27, 2017, US EPA and the US Army Corps of Engineers published a Proposed Rule regarding the “Definition of ‘Waters of the United States; – Recodification of Pre-Existing Rules.” The Proposed Rule is a “first step in a comprehensive two-step process intended to review and revise” the definition of “waters of the United States” … Continue Reading
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