Archives: Water Quality

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Brexit – What are the implications for UK environmental law and policy?

The topic of the moment in the UK is whether Brexit will be a good or a bad thing for the UK, and it seems to be polarising the nation. Stepping away from the political rhetoric and posturing, it is worth reflecting on some of the more practical issues arising from a UK exit from … Continue Reading

Sixth Circuit Jurisdictional Determination on “Waters of the United States” Fails to Resolve Legal Uncertainty

On February 22, a divided Sixth Circuit Court of Appeals ruled that it has jurisdiction to hear suits over the joint US EPA and US Army Corps of Engineers’ controversial amendment to the definition of “waters of the United States.” Murray Energy Corp. v. US Dep’t of Def. et al., Slip op., No. 15-3751 (6th … Continue Reading

US Senate Falls Short in Attempt to Override Obama’s Veto of “Waters of the United States” Resolution

On January 21, 2016, Senate Republicans failed to override President Obama’s veto of a recent legislative attempt to block the “Waters of the US” Rule. The challenged Rule defines the term “waters of the United States” under the Clean Water Act, while, as we noted previously, expanding federal jurisdiction over waters that were not previously … Continue Reading

Record Fine Imposed For UK Water Pollution Offence – Prevention Less Costly Than Cure?

The record fine of £1m recently handed down to Thames Water Utilities Limited is further evidence (if any were needed) that the Courts are willing impose extremely tough penalties on very large organisations found to have breached environmental regulations. Background Thames Water has an environmental permit to discharge treated sewage from Tring Sewage Treatment Works into … Continue Reading

Still Waters: Sixth Circuit Issues Nationwide Stay Against “Waters of the US” Rule

The US Court of Appeals for the Sixth Circuit issued a nationwide stay on October 9, 2015 against the “Waters of the United States” Final Rule. The Final Rule defines the term “waters of the United States” under the Clean Water Act while, as we noted previously, expanding federal jurisdiction over waters that were not previously covered. … Continue Reading

US District Court Blocks BLM Rule for Hydraulic Fracking on Federal and Tribal Land

On September 30, 2015, the US District Court for the District of Wyoming preliminarily enjoined the US Bureau of Land Management (BLM) from enforcing its final rule regulating hydraulic fracturing on federal and Native American lands, pending the resolution of a challenge to the rule under the Administrative Procedures Act (APA) brought by various industry, state, … Continue Reading

US District Court Enjoins Waters of the US Rule But Limits Injunction to the 13 Plaintiff States

On August 27, 2015, the US District Court for the District of North Dakota granted a motion for preliminary injunction to a coalition of 13 states (the States) attempting to block implementation of the Waters of the United States (WOTUS) Rule, promulgated by US EPA and the Army Corps of Engineers (the Corps) and set to go into … Continue Reading

Faced with Drought and Water Shortage, California Water Board Can’t Win For Losing

Things couldn’t be going much worse for the California State Water Resources Control Board (“Board”). In the midst of one of California’s worst droughts on record that has seen water levels drop to historic lows in California Reservoirs, Governor Jerry Brown and the Board have been desperate to find and implement ways to conserve water … Continue Reading

Draft US EPA Assessment Finds No Systematic Risk to Drinking Water from Hydraulic Fracturing

Earlier this month, US EPA released its long-awaited draft assessment on the impact of hydraulic fracturing (fracking) on the nation’s drinking water resources.  The assessment, titled Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, represents over four years of study into the potential of hydraulic fracturing to … Continue Reading

Iowa Utility Files Lawsuit Over Agricultural Pollution

The Des Moines Water Works (DMWW) recently filed suit against several Iowa drainage districts for discharging excess nitrate pollution through groundwater in subsurface agricultural drainage systems into the Raccoon River, which DMWW relies upon to provide drinking water for approximately 500,000 Iowans. As previously reported here, the lawsuit seeks to hold these drainage districts liable … Continue Reading

The Final WOTUS Rule is Here: Still Pretty Broad

On May 27, 2015, US EPA and the US Army Corp of Engineers (ACOE) released their final (and highly controversial) “Waters of the US” (or WOTUS) rule. In an effort to mollify and assure critics that the Final Rule is not an unabashed “power grab,” the Agencies continue to say that the Final Rule “will … Continue Reading

Presentation on EPA/Corp’s Proposed Redefinition of “Waters of the US” Under Clean Water Act

On April 25, 2015, Jessica DeMonte (Principal, Columbus/Chicago) presented at the Ohio State Bar Association’s 30th Annual Environmental Law Conference on the controversial proposed rule jointly issued by EPA and the Army Corps of Engineers to revise the definition of “Waters of the US” for Clean Water Act programs.  The presentation provides an overview of … Continue Reading

The US BLM Issues Controversial New Fracking Rule

The Bureau of Land Management (“BLM”) issued a final rule on March 20, 2015 to regulate hydraulic fracturing or “fracking” on public and American Indian Lands.  Although the new rule has been final for less than three weeks, it is already a source of controversy. In a press release, the BLM explained that the new rules “will … Continue Reading

UK Privatised Water Companies – Not so Private!

The UK’s Upper Tribunal (“UT“) has ruled in Fish Legal v Information Commission and others that privatised water utility companies in England and Wales are considered to be “public authorities” for the purpose of the Environmental Information Regulations (2004) (“EIR“) due to their “special powers” above those of private law. The judgement means that water … Continue Reading

Iowa Utility To Pursue Novel Lawsuit Over Agricultural Nitrate Pollution

The Des Moines Water Works (DMWW) recently issued a notice of intent (NOI) to sue three County Board of Supervisors that oversee several drainage districts reportedly responsible for excessive nitrate pollution being discharged from groundwater in subsurface agricultural drainage systems into the Raccoon and Des Moines Rivers. Recent sampling efforts by DMWW have indicated nitrate … Continue Reading

Onshore Oil And Gas – Monitoring And Minimising Environmental Degradation In The UK

United Kingdom Onshore Oil and Gas (“UKOOG”), the representative body for the UK onshore oil and gas industry, have published guidelines for establishing environmental baselines that aim to identify variations in environmental conditions which may be attributable to onshore hydrocarbon activities.  The UKOOG guidelines are summarised below. Industry Regulators The guidelines note that the UK’s onshore hydrocarbon industry … Continue Reading

Environmental Regulation and Nanotechnology in the UK and EU: Challenges, Risks and Rewards

What is Nanotechnology? Nanotechnology is a generic term used to describe the design, engineering, production and use of substances and materials at the nanoscale (1 nanometre representing 1 billionth of a metre).  To illustrate, one sheet of standard paper is approximately 100,000 nanometres thick and one nanometre is roughly how long a human fingernail will … Continue Reading

Preliminary Injunction Halts US EPA’s CWA 404 Process on Pebble Mine To Evaluate Activists’ Connections

On November 25, 2014, a federal judge granted a motion for preliminary injunction, and ordered US EPA to stop all work pertaining to its investigation of and proposed plan to restrict discharges from the prospective Pebble Mine project near Bristol Bay in Alaska.  The plaintiff, Pebble Partnership, contended that US EPA failed to comply with the requirements … Continue Reading

Controversial “Waters of the US” Rule Proposal Draws Criticism as Public Comment Period Expires

The extended public comment period for the US EPA and Army Corp of Engineers’ proposed rule to redefine “waters of the United States” under the Clean Water Act (CWA) expired November 14, 2014.  The proposed rule has come under intense scrutiny for its apparent expansion of CWA jurisdiction.  US EPA received nearly 500,000 public comments … Continue Reading

Chesapeake Bay TMDL Appeal Oral Argument Will Confront US EPA’s Ability to Target Nutrients

The US Court of Appeals for the Third Circuit has set oral argument for November 18, 2014 in American Farm Bureau Federation, et al. v. US EPA, an appeal of a September 13, 2013 district court decision upholding US EPA’s December 2010 total maximum daily load (TMDL) limits for the Chesapeake Bay. As we previously … Continue Reading

Definition of “Waters of the US”: US EPA Science Advisory Board Calls For Less Exclusions, More Jurisdiction

On April 21, 2014, US EPA and the US Army Corps of Engineers issued a proposed rule to redefine “waters of the United States” under the Clean Water Act (CWA). As previously reported here, the proposed rule has come under intense scrutiny for its apparent expansion of CWA jurisdiction. Now, recent reports published by US EPA’s … Continue Reading

Industry and Environmental Groups Seek Judicial Review of US EPA’s Cooling Water Intake Structure Rule

As expected, in the wake of the US EPA’s finalization of the cooling water intake structure rule, several groups filed lawsuits regarding the proposed rules. Cases were filed by environmental and industry groups in the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits. In the initial round of filings, industry groups focused on whether the minimum … Continue Reading

US District Court Focuses on Reviewability of Agency Letters and Emails: Determinations to be Case-by-Case

In Puget Soundkeeper Alliance v. EPA, the US District Court for the Western District of Washington held that emails and letters from US EPA staff to the Washington Department of Ecology (Department) describing US EPA staff’s belief that the Department’s fish consumption statistics were not accurate did not rise to the level of a statutory determination that the … Continue Reading

Unity Yes, Finality No: D.C. Circuit Rejects Challenge to US EPA Clean Water Act Policy Governing Mining Permits on Procedural Grounds

On July 11, in National Mining Association v. McCarthy – a case very important to the surface coal mining industry in the Appalachians – the D.C. Circuit Court of Appeals rejected industry arguments that US EPA had improperly adopted policies that made it harder for such mines to obtain two kinds of Clean Water Act (CWA) permits: permits under Section … Continue Reading
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