On Tuesday, December 7, 2021, the U.S. Environmental Protection Agency and the Army Corps of Engineers published for public comment a proposed rule revising the definition of “Waters of the United States” (“WOTUS”). The agencies indicate the proposal would “meet the objective of the Clean Water Act and ensure critical protections for the nation’s vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States.”
The proposed rule replaces the “interstate commerce” test ...
The Alabama Department of Environmental Management can finally breathe a sigh of relief, as the Court of Appeals for the Eleventh Circuit issued an opinion today affirming the U.S. EPA’s January 11, 2017 decision not to commence proceedings to withdraw the State’s NPDES permitting program authority and ending nearly a decade of uncertainty for the agency.
The process began in January 2010, when several environmental groups filed a petition with EPA alleging twenty-six grounds for withdrawal of Alabama’s program authorization. EPA issued an interim response to the ...
On January 3, 2019, the U.S. Solicitor General filed a brief urging the Supreme Court to grant certiorari in County of Maui v. Hawaii Wildlife Fund to decide the question of whether a "discharge of a pollutant occurs when a pollutant is released through a point source, travels through groundwater, and ultimately migrates to navigable waters." The brief suggests review is warranted to resolve the issue conflicting with the Fourth, Sixth, and Ninth Circuits, as well as the "numerous district courts" that have confronted cases involving claims of unpermitted discharges to waters of the ...
The Tennessee Department of Environment and Conservation ("TDEC") is soliciting comments on its new Antidegradation Guidance Document. The document, dated July 19, 2016, was made public January 5, 2016. TDEC is requesting comments by February 17, 2016. The Guidance Document was prepared by a Massachusetts company, Industrial Economics, Incorporated.
The Guidance Document is not developed or promulgated by the Board of Water Quality, Oil and Gas ("Board"), which is the entity charged with establishing rules governing water quality standards. The Board promulgated the ...
On December 20, 2016, Michigan's Attorney General announced additional indictments in the Flint water crisis. The indictments against two former emergency managers and two former City of Flint executives bring to 13 the number of individuals who have been criminally charged in the fallout from a decision in 2014 to separate the City from its historic water supply source, the City of Detroit, and to begin supplying drinking water from the Flint River (N.Y. Times).
The charges are detailed, along with some history, in a press release from Attorney General Bill Schuette's office (AG ...
The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the controversial EPA/Corps of Engineers Clean Water Rule which was effective August 28, 2015. Some 30 states, industry and environmental groups had petitions pending in a number of circuit courts and all were consolidated in the Sixth Circuit. In what appears to be an interesting ruling, the three judge panel essentially expressed a desire to have the rule fully litigated before enforcing it. According to the Court:
A stay temporarily silences the whirlwind of confusion that springs from uncertainty about ...
Today, the State of Tennessee joined in one of the many lawsuits filed by States challenging the EPA and Corps of Engineers Final Rule that defines of Waters of the United States under the federal Clean Water Act. The federal agencies stated in their Final Rule that they had actually narrowed the definition but most agricultural and industry groups believe the Final Rule will do the opposite. Tennessee joined the lawsuit already filed in the United States District Court of Ohio by the States of Ohio and Michigan. Tennessee's foray into the litigation marks what is believed to be the 30th
On Tuesday, May 26, 2015, EPA issued a long-awaited rule defining "Waters of the United States." Elsewhere, on EPA's Clean Water Rule webpage, there are a number of fact sheets and information intended to explain and support the rule as proposed. EPA apparently found this scope of detail and explanation necessary due to the significant opposition to the rule. Even before publication, the rule had generated a great deal of opposition. The proposed definition has been viewed by a number of groups as effecting a broad expansion of federal authority over water-bearing bodies that had ...
On Friday, March 27, 2015 the Georgia legislature passed HB 397, overhauling the State Soil and Water Conservation Commission ("Commission"). HB 397 is intended to curb the Commission's independence and streamline its regulations. The bill transforms the Commission from an independent state agency to one within the umbrella and oversight of the Department of Agriculture. One state representative provides that the bill is expected to save the state up to $300,000. See Michael Caldwell, Legislative Tracker ...
EPA's current estimate of the completion time for a draft of its study of the risks posed by hydraulic fracturing ("fracking") to drinking water is now projected by the agency to be developed in early 2015. This is based on comments in a letter originating from EPA's Region 8 office stating that the study on the risks posed by fracking to drinking water won't reach draft final form until "early 2015". The study was undertaken at the direction of Congress in 2009 when Congress requested EPA to conduct scientific research to examine the relationship between hydraulic fracturing in drinking ...
In March, EPA published a new Final Rule that revised a 2009 Final Rule addressing stormwater discharges from its Construction and Development (C&D) point source category. The March revision withdrew the numeric turbidity effluent limitation and monitoring requirement and made certain other changes and clarifications. (Federal Register: March 6, 2014 Federal Register) The revised rule results from litigation filed by a number of entities, Wisconsin Builders Association, et al. v. EPA, Case Nos. 09-4113, 10-1247, and 10-1876 (7th Cir.), and specifically from a settlement ...
In a news release dated March 25th 2014, EPA and the Army Corps outlined a new proposed joint rule to clarify the scope and definition of the "waters of the United States" under the Clean Water Act in an attempt to address issues raised in two separate Supreme Court cases decided in 2001 and 2006. The proposed rule clarifies what upstream waters, including natural and artificial wetlands, tributaries and other types of waters are regulated due to their relationship with downstream waters and watersheds. As the news release provides, the proposed rule clarifies that the following are ...
The U.S. EPA has issued for public comment a draft of its most recent National Rivers and Streams Assessment (NRSA). The Assessment involved sampling over 1,900 points along wadeable waterways in the contiguous 48 States during 2008 and 2009, and updates a similar study done in 2004. Comments must be emailed to nrsa-hq@epa.gov by 11:59 p.m. May 9, 2013.
Among the key findings: 55% of the nation's river and stream miles do not support healthy populations of aquatic life, with phosphorus and nitrogen pollution and poor habitat the most widespread problems. An additional 23% of river and ...
The U. S. Supreme Court's March 20, 2013, decision in Decker v. Northwest Environmental Defense Center is good news for the logging industry. The Clean Water Act (Act) and EPA's Silvicultural Rule (Regulation) do not require National Pollutant Discharge Elimination System (NPDES) permits for discharges of chan neled stormwater runoff from logging roads. Permits will be required for logging operations that involve rock crushing, gravel washing, log sorting and log storage facilities. Georgia-Pacific West had a contract with Oregon to har vest timber from a state forest. When ...
The Alabama Department of Environmental Management (ADEM) has apparently ended its effort to require payment of fees to review groundwater assessments and remediation plans, at least for the time being. Approximately a year ago, ADEM's Groundwater Program initiated a process attempting to require the execution of formal Remediation Agreements as a part of assessment requirements for releases which threatened or impacted the groundwater. This was prompted by recent reductions in appropriations by the State's Legislature to the Department. While much of ADEM's funding comes ...
The Supreme Court had oral arguments last Monday (December 3) in Decker v. Northwest Environmental Defense Center, just after EPA the previous Friday (November 30) surprisingly issued a new rule clarifying that a NPDES permit is not required for stormwater discharges from logging roads. EPA, in its statement on the new rule, says: "In Northwest Environmental Defense Center v. Brown (NEDC), 640 F.3d 1063 (9th Cir. 2011), a citizen suit was filed alleging violations of the Clean Water Act for discharging stormwater from ditches alongside two logging roads in state forests without a ...