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 ...
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 ...
Flint, Michigan's problems with lead in its drinking water have been well documented, and this has prompted reports of similar problems detected in other communities, even though these are apparently not as extensive as the situation in Flint. The situation has also revealed that the current procedures to identify and evaluate lead contamination may be flawed and prompted attention to the fact that many other potential contaminants of concern are currently unregulated. Lead contamination has been documented in a surprising number of communities in addition to Flint over the past ...
The problems with the quality of drinking water in Flint, Michigan, are not necessarily an isolated collection of failures. From a technical standpoint, the potential for lead leaching into drinking water systems in many places in this country is a real issue. That potential is compounded if we see a repeat of the range of bureaucratic failures that occurred in Flint. The basic conditions that exist in Flint are not unique; they are prevalent at least in the older water systems of the Northeast and Midwest. (National Geographic). As that article points out, the potential for leaching of ...
As the New Year begins, a number of issues will compete for attention from Congress and the courts, and we may even get some final determinations about matters that have been long simmering. Much of the substantive work of the Obama Administration has been put into place and is currently subject to various challenges. Many of these will either be decided or will progress substantially during the coming year. Nonetheless, EPA has proposed a full agenda of rulemaking activities for 2016, including both projected notices of proposed rulemaking and publication of final rules for a wide ...
For the City of Flint, Michigan, the immediate problem is that the water it provides its citizens is not safe to drink. For many other communities across the nation, the problem may be whether they can do the things necessary to avoid a similar fate. On Thursday, October 1, local health officials in Flint declared a public health emergency warning that the City's public water supply is causing elevated lead levels in children (Water Crisis in Flint). Residents were warned not to drink the water unless it has been filtered at the tap, and the State's governor promised to provide $1 million ...
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 ...
Georgia legislature warms up to solar panels, gets protective of coastal marshes, withdraws support for electric cars, and sacrifices LEED certifications in favor of jobs. April 2, 2015 marked final adjournment of the 2015 Georgia legislative session. Upon adjournment, the legislature sends five key environmental bills to Governor Deal for signing. (1) HB 57 - Solar Power Free-Market Financing Act of 2015 ("Solar Freedom Bill") The Solar Freedom Bill allows property owners to finance the addition of solar panels to their properties as they would finance cars or homes. The ...
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 ...
On September 4, 2014, District Court Judge Carl Barbier issued his "Findings of Fact and Conclusions of Law - Phase One Trial" in the Deepwater Horizon oil spill litigation. In his 153 page opinion, Judge Barbier found BP liable for gross negligence and willful misconduct under the Clean Water Act, which is also known as the Federal Water Pollution Control Act. Judge Barbier focused largely on the many dangerous decisions that were taken on the Deepwater Horizon shortly before the explosion. BP subsequently filed a motion in which it asked Judge Barbier to reconsider his opinion. On ...
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 ...
On March 25, the US Environmental Protection Agency and U.S. Army Corps of Engineers released a proposed rule to clarify Clean Water Act jurisdiction over streams and wetlands by re-defining "Waters of the United States" in light of a series of Supreme Court decisions wrestling with the issue of whether a particular water body (e.g., "isolated wetlands," man-made ditches and the like) were subject to regulation under the Clean Water Act. The proposed rule seeks to clarify regulation over upstream waters and to increase efficiency in determining coverage of the Clean Water Act ...
Earlier this month, the State of Florida announced it will be filing a lawsuit in September in the U.S. Supreme Court seeking to limit Georgia's consumption of water from the Chattahoochee and Flint River Basins through an injunction. Florida claims that the unchecked consumption of the upstream water flows have negatively impacted Apalachicola Bay by increasing the salinity of the Bay, particularly in the summer and fall months. The reduction in the salinity is blamed for the reduction in the oyster population. Apalachicola Bay produces 90% of Florida's oyster supply and 10% of the ...
The Florida Legislature recently adopted a new law that allows the Florida Department of Environmental Protection ("FDEP") to establish surface water quality standards in the state. The Governor is expected to support the new law. The new law essentially approved FDEP's nutrient standards for streams, springs, lakes, and estuaries in accordance with the document entitled "Implementation of Florida's Numeric Nutrient Standards." The water quality standards primarily focus on Nitrogen(N) and Phosphorus (P) found in surface waters. The adoption of the law resolves years of ...
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 ...
In Tennessee, permits under the state's National Pollutant Discharge Elimination System program are required for construction sites and related support activities to avoid pollution from stormwater runoff. Specifically, a General NPDES Permit for Discharges of Stormwater Associated with Construction Activities ("General Permit") is necessary for all construction activities involving one or more acres of land or that are part of a common plan of development or sale of more than one acre. To obtain a General Permit, applicants must file a Notice of Intent with the Tennessee ...
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 ...
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