Clean Water Act

Subscribe to Clean Water Act via RSS

By Paul Singarella, Claudia O’Brien and David Amerikaner

The proposed rule to revise the definition of “waters of the United States” under the federal Clean Water Act, which originally was announced on March 25, 2014 by the United States Environmental Protection Agency (EPA) and United States Army Corps of Engineers (Corps), formally was published in the Federal Register on Monday, April 21, 2014. (Federal Register Vol. 79, No. 76, Monday, April 21, 2014, at pages 22187-22274.) The text of the proposed rule is substantively identical to the March 25 pre-release version.

By Michael S. Feeley, John C. Heintz, Julia E. Stein and Bobbi-Jo Dobush

On August 23, 2013, the California Department of Public Health (CDPH) released a draft Maximum Contaminant Level (MCL) of 10 parts per billion (ppb) for hexavalent chromium (Cr-6).[1]  The Clean Water Act is a federal law, which regulates water pollution.[2] It authorizes the states to develop water quality standards, such as MCLs, that police water contamination.[3]  These state standards must be at least as strict as those adopted by the EPA, but states can elect to maintain stricter regulations.[4]  Where the EPA has not adopted a standard for a particular contaminant, a state may adopt its own based on appropriate scientific evidence.[5]

By Mia Robertshaw

The U.S. District Court for the District of Columbia has removed a layer of uncertainty for Clean Water Act section 404 permits.  On March 23, 2012, the Court held that the U.S. Environmental Protection Agency (EPA) exceeded its authority by purporting to invalidate an existing section 404 dredge-and-fill permit.  Nearly three years after the permit was issued, in a move unprecedented in the history of the Clean Water Act, EPA purported to withdraw the specification of disposal…

By Janice Schneider, Laura Godfrey, Buck Endemann, Josh Bledsoe, and Jennifer Roy

On February 21, 2012, the U.S. Army Corps of Engineers (Army Corps) reissued 48 of its 49 existing nationwide permits (NWP) and also announced two new NWPs applicable to land- and water-based renewable energy development projects.[1]  The Army Corps is issuing the NWPs pursuant to Section 404 of the Clean Water Act, which governs discharges into “waters of the United…

By Michael Feeley and Aron Potash

A lawsuit which delayed and once threatened to dismantle California’s greenhouse gas (GHG) cap and trade scheme was largely resolved last week, removing one roadblock to California’s plan to be the first state to impose an economy-wide GHG trading program.  Under modified regulations adopted by the California Air Resources Board (CARB) on October 20, 2011, California will require certain emitters of GHGs to obtain allowances or offsets in amounts commensurate to their respective emissions…

In a decision that could have widespread application to cases challenging agency action, the California Supreme Court in Voices of Wetlands v. State Water Resources Control Board recently upheld the use of a procedural mechanism that some earlier decisions had held impermissible—the interlocutory remand to an administrative agency.  Use of this procedure can significantly expedite the litigation and the administrative proceedings when an agency makes findings that are not sufficiently supported by the evidence. 

In the case, the owners of…

The Army Corps of Engineers recently proposed to reissue the existing NWPs (PDF) authorizing the discharge of dredged or fill material into waters of the United States for specified projects.  For those projects, NWPs can take the place of individual permits (PDF) under section 404 of the Clean Water Act.  Obtaining permit coverage through an NWP is generally quicker and less expensive than obtaining an individual 404 permit—so, for projects that fall within their scope, these NWPs have the potential to streamline one part of the approval process.  

Importantly for renewable energy developers, the Army Corps also proposes to issue two new NWPs—NWP A, for land-based renewable energy generation facilities and NWP B for water-based renewable energy generation pilot projects. 

The United States Environmental Protection Agency faces an obligation to propose, before June of this year, a rule under the Clean Water Act which will impose reporting requirements upon owners and operators of concentrated animal feeding operations (PDF), or CAFOs, which include certain dairy and poultry farms, horse racing tracks, rodeo facilities, and many other types of operations. 

As EPA estimates that there are thousands of CAFOs which should have applied for National Pollution Discharge Elimination System, or NPDES, permits but did not do so (PDF), EPA is likely to propose that every CAFO—regardless of whether is has a permit or even discharges—provide information which will enable EPA to determine if the facility must obtain a permit and if it is otherwise in compliance with CAFO regulations. 

The expected proposed rule’s reporting requirements will place noncompliant CAFOs at heightened risk of EPA enforcement action.  EPA is also obligated to release to the public the information it collects on CAFOs under the new rule, which could place CAFO owners and operators at risk of citizen suits. 

In light of this expected proposed rule, the window may quickly be closing for CAFOs to come into compliance with CWA requirements, including by contacting EPA to self-report noncompliance, before EPA undertakes what could be a significant enforcement initiative.  Waste-to-energy opportunities may arise as CAFOs evaluate their waste management practices and potentially modify their facilities in response to the CAFO compliance push.