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On June 1, the Environmental Protection Agency (EPA) released a final rule clarifying substantive authorities and procedural requirements for water quality certifications under section 401 of the Clean Water Act (CWA). EPA’s August 2019 notice of proposed rulemaking (NOPR) (summarized in our previous post) articulated the Agency’s first-ever statutory interpretation of section 401 since its enactment nearly 50 years ago, and proposed sweeping substantive and procedural changes to its section 401 regulations in conformance with its interpretation. EPA’s final rule largely adopts the regulations in its NOPR, but makes important changes in adopting new regulations that preserve authority of states and Native American tribes exercising “Treatment as a State” (TAS) authorization to ensure that discharges from federally licensed and permitted activities meet state and tribal water quality requirements.
Continue Reading Long-Awaited EPA Rule Overhauls Section 401 of Clean Water Act

Today the U.S. Supreme Court issued its long-awaited opinion in County of Maui v. Hawaii Wildlife Fund, addressing whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The issue has historically been controversial and

On April 21, 2020 the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) published the final rule narrowing the meaning of the Clean Water Act (“CWA”) term “waters of the United States,” which represents the culmination of one of President Trump’s key environmental agenda items. The Trump Administration’s

New federal reporting requirements for per- and polyfluoroalkyl substances (PFAS) went into effect on January 1, 2020. The National Defense Authorization Act for FY 2020 (NDAA), signed into law on December 20, 2019, required EPA to add certain PFAS to the federal Toxics Release Inventory (TRI) list of reportable chemicals.

The NDAA identified fourteen specific PFAS chemicals for addition to the TRI list, and directed EPA to add other substances that met two criteria: (1) they were subject to a significant new use rule (SNUR) under the Toxic Substances Control Act (TSCA) on or before December 20, 2019, and (2) they were identified as active in commerce on the TSCA Inventory that was published in February 2019. Among the new additions are some of the best-known and most-studied substances, including PFOA (perfluorooctanoic acid), PFOS (perfluorooctane sulfonate), and GenX chemicals (including hexafluoropropylene oxide dimer acid).


Continue Reading Toxic Release Inventory Expanded to Include PFAS, with 160 New Reportable Chemicals and Counting

On January 23, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers (collectively, “Agencies”) released the pre-publication version of the much-anticipated final rule narrowing the meaning of the term “waters of the United States,” which defines waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The final rule, called the “Navigable Waters Protection Rule,” represents the latest development in the Trump Administration’s extensive effort to repeal and replace the Obama Administration’s 2015 rule redefining the term (“2015 Rule”) and will become effective 60 days after its publication in the Federal Register.

Continue Reading Trump Administration Releases Final WOTUS Rule

EPA and the U.S. Army Corps of Engineers’ new rule repealing the 2015 “Clean Water Rule,” will be published in the Federal Register tomorrow.

The “repeal rule” will take effect December 20, 2019, providing nationwide consistency regarding the jurisdiction of Waters of the U.S. and ending the current state-by-state patchwork of where the

On October 10, 2019, the Environmental Protection Agency (EPA) announced long-awaited proposed revisions to its Lead and Copper Rule (LCR) under the Safe Drinking Water Act. The proposed LCR revisions come nearly 30 years after the federal government last updated its lead and copper testing procedures. Originally promulgated in 1991, the LCR has long been criticized for its imprecise language and has come under fire in recent years in the wake of the water crisis in Flint, Michigan.

Continue Reading EPA Proposes Significant Revisions to Lead and Copper Rule

For most federal rules, you don’t need a map to figure out in which states they’re the current law.  But you do for the 2015 “Clean Water Rule,” which significantly expanded the reach of the Clean Water Act by redefining the term “waters of the United States.”  That’s one reason why, on September 12, 2019, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released a new rule to repeal the Clean Water Rule and restore prior regulations.  This “repeal rule” will take formal effect 60 days after its publication in the Federal Register.

Continue Reading EPA and Army Corps Repeal 2015 Clean Water Rule

Today the Supreme Court issued its order list from its February 15 Conference during which it considered whether to grant certiorari in two pending petitions regarding discharges of pollutants to groundwater that is hydrologically connected to surface water. The Court granted certiorari in County of Maui, HI v. Hawaii Wildlife Fund, et al. only as

The Supreme Court has declined to review the U.S. Court of Appeals for the Second Circuit’s January 2017 decision in Catskill Mountains Chapter of Trout Unlimited, Inc. et al. v. U.S. EPA reinstating the U.S. Environmental Protection Agency’s (the “EPA”) Water Transfers Rule, meaning the Second Circuit’s decision reinstating the Rule will stand.  The Water Transfer Rule, issued by EPA in 2008, formalized EPA’s historic practice of excluding water transfers between water basins from the Clean Water Act’s (“CWA”) National Pollutant Discharge Elimination System (“NPDES”) permitting requirements after years of legal battles over EPA’s informal policies regarding interbasin transfers.

Continue Reading Supreme Court Declines Review of Second Circuit Decision Reinstating EPA Water Transfers Rule