On April 12, 2019, the Fifth Circuit issued its opinion in Southwestern Elec. Power Co. v. EPA, ordering EPA to reconsider parts of its 2015 Effluents Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (“2015 ELG Rule”). The opinion resolves a challenge brought by environmental groups regarding the rule’s effluent limitation guidelines for “legacy” wastewater and for combustion residual leachate from landfills or settling ponds.

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On April 15, 2019, EPA issued its long-awaited Interpretative Statement addressing the Clean Water Act’s applicability to releases of pollutants from point sources into groundwater that subsequently migrate to jurisdictional surface waters. The question this interpretation addresses stems from the 2018 federal circuit split previously discussed here. On February 19, 2019, the Supreme Court granted certiorari in one of the cases that contributed to the split, County of Maui v. Hawai’i Wildlife Fund. The United States filed its amicus brief in that case, urging the highest court to review County of Maui, but not a similar ruling from the Fourth Circuit. As the question was being reviewed by the federal courts, EPA requested public comment on this issue and received over 50,000 comments. EPA is addressing some of these comments in the Interpretative Statement.
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On March 8, 2019, the Environmental Protection Agency, Department of the Army, and Army Corps of Engineers petitioned the U.S. Courts of Appeals for the 4th and 9th Circuits to voluntarily dismiss their appeals of the Suspension rule. This is yet another development in the litigation surrounding the 2015 Waters of the United States Rule (WOTUS). Our previous blog posts on this topic can be accessed here.
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At a public hearing on March 6, 2019, the California State Water Resources Control Board announced a “Phased Investigation Plan” for perfluoroalkyl substances (PFAS).  The Investigation Plan represents a coordinated effort by the Water Board to identify PFAS in discharges and drinking water sources across California.  This new initiative leverages the Board’s enforcement and permitting powers to order testing and will proceed in three phases.  Under each phase, the Water Board will issue orders to the covered facilities requiring at least one round of testing of their discharge to identify whether PFAS are present.

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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

On February 14, 2019, EPA announced the release of its Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (Action Plan) in an unprecedented series of simultaneous press conferences across all 10 of its Regions.  The Action Plan brings together and organizes regulatory, enforcement, and scientific efforts across nearly all of the Agency’s statutory programs, including the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), the Toxic Substances Control Act (TSCA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), and the Resource Conservation & Recovery Act (RCRA).  Some of the components of the Action Plan are entirely new, while others represent the continuation or revival of prior initiatives.  Below we summarize the highlights of the 60+ page Plan.

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On February 6, 2018, David Ross, EPA’s Assistant Administrator for the Office of Water issued a new guidance memorandum updating the Agency’s Water Quality Trading Policy.  The new guidance strongly supports and promotes trading and flexibility and clarifies EPA’s previous guidance, stating, for example, that its 2003 Water Quality Trading Policy “may be too prescriptive to be widely effective and implementable.”  The guidance announces six “Market-Based Principles” designed to encourage and promote the development and implementation of market-based pollutant reduction programs.  The six principles include:

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On January 23, 2019 and February 6, 2019, OSHA and EPA, respectively, published their annual civil monetary penalty adjustments in the Federal Register. The Federal Civil Penalties Inflation Adjustment Act of 2015 requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. The annual inflation adjustments are based on a cost-of-living multiplier determined by changes to the Consumer Price Index.
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The U.S. Department of the Army’s Assistant Secretary for Civil Works has issued a policy directive memorandum requiring the U.S. Army Corps of Engineers (USACE) to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under Clean Water Act Section 401 with regard to USACE’s issuance of dredge and fill permits under CWA Section 404.  The policy memorandum also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification.

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