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

The question of how to regulate temperature in water bodies is one that states in the Northwest have struggled with for years. The U.S. Environmental Protection Agency (EPA) addressed that question on May 18, 2020, when it released a draft Total Maximum Daily Load (TMDL) to achieve water quality standards for temperature in certain reaches of the Columbia and Lower Snake Rivers in Oregon and Washington. This new TMDL comes a few months after a decision from the U.S. Court of Appeals for the Ninth Circuit, Columbia Riverkeeper v. Wheeler, requiring the agency to take the lead after Oregon and Washington failed to submit their own TMDL. Comments on the draft TMDL are due by the end of July 21, 2020.

Continue Reading EPA Issues Draft Temperature TMDL for Columbia and Snake Rivers

Amid the ongoing public health pandemic, EPA has issued two fact sheets suggesting it may conclude that a federal drinking water standard for perchlorate is not warranted. In a June 2019 blog post we reported that EPA asked the public whether it should set a Maximum Contaminant Level (MCL) for perchlorate. Setting an MCL for

Yesterday, the U.S. District Court for Montana amended its April 15, 2020, order vacating Nationwide Permit (NWP) 12, which authorizes minimal impacts from “utility line activities” to jurisdictional waters. As we previously reported, despite the case centering on the Keystone XL Pipeline, the court’s April 15 order vacated NWP 12 nationwide for all activities (including broadband, electric, water and sewer) until the U.S. Army Corps of Engineers (Corps) consults with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) pursuant to the Endangered Species Act (ESA). In yesterday’s order, the court amended the vacatur’s applicability by limiting it to the construction of new oil and gas pipelines. Under the amended order, the Corps may continue to authorize the use of NWP 12 for construction of new utility lines for broadband, electric, water, and sewer, as well as “maintenance, inspection, and repair activities” on existing utility lines, including existing pipelines.

Continue Reading Montana District Court Limits Its Vacatur of Nationwide Permit 12

On May 5, 2020, the Illinois Attorney General filed a complaint against a developer and its contractors responsible for demolishing the smokestack of a former coal-fired power plant in Chicago. The suit provides a good reminder that careful planning for the control of fugitive dust emissions is critical during decommissioning activities—and that state legal offices

On April 20, the Supreme Court of the United States reversed the Montana Supreme Court’s decision in Atlantic Richfield Co. v. Christian, limiting restoration damages claims beyond Environmental Protection Agency-approved cleanups at Superfund sites, while affirming the right of private parties to seek other kinds of damages under state law. The majority decision, penned by

As we previously reported, the Federal District Court for Montana vacated the U.S. Army Corps of Engineers (Corps) Nationwide Permit (NWP) 12 on April 15, 2020, finding that the Corps had failed to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service prior to issuing NWP 12. Despite the case centering on the Keystone XL Pipeline, the court’s decision vacated NWP 12 nationwide and prevents the Corps from authorizing a broad range of utility projects that are unrelated to the Keystone XL Pipeline.

Continue Reading Update: Corps Seeks Stay of Montana District Court’s NWP 12 Ruling

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

In a surprisingly broad decision, the District of Montana vacated the U.S. Army Corps of Engineers (“Corps”) Nationwide Permit (“NWP”) 12 on April 15, 2020.  NWP 12 authorizes impacts from “utility line activities” to jurisdictional waters that have minimal individual and cumulative adverse environmental effects. “Utility line” is broadly defined to include pipelines and any cable, line, or wire for the purpose of transmitting electricity or communication. The court found that the Corps failed to comply with the Endangered Species Act (“ESA), and thus remanded NWP 12 to the Corps for consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”) in accordance with Section 7 of the ESA. The court’s order prohibits the Corps from authorizing “any dredge or fill activities under NWP 12 pending completion of the [ESA Section 7] consultation process.”

Continue Reading Montana District Court Vacates and Remands Clean Water Act Nationwide Permit 12