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

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

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

As the coronavirus (COVID-19) outbreak continues across the U.S., it is important for companies to proactively address the potential disruptions to their compliance programs. Environmental compliance is often a boots-on-the-ground activity; but what happens when those boots are at home, can’t travel as needed, or can’t observe operations at the plant level?  Unprecedented staffing and operational issues associated with the coronavirus pandemic have the potential to cause significant gaps in environmental compliance programs. Staying ahead of those gaps is key to weathering these compliance challenges. Below we discuss some recommended strategies to maintain compliance.

Continue Reading Environmental Compliance in the Wake of the Coronavirus

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

Plaintiffs across the country have filed suit seeking relief for their exposure to per– and polyfluoroalkyl substances (“PFAS”), a group of man-made chemicals that the plaintiffs hope to link to a variety of adverse health effects, including cancer. While the health effects attributable to these chemicals are under study by state and federal regulators, decisionmakers have been slow to implement rules and regulations that provide those who have been exposed to these chemicals with a clear path for recovery. While regulators grapple with these emerging contaminants, courts are weighing in on whether those injured by exposure to PFAS are entitled to relief under the existing regulatory landscape.

Continue Reading Court Dismisses PFOA and PFOS Contamination Claim Amidst Changing Regulatory Landscape

On January 13 and 15, 2020, EPA and the U.S. Department of Labor (DOL), 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. This year’s inflation multiplier is 1.01764.

Continue Reading EPA and OSHA Penalty Increases

On January 8, 2020, the U.S. Senate Environment and Public Works Committee heard testimony from representatives of Wyoming and Maryland in an effort to evaluate the effectiveness of programs under the Clean Water Act (“CWA”) designed to reduce nonpoint source (“NPS”) pollution.

NPS pollution, unlike point source pollution that can typically be traced to an industrial or sewage treatment facility, is created by land runoff that results from rainfall or snowmelt. As the water moves over and through the ground, it picks up sediment and other pollutants that are eventually deposited into nearby waterways. According to the Environmental Protection Agency, NPS “pollutants have harmful effects on drinking water supplies, recreation, fisheries, and wildlife.”


Continue Reading Senators Examine Section 319 Nonpoint Source Management Program