In the past two weeks, two federal district courts reached seemingly opposite conclusions regarding the implementation of the U.S. Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ (“the Agencies”) Navigable Waters Protection Rule (“the Rule”). The Rule, which took effect on June 22, narrows the term “waters of the United States” and,

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

On November 22, 2019, the Army Corps of Engineers (Corps) agreed to obtain a National Pollutant Discharge Elimination System (NPDES) permit for the operation of the federally owned and operated Chief Joseph Dam, the second-largest hydropower producing dam in the United States, as part of a settlement with the Columbia Riverkeeper. The settlement resolves litigation (previously addressed on this blog) brought by the Columbia Riverkeeper, which claimed that the Corps’ dam operations had long been discharging oil, grease, and heated water into the Columbia River without a permit.

Sections 301(a) and 402 of the Clean Water Act (CWA) prohibit anyone, including a federal agency, from discharging “pollutants” through a “point source” into a “water of the United States” except as authorized by a NPDES permit. Section 505 of the CWA provides any citizen, including a citizen group like Columbia Riverkeeper, the ability to bring a civil action against any person, including the United States, that is violating an effluent standard or limitation. As detailed by its complaint, the Columbia Riverkeeper alleged that the Corps has been in violation of CWA standards by allowing oils and grease to accumulate in sumps that drain into the river and utilizing hydro-carbon based lubricants on generation equipment that become discharged with cooling water without a NPDES permit.
Continue Reading Army Corps Agrees to Obtain Clean Water Act Permit to Operate Federal Hydroelectric Dam

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