EPA Issues Amendment to Waters of the U.S. Rule Following Sackett Decision
The U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), on August 29, 2023, issued a direct final rule amending the scope of “Waters of the United States” as defined in Clean Water Act (CWA) regulations. The final rule implements the U.S. Supreme Court’s recent decision in Sackett v. EPA, in which the Court held that only wetlands adjacent to Waters of the U.S. with a continuous surface connection to relatively permanent waters adjoining interstate navigable waters are to be regulated as jurisdictional waters.
Southern District of Texas Enjoins New Waters of the United States Rule
On March 19, 2023, in Texas et al. v. EPA, the United States District Court for the Southern District of Texas issued an order enjoining the Environmental Protection Agency (EPA) and Army Corps of Engineers Waters of the United States (WOTUS) Rule in the states of Idaho and Texas. The injunction went into effect just one day before the WOTUS Rule was set to become final. Texas represents the latest in the multidecade saga of seeking to define the term “waters of the United States” in the context of the Clean Water Act (CWA). Moreover, Texas is just one hurdle EPA’s new WOTUS Rule faces, with a pending Supreme Court case (Sackett v. EPA) and potential congressional action to block the rule both on the horizon.
U.S. EPA Proposes New Wastewater Discharge Limits for Coal-Fired Power Plants
On Wednesday, March 8, the U.S. Environmental Protection Agency (EPA) proposed more stringent effluent limitations guidelines and standards for coal-fired power plants, which it estimates will cost $200 million annually while reducing pollutant discharges by approximately 584 million pounds per year. The proposed guidelines and standards update those published in 2015 and 2020 and focus on limiting the migration of toxic metals such as selenium, mercury, and arsenic to drinking water, recreational water, and aquatic life from the following types of wastewaters generated by coal-fired power plants: flue gas desulfurization wastewater, bottom ash transport water, and combustion residual leachate. The proposal includes additional standards for legacy wastewaters previously discharged to surface impoundments.
Biden Administration Publishes Final Rule Redefining “Waters of the United States”
On January 18, 2023, the Biden administration published its Final Rule revising the definition of “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). Wetlands and waterways that meet the definition of WOTUS are protected by the CWA and subject to the U.S. Environmental Protection Agency’s and Army Corps of Engineers’ jurisdiction. However, the term is not defined in the statute. As such, the federal agencies’ interpretation of WOTUS determines which waters are subject to the CWA permitting requirements.
Third Circuit Rejects Challenges to Decades-Old Consent Decree
On January 6, 2023, the U.S. Court of Appeals for the Third Circuit rejected several challenges to a consent decree (CD) originally entered in 1996. United States v. Brace et al. involved conduct on defendant’s farm that allegedly violated the 1996 consent decree. Defendant argued that the CD was unenforceable because it was ambiguous and that a government official had approved of the allegedly violative actions. The Third Circuit rejected these arguments and upheld the district court’s ruling that defendant had violated the CD.
First Circuit Holds State Administrative Enforcement Does Not Bar a Subsequent Clean Water Act Citizen Suit for Injunctive Relief
On April 28, 2022, the U.S. Court of Appeals for the First Circuit, sitting en banc, considered in Blackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc. et al. whether a state consent order settling claims under a state analogue to the federal Clean Water Act (CWA) barred a subsequent citizen suit brought under the CWA seeking injunctive and declaratory relief arising out of the same alleged discharges. Over 30 years before, in North and South Rivers Watershed Ass’n v. Town of Scituate, the First Circuit held that CWA enforcement barred subsequent citizen suits arising out of the same alleged violations, regardless of the type of relief sought. In Blackstone, the en banc First Circuit overruled Scituate and held that the prior state consent order bars only citizen suits seeking civil penalties. (more…)
EPA Drops Guidance From Previous Administration Interpreting Post-Maui Clean Water Act Permitting Requirements
The U.S. Environmental Protection Agency (EPA or Agency) Office of Water announced that it will be rescinding guidance (the “rescission memo”) prepared in the final days of the Trump administration that provided an interpretation of federal Clean Water Act permitting requirements in the wake of the Supreme Court’s significant April 2020 decision in County of Maui, Hawaii v. Hawaii Wildlife Fund. (more…)
EPA Targets PFAS and Environmental Justice in Proposed Effluent Guidelines
On September 8, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) released Preliminary Effluent Program Plan 15 (Preliminary Plan 15), which outlines the Agency’s 2020 annual review of effluent guidelines and pretreatment standards (ELG), identifies new or existing industrial categories for ELG rulemaking, and provides an update on the Agency plan to improve its annual review and biennial planning process. (more…)
EPA Seeks Additional PFAS Data
On March 17, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) issued a notice of proposed rulemaking (ANPRM) seeking information related to per- and polyfluoroalkyl substances (PFAS) to support a potential Clean Water Act rulemaking. With respect to PFAS from manufacturers and formulators, EPA requests public comment on the Agency’s current information and data and solicits additional information and data from stakeholders. (more…)
Trump Navigable Waters Protection Rule Revived in Colorado by the Tenth Circuit
The U.S. Court of Appeals for the 10th Circuit has vacated a stay of the Navigable Waters Protection Rule (NWPR) in Colorado, reversing the one court that had stayed the Trump administration’s rule redefining the meaning of “waters of the United States” under the Clean Water Act. (more…)
