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Showing 17 posts by Andrew C. Silton.

Cert Petition Seeks Supreme Court Review of Ninth Circuit’s Expansion of the CWA’s NPDES Program

Earlier this year, the Fourth and Ninth Circuits decided a pair of cases that have the potential to greatly expand the scope of the National Pollution Discharge Elimination System (NPDES) permit program under the Clean Water Act (CWA). For decades, many have generally taken for granted that NPDES permits are required only when a point source directly delivers pollutants to surface waters.  In Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), and Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018), both courts rejected this assumption by holding that pollutants reaching surface waters via groundwater required NPDES permits. Read More ›

Environmental Groups Score First Victory to Expand Regulation of Stormwater Under the NPDES Program

Last week, the U.S. District Court for the Central District of California gave environmental groups a significant win in their bid to force EPA to regulate new sources of stormwater discharges under the Clean Water Act (“CWA”). The case, Los Angeles Waterkeeper v. Pruitt, No. 2:17-cv-03453, is one of several pending actions concerning EPA’s authority to require National Pollution Discharge Elimination System (“NPDES”) permits for sources of stormwater that are not currently regulated. If the court’s decision withstands a likely appeal, EPA will be required to prohibit or issue NPDES permits for discharges of stormwater from privately-owned commercial, industrial, and institutional (“CII”) sites like malls, office buildings, and parking lots. Read More ›

Fourth Circuit Joins Ninth In Holding That “Indirect” Discharges May Violate the CWA

On April 12, the Fourth Circuit became the second federal court of appeals this year to hold that a point source need not directly introduce pollutants into navigable waters in order for the Clean Water Act’s (CWA) prohibition on unpermitted discharges to apply.  In Upstate Forever v. Kinder Morgan Energy Partners, L.P., No. 17-1640, a divided panel held that citizens’ groups had adequately stated a claim for relief under the CWA by alleging that gasoline released from a pipeline was migrating—after the pipeline had been repaired—through groundwater to nearby creeks.  This holding bears similarities to and reflects an attempt on the part of the majority to make its reasoning consistent with the Ninth Circuit’s recent decision in Hawai’i Wildlife Fund v. County of Maui, No. 15-17447, 2018 WL 1569313 (Feb. 1, 2018), in which that court affirmed a district court’s finding of liability based on the discharge of pollutants to the ocean via groundwater from wastewater injection wells. Together, the two cases signal the potential for expansion of the scope of CWA liability and the National Pollution Discharge Elimination (NPDES) program. Read More ›

Discharges and Hydrologic Connection to Groundwater: EPA Seeking Comment as Courts Weigh In

If the first two months of 2018 are any indication, events to play out over the rest of the year will have a major impact on what constitutes a “discharge” subject to regulation under Section 402 of the Clean Water Act (CWA).  Three cases pending in different federal courts of appeals will address whether releases of pollutants to groundwater hydrologically connected to waters of the United States are subject to the National Pollution Discharge Elimination System (NPDES) permitting requirements of the CWA.  In a fourth case, the Ninth Circuit recently weighed in on this issue by articulating a novel, broad rule for determining when a discharge occurs.  Spurred on by these developments, and its own admittedly varied positions on this issue over the years, EPA is now seeking comment by May 21 on how to approach this issue. Read More ›

Ninth Circuit Holds That Indirect Discharges Require NPDES Permits

On February 1, the Ninth Circuit issued a decision that has the potential to sweep regulated groundwater discharges that reach surface waters, and similarly remote-in-place discharge situations, into the Clean Water Act’s (CWA) NPDES permitting program.  In Hawai’i Wildlife Fund v. County of Maui, --- F. 3d ---, 2018 WL 650973 (9th Cir. 2018), the court held that the County of Maui violated the CWA by discharging pollutants from wastewater injection wells that release pollutants indirectly to the ocean via groundwater without a National Pollutant Discharge Elimination System(NPDES) permit.  The court determined that the CWA does not require pollutants to directly enter a navigable water from a point source in order to be regulated under the statute.  By holding that such “indirect” discharges require NPDES permits, this decision has the potential to expand the scope of CWA liability and the NPDES program. Read More ›

First Circuit Shuts Down Use of TMDLs to Expand NPDES Stormwater Permitting

The past several months have witnessed multiple attempts by environmental groups bring currently unregulated entities that discharge stormwater into the Clean Water Act (CWA) National Pollution Discharge Elimination System (NPDES) permitting program.  CWA section 402(p) and EPA’s regulations provide a mechanism to require NPDES permits for additional sources of stormwater discharges that EPA or a state determine “contribute[] to a violation of a water quality standard or [are] a significant contributor of pollutants to waters of the United States.”  Multiple groups have sued EPA to force the Agency to exercise this “residual designation authority” and require privately-owned commercial, industrial, and institutional sites to obtain NPDES permits for their stormwater discharges.  If successful, these suits could pull a range of operations—from privately-owned universities and mixed-used developments to warehouses and retailers—into the NPDES stormwater program for the first time. Read More ›

DOJ Clarifies Limits on Third Party Payments in Environmental Settlements

In a memorandum issued earlier this month, the U.S. Department of Justice (DOJ) clarified how a policy prohibiting settlement payments to third parties, announced in June 2017,  will apply in cases handled by DOJ’s Environment and Natural Resources Division.  Our prior alert is available here.  When DOJ unveiled the policy last June, it left open a number of questions concerning how the policy might affect settlements in environmental cases.  DOJ’s new memorandum resolves some of these questions, while also indicating how DOJ will implement the policy in environmental cases. Read More ›

Unanimous Supreme Court: WOTUS Rule Challenges Belong in Federal District Courts

In a unanimous opinion, the Supreme Court today held that lawsuits challenging the 2015 rule amending the definition of waters of the United States (WOTUS Rule) under the Clean Water Act (CWA) must be brought in federal district courts because federal courts of appeals lack jurisdiction over those challenges.  The case, National Association of Manufacturers v. Department of Defense, resolves uncertainty over the scope of the CWA’s judicial review provisions.  The Court’s opinion also opens a new chapter in the fight to keep the WOTUS Rule from going into effect. Read More ›

Replacement of the Clean Water Rule to Be a Two-Step Process

The Environmental Protection Agency and Army Corps of Engineers announced yesterday that the implementation of President Trump’s executive order directing EPA and the Corps to replace the Clean Water Rule will be a two-step affair.  The first step, contained in a pre-publication proposed rule issued by both agencies, will rescind the Clean Water Rule and restore the definition of “waters of the United States” (“WOTUS”) that was in place before EPA and the Corps issued the Rule in 2015.  In step two, which will occur at some future date, EPA and Corps will propose a new, narrower WOTUS definition.  Read More ›

DOJ Eliminates Option of Third Party Payments in Settlements

On June 7, 2017, Attorney General Jeff Sessions issued a memorandum prohibiting the U.S. Department of Justice (DOJ) from directing any settlement payments to third-party, non-governmental organizations (NGOs) that were not directly harmed by a defendant’s actions. If strictly implemented, this new policy may impose significant limits on the availability of certain types of relief available in civil and criminal environmental enforcement cases.  The memorandum also raises significant questions about how the U.S. Environmental Protection Agency (EPA) will handle environmental settlements under the Trump Administration, as well as how DOJ will approach settlements resolving citizen suits. Read More ›