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Showing 128 posts by Karen M. Hansen.

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 ›

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 ›

EPA’s Cooperative Federalism Approach to Nutrients in the Mississippi River and Gulf of Mexico Prevails in Fifth Circuit Remand

In a critical decision preserving state authority in water quality management, a U.S. District Court has ruled that EPA has broad discretion to not establish federal numeric nutrient water quality standards because the Clean Water Act (CWA) vests primary responsibility for this function in the states.  The decision in Gulf Restoration Network v. Jackson rebuffed efforts by a major coalition of environmental groups to compel EPA to take control of nutrient management criteria for a significant part of the country’s water.  Beveridge & Diamond principal Karen Hansen represented the National Association of Clean Water Agencies (NACWA) as an intervenor supporting EPA in the case, which has been litigated in the district court and the court of appeals since 2012. Read More ›

Fifth Circuit Panel Hears Oral Argument in Whooping Crane Lawsuit Appeal

A three-judge panel of the Fifth Circuit Court of Appeals heard oral arguments in early August on the appeal of the decision rendered by the U.S. District Court for the Southern District of Texas in The Aransas Project v. ShawThe district court’s decision, issued on March 11, 2013, held that the Texas Commission on Environmental Quality’s (“TCEQ's”) water management policies constituted a “taking” of whooping cranes in violation of Section 9 of the Endangered Species Act (“ESA”).   The district court’s decision was based on a small line of cases under the ESA finding that governmental regulatory action under certain circumstances can trigger ESA liability for a “take.”  The court also found “proximate cause” under the ESA between TCEQ’s issuance of water rights permits and the harm or death of up to 23 whooping cranes in the winter of 2008-2009. Read More ›

TCEQ’s Proposed Water Quality Standards Open for Comment Until October 24

Proposed revisions to TCEQ’s water quality standards ("WQS") are currently out for public comment as part of the triennial review process required by the Clean Water Act (“CWA”) and the delegated TPDES program in Texas.  Changes in WQS that TCEQ finalizes after the public comment period could affect specific TPDES permits on a case-by-case basis if the adopted WQS alter requirements for the receiving waters for a particular industrial discharge.  Changes driven by the new WQS could include best management practices and/or modified treatment requirements, depending on whether a standard has been lowered or increased.   These types of changes are typically implemented as part of the TPDES permit renewal process for point source dischargers. Read More ›

Latest Development on Brazos River Senior Water Rights Call

Water rights seniority and priority of uses continue to be active issues affecting the Brazos River system.  In November 2012, the senior water rights holder on the Brazos made a priority call, asserting it could not obtain all of the water it was entitled to due to diversions by upstream users.  TCEQ responded with an order suspending all junior water rights on the Brazos except for municipal users and power generation.  The Texas Farm Bureau sued, challenging TCEQ’s authority to issue the order pursuant to the State’s drought curtailment rules.  Although the TCEQ lifted the curtailment in January 2013, the litigation was not mooted. Read More ›

Beveridge & Diamond Assists San Antonio Water System in Negotiating $1.1 billion Clean Water Act Settlement

On Tuesday, July 23, 2013, the U.S. Environmental Protection Agency (EPA), the U.S. Department of Justice (DOJ) and the State of Texas lodged in federal district court in San Antonio a proposed consent decree with the San Antonio Water System (SAWS) resolving claims regarding sanitary sewer overflows (SSOs). SAWS is a public utility owned by the City of San Antonio, providing sewage treatment and wastewater services to the city. Read More ›