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Showing 21 posts in Clean Water Act.

OMB Signs Off on U.S. EPA’s 2017 Construction Stormwater Permit

Spared by the Office of Management and Budget from the Trump Administration’s regulatory freeze, the U.S. Environmental Protection Agency’s (EPA) 2017 National Pollutant Discharge Elimination System General Permit for Stormwater Associated with Construction Activities (2017 CGP) became effective on February 16, 2017. Read More ›

Fourth Circuit: CWA Permit Shield Requires Compliance with Incorporated Quality Standards

A recent Fourth Circuit decision will have wastewater dischargers taking a closer look at their NPDES permits and state water quality standards. The court of appeals held, in Ohio Valley Environmental Coalition v. Fola Coal Co., No. 16-1024, that permit language incorporating state water quality standards required compliance with all such standards, including narrative standards not reflected in the permit’s effluent limits.  As a consequence, a source can only be assured that it is shielded from liability under the CWA if its discharges comply with both (a) effluent limits in the NPDES permit and (b) any water quality standards—even narrative standards—that the permit incorporates.  The decision raises questions about potential exposure and how to approach permit writers in the future. Read More ›

Impacts of the 2016 U.S. Election on Environmental Law, Policy, and Enforcement

The 2016 election results will have wide-ranging impacts on the future direction of environmental law, policy, and enforcement in the U.S.  With 100 lawyers in offices around the U.S. focused on environmental and natural resource law and litigation, Beveridge & Diamond helps clients navigate legal and business risks arising from this evolving legal landscape. Read More ›

Delay in Massachusetts Efforts to Assume Control of CWA Program

As we reported in our recent Massachusetts Environmental and Land Use Alert, Massachusetts is in the first stages of seeking delegation from the U.S. Environmental Protection Agency (EPA) for the Clean Water Act program.  This first stage includes filing with the state legislature a bill to bring certain elements of state law into conformance with EPA requirements.  The effort has suffered a serious delay as this bill will not become law this year.  Read More ›

Massachusetts Moves To Assume Control of CWA Program as EPA issues Disputed MS4 Permit

Massachusetts’ status as one of only four states not in control of the Clean Water Act program within its boundaries may change as the state begins the process of applying to U.S. EPA for delegation of that program.  Delegation won’t happen quickly and not soon enough to provide relief to municipalities that must meet the requirements of EPA’s recently issued General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts (known as MS4 systems).  Read More ›

D.C. Water Utility Sheds Negligence, Consumer Protection Claims in Lead-in-Water Litigation

In a decision that may have implications in other cases related to alleged lead in drinking water, a District of Columbia trial court dismissed negligence and consumer protection claims against the District’s water utility, DC Water.  See Barkley v. D.C. Water & Sewer Auth., 2016 WL 184433 (D.C. Super. Ct. Jan. 13, 2016).  Plaintiffs claimed injuries stemming from their alleged exposure to lead in drinking water in the early 2000s.  DC Water, represented by Beveridge & Diamond P.C., successfully argued that the public duty doctrine – which bars negligence claims against government entities regarding services provided to the public at large – bars claims regarding drinking water distribution and related public education.  Read More ›

Massachusetts Considering Taking Control of Clean Water Permitting

Summary: Massachusetts Governor Charlie Baker’s administration is considering a move that would place Clean Water Act permitting in the hands of the Massachusetts Department of Environmental Protection (MassDEP).  Massachusetts is one of only four states in which the U.S. Environmental Protection Agency (EPA) directly manages that state’s Clean Water Act programs, including the permitting system known as the National Pollution Discharge Elimination System (NPDES).  But according to recent reports, that may change.  Read More ›

Regulators and Environmental Groups Differ on How to Address Stormwater Contribution to Algae Blooms in the Charles River

The battle over phosphorous in the Charles River and its resultant toxic algae blooms is heating up again, with EPA finalizing its MS4 permit targeting municipalities and their stormwater runoff into the river and environmental groups renewing their lawsuit against regulators, claiming that EPA is improperly ignoring the stormwater contribution of commercial, industrial, institutional and high density residential sites in the Charles River Watershed. Read More ›

EPA, Army Corps Redefine Clean Water Act Jurisdiction

The Environmental Protection Agency and the Army Corps of Engineers (“the agencies”) have issued the long-awaited final rule to define the scope of waters and wetlands subject to federal jurisdiction under the Clean Water Act (“CWA” or “Act”), available online here.  The final rule offers notable changes from the proposed rule in an attempt to resolve years of debate and confusion in the wake of perplexing Supreme Court decisions and failed guidance by the agencies.  While the final rule does provide clarity on some aspects of the meaning of “waters of the United States” (or “WOTUS”), ambiguity remains.  The rule retains case-by-case “significant nexus” determinations for potentially jurisdictional waters, meaning that regulatory confusion and uncertainty will persist.  Even though the agencies assert that the final rule will result in a less than 5% increase in waters found to be jurisdictional, that is far from certain.  Congress and the courts will have their say, with the fate of WOTUS most likely remaining in the hands of Supreme Court (again). Read More ›

The Sixth Circuit Extends the Clean Water Act’s Permit Shield Defense to General Permit Holders

The Sixth Circuit recently ruled that facilities holding a Clean Water Act (“CWA”) Section 402 general permit – one of two types of National Pollutant Discharge Elimination System (“NPDES”) permits – may avail themselves of the CWA’s permit shield provision, 33 U.S.C. § 1342(k), which “insulates permit holders from liability for certain discharges of pollutants that the permit does not explicitly mention.”  See Sierra Club v. ICG Hazard, LLC, App. No. 13-5086, Slip Op. at 6 (6th Cir. Jan. 27, 2015).  This is the first circuit court decision to address “the applicability and scope of the permit shield when the discharger’s operations are governed by a general permit.”  By extending the permit shield defense to general permit holders, the Sixth Circuit has closed the back door to plaintiffs wishing to litigate the propriety of government-authorized discharge limitations applicable to large classes of industrial and municipal operators nationwide. Read More ›