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Showing 26 posts in Water Supply and Quality. View our practice description for Water Supply and Quality.

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 ›

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 ›

Beveridge & Diamond Secures Trial Win for City of Los Angeles, Striking Down Biosolids Ban on Two Constitutional Grounds

Following a two week bench trial prosecuted by Beveridge & Diamond Principals Jimmy Slaughter and Jamie Auslander and California based counsel Michael Lampe, the Tulare County, California Superior Court has struck down a voter initiative passed in 2006 in Kern County that banned the land application of biosolids (treated municipal wastewater sludge) to farmland in Kern County. Judge Lloyd Hicks wrote in a 48 page opinion that that Measure E “is invalid and void for all purposes, for the dual reasons that it exceeds Kern’s police power authority and is preempted by state law.” City of Los Angeles v. Kern County, 2016 WL 7175653, 2016 Cal Super Lexis 9727 (Tulare Co. Super. Ct. Nov. 28, 2016).  The case is believed to be the first trial focused on the benefits and safety of recycling biosolids to farmland, a practice used by many of America’s largest cities for decades.  Read More ›

Stormwater Forecast: Prepare for More Aggressive Benchmark Monitoring and Corrective Action Requirements under the Next Proposed MSGP

EPA is expected to propose a revised system of benchmark monitoring and corrective action requirements to replace those of the current 2015 Multi-Sector General Permit for Stormwater Associated with Industrial Activities (“MSGP”).  EPA has just entered into a settlement agreement with environmental groups that challenged EPA’s issuance of the 2015 MSGP, under which EPA has agreed to propose a number of new conditions for incorporation into the next version of the permit. The settlement agreement has no effect on the terms and conditions of the current 2015 MSGP, which remains in place until June 2020, however, facilities subject to benchmark monitoring should take note of the changes expected to be proposed, particularly for those facilities consistently facing benchmark exceedances.  Under the current permit, benchmark exceedances do not on their own result in non-compliance, but can trigger the need for enhanced stormwater management practices. Read More ›

Gasoline with Lead is not Subject to the Petroleum Exemption in Massachusetts Clean-Up Statute Says Top Mass. Court

In a decision that has broad implications, gasoline with additives such as lead is not included in the exemption under the Massachusetts remediation statute, Chapter 21E, for oil releases located in certain drinking water areas according to the Supreme Judicial Court’s decision upholding an interpretation by the MassDEP.  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 ›

California is Flooding with Water…Issues, Lawsuits, Rules and Legislation

We Californians are well aware of the impact of the four-year drought. We have read about town wells drying up like in East Porterville; we have seen the incredibly scary low water marks in lakes and reservoirs; we have heard about negative impacts to the agricultural industry and devastation to the farm workers ability to find work; and we have heard about impacts to fish and the important Sacramento-San Joaquin Bay Delta. While Californians work to reduce water usage, there are too many folks that have no running water in their homes. In the Central Valley for example, families with dry wells face potential health hazards due to no running water. 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 ›

WOTUS: No Closure Yet

In psychology, the term “closure” refers to humans’ desire for a firm answer to a question and general aversion to ambiguity.  Nine years since Rapanos, after multiple attempts by the EPA and the Army Corps (“the agencies”) to clarify the term through guidance, and after over 1 million public comments on a proposed rule, we all yearn for closure on the meaning “waters of the United States” (“WOTUS”).  In the new WOTUS final rule just issued, the agencies attempt to once and for all settle the question of which waters and wetlands qualify for federal protection under the Clean Water Act (“CWA”). Read More ›