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Showing 55 posts in Water. View our practice description for Water.

With This Tie, There Is a Winner: 4-4 SCOTUS Ruling Results in Victory for Native Americans and a Clear Mandate for Washington to Correct Culverts

In most instances, a tie means there is no winner and no loser.  Not so with the U.S. Supreme Court’s 4-4 tie in the “Culverts Case” (one branch of the sprawling U.S. v. Washington case) on June 11, 2018.  Instead, by effectively affirming the Ninth Circuit decision below, this tie is a significant win for the United States and twenty-one Native American Tribes (“Tribes”) and a significant loss for Washington State. 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 ›

Second Circuit Confirms NYSDEC Waived Water Quality Certification Authority by Delaying Decision on Application

On March 12, the Second Circuit held that the New York State Department of Environmental Conservation (NYSDEC) waived its authority to review Millennium’s request for a water quality certification under Section 401 of the Clean Water Act (“CWA”) and that the Federal Energy Regulatory Commission (FERC) has jurisdiction over the Millennium Pipeline, an issue raised by intervenors. The Court agreed with FERC that the one-year review period under Section 401 of the Clean Water Act commences at the moment that the NYSDEC receives a request for water quality certification, and not, as the DEC argued, upon the DEC’s determination that an application is “complete.” The Court further cautioned that DEC’s approach could indefinitely delay certification decisions and “blur [the] bright-line rule into a subjective standard.” The Court also rejected NYSDEC’s argument that it was entitled to Chevron deference and reviewed the appeal de novo, since NYSDEC’s interpretation of CWA Section 401 was not, and could not have been, approved by the U.S. Environmental Protection Agency, which is the federal agency charged with administering the CWA. 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 ›

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 ›

Property Ownership and Water Supply Sources Matter in PFOA Contamination Lawsuits

Illustrating some limitations on common law claims for groundwater contamination, a federal court in New York partially granted and partially denied a motion to dismiss in a cluster of sixteen lawsuits alleging perfluoroocatanoic acid (PFOA) contamination in a village’s groundwater.  Benoit v. Saint-Gobain Performance Plastics Corp., No. 16-cv-930, 2017 WL 3316132 (N.D.N.Y. Aug. 2, 2017).  The opinion showed how certain intricate issues such as property ownership and source of water supply can alter the outcome of a tort claim even at the pleading stage.  The order was certified for interlocutory appeal to the Second Circuit. Read More ›

District Court Permits Landowner to Pursue Hazardous Material Dumping Case Against the U.S. Navy

Illustrating what constitutes sufficient notice to the government of the value of a claim under the Federal Tort Claims Act (FTCA), a Maryland federal court rejected the Navy’s claim that it had insufficient notice of the value of a claim stemming from environmental contamination. Baker v. United States, No. MJG-17-546 (D.Md Aug. 9, 2017). Instead, the court held that the Navy had sufficient notice of the total value of the landowner’s administrative claims. Read More ›

Recent PFAS Case Law – RCRA, CERCLA and Toxic Tort Claims

A new class of emerging contaminants poses challenges at remediation sites and for the protection of drinking water, and is generating new toxic tort litigation. Per- and polyfluoroalkyl substances (PFAS) are emerging contaminants that are being identified at several sites in many areas of the country.  The U.S. EPA and many states are beginning to issue guidelines, advisories or in some cases, standards for PFAS in drinking water, soil, or groundwater.  At the same time, several cases are winding their way through the courts.  Below we discuss several recent cases involving PFAS contamination.  In each of these cases, some of the claims have survived a motion to dismiss, suggesting that it will be difficult to quickly dispose of such claims prior to discovery. Read More ›