Energy and Environment MonitorWater Quality and PermittingThe Murky "Waters of the United States" Just Got MuddierAugust 22, 2018 When I wake up and listen to National Public Radio report about a federal district court’s injunction of an EPA regulation, I conclude that someone besides a lawyer believes the decision is important. What was decided by the federal district court in Charleston, South Carolina on Thursday, August 16 was significant, but for a reason not reported. Defining the “waters of the United States”… EPA Proposes to Surrender Clean Water Act Veto AuthorityJune 28, 2018 EPA Administrator Scott Pruitt announced on June 26 that the agency will revise its regulations to limit EPA’s use of the §404(c) veto. This is the section of the Clean Water Act (CWA) that authorizes EPA to rescind dredge and fill permits issued by the Army Corps of Engineers. Although infrequently utilized since §404(c) was adopted in 1972, its use in January 2011 effectively curtailed the… Fourth Circuit Holds Groundwater Connection to Navigable Waters Triggers CWA CoverageMay 17, 2018 “[T]he fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past.” Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, Slip Op. at 18) (4th Cir. April 12, 2018) The Clean Water Act prohibits unpermitted “discharges” from a “point source” to a “navigable water.” 33 U.S.C. § 1311(a). Although the definition of what constitutes… PA Supreme Court Rejects PADEP’s Theory of Limitless Civil Penalties for “Continuing Violation” of Clean Streams LawApril 24, 2018 We have previously written about a declaratory judgment action filed by a natural gas producer against the Pennsylvania Department of Environmental Protection (“PADEP”) challenging the agency’s interpretation of Pennsylvania’s Clean Streams Law. In that proceeding, the gas producer sought pre-enforcement judicial review of PADEP’s legal interpretation of what constitutes a “continuing violation”… West Virginia Supreme Court Dissolves Water Replacement Obligation of Mine OperatorApril 10, 2018 By Order dated April 5, 2018, the West Virginia Supreme Court issued its second ruling in the past six months exploring the duties imposed by the West Virginia Surface Coal Mining and Reclamation Act (“WV SCMRA”) upon coal mine operators. See Belcher v. Dynamic Energy, Inc.. WV SCMRA requires mine operators to “replace” water supplies of property owners who use the water for domestic,… Department of Justice Reins In Use of Guidance Documents in Enforcement ActionsFebruary 13, 2018 “Consistent with our duty to uphold the rule of law with fair notice and due process, this policy helps restore the appropriate role of guidance documents and avoids rulemaking by enforcement.” – Associate Attorney General Rachel Brand. On January 25, 2018, Rachel Brand, Associate Attorney General, issued a memorandum (“Brand Memo”) evidencing new a policy that prohibits the Department of Justice… Ninth Circuit Adopts Broad Definition of "Point Source" DischargeFebruary 7, 2018 Last week the United States Court of Appeals for the Ninth Circuit ruled that discharges from wastewater injections that seep into groundwater and ultimately reach “waters of the United States” are subject to the Clean Water Act’s (CWA) permitting requirements. The suit alleged that Maui County, Hawaii had injected wastewater into wells that eventually made its way into the Pacific Ocean through… An Unexpected PresentJanuary 3, 2018 One of the pleasures of the Christmas season is the giving and receiving of gifts. The pleasure is particularly enhanced when the gift is unexpected, or when it has a unique value to its recipient. By these measures, the U.S. District Court in Lexington, Kentucky delivered a wonderful present in a decision issued on December 28. The case, Kentucky Waterways Alliance, et al., v. Kentucky… Sixth Circuit stays NEXUS pipeline construction in Green, Ohio pending review of Ohio EPA’s CWA §401 certificationDecember 19, 2017 On November 22, 2017, in one of many ongoing challenges to pipeline construction, a three-judge panel of the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”), in a 2-1 decision, granted an emergency stay of pipeline construction within the city of Green, Ohio (“Green”) pending a decision on the merits of Green’s petition seeking review of the Clean Water Act (“CWA”) §401… One Project, Many LawsuitsSeptember 6, 2017 On August 23rd, the federal Court of Appeals for the Third Circuit affirmed a decision by the Corps of Engineers to issue a Clean Water Act §404 permit to Tennessee Gas Pipeline Company to construct about 13 miles of “looped” pipeline in two counties in northeastern Pennsylvania (read the JK Energy & Environmental Monitor summary of Delaware Riverkeeper Network v. U.S. Army Corps of… UTILITY GROUPS ASK EPA TO MODIFY COAL ASH RULE AND TO EXTEND COMPLIANCE DEADLINESMay 18, 2017
Regulating for a DesertFebruary 7, 2017 I have written previously (“Deciding Who Will Decide” January 18) about the complicated developments in the litigation over the “waters of the United States” rule (WOTUS) rule promulgated by the Corps of Engineers and EPA in 2015. The Sixth Circuit granted a motion by one of the parties in the case, the National Association of Manufacturers, on January 25 to suspend the… |
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