Court Rules EPA Cannot Set TMDL For Stormwater
On January 3, 2013, the District Court for the Eastern District of Virginia ruled that EPA lacks the statutory authority to set a Clean Water Act (“CWA”) total maximum daily load (“TMDL”) for...
View Article“Whenever”: EPA’s Continuing Power to Withdraw Dredge-and-Fill Permits
On April 23, a panel of the D.C. Circuit unanimously held in Mingo Logan Coal Co. v. EPA that the Clean Water Act gives EPA the authority to withdraw permits previously granted under section 404 of the...
View ArticleCourt Upholds Multi-State Chesapeake TMDL
On September 13, in a 99 page decision, the U.S. District Court for the Middle District of Pennsylvania upheld EPA’s multi-state Clean Water Act Total Maximum Daily Load (“TMDL”) for the Chesapeake Bay...
View ArticleUSEPA Proposes Revisions to the Water Quality Standards Program Under the...
On September 4, 2013 EPA published proposed changes to its Water Quality Standards Rule at 40 CFR Part 131 (WQS Rule). The proposal is styled “regulatory clarifications” but the proposal represents...
View ArticleA SWING AND A MISS -- The First Reported Challenge to Water Quality Trading...
EPA has touted water quality trading for more than a decade as a viable tool for combating water pollution, particularly pollution due to excess nutrients and sediment. But the Clean Water Act...
View ArticleEPA’s RDA Math: 3 + 9 ≠ 1
In a surprising turn of events, on March 12, 2014 EPA Regions 1, 3 and 9 each simultaneously but separately responded, and each in a somewhat different way, to three virtually identical NGO petitions...
View ArticleReducing Phosphorus to Wisconsin Waters – Another Tool in the Toolkit
Imagine a nutrient reduction program that achieves financially manageable point source reductions while generating new cash for nonpoint source reductions, has bi-partisan support and requires no new...
View ArticleThe New Mexico Copper Mine Rule: Questions of Groundwater Jurisdiction with a...
The unfortunate fact about copper mining is that it just cannot be done without impacting groundwater. This inevitable result occurs because of the massive excavations extending below groundwater...
View ArticleSorry, The Pollywogs Win and Your Crops Lose
Lawyers who regularly practice in the realm of the Clean Water Act (the “Act”) well know that the fight causing the most widespread panic in the regulated community for many months has been the joint...
View ArticleWisconsin’s Multi-Discharger Variance for Phosphorus – A Progress Report
On May 5, 2015, the Wisconsin Department of Administration (WDOA) released its Preliminary Determination that compliance with the Wisconsin water quality-based effluent limitations (WQBEL) for...
View ArticleSenate Approves $4.9 Billion for Drinking Water
Congress in recent years has not really been in the business of solving core public welfare problems like safe drinking water. Today the Senate, however, has taken a major step forward by passing the...
View ArticleNew Mexico Supreme Court to Determine if Copper Rule Prevents, Rather Than...
The New Mexico Water Quality Control Commission enacted what is arguably the most comprehensive copper mine remediation rule in the country. The Copper Rule requires copper mines to uniformly...
View ArticleNew Tools for Water Quality Trading
For well over a decade states and stakeholders have been trying to develop water quality trading and offset programs to facilitate compliance with the Clean Water Act. The goal of “trading” is to...
View ArticleFlint litigation: an interim update
Along with the flood of news coverage of the Flint water crisis comes the flood of litigation. So far, early indications show a wrong in search of a remedy, and for criminal defendants, just the...
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The Cuyahoga River Makes News Again
To many environmental law veterans, the name of the Cuyahoga River triggers memories. The 1969 fire on that River galvanized major reforms to the water pollution laws of the United States.As I sit in...
View ArticleTHE CUYAHOGA RIVER MAKES NEWS AGAIN: A POSTSCRIPT
On May 11, 2017, I published a blog piece about the efforts of the Army Corps of Engineers to circumvent the State of Ohio’s “anti-degradation” water quality rules for the disposal of contaminated...
View ArticleCooperative Federalism – 1; State Defendants in the Flint Water Crisis – 0
In a case of first impression, a divided Sixth Circuit held that the state agency defendants in the Flint water crisis cannot remove state-law tort claims against them under the federal officer removal...
View ArticleWater Quality: Wading Into Trading
For over 20 years EPA has been promoting water quality trading – with particular emphasis on nutrients and sediment – as a way to improve water quality at reduced costs. Trading is based on the simple...
View ArticleBig Tribal Victory in Culvert Case, Big Implications for Taxpayers
On June 11, the Supreme Court issued a one-sentence order affirming the Ninth Circuit’s 2016 judgment in United States v. State of Washington. In that case, the government sued Washington on behalf of...
View ArticleDAVID AND GOLIATH AT THE CONOWINGO DAM
Exelon owns and operates the Conowingo Dam across the Susquehanna River in Maryland just below the Pennsylvania border, including a 573 megawatt hydroelectric power plant. It is seeking a renewal of...
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