Winston’s Environmental Law Update

Since 2015, the Clean Water Act’s definition of “waters of the United States” has often depended on what state you live in. After a district court decision in Arizona on September 3, 2021, the EPA and U.S. Army Corps of Engineers announced they are halting implementation of their 2020 Navigable Waters Protection Rule nationwide.

The U.S. Environmental Protection Agency and the U.S. Department of the Army Corps of Engineers (the Agencies) recently announced they will take another run at defining “waters of the United States” (WOTUS).

On November 30, 2020, the EPA issued a memorandum detailing an interim National Pollutant Discharge Elimination System (NPDES) permitting strategy for addressing per- and polyfluoroalkyl substances (PFAS) in wastewater and stormwater permits. The memorandum outlines the most recent recommendations from the PFAS NPDES Regional Coordinators Committee.

The Northern Plains Resource Council et al. v. U.S. Army Corps of Engineers (NPRC v. Corps) case continues in the Ninth Circuit.

On May 13, 2020, a coalition of nine attorneys general, led by New York Attorney General Letitia James, filed a lawsuit challenging the U.S. Environmental Protection Agency’s policy for exercising civil enforcement discretion during the COVID-19 pandemic.

On May 11, 2020, the Montana federal district court issued an amended order in the Northern Plains Resource Council et al. v. U.S. Army Corps of Engineers (NPRC v. Corps), narrowing the scope of its initial nationwide vacatur of Clean Water Act Section 404 Nationwide Permit 12 (NWP 12).

The energy industry across the country continues to watch the Montana district court case Northern Plains Resource Council v. U.S. Army Corps of Engineers (NPRC v. Corps), given the “nationwide” impact of the Montana court’s April 15^th order vacating Clean Water Act Nationwide Permit 12 (NWP 12).

On April 20, 2020, the Supreme Court of the United States issued its opinion in Atlantic Richfield Co. v. Christian, et al. allowing Montana landowners to pursue state law tort claims for damages within an EPA-managed Superfund site, but requiring EPA approval of any remedial work beyond the originally selected remedy.

On April 23, 2019, the Supreme Court of the United States issued its highly anticipated decision in County of Maui v. Hawaii Wildlife Fund. The case involves a challenge to the County of Maui’s discharge of treated wastewater into the ground via four wells, which effluent travels about half a mile through groundwater into the Pacific Ocean, without a Clean Water Act permit.

To date, the novel coronavirus has not been detected in drinking water. The Centers for Disease Control (CDC) has reported that the conventional water treatment methods employed by municipal drinking water systems, including filtration and disinfection, should remove or inactivate the virus that causes COVID-19. 

There are a number of noteworthy environmental cases on its agenda as the Supreme Court heads into the oral arguments for the spring session.

On February 14, 2019, EPA announced a new action plan to address a group of emerging contaminants known as per- and polyfluoroalkyl substances (PFAS), also known as perfluorinated chemicals (PFCs). The action plan calls for regulatory action, research programs, risk communication tools, and enforcement measures.

The growing debate following two parallel decisions over the Clean Water Act’s (CWA) applicability to groundwater discharges continued with further briefing as to whether the Supreme Court should grant pending petitions for review in those cases. In 2018, decisions by the Fourth and Ninth Circuits broadened the traditional reach of the CWA by finding discharges of pollutants traveling through groundwater which reach jurisdictional waters of the United States were regulated by the CWA.

On July 30, 2018, the EPA promulgated revisions to the coal ash disposal rule under the Resource Conservation and Recovery Act (RCRA). The “phase one, part one” revisions include new groundwater monitoring mandates and a delay of closure deadlines for some leaking facilities.

The U.S. EPA and the Army Corps of Engineers recently issued a supplemental proposal to the July 2017 proposed action to repeal the 2015 definition of “Waters of the United States” (WOTUS), also known as the Step One Repeal.

On February 1, 2018, the Ninth Circuit Court of Appeals published its opinion in Hawai’i Wildlife Fund v. County of Maui, holding that in some cases, indirect discharges to navigable waters through groundwater require a National Pollutant Discharge Elimination System (NPDES) permit to avoid violation of the Clean Water Act. 

On June 27, 2017, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (collectively, the agencies) announced a proposed rule (the Recodification Rule) that would rescind the current definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq.

In a case of strange bedfellows, environmental activists and a homebuilders association have found their petitions for review of the 2017 National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges from Construction Activities (CGP) consolidated in federal court.

On March 12, 2017, New York State’s Senate Republicans released a budget plan that proposes spending nearly $8 billion on clean water and sewer projects.

On January 11, 2017, EPA released a proposed rule entitled Financial Responsibility Requirements under CERCLA § 108(b) for Classes of Facilities in the Hardrock Mining Industry. The proposed rule would impose financial responsibility requirements on owners and operators of hardrock mining facilities, along with various recordkeeping and notification requirements. If finalized as proposed, the rule would apply to in-situ uranium mines, as it specifically references in-situ solution mining and extraction of mineral-bearing groundwater brines. The rule has been a long time in the making, but the benefits are far from clear—particularly in light of the potentially significant costs.