On April 28, 2022, the U.S. Court of Appeals for the First Circuit, sitting en banc, considered in Blackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc. et al. whether a state consent order settling claims under a state analogue to the federal Clean Water Act (CWA) barred a subsequent citizen suit brought under the CWA seeking injunctive and declaratory relief arising out of the same alleged discharges. Over 30 years before, in North and South Rivers Watershed Ass’n v. Town of Scituate, the First Circuit held that CWA enforcement barred subsequent citizen suits arising out of the same alleged violations, regardless of the type of relief sought. In Blackstone, the en banc First Circuit overruled Scituate and held that the prior state consent order bars only citizen suits seeking civil penalties. (more…)
The U.S. Environmental Protection Agency (EPA or Agency) Office of Water announced that it will be rescinding guidance (the “rescission memo”) prepared in the final days of the Trump administration that provided an interpretation of federal Clean Water Act permitting requirements in the wake of the Supreme Court’s significant April 2020 decision in County of Maui, Hawaii v. Hawaii Wildlife Fund. (more…)
On September 8, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) released Preliminary Effluent Program Plan 15 (Preliminary Plan 15), which outlines the Agency’s 2020 annual review of effluent guidelines and pretreatment standards (ELG), identifies new or existing industrial categories for ELG rulemaking, and provides an update on the Agency plan to improve its annual review and biennial planning process. (more…)
On March 17, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) issued a notice of proposed rulemaking (ANPRM) seeking information related to per- and polyfluoroalkyl substances (PFAS) to support a potential Clean Water Act rulemaking. With respect to PFAS from manufacturers and formulators, EPA requests public comment on the Agency’s current information and data and solicits additional information and data from stakeholders. (more…)
The U.S. Court of Appeals for the 10th Circuit has vacated a stay of the Navigable Waters Protection Rule (NWPR) in Colorado, reversing the one court that had stayed the Trump administration’s rule redefining the meaning of “waters of the United States” under the Clean Water Act. (more…)
On January 5, 2021, the U.S. Army Corps of Engineers (Corps) released a prepublication version of its final rule reissuing and modifying 12 existing Nationwide Permits (NWPs) and issuing four new NWPs. NWPs authorize activities under Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899 when those activities will result in “minimal individual and cumulative adverse environmental effects.” In addition to finalizing 16 NWPs, the rule also changed general conditions and definitions associated with those NWPs. Through this action, the Corps did not reissue or modify the remaining 40 existing NWPs, which will remain in effect until March 18, 2022.
The U.S. Environmental Protection Agency (EPA) Office of Water has published a new interim strategy memorandum for addressing per- and polyfluoroalkyl substances (PFAS) in National Pollutant Discharge Elimination System (NPDES) permits issued by EPA. The memorandum includes recommendations generated by a cross-agency workgroup, which conducted a review of existing Clean Water Act (CWA) section 402 NPDES permitting authorities to determine where and how currently unregulated contaminants like PFAS may fit into the permitting process. Under the CWA, the NPDES permit program regulates point sources that discharge pollutants into waters of the United States. Currently, there are no CWA water quality criteria or effluent guidelines for PFAS, an umbrella category of thousands of synthetic chemicals historically used in industrial manufacturing processes for their flame-resistant and nonstick properties.