On August 31, 2020, the U.S. Environmental Protection Agency (EPA) announced a final rule addressing effluent concentration limits for certain metals in power plant wastewater under the Clean Water Act. The Steam Electric Reconsideration Rule (SERR) changes several aspects of the coal-fired power plant effluent limitations included in the 2015 Effluent Limitations Guidelines and Standards rule, including the limits for two waste streams: flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water. (more…)
On August 3, 2020, the U.S. Army Corps of Engineers (Corps) released a prepublication version of a proposal to reissue and modify its existing 52 nationwide permits (NWPs) and issue five new NWPs. The Corps issues NWPs to authorize categories of activities in jurisdictional waters and wetlands under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act that will result in no more than minimal individual and cumulative adverse environmental effects. The Corps typically updates NWPs every five years, and the current NWPs are scheduled to expire on March 18, 2022. However, in response to President Donald Trump’s March 18, 2017, Executive Order 13783, which directed the heads of federal agencies to review regulations that potentially burden domestic energy production, the Corps identified nine NWPs that could be modified. In addition to revising those nine NWPs, the Corps is proposing to reissue the remaining NWPs so that all NWPs are on the same five-year cycle.
The definition of waters of the United States is central to the CWA. At its core, the Act bans “the discharge of any pollutant” except in compliance with other provisions of the Act, such as the National Pollutant Discharge Elimination System (“NPDES”) permitting program. 33 U.S.C. § 1311(a). “Discharge of a pollutant” is defined in relevant part as “any addition of any pollutant to navigable waters from any point source,” where (i) “navigable waters” are “the waters of the United States,” and (ii) a “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” See 33 U.S.C. §§ 1362(7), (12) and (14). (more…)
Yesterday, EPA and the U.S. Army Corps of Engineers began the formal process of repealing and replacing the Obama administration’s Clean Water Rule (“Rule”). Promulgated in 2015, the controversial Rule had broadly defined the term “waters of the United States,” which establishes the limits of jurisdiction under the federal Clean Water Act. In February of this year, President Trump signed an Executive Order that directed EPA and the Corps to review the 2015 Rule and issue a proposed rule rescinding or revising the Rule as appropriate and consistent with law. (more…)