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.
On November 2, 2020, several environmental interest groups including the Sierra Club and Earthjustice filed suits in the U.S. Courts of Appeals for the Fourth and D.C. circuits challenging the Environmental Protection Agency’s (EPA) recent Steam Electric Reconsideration Rule (SERR), which rolled back certain Obama-era effluent discharge limitations on coal-fired power plants. (more…)
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…)