The Ninth Circuit, the Clean Water Act, and Septic Tanks
by Dave Owen | February 15, 2018
Originally published on Environmental Law Prof Blog.
Last week, the Ninth Circuit decided Hawai'i Wildlife Fund v. County of Maui, a case involving Maui County's practice of pumping wastewater into wells, from which the wastewater flowed through a subsurface aquifer and into the Pacific Ocean. The county, according to the court, needed a National Pollutant Discharge Elimination System (NPDES) permit for this practice. It did not matter that the county's wastewater traveled through groundwater on its way to the ocean; according to the Ninth Circuit, releasing pollutants from a point source to navigable waters still requires permitting even if those pollutants' pathway is indirect.
The decision is well-reasoned and carefully explained. The Ninth Circuit grounded its holding in both the text and purposes of the Clean Water Act and in a series of prior decisions (including Justice Scalia's Rapanos plurality opinion), and the outcome, which prevents the county from "doing indirectly that which it cannot do directly," in the Ninth Circuit's words, seems fair. The Ninth Circuit also took pains to explain that it was not holding that all indirect pollutant pathways between point sources and navigable waters would require NPDES permitting.
But the opinion still raises some thorny questions about the scope of NPDES permitting obligations. The basic situation in this case—pollutants traveling from a point source through groundwater and into surface water—is hardly rare. Nor is there a sharp break point between the fact
Clean Water Laws Need to Catch Up with Science
The field of environmental law often involves tangential explorations of scientific concepts. Lately, one scientific term – hydrologic connectivity – seems to keep finding its way into much of my work. As for many others, this principle of hydrology became familiar to me thanks to its place at the center of one of the biggest fights in the history of environmental law, spilling onto the front pages and into the public consciousness. Over the last several decades, a pair of
New Report: Toxic Industrial Stormwater Widespread, Maryland Enforcement Seldom Seen
Those who take public safeguards seriously are well aware of the potential consequences that arise from the dangerous combination of poorly written pollution permits and lax – even absent – enforcement. From construction sites with failing erosion and sediment controls to ammonia and bacteria-spewing concentrated animal feeding operations, our waterways, their users, and vulnerable populations in the pathway of pollution suffer the consequences. Starting today, we add industrial stormwater to the ignoble list of poorly regulated sources of environmental pollution
CPR Scholars to EPA, Army Corps: Scrapping the Clean Water Rule is Unlawful, Unwise
by Dave Owen | September 26, 2017
On September 25, a group of Member Scholars from the Center for Progressive Reform (CPR) submitted comments on the Trump administration's proposed rollback of the "waters of the United States" rule (technically, the rollback rule has been issued by EPA and the U.S. Army Corps of Engineers, but its support within those agencies comes only from the Trump administration's political appointees). The proposed rule addresses the scope of federal jurisdiction under the Clean Water Act – which means, in non-legal terms,
Partner Spotlight: A Conversation with Center for Progressive Reform's Evan Isaacson
This post originally appeared on the Maryland Clean Agriculture Coalition's website. All month long, MCAC has been highlighting the Bay cleanup plan, also known as the Bay TMDL (Total Maximum Daily Load), in order to keep track of the progress that is, or isn't, happening within the Bay watershed to reduce pollution. We recently chatted with Evan Isaacson, policy analyst at the Center for Progressive Reform, about tracking the progress of the Bay TMDL, what more states should be doing
Baltimore's Experience May Yield Lessons for Senate as It Debates Integrated Planning Bill
The City of Baltimore is wrapping up an $800 million upgrade of its largest sewage treatment plant. At the same time, the city is starting a $160 million project to retrofit a drinking water reservoir; is in the midst of a $400 million project to realign a major section of its sewer system; and is spending several million on projects throughout the city to manage polluted runoff from its streets and other paved surfaces. And these are just a few
Cleaner Waters for Washington at Long Last?
The Clean Water Act instructs states and tribes to revisit their water quality standards every three years, updating them as necessary to reflect newer science and to ensure progress in cleaning up the nation's waters – to the point where people can safely catch and eat fish. Last Monday, Washington State's Department of Ecology unveiled its long-awaited update, revising standards that had been developed back in 1992. The state's rulemaking process has been marked by controversy and delay, which I
Navigating the Clean Water Act
Originally published by the George Washington Law Review The Supreme Court held in U.S. Army Corps of Engineers v. Hawkes Co. that a determination by the United States Army Corps of Engineers ("Corps") that the owners of land used for peat mining were obliged to apply to the Corps for a permit under the Clean Water Act ("CWA") before dredging or filling the land was a judicially reviewable final agency action. Although this conclusion seems unremarkable, the case potentially packs
Strong Regs, Spotty Enforcement
The political debate over regulation tends to focus on the regulations themselves. But enforcing the regulations is just as important. Despite what you might think from the howls of business groups and conservative commentators, the enforcement system is not nearly as strong as it should be. Twenty years after passage of the Clean Water Act, roughly ten thousand discharges still had no permits whatsoever, 12-13 percent percent of major private and municipal sources were in a "Significant Noncompliance" status during
The Clean Water Act in the Crosshairs
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen Today, the United States Supreme Court released its opinion in US Army Corps of Engineers v. Hawkes, Co. The key question in Hawkes was whether a Clean Water Act jurisdictional determination – that is, a determination about whether an area does or does not contain waters subject to federal regulatory jurisdiction – is a final agency action within the meaning of the Administrative Procedure Act. According to a
What’s holding up the Clean Water Act jurisdictional guidance?
Reposted from LegalPlanet. People on both sides of the political spectrum agree that the boundaries of federal jurisdiction under the Clean Water Act are murky, to say the least. But efforts by EPA and the Corps of Engineers to clarify those boundaries have been tied up in the White House for more than a year, with no explanation and to no apparent useful purpose. The President is fond of telling that nation that it should place more trust in government.
Update: EPA Releases Full FY 2010 Stats on CWA Convictions
Since my post last week ("Convictions for Violations of the Clean Water Act Continue to Ebb"), a number of significant things have occurred. On October 20, the EPA’s Assistant Administrator for Enforcement and Compliance Assurance, Cynthia Giles, announced that the Director of the Office of Criminal Enforcement, Forensics and Training was retiring and that the Director of the Criminal Investigation Division had decided to pursue new challenges within the agency. In addition to this personnel shake-up, Assistant Administrator Giles has pledged to
Convictions for Violations of the Clean Water Act Continue to Ebb
According to the latest data published by TRAC Reports, the number of federal convictions obtained for violations of the Clean Water Act during fiscal year 2010 has continued to follow a recent downward trajectory. Since reaching a high of nearly 70 in FY 1998, the number of convictions has continued to decline toward what may be its lowest level since the early 1990s. During the first ten months of FY 2010, the Department of Justice reported 23 convictions, a pace that would
Riding a New Wave: EPA Considers Dramatic Changes to CWA Enforcement
by Yee Huang | April 19, 2010
A recent Water Policy Report article reported that EPA is considering dramatic changes to its Clean Water Act enforcement and permitting program and oversight of state permitting programs. Many of the changes under consideration, including prioritizing the most significant pollution problems, strengthening oversight of states, and improving transparency and accountability, are long overdue. Passed in 1972, the CWA contains much of the authority needed to clean up water pollution from point sources and certain other sources, but strong enforcement is
What Maryland Stakeholders Told Us About the State's Clean Water Act Enforcement Program
by Yee Huang | April 09, 2010
In preparing CPR’s recent white paper, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short, we conducted interviews with sixteen stakeholders across Maryland to assess MDE’s enforcement program as it operates on the ground. Collectively the stakeholders have decades of experience with enforcement at the federal, state, and local levels, as well as from environmental and industry perspectives. A full summary of the interviews can be found in the report, but a handful of surprising comments stood out.
New CPR Report Finds Maryland Failing to Enforce Clean Water Act
by Yee Huang | April 08, 2010
Today CPR releases a new report, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short. The report, which CPR Member Scholar Robert Glicksman and I co-authored, details the results of an investigation of the Clean Water Act (CWA) enforcement program at the Maryland Department of the Environment (MDE). CPR provided a copy of this report to MDE, and its response (and CPR’s follow-up) is included as an appendix to the report. Overall, we found that state of Maryland
EPA Steps Up to the Plate on Clean Water Act Enforcement. Congress Needs to Step Up, Too
Just about a month ago, the New York Times published a story in which it documented an alarming failure on the part of federal and state officials to enforce the principal federal law designed to protect the quality of the nation’s surface waters, including rivers, lakes, and streams. According to that story, fewer than three percent of identified violations of the Clean Water Act result in fines or other significant punishments by state officials. These violations have the potential to
EPA Announces CWA Enforcement Plan
The EPA today released a 15-page Clean Water Act Enforcement Action Plan prepared by the agency's Office of Enforcement and Compliance Assurance. Back in early July, Lisa Jackson had directed the enforcmeent office to develop a plan, and to "report back to me within 90 days with your recommendations." The EPA seems to be saying the plan released today is the final ("EPA Administrator Announces Plan to Retool and Reinvigorate Clean Water Enforcement Program.") The announcement came as the House