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June 16, 2021 by Robin Kundis Craig

Waters of the United States, 2021/2022 Edition, Part I

This is the first of of a two-part post. Part II is available here.

Last week, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers announced that the regulations defining “waters of the United States” under the Federal Water Pollution Control Act (better known as the Clean Water Act) are once again going to change.

The importance of that announcement is best demonstrated through a quick recap of the chaos that has dominated this element of Clean Water Act jurisdiction. In the 1980s, the EPA and Army Corps finally agreed on a regulatory definition of “waters of the United States,” a phrase that Congress had used in its 1972 overhaul of the Federal Water Pollution Control Act to define “navigable waters.” The phrase is also one of the key jurisdictional terms defining the waters to which the restructured law applies.

“Waters of the United States” indicates that jurisdictional waters are broader than the traditional navigable waters — that is, waters that are navigable in fact or subject to the ebb and flow of the tide. Moreover, in 1985, in United States v. Riverside Bayview Homes, the U.S. Supreme Court unanimously upheld the Act’s application …

June 16, 2021 by Robin Kundis Craig
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This is the second of of a two-part post. Part I is available here.

In the first part of this post, I briefly touched on the chaotic history of the EPA and Army Corps' definition and regulation of "waters of the United States" under the Clean Water Act. I also pointed out that this definition and its varying interpretations across courts and administrations can have significant impacts on water pollution prevention and the protection of our nation's waterways. With the Biden administration tackling a redo of the "waters of the United States" rule, court challenges are sure to follow. In this post, I'll explore three approaches to the rule that might help it survive judicial review.

  1. Openly Acknowledge that Section 404 of the Clean Water Has Hijacked the “Waters of the United States” Discussion and Provide a Corrective

    The Clean Water Act, for better or for worse …

May 3, 2021 by David Flores
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As Maryland heads into the final stretch of a collective effort to clean up the Chesapeake Bay, it has inexplicably passed over its best opportunity in years to modernize regulation of industrial stormwater — rain and snow that collects toxic pollution as it runs off factories, warehouses, scrap metal dealers, and other industrial sites.

Earlier this year, Maryland released a proposed revision of its general water pollution permit, which limits the type and amount of pollutants that facilities can discharge into public waters and sets monitoring and reporting requirements to protect public and environmental health.

Unfortunately, the state missed an important opportunity to bring stormwater regulation from the last century into the present — but it’s not too late to change course.

The Chesapeake Accountability Project (CAP) — a coalition of clean water advocacy groups including the Center for Progressive Reform — and two dozen partner organizations submitted a comment …

Jan. 12, 2021 by Victor Flatt
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One of the most vexing environmental law issues of the last three decades is the scope of the term "waters of the United States" (WOTUS) in the Clean Water Act — and what marshes, lakes, and streams fall under its purview. A connected legal question stretching back even further is how much deference to give agencies in policymaking and legal interpretations.

These issues are present in both the Trump administration's final "Waters of the United States" rule, which narrowly defines waters subject to the act, and the Biden administration's likely attempt to expand that definition. The Trump administration's narrow approach dramatically reduces the number of waterways under federal protection. A broader definition would restore and possibly expand protections to better safeguard public and environmental health.

A new study on the economic analyses in the Trump rule (which I co-authored) concludes that its supporting economic analyses rely on questionable …

Sept. 24, 2020 by James Goodwin
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An underappreciated side effect of the modern conservative movement now epitomized by Trumpism is its dogged pursuit of any legal argument to support “the cause,” no matter how ridiculous or specious. Long-settled questions like nondelegation and the constitutionality of independent regulatory agencies are suddenly, if bizarrely, up for grabs again. Add to this list a new line of argument – now germinating like a mushroom spore in horse manure – that posits that citizen suit provisions, such as those included in the Clean Air Act and Clean Water Act, are unconstitutional infringements upon the so-called unitary executive.

Earlier this month CPR Member Scholar Joel Mintz demolished this argument in a pair of posts published here. In this post, I want to move the ball forward and argue that citizen suits offer an essential opportunity for public engagement in regulatory implementation and thus should be extended universally across the entire …

July 29, 2020 by Joel Mintz
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In an article headlined, "Dozens of facilities skipping out on EPA pollution monitoring have prior offenses," The Hill reports the following today:

More than 50 facilities across the country that have faced enforcement actions for alleged Clean Water Act violations are among those taking advantage of an Environmental Protection Agency (EPA) policy that lets companies forgo pollution monitoring during the pandemic, an analysis by The Hill found. The temporary EPA policy, announced in March, says industrial, municipal and other facilities do not have to report pollution discharges if they can demonstrate their ability to do so has been limited by the coronavirus. The Hill first reported that 352 facilities have skipped water pollution monitoring requirements under the policy, which applies to air pollution as well. Of those facilities, 55 have faced formal enforcement actions in the past five years from either the EPA or state …

June 2, 2020 by Katlyn Schmitt
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In April, the U.S. Supreme Court finally weighed in with an answer to a longstanding question about what kinds of pollution discharges rise to the level of a "point source" and require a permit under the Clean Water Act. The Court dipped its toes into some muddied waters, as this question has been the subject of a range of decisions in the lower courts for decades, with little consensus. Panelists on the Center for Progressive Reform's May 28 clean water webinar examined the Supreme Court's opinion and its possible implications for water quality protections.

Maui sewage discharge map

The Clean Water Act prevents the addition of any pollutant to any navigable water of the United States from any so-called "point source" – a fixed point, as in, for example, the end of a pipe discharging into a river – without a National Pollutant Discharge Elimination System (NPDES) permit. Generally speaking, the EPA …

May 28, 2020 by Katlyn Schmitt, Dave Owen
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Sometime soon, EPA is expected to release its final rule limiting state and tribal authority to conduct water quality certifications under section 401 of the Clean Water Act. A water quality certification is the most important tool states have to ensure that any federally permitted project complies with state water quality protections.

States often impose conditions on such projects that are more stringent than federal requirements in order to protect drinking water and local aquatic habitat, among other reasons. The Clean Water Act also empowers states to deny certifications and stop a project from moving forward if it would still violate the state's water quality standards even after conditions are imposed.

The rulemaking was spurred by an executive order from President Trump last year. The order directed the EPA to change the 401 certification process, with an ostensible focus on "the need to promote timely Federal-State cooperation …

May 1, 2020 by Karrigan Bork, Thomas Harter, Steph Tai
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This post was originally published on California WaterBlog. Reprinted with permission.

In 1972, the U.S. Clean Water Act (CWA) created a permit system for point source discharges to navigable waters of the United States – rivers, lakes, and coastal waters – with the goal of restoring and protecting their water quality. Typically, these permits are issued by the U.S. EPA or through state agencies to dischargers of wastewater, e.g., from urban and industrial wastewater treatment plants and to other dischargers of potentially contaminated water that reach streams by a pipe or similar conveyance. The goal was to provide some degree of regulatory oversight over such discharges. In California, the State Water Resources Control Board implements the federal Clean Water Act using its authority under the Porter-Cologne Water Quality Control Act (Water Code, §13000 et seq.). Under the CWA, neither EPA nor the states are required to …

April 24, 2020 by Lisa Heinzerling
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This post was originally published on April 23, 2020, on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

Today, the Supreme Court ruled, 6-3, that the Clean Water Act requires a permit when a point source of pollution adds pollutants to navigable waters through groundwater, if this addition of pollutants is "the functional equivalent of a direct discharge" from the source into navigable waters. Because the U.S. Court of Appeals for the 9th Circuit applied a different legal test in determining that a permit was required for a sewage treatment facility operated by the County of Maui, the Supreme Court vacated the 9th Circuit's judgment and remanded the case for application of the standard announced today.

Perhaps the most striking feature of Justice Stephen Breyer's opinion for the majority – which drew the votes of Chief Justice John Roberts and …

CPR HOMEPAGE
More on CPR's Work & Scholars.
June 16, 2021

Waters of the United States, 2021/2022 Edition, Part I

June 16, 2021

Waters of the United States, 2021/2022 Edition, Part II

May 3, 2021

Maryland Must Take Stronger Steps to Regulate Toxic Stormwater from Industrial Sites to Protect Marylanders and their Waterways

Jan. 12, 2021

Study Finds Significant Flaws with Trump Waters of the United States Rule, Provides Legal Support for Biden Replacement

Sept. 24, 2020

Citizen Suits Are Good for the Regulatory System, and We Need More of Them

July 29, 2020

Who Could Possibly Have Guessed?

June 2, 2020

Clean Water Webinar Spotlight: Lessons Learned from the Supreme Court's Maui Decision