Clean Water Act

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On September 24, 2018, in two separate decisions, the Sixth Circuit Court of Appeals found that coal ash wastewater that enters groundwater and eventually travels to navigable waters through the groundwater is not regulated under the Clean Water Act (“CWA,” or the “Act”).  In these decisions, the Sixth Circuit expressly disagrees with recent holdings from the Fourth and Ninth Circuits, paving the way for potential Supreme Court review.

The CWA requires a permit for discharge of pollutants into navigable waters.  33 U.S.C. §§ 1251 et seq.  At issue in both Sixth Circuit cases is whether the CWA extends to regulate indirect discharge into a navigable water, through groundwater.  Rejecting the “hydrological connection” theory, the Sixth Circuit found that groundwater is not subject to regulation under the CWA because it is not a point source.  Therefore, the discharge of pollutants into groundwater, and subsequent travel to a navigable water, also does not fall within the scope of the CWA.Continue Reading Sixth Circuit Limits Scope of CWA, Breaking with Fourth and Ninth Circuits

Environmental groups have obtained a favorable Clean Water Act (“CWA”) ruling from the U.S. District Court for the Central District of California, which can be viewed as an expansion of jurisdiction for stormwater permitting for industrial sources.  In the Order, issued on August 9, 2018, Judge Stephen V. Wilson held that if the U.S. Environmental Protection Agency (“EPA”) determines that stormwater discharges “cause or contribute to violations of water quality standards,” then regulators must limit such stormwater discharges under the mandates of the CWA.  EPA is required to regulate stormwater discharges through the National Pollution Discharge Elimination System (“NPDES”) permitting scheme, and does not have discretion to address the pollution through other methods.
Continue Reading Court Finds that Privately-Owned Industrial Stormwater Discharges Require Clean Water Act Permits

On February 1, 2018, the U.S. Court of Appeals for the Ninth Circuit upheld the district court’s decision, finding that the County of Maui violated the Clean Water Act (“CWA”) when it discharged treated effluent into underground injection wells, which then allowed the effluent to seep into the Pacific Ocean.  The Ninth Circuit panel held that the wells were required to obtain National Pollutant Discharge Elimination System (“NPDES”) permit coverage because the discharge from the wells was “fairly traceable” from the discharge point (point source) to a navigable water.
Continue Reading Injection Well Operators Beware: Ninth Circuit Finds Underground Injection Wells Require NPDES Permit under the Federal Clean Water Act

WaterwaysThe wait for the new rule is now over!  The EPA and Corps of Engineers have jointly issued the rule defining which waters are protected by the federal Clean Water Act, with the new rule largely reflecting historical interpretations arising from SCOTUS decisions.

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