CWA Archives

Apr 26, 2023

Lawsuit Challenges USFS CWA Permits for Aerial Firefighting

The U.S. Forest Service (USFS) is seeking Clean Water Act (CWA) Permits from the EPA for anticipated discharges from aerial firefighting efforts that may reach federal water. The Plaintiffs in the suite, Forest Services Employees for Environmental Ethics (FSEEE) v. U.S. Forest Service, allege that, because the Permits may take up to two and half years to issue, the current aerial discharges of flame retardants are an unpermitted point source discharge that can damage waterways and aquatic species. FSEEE has filed a Motion for Summary Judgement asking the Court to issue a wide-ranging injunction that would forbid further discharges until… Read more

Jun 7, 2022

EPA Proposes New CWA 401 Rule Undoing Trump-Era Limits

On Thursday, June 2, the EPA unveiled a proposed rule that would restore states’ ability to veto Federal infrastructure projects that they think could pollute water within their borders. If finalized, the EPA’s proposed Water Quality Certification and Improvement Rule would roll back the Trump Administration’s 2020 Clean Water Act Section 401 Certification Rule, which greatly reduced states’ ability to object to infrastructure projects. The Clean Water Act gives states the right to certify any federally-permitted infrastructure project that might discharge pollution into streams, waters or wetlands. Under the EPA’s proposed rule, a state would be allowed to determine whether… Read more

Aug 12, 2020

DOJ Announces Policy to End Enforcement Overlap with States under Clean Water Act

On Monday, July 27, the DOJ issued a memo stating that federal actions seeking penalties under the Clean Water Act (CWA) will be strongly disfavored when a state has already initiated its own enforcement action. The memo notes that the CWA already precludes federal action when a state is pursuing administrative proceedings against an alleged violator under comparable state law, but that the CWA does not have the same prohibition when a state is pursuing a judicial enforcement action. The policy applies only to civil actions, not criminal cases, and is designed to respect state authority, and avoid duplicative enforcement… Read more

Apr 24, 2020

U.S. Supreme Court Issues Decision Regarding How the Federal Clean Water Act Applies to Groundwater Discharges

On April 23, 2020, the U.S. Supreme Court issued a decision in County of Maui v. Hawaii Wildlife Fund, a closely watched case regarding whether the federal Clean Water Act (CWA) applies to discharges of pollutants to groundwater which reach surface waters. In County of Maui, the plaintiff environmental organizations brought a citizen suit alleging that the defendant-county was in violation of the CWA in regard to the county’s decades-old practice of injecting partially treated wastewater into groundwater wells. The wells consistently leaked and tracer dye testing confirmed that over 60% percent of the wastewater injected into the wells wound… Read more

Sep 26, 2018

Federal Appellate Court Rules That Coal Ash Ponds Not Subject to CWA

On September 12, 2018, the U.S. Court of Appeals for the Fourth Circuit (which covers federal courts in South Carolina, North Carolina, Maryland, Virginia, and West Virginia) issued a decision concluding that the migration of arsenic from coal ash stored in settling ponds and a landfill was not subject to the federal Clean Water Act (CWA) because the ponds and landfill were not “point sources” under the CWA. In Sierra Club v. Virginia Electric & Power Company, the defendant operated a coal-fired power plant in Chesapeake, Virginia for over 60 years and stored the coal ash waste on site in… Read more

Mar 20, 2018

Georgia Court of Appeals Decision Regarding Antidegradation Rule and Nonpoint Sources

Georgia Court of Appeals: Wastewater Treatment Facility

On February 27, 2018, the Georgia Court of Appeals issued a decision in Craig Barrow, III v. Richard E. Dunn, which involved an administrative appeal of a permit issued by the Georgia Environmental Protection Division (“EPD”) to the City of Guyton for the operation of a land application system (“LAS”) wastewater treatment facility. In Barrow, the plaintiff-property owner filed an administrative appeal of the LAS permit and alleged that the partially treated wastewater sprayed by the City at the LAS site would run off the site and degrade the water quality of nearby streams and wetlands on the plaintiff’s property…. Read more

Mar 5, 2018

Federal Appellate Court Rules That CWA Applies To Groundwater Discharges

On February 1, 2018, the U.S. Court of Appeals for the Ninth Circuit issued a decision concluding that the federal Clean Water Act (CWA) applies to claims involving the discharge of pollutants to groundwater which ultimately migrate to surface waters. In Hawaii Wildlife Fund v. County of Maui, the Ninth Circuit (which covers federal courts in the states of Hawaii, California, Oregon, Alaska, Nevada, Idaho, Arizona, Montana and Washington) affirmed a lower court’s grant of summary judgment to the plaintiff environmental organizations and held that the defendant-county was in violation of the CWA in regard to its decades-old practice of… Read more

Aug 23, 2017

Georgia Federal Court Rules That CWA Applies to Groundwater Discharges

On May 12, 2017, the U.S. District Court for the Middle District of Georgia issued a decision concluding that the federal Clean Water Act (CWA) applies to claims involving the discharge of pollutants to groundwater that it is hydrologically connected to surface waters. In Flint Riverkeeper, Inc. v. Southern Mills, Inc., the district court denied the defendant’s motion to dismiss the plaintiffs’ citizen suit alleging violations of the CWA as a result of discharges of industrial wastewater from a land application system (LAS) operated by the defendant dyeing and finishing facility in Molena, Georgia. The plaintiffs alleged, among other things,… Read more

Apr 26, 2017

Federal Court Rules that CWA Does Not Apply to Groundwater Discharges

On April 20, 2017, the U.S. District Court for the District of South Carolina issued a decision concluding that the federal Clean Water Act (CWA) does not apply to claims involving the discharge of pollutants to groundwater that it is hydrologically connected to surface waters. In Upstate Forever, et al. v. Kinder Morgan Energy Partners, L.P., et al., the district court granted the defendants’ motion to dismiss the plaintiffs’ citizen suit alleging violations of the CWA as a result of a December 2014 leak of petroleum products from defendants’ pipeline in Anderson County, South Carolina. In addition to concluding that… Read more

Jan 5, 2016

Wetlands, Finality of Jurisdictional Determinations

On December 11, 2015, the U.S. Supreme Court agreed to review whether a Clean Water Act (CWA) jurisdictional determination issued by the U.S. Army Corps of Engineers (Corps) constitutes final agency action subject to judicial review. Previously, three federal appeals courts could not agree on whether the nonbinding, jurisdictional determination was final agency action that could be challenged in federal court under the Administrative Procedures Act (APA). While the CWA does not require the Corps to issue jurisdictional determinations, the approval of one indicates that the Corps will require the landowner to obtain a Section 404 Dredge and Fill Permit… Read more