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The EPA is moving towards establishing a drinking water standard for PFOA and PFOS, and has stated that it is considering avenues for regulating additional groups of PFAS under the Safe Drinking Water Act (SDWA) as well.  On February 22, 2021, the EPA announced two actions under SDWA to address PFAS.

First, the agency reissued the final regulatory determination to implement a National Primary Drinking Water Regulation (NPDWR) for PFOS and PFOA (the “Determination”).  This Determination is a continuation of an intended action under the Trump administration, but indicates the Biden administration intends to continue to move forward.  The Determination also states that the EPA is considering the regulation of additional PFAS chemicals.Continue Reading EPA indicates intention to regulate certain PFAS in drinking water

On January 5, 2021, the U.S. Army Corps of Engineers (the Corps) released the final version of a rule revamping certain nationwide permits (NWPs) under the Clean Water Act (CWA). The CWA authorizes the Corps to issue general permits authorizing categories of activities that have minimal individual and cumulative adverse environmental effects. These permits remain in effect for no more than five years, at which point the Corps must renew the permits.

This rule reissues and modifies 12 nationwide permits (NWPs) and issues four new NWPs. Of these 16 NWPs, the most impactful changes are to NWP 12.Continue Reading U.S. Army Corps of Engineers revamps Clean Water Act Nationwide Permit 12

On August 31, 2020, the U.S. Environmental Protection Agency (EPA) Administrator, Andrew Wheeler, signed the final rule (referred to as the Steam Electric Reconsideration Rule) initially proposed last year to revise the technology-based effluent limitations guidelines and standards (ELGs) for common types of wastewater discharges from electric power generating facilities. This final rule rolls back the Obama-era effluent guidelines 2015 rule, which set the first federal limitations on toxic metal discharges from power plants. EPA touts that the new final rule will significantly reduce after tax compliance costs by $140 million per year.

New effluent standards

The Obama-era 2015 rule set requirements for wastewater streams associated with several processes and by-products of steam electric power generation: flue-gas desulfurization, fly ash, bottom ash, flue-gas mercury control and gasification of fuels such as coal and petroleum coke. However, EPA’s new final rule focuses on revisions to primarily two types: flue-gas desulfurization (FGD) wastewater and bottom ash (BA) transport water.Continue Reading EPA administrator signs final power plant wastewater rule

On July 13, 2020, the Environmental Protection Agency (EPA) published the Clean Water Act Section 401 Certification Rule. The rule is set to become effective on September 11, 2020, and will introduce comprehensive changes to the regulations governing how states and authorized tribes certify water quality under Section 401 of the Clean Water Act (CWA).
Continue Reading EPA finalizes updates to CWA water quality certification requirements

1. Pipeline May Cross Underneath the Appalachian Trail with Forest Service Approval

On June 15, 2020, the U.S. Supreme Court (SCOTUS) held in a 7-2 decision that the U.S. Forest Service had the authority to grant developers of a gas pipeline right-of-way underneath the Appalachian National Scenic Trail.

At issue in this case was whether the Forest Service or the National Park Service (NPS) had jurisdiction over the trail. Under the U.S. Mineral Leasing Act (MLA), the Forest Service does not have jurisdiction over “lands in the National Park System.” However, in order to establish the National Scenic Trail, the Forest Service gave the Department of the Interior (DOI) an easement on that land to create and maintain the Appalachian Trail. As a result, the question became: did the granting of an easement to create the Appalachian Trail make that land a part of the National Park System?Continue Reading ICYMI: June sees major U.S. Supreme Court environmental activity

This month’s notable U.S. Supreme Court (SCOTUS) actions involve what the Court declined to review rather than any actual decisions.

  • Declined to review: Fuel blenders exemption under the EPA’s RFS program

On May 18, 2020, SCOTUS declined to review the U.S. Environmental Protection Agency’s (EPA) policy that fuel blenders are not responsible for mixing biofuels into gasoline. This policy is part of the EPA’s renewable fuel standard (RFS) program, which requires an increasing amount of renewable fuels be blended into U.S. transportation fuels. This means the D.C. Circuit opinion (below) on the issue remains unchanged.Continue Reading ICYMI: Major May U.S. Supreme Court environmental decisions

In an unprecedented move, today (March 26, 2020) EPA issued a memorandum to its governmental and private sector partners about its new temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. The memo states the EPA will exercise its enforcement discretion for noncompliance covered by temporary policy and resulting from the…

A recent decision by a California court of appeal clarified the breadth of the California Water Resources Control Board’s (Board) subpoena power, which could have implications for other state agencies in California and elsewhere.  Moreover, private entities which are the subject of an administrative investigation may have a difficult time withholding financial records even if those records are not related to the alleged violations, and even if the subpoenaed entity is not directly responsible for any of the alleged violations.
Continue Reading Administrative agencies have broad subpoena power

On September 12, 2019, the U.S. Environmental Protection Agency (EPA) and the Department of the Army issued a pre-publication draft of the final rule to repeal the 2015 Clean Water Rule definition of “Waters of the United States” (WOTUS Rule), which amended existing Clean Water Act (CWA) regulations. According to the EPA, the agencies’ goal is to “implement the pre-2015 Rule regulations nationwide as informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice.”

The WOTUS Rule built on the existing regulatory scheme and defined the geographic scope of the CWA by placing waters into three categories: (1) waters that are categorically “jurisdictional by rule” in all instances; (2) waters that are subject to case-specific analysis to determine whether they are jurisdictional; and (3) waters that are categorically excluded from jurisdiction.Continue Reading EPA repeals 2015 WOTUS rule amid broader environmental regulatory rollbacks