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Showing 17 posts in Clean Water Act.

The Pennsylvania Environmental Hearing Board (the “Board”) recently stirred up some controversy. Last month, in Lancaster Against Pipelines v. DEP, EHB Docket No. 2016-075-L (May 10, 2017), the Board held that it has jurisdiction to review actions taken by the Pennsylvania Department of Environmental Protection (“PADEP”) involving interstate natural gas pipelines, despite a 2013 decision issued by the U.S. District Court for the Middle District of Pennsylvania that held precisely the opposite. Read More »

Under the Clean Water Act (“CWA”), it is well established that any entity discharging pollutants into the surface waters of the United States from a “point source” must obtain a permit. But courts have disagreed on whether the CWA also encompasses groundwater that is hydrologically connected to surface water.  Last week, a federal district court in Virginia followed a line of cases in holding that the CWA does cover the discharge of pollutants to groundwater that is hydrologically connected to surface water. Sierra Club v. Va. Elec. & Power Co., Civil Action No. 2:15-CV-112 (E.D. Va. Mar. 23, 2017). Read More »

The Clean Water Act (“CWA”) generally forbids discharging contaminated effluent into waters of the United States unless the discharger holds a National Pollution Discharge Elimination System (“NPDES”) permit. Once a discharger holds a permit, they are shielded from discharge related liability- unless, as the Fourth Circuit observed in the recent case of Ohio Valley Environmental Coalition v. Fola Coal Company, LLC, No. 161024 (4th Cir., 1/04/2017), the permit holder is noncompliant. Read More »

Last week, the United States Court of Appeals for the Third Circuit struck down challenges by environmental organizations to the Federal Energy Regulatory Commission’s (FERC) approval of an expansion of the Transcontinental pipeline, a 10,000-mile pipeline that extends from South Texas to New York City and is operated by Transcontinental Gas Pipe Line Company, LLC (“Transco”).  In doing so, however, the Court held that the environmental organizations had properly invoked a provision of the federal Natural Gas Act to challenge water quality-related permits issued by the states of Pennsylvania and New Jersey.  Thus, the decision, Delaware Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot, No. 15-2122 (3d Cir. August 8, 2016), provides that the Court of Appeals has exclusive jurisdiction over challenges to permits issued to an interstate natural gas facility to certify compliance with State water quality standards promulgated under federal supervision, as well as with federally-established Clean Water Act requirements.   Read More »

Last week, the United States Supreme Court held that federal courts can review the Army Corps of Engineers’ determinations that a landowner’s property contains “waters of the United States” and is therefore subject to the Clean Water Act’s regulations and permitting process.  Remarkably, the decision was unanimous in affirming the Eighth Circuit’s decision that such determinations are considered final agency actions under the Administrative Procedures Act and are therefore reviewable by the courts.  The majority opinion in the case, United States Army Corps of Eng'rs v. Hawkes Co., No. 15-290 (U.S. May 31, 2016), was authored by Chief Justice Roberts while Justices Kennedy, Kagan, and Ginsberg each authored separate concurring opinions.   Read More »

Early this month, the Second Circuit heard oral argument in Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States EPA, No. 14-1823, an appeal from the Southern District of New York’s March 2014 ruling which invalidated the “water transfer” exemption rule from National Pollutant Discharge Elimination System (“NPDES”) permitting requirements.  A decision from the Second Circuit, which will have far reaching effects on public and private entities alike, is expected in 2016. Read More »

Relying on the United States Constitution’s Fourth Amendment protection against unreasonable search and seizure, yesterday the New Jersey Supreme Court , inNJDEP v. Huber, ___ N.J. ____ (Apr. 4, 2013), held that the New Jersey Department of Environmental Protection (“NJDEP”) does not have an unfettered right to inspect residential property in order to ensure compliance or determine violations of the Freshwater Wetlands Protection Act, even when the property in question is subject to an FWPA permit. Read More »

On March 13, 2013, the First Circuit issued its opinion in Paolino v. JF Realty, LLC,No. 12-2031 (1st Cir. Marc. 13, 2013), reversing in part the District Court’s dismissal of a Citizen’s Suit brought pursuant to the Clean Water Act, and in so doing addressing an “issue of first impression in the First Circuit as to the standard for measuring the sufficiency of the mandatory pre-suit notice which must be given” before such a suit can be brought.   Read More »

The U.S. District Court for the Middle District of Louisiana recently ruled that an U.S. Army Corps of Engineers’ approved jurisdictional determination finding wetlands subject to the Clean Water Act (CWA) is not a final agency action within the meaning of the Administrative Procedure Act (APA). The court further held that its holding was not impacted by the U.S. Supreme Court’s recent decision in Sackett v. EPA. Read More »

As a result of increasing development of natural gas drilling, pipelines are popping up everywhere.  And with them has come a mound of litigation.  In a February 5, 2013 decision, the United States District Court for the Middle District of Pennsylvania has ruled, as a matter of first impression, that permits issued by a state agency (in this case, the Pennsylvania Department of Environmental Protection (“PADEP”)) under the federal Clean Water Act (the “CWA”) may be challenged only in federal court, and not in a state adjudicatory proceeding. Read More »