The Ninth Circuit, the Clean Water Act, and Septic Tanks

by Dave Owen | February 15, 2018

Originally published on Environmental Law Prof Blog.

Last week, the Ninth Circuit decided Hawai'i Wildlife Fund v. County of Maui, a case involving Maui County's practice of pumping wastewater into wells, from which the wastewater flowed through a subsurface aquifer and into the Pacific Ocean. The county, according to the court, needed a National Pollutant Discharge Elimination System (NPDES) permit for this practice. It did not matter that the county's wastewater traveled through groundwater on its way to the ocean; according to the Ninth Circuit, releasing pollutants from a point source to navigable waters still requires permitting even if those pollutants' pathway is indirect.

The decision is well-reasoned and carefully explained. The Ninth Circuit grounded its holding in both the text and purposes of the Clean Water Act and in a series of prior decisions (including Justice Scalia's Rapanos plurality opinion), and the outcome, which prevents the county from "doing indirectly that which it cannot do directly," in the Ninth Circuit's words, seems fair. The Ninth Circuit also took pains to explain that it was not holding that all indirect pollutant pathways between point sources and navigable waters would require NPDES permitting.

But the opinion still raises some thorny questions about the scope of NPDES permitting obligations. The basic situation in this case—pollutants traveling from a point source through groundwater and into surface water—is hardly rare. Nor is there a sharp break point between the fact ...

Implications of the Supreme Court's Clean Water Rule/WOTUS Ruling

by Dave Owen | January 22, 2018
Originally published on Environmental Law Prof Blog. Today, the United States Supreme Court decided National Association of Manufacturers v. Department of Defense, a case determining whether challenges to the "Clean Water Rule" or "Waters of the United States Rule" should be heard in federal district court or in the United States Court of Appeals for the Sixth Circuit. The answer, the Supreme Court unanimously held, is federal district court, and the Court remanded the case to the Sixth Circuit to ...

New Report: Three Fundamental Flaws in Maryland's Water Pollution Trading Regulations

by Evan Isaacson | December 18, 2017
On December 8, the Maryland Department of the Environment published its long-awaited nutrient trading regulations, capping more than two years of effort to develop a comprehensive environmental market intended to reduce the amount of nutrient and sediment pollution in the Chesapeake Bay.  A trading market would allow people, companies, and governments required by law to reduce the amount of pollution they discharge to purchase "credits" for pollution reduction efforts undertaken by someone else. In theory, water pollution trading ensures overall ...

Clean Water Laws Need to Catch Up with Science

by Evan Isaacson | November 29, 2017
The field of environmental law often involves tangential explorations of scientific concepts. Lately, one scientific term – hydrologic connectivity – seems to keep finding its way into much of my work. As for many others, this principle of hydrology became familiar to me thanks to its place at the center of one of the biggest fights in the history of environmental law, spilling onto the front pages and into the public consciousness.  Over the last several decades, a pair of ...

New Report: Toxic Industrial Stormwater Widespread, Maryland Enforcement Seldom Seen

by David Flores | November 16, 2017
Those who take public safeguards seriously are well aware of the potential consequences that arise from the dangerous combination of poorly written pollution permits and lax – even absent – enforcement. From construction sites with failing erosion and sediment controls to ammonia and bacteria-spewing concentrated animal feeding operations, our waterways, their users, and vulnerable populations in the pathway of pollution suffer the consequences. Starting today, we add industrial stormwater to the ignoble list of poorly regulated sources of environmental pollution ...

CPR Scholars to EPA, Army Corps: Scrapping the Clean Water Rule is Unlawful, Unwise

by Dave Owen | September 26, 2017
On September 25, a group of Member Scholars from the Center for Progressive Reform (CPR) submitted comments on the Trump administration's proposed rollback of the "waters of the United States" rule (technically, the rollback rule has been issued by EPA and the U.S. Army Corps of Engineers, but its support within those agencies comes only from the Trump administration's political appointees). The proposed rule addresses the scope of federal jurisdiction under the Clean Water Act – which means, in non-legal terms, ...

Baltimore Sun Op-Ed: Preparing for Hurricanes Should Not Fall to Ratepayers

by Matt Shudtz | September 20, 2017
This op-ed originally ran in the Baltimore Sun. The full scope of the heartbreaking devastation wrought by hurricanes Harvey and Irma — the human, economic and environmental toll — may not be completely understood for years. As we do what we can to help the victims, it is also time to think about how we can prepare for the inevitable here in Baltimore. After all, Baltimore floods more than most other cities in the United States and gets little help ...

The Unclean Water Rule

by Evan Isaacson | July 13, 2017
This post builds from an interview with the author for WYPR's The Environment in Focus with Tom Pelton, a portion of which aired on Wednesday, July 12, 2017. One question I've been asked a number of times over the last several years is, "What does the Clean Water Rule mean for the Chesapeake Bay?" With EPA's recent proposal to repeal the rule, I'm once again hearing questions and speculation about what this repeal will mean for the Bay watershed. I ...

Repeal First, Explain Later: The Trump Administration and the Clean Water Rule

by Dave Owen | June 28, 2017
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen. EPA and the Army Corps of Engineers just released a proposal to repeal the Clean Water Rule and to return to previous regulations. The Clean Water Rule (also known as the WOTUS Rule) would have clarified the scope of federal regulatory jurisdiction under the Clean Water Act. It was one of the Obama administration's signature environmental initiatives, and it was one of candidate and then President Trump's signature targets. So the ...

Partner Spotlight: A Conversation with Center for Progressive Reform's Evan Isaacson

by Kerry Darragh | June 27, 2017
This post originally appeared on the Maryland Clean Agriculture Coalition's website.  All month long, MCAC has been highlighting the Bay cleanup plan, also known as the Bay TMDL (Total Maximum Daily Load), in order to keep track of the progress that is, or isn't, happening within the Bay watershed to reduce pollution. We recently chatted with Evan Isaacson, policy analyst at the Center for Progressive Reform, about tracking the progress of the Bay TMDL, what more states should be doing ...

Baltimore's Experience May Yield Lessons for Senate as It Debates Integrated Planning Bill

by Evan Isaacson | April 13, 2017
The City of Baltimore is wrapping up an $800 million upgrade of its largest sewage treatment plant. At the same time, the city is starting a $160 million project to retrofit a drinking water reservoir; is in the midst of a $400 million project to realign a major section of its sewer system; and is spending several million on projects throughout the city to manage polluted runoff from its streets and other paved surfaces. And these are just a few ...

Myths, Realities, and the Clean Water Rule Controversy

by Dave Owen | March 06, 2017
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen. Last Tuesday, President Trump signed an executive order directing EPA and the Army Corps of Engineers to begin work on a new rule defining the scope of federal jurisdiction under the Clean Water Act. The rule, if and when it is finalized, would replace the "Clean Water Rule" released by EPA and the Corps during the summer of 2015. Much of the political rhetoric surrounding the Clean Water Rule has suggested ...

New EPA Assessment Shines a Light on a Cause of Chesapeake Bay Woes

by Evan Isaacson | September 20, 2016
The Chesapeake Bay watershed and its restoration framework under the Bay Total Maximum Daily Load (TMDL) are so large and complex that it can be a real challenge to study, much less write about, the problem and the ongoing restoration efforts. This is why the recent U.S. Environmental Protection Agency (EPA) assessment of the tiny Beck Creek watershed in Lebanon County, Pennsylvania is so valuable. The same activities that have fouled Beck Creek and the restoration practices that are working ...

Cleaner Waters for Washington at Long Last?

by Catherine O'Neill | August 08, 2016
The Clean Water Act instructs states and tribes to revisit their water quality standards every three years, updating them as necessary to reflect newer science and to ensure progress in cleaning up the nation's waters – to the point where people can safely catch and eat fish. Last Monday, Washington State's Department of Ecology unveiled its long-awaited update, revising standards that had been developed back in 1992. The state's rulemaking process has been marked by controversy and delay, which I ...

Navigating the Clean Water Act

by Robert Glicksman | June 10, 2016
Originally published by the George Washington Law Review The Supreme Court held in U.S. Army Corps of Engineers v. Hawkes Co.[1] that a determination by the United States Army Corps of Engineers ("Corps") that the owners of land used for peat mining were obliged to apply to the Corps for a permit under the Clean Water Act ("CWA")[2] before dredging or filling the land was a judicially reviewable final agency action. Although this conclusion seems unremarkable, the case potentially packs ...

Strong Regs, Spotty Enforcement

by Daniel Farber | June 06, 2016
The political debate over regulation tends to focus on the regulations themselves. But enforcing the regulations is just as important. Despite what you might think from the howls of business groups and conservative commentators, the enforcement system is not nearly as strong as it should be. Twenty years after passage of the Clean Water Act, roughly ten thousand discharges still had no permits whatsoever, 12-13 percent percent of major private and municipal sources were in a "Significant Noncompliance" status during ...

The Clean Water Act in the Crosshairs

by Dave Owen | May 31, 2016
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen Today, the United States Supreme Court released its opinion in US Army Corps of Engineers v. Hawkes, Co. The key question in Hawkes was whether a Clean Water Act jurisdictional determination – that is, a determination about whether an area does or does not contain waters subject to federal regulatory jurisdiction – is a final agency action within the meaning of the Administrative Procedure Act. According to a ...

Renewed Public Investment in Water Infrastructure Promotes Equality

by Evan Isaacson | May 18, 2016
Clean water: We can't take it for granted, as the people of Flint, Michigan, can attest. And they're not alone. In too many communities across the nation, drinking water fails to meet minimum safety standards, forcing consumers to buy bottled water and avoid the stuff coming out of their taps. We cannot say that we didn't see this coming. Part of the problem is that, as a society, we have always undervalued clean water. Municipal water rates only pass along ...

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