Environmental Law News

Category Archives: Water

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When Is a Rail Car a Clean Water Act Point Source?

Posted in Natural Resources, Transportation, Water, Water
The U.S. District Court in Washington has denied a railway company’s motion to dismiss a Clean Water Act citizen suit that alleges the defendant’s rail cars are point sources for the discharge of coal pollutants into waters of the United States.  BNSF Railway Company (“BNSF”) operates a common carrier railroad throughout much of the United … Continue Reading

Clean Water Act Citizen Suit Requires Notice

Posted in Federal, Water
In spite of an apparent statutory exception, the 11th Circuit Court of Appeals has held that the 60-day notice requirement of the Citizen Suits provision of the Clean Water Act, 33 U.S.C. § 1365, applied in the case of Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Case No, 12-15409, (11th Cir. Nov. 13, 2013). Plaintiffs sued … Continue Reading

EPA Reports on The Importance of Water to the U.S. Economy

Posted in Agriculture and Food, EPA, Sustainability, Sustainability Policy, Water
Water and Economy Cover Page  EPA issued a new report synthesizing initial analyses on the broad impact that water quantity, quality, reliability, location, and timing have on our nation’s economy.  The report is relatively short (less than 30 pages), but the EPA’s resource web page has links to the technical report document and research studies that have been developed as part … Continue Reading

Pollutants from Poultry Operation Exempt from Clean Water Act Permit

Posted in Agriculture and Food, Water
A U.S. District Court in West Virginia has issued an order clarifying the extent of the Clean Water Act’s exemption for agricultural stormwater.  Alt v. EPA, Case No. 2:12-cv-00042, N.D. W.V. (Oct. 23, 2013). The case concerned EPA’s issuance of Findings of Violation and Order for Compliance under the Clean Water Act that alleged the operator of … Continue Reading

TDEC Announces Open Enrollment for Qualifying Local Programs Construction Stormwater Permitting

Posted in Agency News, Tennessee, Water
The Tennessee Department of Environment and Conservation has recently announced that its pilot period for the Qualifying Local Program has ended and it is now accepting new applications. Legislation that passed last summer and became effective on July 1 of this year allows any eligible Municipal Separate Storm Sewer Systems (MS4) to apply through TDEC to become a Qualifying Local … Continue Reading

SCOTUS Reasserts Nollan/Dolan Requirements in Mitigation Takings Case

Posted in Federal, Natural Resources, Water
In a 5-to-4 opinion issued today, the U.S. Supreme Court reversed the Florida supreme court’s decision holding that Nollan and Dolan do not applying in the permitting context. In Koontz v. St. John’s River Water Management District, the high court reasserts that mitigation requirements are guided by its decisions from Nollan and Dolan regarding proportionality and nexus … Continue Reading

DC Circuit Holds that EPA Can Withdraw Mining Permits

Posted in EPA, Federal, Water
On April 23, 2013, the D.C. Circuit reversed the district court in Mingo Logan Coal Co. v. EPA, stating that the agency has the power to retroactively veto and withdraw coal mining permits. At issue was a Section 404 permit issued in 2007 by the U.S. Army Corps of Engineers (the Corps) that allowed the … Continue Reading


Posted in EPA, Federal, Water
EPA has finally thrown in the towel over trying to establish a one-size-fits-all numeric turbidity effluent limitation for construction stormwater sites.  EPA’s final effluent guidelines for construction and development was promulgated on December 1, 2009 (74 FR 62995, Dec. 1, 2009).  The rule has had a “stormy” lifetime. After it bacame clear that EPA was having trouble defending its … Continue Reading

Iowa Cities Win Appeal of EPA Wastewater Rule

Posted in EPA, Water
On Monday, a three-member panel of the Eighth Circuit Court of Appeals unanimously struck down two Environmental Protection Agency wastewater treatment rules challenged by a group of Iowa cities. The rules would have forced cities across the country to spend billions of dollars if the court had upheld them. According to court documents, the EPA had … Continue Reading

Landowners Beware: Your Property May Violate the Clean Water Act

Posted in Energy, Natural Resources, Water
A landowner may be responsible for Clean Water Act violations even though the landowner was not involved in the activity that now results in a discharge of pollutants. This may be the result of a case now pending before the United States District Court for the Western District of Virginia, Southern Appalachian Mountain Stewards v. … Continue Reading

Corps Nationwide Permitting Changes

Posted in Water
The U.S. Army Corps of Engineers just amended its nationwide permitting regulations so that nationwide permit verification letters will expire on the same date that a nationwide permit expires.  Nationwide permits authorize activities having minimal adverse impacts, and are often sought by developers as opposed to individual Section 404 permits.  Some nationwide permits require pre-construction notifications from developers.  A response verification … Continue Reading

Legislation Filed to Ban Surface Coal Mining Above 2,000 Feet: Again

Posted in Natural Resources, Water
Freshman State Representative  Gloria Johnson (D) Knoxville  is sponsoring the latest legislative attempt to ban surface coal mining above 2,000 feet.   The bill, entitled “The Scenic Vistas Protection Act,” is hailed by some as a means to eliminate so-called mountaintop removal in Tennessee, even though Tennessee already prohibits mountaintop removal mining within the federal definition.   The Act amends the Water … Continue Reading

Water Rights Intersect with the Commerce Clause at the U.S. Supreme Court

Posted in Water
The U.S. Supreme Court granted certiorari on a case addressing the relationship between interstate water agreements or “compacts” and the Commerce Clause. The factual dispute in Tarrant Regional Water District v. Herrmann is between Texas and Oklahoma. The specific question is whether the Red River Compact—an interstate agreement between Texas, Oklahoma, Arkansas, and Louisiana that … Continue Reading

Significant Storm Water Decision

Posted in EPA, Water
Today, a district court in Virginia issued an opinion in Virginia Department of Transportation v. U.S. Environmental Protection Agency. The case holds that U.S. EPA lacked the authority to approve a total maximum daily load for Accotink Creek in Fairfax County with flow based limits on storm water. The creek was listed as impaired from sediments.  The … Continue Reading

Triennial Review Rules Removed from Tomorrow’s Agenda

Posted in Water
TDEC has removed from the agenda of tomorrow’s meeting of the Board of Water Quality, Oil and Gas consideration of the Water Quality Standard rules (the so-called Triennial Review Rules). The updated agenda still includes adoption of the revised biosolids rule. We will update the blog to notify you when future meetings are set with TDEC to discuss the … Continue Reading

Sustainable Communities Require Emergency Preparedness

Posted in Climate Change and Greenhouse Gases, Green Infrastructure, Sustainability, Sustainability Policy, Transportation, Water
Dramatic images from Hurricane Sandy remind us of the devastation of Hurricane Katrina in 2005. Photographs of a darkened lower Manhattan prove that even the mightiest of cities is just a storm away from paralysis.  Typhoons, tornados, earthquakes, droughts, and floods change lives in instants all across North America and the world. Our ability to … Continue Reading

What Do You Do With an Old Power Plant?

Posted in Climate Change and Greenhouse Gases, Energy, Sustainability Policy, Waste, Water
During the next few years over 600 coal-fired power generating units may shut down. The National Energy Technology Laboratory (NETL) reports the announced retirement by the year 2020 of units with a total of over 24 gigawatts capacity. The units, with average age of 54 years, are located primarily in the mid-south and southeastern United … Continue Reading

TDEC To Submit Triennial Review Rules to Board of Water Quality, Oil and Gas

Posted in Water
TDEC is prepared to submit its final verision of the Triennial Review Rules next week at the meeting of the Board for Water Quality, Oil and Gas.  The Full Version of the Rules is located here: Complete Amendments.  The Redline from the 2010 Amendments is located  here. The version with the 2011 and changes in 2012 is located here. … Continue Reading

TDEC Issues Notice of Final Proposed 2012 303(d) List

Posted in Water
TDEC recently issued its Final Proposed 2012 303(d) List.  Section 303(d) of the Clean Water Act requires states to list streams not meeting one or more water quality standards.  According to the guidance accompanying the list “If a stream is impaired, regardless of whether or not it appears on the 303(d) List, the Division cannot authorize … Continue Reading

The Government May Be Liable for Compensation After Temporary Flooding

Posted in Water
The United State Supreme Court issued a unanimous (8-0) decision today, holding that the temporary flooding of private land by the government is “not categorically exempt” from liability under the Fifth Amendment’s Takings Clause. Between 1993 and 2000, the U.S. Army Corp of Engineers released water from the Clearwater Dam in Missouri, about 115 mile … Continue Reading