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Five New CWA Cases

January 1, 2020


I’m back from the Holidays and there is much CWA news to report out. First, the EPA’s Science Advisory Board (SAB) released a draft analysis of the proposed new WOTUS rule, concluding that it would not further the CWA’s goal of restoring and maintaining the chemical, physical and biological integrity of the Nation’s waters. The administration will likely ignored it. The draft report is available on the EPA website: https://yosemite.epa.gov/sab/sabproduct.nsf/ea5d9a9b55cc319285256cbd005a472e/5939af1252ddadfb852584e10053d472!OpenDocument


There are five new CWA decisions out from the courts and two new CWA articles. The TMDL constructive submission case out of the 9th Cir. will be interesting to watch to see if EPA appeals. The EPA may see this an opportunity to have the newly conservative SCOTUS trim the constructive submission doctrine. The facts, however, are not good ones for an appeal (EPA proposed in 2003 to promulgate a TMDL, and never followed through).


Columbia Riverkeeper v. EPA, ___ F.3d ___, 2019 WL 6974376 (9th Cir. 2019) (affirming lower court grant of summary judgment, held that a constructive submission occurred when EPA failed to promulgate temperature for the Columbia and Snake Rivers when Oregon and Washington failed to act in the face of water quality data showing that the rivers were not meeting temperature standards for salmonids; “a constructive submission will be found where a state has ‘fail[ed] over a long period of time to submit a TMDL . . . and clearly and unambiguously decided not to submit any TMDLs.”; rejected EPA’s argument that constructive submission occurs under §1313(d)(2) only where a state has exhibited a wholesale failure to submit any TMDLs)


Cooper v. Toledoa Area Sanitary Dist., 2019 WL 6876610 (6th Cir. 2019) (unpublished) (reversing district court, held that plaintiff’s 60-day notice alleging violations of the pesticide general permit sufficiently set out the violations to comply with 40 C.F.R. § 135.3(a); plaintiff need not set out each individual day of violation when it alleges that the permit holder was in violation each day it operated under the permit)


Washington Cattlemen’s Assoc. v. EPA, 2019 WL 7290590 (W.D. Wash. 2019) (denying plaintiff’s motion for a preliminary injunction to enjoin the 2015 WOTUS rule; held that the case was moot because the repeal rule went into effect on December 23, 2019, and the 2015 rule was no longer in effect, and plaintiffs had not demonstrated that there is a reasonable expectation that EPA would promulgate a new WOTUS rule similar to the 2015 rule)


Midshore Riverkeeper Conservancy v. Franzoni, 2019 WL 6895597 (D. Md. 2019) (on motion to dismiss in case alleging discharges of lead to WOTUS from a shooting range, held that plaintiff’s 60-day notice adequately described the shooting range as a point source, and minor variances between the notice letter and the complaint are not material; the notice letter need not describe which water quality standard is being violated; the complaint plausibly alleges the existence of pollutants in the lead shot deposited to the ground that enters the river through runoff; shooting range stations can be point sources; plaintiff is allowed to take discovery to sample runoff water from site; plaintiff did not allege discharges to WOTUS via groundwater sufficient to withstand the motion to dismiss; the Wye River is a navigable water; plaintiff properly alleged ongoing discharges where the shooting range continues to operate)


Upper Missouri Waterkeeper v. EPA, 2019 WL 7020145 (D. Mt. 2019) (denying motion for reconsideration, held that water quality standard variance for nutrients approved for Montana wrongly did not require compliance with the “highest attainable condition” during the variance, and EPA’s interpretation of 40 C.F.R. § 131.3(o) would allow the variance to continue forever without ever achieving the designated uses of the water body; the CWA does not allow for indefinite variances from water quality standards)

Susan L. Stephens, State water quality certification: What’s all the fuss about? ABA Trends (Jan/Feb 2020)

Susan L. Stephens, State water quality certification: What’s all the fuss about? ABA Trends (Jan/Feb 2020)


Thomas Cmar, Fifth Circuit reprimands EPA for perpetuating outdated effluent limitation guidelines ABA Trends (Jan/Feb 2020)

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