Energy & Environmental Law Blog : Energy & Environmental Lawyer & Attorney : Vorys, Sater, Seymour and Pease Law Firm : Oil, Gas & Green Technology

We have reported previously on the narrowing definition of "navigable waters" under the Clean Water Act, particularly with respect to the federal SPCC Rule (see here, for example; but see here (Rapanos decision in Sixth Circuit)).  The significance of that trend - especially on enforcement - has finally been recognized by those outside of industry and the regulators.  From the NYT today:  "[M]idlevel E.P.A. officials said that internal studies indicated that as many as 45 percent of major polluters might be either outside regulatory reach or in areas where proving jurisdiction is overwhelmingly difficult."

Will this spur on a legislative fix?  We'll keep you posted.  (Yes, pun intended.)

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On October 15, 2009, US EPA announced its intention to step up enforcement under the Clean Water Act.  The Clean Water Action Enforcement Plan announced by US EPA outlines how it will strengthen the way it addresses water pollution, with the goals of (1) targeting enforcement to the most significant pollution problems; (2) improving transparency and accountability through better public access to water quality information; and (3) strengthening state and federal enforcement performance levels and improving consistency.  US EPA’s Office of Enforcement and Compliance Assurance developed the plan at Administrator Jackson’s direction following data indicating the nation’s water quality is unacceptably low in many areas.  

More information on the Plan can be found at http://www.epa.gov/compliance/civil/cwa/cwaenfplan.html.  This plan is seen as a first step in the revamping of the compliance and enforcement program.

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On June 22, 2009, the U.S. Supreme Court, in its last environmental ruling of the term, discussed the permitting authority distinction between a Clean Water Act Section 402 (NPDES discharge) permit, a Section 306 (pollutants from certain categories of new sources) permit and a Section 404 (fill/dredge) permit.  In Coeur Alaska, Inc. v. Southeastern alaska Conservation Counsel, the issue was whether gold mining slurry that was to be discharged into a lake was properly regulated under the Army Corps' CWA Section 404 permit program or whether U.S. EPA had the obligation to regulate the slurry under its CWA Section 402 and/or 306 authority.   In finding that the Section 404 permit was proper, the Court reversed the Ninth Circuit ruling which had vacated the Army Corps Section 404 permit and found that a Section 306 permit was required.  The case has a nice discussion of the allocation of authority in the Section 404 permitting process.

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According to this article in the Register-Guard, a Florida contractor has been ordered to pay $1.5 million in penalties due to violations of the Clean Water Act while constructing a 60-mile natural gas pipeline in 2003.  It goes on to note that penalties were imposed for dirt and sediment discharges to streams and wetlands and despite little evidence of serious environmental harm.  A cautionary tale.

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