July 01, 2015

Hot clean water act topics for all practitioners

Alexandra Dapolito Dunn and Sarah Stillman

The finest workers in stone are not copper or steel tools, but the gentle touches of air and water working at their leisure with a liberal allowance of time. —Henry David Thoreau

Thoreau’s words reflect on how nature—in particular water—makes its own impact on the landscape over the course of time. It also reminds us that water is a natural substance and something that humans cannot completely control. Notwithstanding this reality, courts, regulators, legislators, and policymakers are regularly taking actions to manage the effects of water on landscapes and to advance and protect its quality through a variety of new requirements, regulations, and programs. This article outlines some key developments in the water quality arena that are shaping the landscape of this practice area today.

Waters of the U.S.

Preeminent in the minds of water lawyers is the final rule released late spring by the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) designed to better define which types of water are considered jurisdictional under the Clean Water Act (CWA), triggering section 303 water quality standards and requirements to obtain section 404 dredge and fill permits for wetlands and section 402 permits for discharges, among other requirements. The rulemaking was prompted by a series of U.S. Supreme Court cases, most notably Rapanos v. United States, 547 U.S. 715 (2006). In Rapanos, a 4–1–4 opinion attempting to determine the scope of the CWA’s coverage noted a need for “more specific regulations.” This reference was amplified by calls from stakeholders representing all sectors of the economy seeking the kind of clarity that can only be accomplished through rulemaking. Nonetheless, legal challenges to the final rule are underway and implementation guidance is needed to avoid another string of fact-specific and challenging cases.

NPDES reporting rule

As technology advances and information and data are more easily transferred in every facet of life, the CWA is no exception. This fall, the National Pollutant Discharge Elimination System (NPDES) will move into the electronic age with the finalization of the NPDES E-Reporting rule. The rule will make reporting easier for NPDES-regulated entities, streamline permit renewals, and enhance public access to pollutant monitoring results and inspection and enforcement history. Practitioners in this field should familiarize themselves with this rule, which will be implemented in phases over the course of a number of years. The NPDES E-Reporting rule might affect some new activities, as more courts are asked to find nontraditional discharge points to be “discernible, confined and discrete conveyance[s]” discharging pollutants. A recent Hawaii case, Hawaii Wildlife Fund v. County of Maui, No. 12-00198, 2015 WL 16720 (D. Haw. Jan. 23, 2015), explored whether undersea formations constitute point sources, while the plaintiff in an ongoing Washington case alleges that train cars transporting coal are point sources given their possible release of coal dust into waterways. Sierra Club v. BSNF Railway Co., No. 13-cv-00272, 2014 WL 53309 (E.D. Wash. Jan. 2, 2014). Savvy practitioners should be on the lookout for similar cases in the future.

Fracking and oil/gas extraction

As the water-energy nexus continues to be front and center, CWA practitioners should watch for EPA’s release of a study of the impacts of hydraulic fracturing on drinking water sources, as well as EPA’s finalization of an effluent limitation guideline that would prevent the discharge of pollutants in wastewater from onshore oil and natural gas extraction facilities to publicly owned treatment works (POTWs).

Water infrastructure

Speaking of POTWs, water infrastructure is another topical area. Title V of the 2014 Water Resources and Reform Development Act added the Water Infrastructure Finance and Innovation Act (WIFIA) to the CWA. WIFIA establishes a new federal loan authority at EPA for drinking water, wastewater, and water resources infrastructure projects. A five-year pilot, WIFIA will leverage federal funds to promote increased development of large-scale clean water, drinking water, and Corps projects, with a right of first refusal for the Clean Water and Drinking Water State Revolving Fund (SRF) programs. To date, Congress has not made appropriations for WIFIA loans, but EPA is staffing the program at headquarters. Beginning in October, WIFIA requires municipalities taking SRF loans to certify that their projects are sustainable—and they can now receive loans with up to 30-year terms. In a related development, EPA recently established a Water Infrastructure and Resiliency Finance Center as a resource for communities, municipal utilities, and private entities as they address water infrastructure needs with limited budgets. Of course, integrated planning—a new approach to municipalities spreading out and prioritizing their investments in water infrastructure over time—remains a vital new tool in a CWA practitioner’s toolbox.

Numeric nutrient criteria

Reducing nutrient pollution remains one of the most pressing water pollution control issues facing our nation today. Practitioners are awaiting a final decision of the U.S. District Court for the Eastern District of Louisiana in Gulf Restoration Network v. McCarthy, No. 12–677 (E.D. La.), on remand from the U.S. Court of Appeals for the Fifth Circuit (No. 13-31214, 5th Cir.), involving the Mississippi River Basin and a battle over whether EPA or states should be leading nutrient control efforts, as well as for the U.S. Court of Appeals for the Third Circuit’s final decision in American Farm Bureau Federation v. McCarthy, No. 13-4079 (3d Cir.). At issue in American Farm Bureau Federation is whether EPA’s Chesapeake Bay Total Maximum Daily Load (TMDL) goes too far and usurps state authority. Last summer’s nutrient-related harmful algal bloom outbreak in Toledo, Ohio, also put EPA on course to release new guidance this summer to give dischargers, regulators, and the public important information on this public health risk and various response options.


Of course, much nutrient pollution comes from runoff—and thus practitioners should be following stormwater developments at the city, state, and national levels. EPA recently decided not to propose a postconstruction stormwater rule. At the same time, cities are stepping up to the plate with programs and regulations designed to reduce the extent of impervious surfaces and improve water quality. For example, the District of Columbia Department of the Environment recently approved its first trade of stormwater retention credits while the Philadelphia Water Department is changing its rate structure for stormwater fees by charging nonresidential properties based on the ratio of impervious surface area to gross property area. As some localities are making progress, nongovernmental organizations are seeking to have EPA exercise its CWA residual designation authority to find that currently nonpermitted stormwater discharges from commercial, industrial, and institutional facilities require permits. Practitioners should note this historically little utilized CWA provision at 402(p)(2)(E)—and expect to see instances of its application increase.

These issues are just a sample of what can keep a CWA lawyer busy. To stay up to date, be sure to join the Section’s Water Quality and Wetlands Committee and participate in water-related teleconferences and webinars throughout the year. Also plan to attend an upcoming Section conference where you are assured to find a panel of experts offering a deep dive into one of these—and many other—hot CWA topics.

Alexandra Dapolito Dunn and Sarah Stillman

Alexandra Dapolito Dunn is the executive director and general counsel of the Environmental Council of the States. Ms. Dunn is also an adjunct associate professor of law at the American University Washington College of Law. She is a past chair of the ABA Section of Environment, Energy, and Resources and currently chairs the Section’s World Justice Task Force. Sarah Stillman is a law clerk at the Environmental Council of the States, a member of the New York State Bar, and a Section member also serving on the World Justice Task Force.