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The Year in Review

Environment, Energy, and Resources Law: The Year in Review 2022

Water Quality and Wetlands Committee Report


  • The Water Quality and Wetlands Committee Report for YIR 2022.
  • Summarizes significant legal developments in 2022 in the area of water quality and wetlands.
Water Quality and Wetlands Committee Report
onuma Inthapong via Getty Images

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Judicial Developments

A. CWA Sections 304 and 306 – Criteria, Guidelines, and Performance Standards

In In re Ocean Era, Inc, the EPA Environmental Appeals Board (EAB) remanded an NPDES permit to EPA to clearly state whether EPA “determined the permitted discharge will not cause unreasonable degradation of the marine environment.” EPA Region 4 issued an NPDES permit to Ocean Era, Inc. authorizing the company to discharge from a pilot-scale offshore marine aquaculture facility off the coast of Sarasota, Florida. In issuing the NPDES permit, EPA determined that it was not subject to NEPA because (1) CWA permits are exempt from NEPA except for “new sources” (i.e. facilities subject to applicable effluent limitation guidelines that were built after promulgation of the guideline), and (2) this facility did not constitute a new source because facilities producing less than 100,000 pounds of aquatic animal annually (as with this facility) are not subject to the effluent standards for concentrated aquatic animal production facilities. A consortium of environmental groups petitioned the EAB to review the permit.

With respect to the CWA-related claims, EAB found that petitioners failed to meet their burden of showing EPA clearly erred in considering “(1) the threat to human health where [EPA] considered the project’s potential contribution to harmful algal blooms and concluded [] the discharge of nutrients from the proposed facility would not pose an environmental threat;” (2) the potential impact from discharged antibiotics where EPA concluded antibiotics were unlikely to be used and, if they were used, would be too low in concentration to have an impact; (3) the potential impacts from pathogens and parasites “where the Region considered the impacts and concluded that the permit conditions in place would eliminate the low risk of harm; (4) the possibility of fish escapes as a potential discharge from the permitted facility; and (5) whether copper cages would create an issue for ocean water or marine life where the Region concluded that copper was not expected to occur in measurable levels in the facility’s effluent .” EAB did, however, note that EPA stated in one sentence that the permitted discharge will not cause unreasonable degradation and stated in another that unreasonable degradation is “not likely” to occur, and therefore remanded the permit to EPA to formally clarify its determination. The case is currently on appeal to the Second Circuit Court of Appeals.


In re City of Keene, the EAB affirmed a pH effluent limit and aluminum effluent limit, as well as the denial of the City of Keene’s request for special condition for aluminum and request for special condition for copper. The City owns and operates the Keene Wastewater Treatment Plant (WWTP), which is designed to treat up to six million gallons of wastewater per day and discharged into a segment of the Ashuelot River. New Hampshire updated its water quality standards in 2016, and EPA approved the revised standards on January 29, 2021. New Hampshire found the segment of the Ashuelot River into which the Keene WWTP discharged to be “marginally impaired” for pH, and that there was insufficient information to determine whether it was impaired for copper. EPA relied on the State’s impairment listing in establishing the pH discharge limit for the Keene WWTP in the 2020 draft NPDES permit, and set the aluminum and copper limits in the permit on the basis of the Agency’s determination that a reasonable potential exists that discharge from the WWTP would cause or contribute to an exceedance of aluminum and copper water quality criteria. In September 2021, EPA issued a final permit that retained the pH effluent limit and special condition language from the 2007 permit; set an average monthly effluent limit of 109 micrograms/L of aluminum and retained the 2007 special conditions; and set a monthly average limit of 6.2 micrograms/L and daily maximum limit of 8.2 micrograms/L of copper.


The City appealed the petition on the grounds that EPA clearly erred or abused its discretion in setting the pH effluent limit at 6.0 S.U. rather than 8.0 S.U., setting the aluminum effluent limit at a monthly average of 109 micrograms/L and denying the City’s request for a special condition, and denying the City’s request for a special condition on the copper effluent limit. The EAB found that the City failed to demonstrate EPA clearly erred or abused its discretion – and specifically, that EPA had reasonably declined to commit to a future permitting outcome on the basis of a site-specific copper study that had not yet been conducted. As such, finding EPA was within its discretion to set the pH, copper, and aluminum effluent limits as they did and reject the special conditions sought by the City, the EAB affirmed the pH effluent limit and aluminum effluent limit in the 2021 permit, denial of the City’s request for special condition for aluminum, and denial of the City’s request for special condition for copper.

B. CWA Section 309 – Enforcement

In United States v. Cleveland-Cliffs Burns Harbor LLC, the U.S. EPA and a company that operates a steelmaking facility in Burns Harbor, Indiana entered into a consent decree to resolve alleged violations of the Clean Water Act and other laws for an August 2019 discharge of ammonia and cyanide-laden wastewater into the East Branch of the Little Calumet River. The discharge occurred following a failure in the facility’s blast furnace closed loop air scrubber water recycle system, which required the facility to draw in large volumes of Lake Michigan water and discharge it through the facility outfalls without being able to recycle the water, causing a fish kill in the Little Calumet River. The agreement requires the company to pay $3 million as a civil penalty and to reimburse the U.S. EPA and the State of Indiana for $47,675.37 in response costs. Under the consent decree, the company will construct and operate a new ammonia treatment system at the blast furnaces, implement a new procedure for managing and treating once-through water during emergency situations, and follow enhanced preventive maintenance, operation and sampling requirements for the facility. The agreement also resolves parallel citizen suit claims by requiring the company to transfer 127 acres of property adjacent to the Indiana National Lakeshore to a land trust for conservation and to perform background sampling on the East Branch of the Little Calumet River and Lake Michigan.

In United States v. City of Elyria, Ohio, the U.S. District Court for the Northern District of Ohio lodged a consent decree between the U.S. EPA and the Ohio Environmental Protection Agency and the city of Elyria, Ohio. The consent decree resolves allegations that Elyria’s sanitary sewers overflowed on more than 1,100 occasions since 2011, resulting in discharges of untreated sewage into the Black River, ten miles upstream from Lake Erie, and that Elyria failed to comply with a previous court order to stop these illegal discharges. Under the agreement, the city will complete a series of capital projects designed to eliminate discharges of untreated sewage from its sewer system into the Black River. Elyria is expected to spend nearly $250 million to improve its sewer system and it will also pay a civil penalty of $100,000 to the United States and pay $100,000 to Ohio’s Surface Water Improvement Fund.

C. CWA Section 401 – Water Quality Certification

On April 6, 2022, the U.S. Supreme Court stayed an order from the U.S. District Court for the Northern District of California vacating and remanding EPA’s 2020 Clean Water Act Section 401 certification rule. The 2020 certification rule limited the grounds on which states and tribes could impose conditions on, or block, projects that discharge into waters of the United States under Section 401 of the Clean Water Act. The district court’s vacatur applied nationwide. The Supreme Court’s stay means that vacatur is lifted pending further appeal on the merits. However, EPA has been developing a revised rule implementing Section 401. EPA’s proposed rule is discussed below in relation to legislative and rulemaking developments.

In Turlock Irrigation Dist. v. FERC, the U.S. Court of Appeals for the D.C. Circuit upheld the Federal Energy Regulatory Commission’s (FERC) ruling that the California State Water Resources Control Board (Water Board) did not waive its certification authority under Section 401 in connection with FERC’s licensing of the Don Pedro and La Grange hydroelectric plants in central California. The D.C. Circuit agreed with FERC that a state’s repeated denial of Section 401 certification “without prejudice” does not mean that the state has failed or refused “to act” within the meaning of the statute; therefore, the Water Board did not waive certification authority.

In California State Water Resources Control Board v. FERC, the U.S. Courts of Appeals for the Ninth Circuit overruled FERC’s finding in three cases that the Water Board had waived certification authority. In these three cases, which concerned hydroelectric project approvals and which the Ninth Circuit subsequently consolidated, FERC found that the Water Board had engaged in coordinated schemes with the project applicants (a local water agency and irrigation districts) to delay certification and avoid making a decision on the applicants’ requests for Section 401 certification. The Ninth Circuit disagreed, and held that when the Water Board coordinated with the project applicants to repeatedly withdraw then re-file their certification requests, the Water Board was merely acquiescing in the applicants’ wishes and there was no attempt to evade the deadline for acting on the request.

D. CWA Section 404 – Wetlands (including WOTUS)

In Bayou City Waterkeeper v. U.S. Army Corps of Engineers, the plaintiff challenged the Army Corps of Engineers’ (Corps) 2019 jurisdictional determination that a property contained 3.03 acres of waters of the United States (WOTUS) subject to regulation under the Clean Water Act (CWA), and asserted that an additional 8.77 acres of wetlands should have been recognized as WOTUS. The plaintiff argued that the Corps did not consider the effect of updated data on the wetlands, excluded without explanation wetlands previously identified as jurisdictional, failed to address serious concerns raised by other government agencies during a previous failed permitting process, and continued to rely on information supplied by a third party whose actions warranted scrutiny. The United States District Court for the Southern District of Texas found that the plaintiff’s argument focused on the weight the Corps gave to the evidence before it, and clarified that the court’s role was to evaluate whether the Corps considered the relevant factors and whether there had been a clear error in judgment. The court ultimately held that “the Corps applied its regulations, reviewed the relevant data, conducted its own independent investigations, and reasonably concluded that the property contained 3.03 acres of waters” subject to the CWA.

Similarly, in O’Reilly v. U.S. Army Corps of Engineers, the plaintiff challenged the Corps’ approval of two Section 404 dredge-and-fill permits “for the destruction and paving-in of a total of forty acres of forested wetlands near Covington, St. Tammany Parish, Louisiana.” The plaintiff argued the Corps “took a myopic view with respect to each permit without considering the detrimental cumulative impacts that these two additional permits would contribute to in light of all of the other permits issued in that region.” The court stated that the concise nature of the Corps’ Memorandum for Record (MOR) did not mean that the Corps did not consider the cumulative impacts of issuing the permits or render its decision arbitrary and capricious. The court determined that the Corps reviewed all evidence before it as required by the CWA, including mitigation and potential alternatives, and reasonably came to the conclusion to approve the permits.

In Red Lake Band of Chippewa Indians v. U.S. Army Corps of Engineers, plaintiffs Red Lake Band of Chippewa Indians, White Earth Band of Ojibwe, Honor the Earth, Sierra Club, and Friends of the Headwaters (collectively, the Plaintiffs) filed suit in the United States District Court for the District of Columbia, alleging that the Corps’ decision to issue permits to Enbridge Energy, LP for the replacement of sections of its Line 3 oil pipeline in Minnesota, violated the CWA for insufficient analysis of practicable alternatives that “would have less adverse impact on the aquatic ecosystem,” potential degradation of WOTUS, and impact on the public interest. The court stated that the Corps did perform an “independent assessment of the need for the project” and that “the Corps’ discussion of the practicable alternatives…was reasonable and appropriate under the circumstances.” The court further held that the Corps was not required to assess potential oil spills that may result from the project in order to sufficiently evaluate the potential degradation of WOTUS, and that the Corps appropriately weighed public interest factors based on the facts. The court accordingly granted the Corps summary judgment as to the Plaintiffs’ CWA claims.

In Lemon Bay Cove, LLC v. United States, the plaintiff, an owner of wetlands comprised of submerged land and mangroves, filed suit against the United States in the United States Court of Federal Claims, claiming that the Corps effected categorical and regulatory takings by denying the plaintiff a Section 404 permit to fill 2.08 acres of WOTUS in order to build a 12-unit residential development. The court held that the Corps’ denial of the permit did not constitute a categorical taking or regulatory taking because it did not deprive the property of all economic value; the plaintiff did not have reasonable investment-backed expectations in its land because it knew the permit was a requirement when it purchased the property; the denial of the permit did not impose a burden so substantial and unforeseeable that it was required to be borne by the public; and the plaintiff did not establish financial loss from the denial of the permit.

In Center for Biological Diversity v. Regan, plaintiffs were several environmental organizations that brought action against the EPA Administrator in the United States District Court for the District of Columbia, alleging that the EPA’s decision to grant permitting authority to Florida under Section 404 violated the CWA, Administrative Procedure Act (APA), Endangered Species Act (ESA), and Rivers and Harbors Act. Specifically, the plaintiffs argued that the grant of authority should be nullified because the EPA did not publish its decision within thirty days of its effective date, characterized its decision as an adjudication rather than rulemaking, and failed to codify Florida’s Section 404 program. The defendant challenged the plaintiffs’ standing to assert the claims. The court held that plaintiffs demonstrated injury sufficient to establish standing, and that the EPA’s failure to codify its decision to grant permitting authority to Florida did not render its decision a nullity because EPA had published its grant of permitting authority (i.e. a rulemaking) in the Federal Register.

In Town of Ogden Dunes v. United States Department of Interior, the plaintiff, a town that sits at the south shore of Lake Michigan, filed suit challenging the defendants’ authority to regulate the enforcement of a shoreline protection system that plaintiff had requested a permit to build, alleged that the defendants’ failure to make a decision on the plaintiff’s permit application was arbitrary and capricious, and asked the Court to require the Corps to make a decision on the application. The defendants moved to dismiss the plaintiff’s claims. The United States District Court for the Northern District of Indiana held that, because the defendant had not yet made a decision on the permit, it could not have acted arbitrarily and capriciously. However, the court held that the decision to issue a permit is a discrete agency action under Norton v. S. Utah Wilderness All., that the Corps had a duty to process a completed permit application, that the plaintiff presented sufficient facts to claim that the Corps’ decision was “unreasonably delayed,” and, ultimately, dismissed the defendants’ motion to dismiss, because whether the plaintiff submitted a complete application to the Corps was a disputed factual issue.

E. Section 505 – Citizen Suits

The defendants in Winyah Rivers Alliance v. Active Energy Renewable Power LLC challenged plaintiff’s associational standing through a motion to dismiss. Winyah, an environmental nonprofit, filed the lawsuit against several energy companies alleging violations of the Clean Water Act, seeking both an injunction and civil penalties. The court found affidavits of Winyah’s members sufficient to support a finding of injury-in-fact where they described how discharges of pollutants negatively affected their aesthetic, recreational and economic value, specifying the negative impact on the ability to catch fish. Next, the court ruled that both injury-in-fact and traceability elements were met based on defendants alleged failure to timely file their NPDES renewal application. The court explained that Winyah’s members were harmed by not having access to that publicly available information connected to the renewal and subsequent review process. The informational injury, that is an inability to make decisions about whether to use the water to swim and fish, demonstrated traceability. The allegations were particularized in that plaintiffs described specific parts of the rivers that they were concerned about. The court raised the issue of causation in the context of whether Winyah could clearly satisfy the traceability element. Essentially, the jurisdictional facts were clearly tied to those central to the merits, and the court advised its role was to resolve factual disputes only after discovery, but that jurisdictional allegations were sufficient to demonstrate standing. The court denied the motion to dismiss.
The plaintiffs in Central Sierra Environmental Resource Center v. Stanislaus National Forest challenged the state of California’s permission for livestock grazing as violations of the Clean Water Act. The primary allegation was for the failure to comply with several water quality control standards of California’s Porter-Cologne Act. The state permitted grazing of livestock in certain areas of the Stanislaus National Forest in the Sierra Nevada Mountains that have a long history of livestock grazing and overgrazing going back to the 1890s. Plaintiffs alleged that the livestock polluted streams in the area, impairing their members’ ability to recreate in certain areas of the forest, and sought an injunction. The district court ruled in favor of the state and plaintiffs appealed to the Ninth Circuit. The court acknowledged that it is the independent duty of federal courts to assure that Article III standing exists at each stage of the litigation, whether challenged by a party or not. Here, neither party challenged standing. The Ninth Circuit found two elements of associational standing to be plainly established, as the interests of identifying threats to the Sierra Nevada was germane to the purpose of their group, and injunctive relief would not require participation of individual members. The element the court examined more thoroughly was whether the members would have standing in their own right. Here, at the summary judgment stage of the litigation, plaintiffs presented declarations from their members that they regularly hiked in the areas and the impacts of the livestock grazing impacted their enjoyment of the area, including creeks and streams. The court found this a sufficient showing that the adverse impacts were attributable, at least in part, to the grazing, and the injuries could be redressed by its reduction or elimination.

The San Francisco Baykeeper v. City of Sunnyvale case addressed a citizen suit filed by a non-profit organization against two municipalities for alleged discharge of bacteria to several creeks in violation of the NPDES receiving water limitations. The parties filed cross-motions for summary judgment, both plaintiff and defendant raised the issue of standing in their respective motions. Injury-in-fact was established through declarations of three of plaintiff’s members describing that their use and enjoyment of the creeks was diminished by the knowledge that the waters were unhealthy and polluted due to stormwater being directly discharged into those receiving waters. Some members attested that they could see discoloration and smell odors that prevented them from enjoying recreational activities. Defendants argued that several members who didn’t see or smell bacteria could not have suffered an injury—the court disagreed, explaining that injury-in-fact can occur without the need to confirm whether pollution is seen or smelled. In addition, it is not required that a plaintiff altogether avoid use of an impacted water in order to establish standing. It is sufficient to allege that they are less able to use the affected area.

Also at issue in this case was redressability. Defendant argued that an injunction would not control the bacteria levels in the impacted water bodies because there were other sources of pollution. The court explained that the Clean Water Act does not demand all discharges be remedied, but that specific discharges from a specific defendant be eliminated to satisfy the redressability requirement. Defendant also challenged the injunction on the basis that they had a proposed remedial plan, approved by the Regional Board, and that it was in the process of being implemented. The court again disagreed, citing the Clean Water Act’s explicit language allowing citizen suits to bring enforcement actions against those in violation of federal pollution control requirements. The court granted plaintiff’s partial motion for summary judgment.

In California Sportfishing Protection Alliance v. Allison, the parties were before the court on a motion for partial summary judgment related to alleged violations of the Clean Water Act by California’s state prison system. Through a consolidation, the plaintiffs are California Sportfishing Protection Alliance (CSPA), an environmental group, and Amador County, and defendant is the California Department of Corrections and Rehabilitation (CDCR). CDCR owns and operates Mule Creek State Prison, which in turn operates a stormwater collection system (MS4) to channel away stormwater. The issue in this case was whether CSPA’s members would have standing to sue on their own. Declarations by several of CSPA’s members state that they do or did use waterways near or downstream from Mule Creek, and that their enjoyment of the creek had been impacted by concerns of contaminated and hazardous discharges from the prison. The court notes that the declarations do not describe when those members became aware of the alleged pollution, which is necessary in order to establish they were aware of their injury at the time the action was filed. However, at least one of those CSPA members filed a supplemental declaration that clarified that he was aware of and concerned about water quality before the initiation of the action. The court found that taken together, the original and supplemental declaration were adequate to find organizational standing, as all of the other elements had been satisfied.

West Virginia Highlands Conservancy v. Brooks Run Mining Company, LLC dealt with the citizen plaintiff’s requirement to allege ongoing violations that a polluter will continue to pollute in the future, and also the limitation on bringing a citizen suit when an administrative enforcement action is already in progress. In this case, plaintiffs gave notice of their intent to sue to the West Virginia Department of Environmental Protection (WVDEP) on June 4, 2019, and the citizen suit for violations of the Clean Water Act was filed on August 20, 2019. On July 11, 2019, the WVDEP issued an administrative order addressing prior violations that occurred in 2017, ultimately leading to a Consent Order assessing penalties on January 13, 2021. The court was faced with answering the question of what constitutes an administrative enforcement action. Defendant argued administrative enforcement had commenced prior to filing the citizen suit. The Fourth Circuit had not considered such a case, and examined decisions from at least five other circuits. Plaintiffs argued in the alternative and that under the exception listed, related to timing of a citizen suit seeking penalties, a case is not barred if notice is given or filed within 120 days before administrative penalty action is commenced. The court did not answer the more nuanced question of when an administrative penalty action commences, as it ruled that plaintiffs action fell within the exception.

The other jurisdictional hurdle the court addressed was ongoing violations. Citing to United States Supreme Court precedent, the court explained that the plaintiff must show there is a reasonable likelihood that a polluter will continue to pollute in the future to when alleging either continuous or intermittent violations of the Clean Water Act. To do so, a plaintiff can offer proof that violations continue after the complaint is filed or, may offer evidence that a reasonable trier of fact could find continuing likelihood of violations. Noting that violations do not cease to be ongoing unless and until the violation has been completely eradicated when the citizen-suit plaintiff files the complaint. Here plaintiffs met the burden by showing pollutant exceedances from defendant’s facility after the suit was filed.

Plaintiffs, environmental organizations, appealed a district court ruling in Naturaland Trust v. Dakota Finance LLC. The issue was the scope of the provision in the Clean Water Act which limits citizen suits from being filed when a state has commenced and is diligently prosecuting an action under a state law that is comparable to the Clean Water Act’s enforcement scheme for assessing penalties. The court noted that the bar set forth in the Clean Water Act is different than the judicial proceeding bar and whether that is actually properly a jurisdictional issue. In this case, the state of South Carolina’s Department of Health and Environmental Control (DHEC) sent notice of an alleged Clean Water Act violation in August of 2019 to defendant. The question was whether, absent more action, the notice of an alleged violation for failure to obtain the required permit was sufficient to bar a citizen suit. At least twenty acres of the property at issue was cleared, intended to operate as a working farm, and bordered by three bodies of water. The clearing substantially altered the landscape, which typically requires permits, but defendant claimed they fell under an agricultural exemption to the Clean Water Act. Significant discharges of sediment-laden stormwater caused widespread erosion among other problems. DHEC’s inspection found violations of NPDES, and DHEC sent a Notice of Alleged Violation, notifying defendant of informal enforcement conference. In November, plaintiffs sent their 60-day notice of intent to sue, and once that period elapsed, filed suit in federal court, requesting an injunction and civil penalties under federal and state law. One month after that lawsuit was filed, defendant and DHEC entered into a consent order, imposing civil penalties and injunctive relief.

The district court dismissed the federal claims, concluding that it lacked subject matter jurisdiction over plaintiffs’ claims because the state had commenced and was diligently prosecuting an action for the same violations. In addressing the bar to prosecution, the court confirmed that it is an exception to the jurisdiction granted in the Clean Water Act. However, the court then referenced the United States Supreme Court’s emphasis on the fact that the term “jurisdiction” is a word of too many meanings and the threshold question is whether Congress clearly wanted a rule to be jurisdictional or impact a court’s adjudicatory capacity. Here, the appellate court ruled that the diligent prosecution bar is not clearly jurisdictional; it merely prohibits certain violations from being subject to an action for civil penalties. The diligent prosecution bar does not implicate Article III subject matter jurisdiction.

The court next moved to the issue of whether DHEC’s notice trigged the diligent prosecution bar. The bar applies specifically to an action under state law that is comparable to a federal administrative enforcement proceeding, but the court noted that the term “action” implies an adversarial proceeding initiated by a formal, public document and provides for certain rights of interested parties, and certain notice and hearing procedures. So here, notice by the state agency of an alleged violation merely invited defendant to an informal, voluntary, private conference without mention of penalties or consequences from failure to comply.

Separately the district court also ruled that the plaintiffs’ 60-day notice letter was invalid as to one of the plaintiffs due to improper self-identification as “Trout Unlimited” instead of “South Carolina Trout Unlimited.” The court of appeal also disagreed, explaining that the organization referenced that it had offices in South Carolina, which gave the defendant sufficient information, as required by the Clean Water Act. The court “cautioned against ‘overly technical applications of regulatory notice requirements.’” One judge filed a lengthy dissent, arguing that the decision elevates citizen suits above their role to supplement governmental action, and would have affirmed the district court’s decision based on the fact that the Clean Water Act “bars the claim for monetary penalties in the citizen suit.” The Court of Appeals reversed and remanded.

In Conservation Law Foundation, Inc. v. Gulf Oil Limited Partnership, plaintiff is a non-profit organization with more than 5,000 members seeking to promote the conservation and protection of New England’s environment, some of whom regularly use the waters near the defendant’s bulk petroleum storage facility. Plaintiff alleged that defendant failed to prepare their facility for risks of pollutant discharges associated with climate change, which has resulted in harms to plaintiff’s members. Defendant filed a motion to dismiss for lack of standing, which the court granted. At first blush and based on the dismissal, the court did not seem receptive to the claims. However, the case provided a history of related cases alleging injury from climate change, ultimately providing plaintiff with a path forward and the ability to file an amended complaint. The court’s discussion focuses on the injury-in-fact element of standing, and the court’s opinion ultimately shows the importance of the temporal element in climate change cases. The court notes that its holding is supported by decisions not just from the United States Supreme Court but also other district courts, noting there have been cases allowing plaintiffs’ claims related to near-term risks of pollutant discharges to proceed while ruling there was no standing for claims that occur in decades, or even the next several years.

In this case, plaintiff alleged the risk of the terminal discharging pollutants into the surface waters is not theoretical because the terminal itself was impacted by Superstorm Sandy in 2012. Plaintiff relied on the impacts of climate change being the threat of harms that could occur at any time, leading to a substantial risk of a discharge of pollutants. The court referred to these as merely general assertations, and a failure to articulate whether or how such impacts will lead to the discharge of pollutants. The court ruled that the increased risk of future harm can sometimes establish standing, but only if the threatened injury is certainly impending or with a substantial risk that harm will occur, acknowledging that the United States Supreme Court has accepted arguments that “harms associated with climate change are serious.” Here, plaintiff was required to show not just injury to the environment, but actual future exposure and injury to the plaintiffs themselves.

Both plaintiff and defendant in The Courtland Company, Inc. v. Union Carbide Corporation “are corporations, owning adjoining parcels of real property.” Plaintiff argued that the discharge of pollutants without a permit from defendant’s property naturally flowed onto its land, harming its property interests. The court notes the injury-in-fact element in standing can be met when a party suffers a legally protected interest, in this case, trespass, and also noted other real property interests are sufficient. Traceability was satisfied by the fact that plaintiff’s land is located directly downgradient of defendant’s drainage ditches, and plaintiff’s allegation that pollutants used at defendant’s facility were found downstream. The defendant disagreed, seemingly conflating the standing inquiry with the merits of a Clean Water Act claim.


A. Clean Water Act (CWA) Section 303 – Water Quality Standards (WQS)

The EPA proposed revisions to the WQS to clarify and prescribe how WQS must protect aquatic and aquatic-dependent resources reserved to tribes through treaties, statutes, executive orders, or other sources of Federal law, where applicable. The EPA states that, by amending EPA’s WQS regulation, “rather than addressing these rights on a case-by-case basis as state WQS are submitted for EPA review under CWA section 303(c), EPA is proposing a uniform approach for establishment of WQS where tribal reserved rights apply and clearly laying out how EPA will review such WQS.” Any comments must have been received on or before March 6, 2023.

B. CWA Section 303(d) – Impaired Waters and Total Maximum Daily Loads (TMDLs)

In September 2022, the EPA posted the 2022 - 2032 Vision for the Clean Water Act Section 303(d) Program (“2022 Vision”). The 2022 Vision discusses a renewal of the 2013 long-term Vision and associated Goals, and introduces new “Focus Areas” for the 303(d) program. The Focus Areas include “environmental justice, climate change, tribal water quality and program development, and program capacity building.”

C. CWA Sections 304 and 306 – Criteria, Guidelines, and Performance Standards

On March 21, 2022, EPA entered a proposed settlement agreement in Diné Citizens Against Ruining the Environment, et al v. EPA that pauses litigation while a third party samples discharges from a power plant on New Mexico tribal land and EPA then potentially modifies the power plant NPDES permit’s effluent limits for heat. On January 22, 2021, Diné Citizens Against Ruining the Environment, Amigos Bravos, San Juan Citizens Alliance, and Center for Biological Diversity (Petitioners) filed suit in the U.S. Court of Appeals for the Ninth Circuit seeking review of the 2020 NPDES permit issued to the Arizona Public Service Company for discharges from the Four Corners Power Plant. Petitioners had previously sought review of the permit before the EAB arguing in part that: (1) the Morgan Lake into which the power plant discharges qualifies for an exemption “from the regulatory definition of ‘waters of the United States,’” and; (2) EPA had erred in setting the temperature effluent limits, and the EAB had denied review on September 30, 2020. The settlement, for which notice was published in Federal Register, seeks administrative closure of the case for at least fifteen months while EPA attempts to: (1) develop a sampling plan for temperature in No Name Wash and the Chaco River and potentially the San Juan River; (2) conduct temperature sampling; and (3) complete a Reasonable Potential Analysis to determine whether there is a reasonable potential for effluent discharges from the Four Corners Power Plant Outfall 001 to cause or contribute to excursion above the appropriate water quality standards for temperature (heat) in No Name Wash, the Chaco River, and, if EPA determines warranted, the San Juan River.

On April 28, 2022, EPA published a memorandum “Addressing PFAS Discharges in EPA-Issued NPDES Permits and Expectations Where EPA is the Pretreatment Control Authority.” The memo includes recommendations for POTWs to identify all industrial users that may discharge PFAS, require best management practices and pollution prevention to address these PFAS discharges, and develop local limits for PFAS, and recommends monitoring of influent, effluent, and biosolids at POTWs, with monitoring done at least quarterly. Under Best Management Practices (BMPs) for PFAS, the memo recommends that EPA-issued permits incorporate BMP conditions based on PFAS pollution prevention/source reduction opportunities, including potential product elimination or substitution when a reasonable alternative to PFAS is available in the industrial process. The memo also specifically addresses PFAS-containing firefighting foams for stormwater permits and recommends the prohibition of such foams other than for actual firefighting, the elimination of such foams altogether, and the requirement of immediately cleaning up and diverting such foam when it is used. The recommendations in the memo are consistent with commitments EPA made in the October 2021 PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024 (PFAS Strategic Roadmap).

D. CWA Section 309 – Enforcement

In November 2022, the U.S. EPA entered into consent decrees with four separate solar farm owners to resolve alleged violations of the Clean Water Act stemming from construction permit violations and stormwater mismanagement at large-scale solar generating facilities. The four locations were: (1) a site near LaFayette, Alabama, owned by AL Solar A, LLC (United States v. AL Solar A, LLC); (2) a site near American Falls, Idaho, owned by American Falls Solar, LLC (United States v. American Falls Solar, LLC); (3) a site in Perry County, Illinois, owned by Prairie State Solar, LLC (United States v. Prairie State Solar, LLC); and (4) a site in White County, Illinois, owned by Big River Solar, LLC (United States v. Big River Solar, LLC). “The states of Alabama and Illinois joined in the Alabama and Illinois settlements.” The four solar farm owners are “subsidiaries of large international finance and investment companies, and all four used a common construction contractor for the development of their solar farms.” Together, the four settlements collect a total of $1.34 million in civil penalties and require that remaining construction at two of the sites take place in compliance with Clean Water Act stormwater permits.

E. CWA Section 401 – Water Quality Certification

On June 9, 2022, EPA published for public comment its proposed Clean Water Act Section 401 Water Quality Certification Improvement Rule, which would significantly alter the 2020 certification rule and again modify the grounds on which state and tribal certifying agencies may impose conditions on, or block, projects that receive federal authorization. EPA’s proposed rule would:

  • retain the requirement for an applicant to request a prefiling meeting with the certifying agency thirty days before submitting an application;
  • impose a new requirement for the applicant to provide a draft permit and any readily available water quality data related to impacts from the proposed activity; and
  • provide the certifying agency a role in determining the “reasonable period of time” to review the request.

The proposed rule encourages states to adopt an “activity as a whole” approach that considers the impacts of the entire project rather than just the specific discharge for which the applicant requests certification. The public comment period closed on Aug. 8, 2022, and the rule was not yet finalized at the time of writing.

F. CWA Section 402 – National Pollutant Discharge Elimination System (NPDES)

In December 2022, the EPA took “direct final action to clarify its NPDES Stormwater Phase II regulations.” The changes “are limited to clarifying that the designation criteria for small municipal separate storm sewer systems (MS4s),” which is “necessary due to the Census Bureau’s recent decision to discontinue publishing the location of ‘urbanized areas’ along with the 2020 Census and future censuses.” EPA’s clarification “replaces the term ‘urbanized area’ in the Phase II regulations with the phrase ‘urban areas with a population of at least 50,000,’ which is the Census Bureau’s longstanding definition of the term urbanized areas.” This change will allow NPDES permitting authorities to continue using 2020 Census and future Census data.

G. CWA Section 404 – Wetlands (including WOTUS)

On January 20, 2021, President Biden issued Executive Order 13990, which ordered executive departments and agencies to review Federal regulations promulgated during the previous four years to ensure the regulations aligned with the best available science. On June 9, 2021, the EPA and the Department of the Army (collectively, the Agencies) announced their intention to revise the definition of “waters of the United States” (WOTUS) consistent with Executive Order 13990. On November 18, 2021, the Agencies announced the signing of a proposed rule revising such definition, and “on December 7, 2021, the proposed rule was published in the Federal Register.” The final revised rule redefining WOTUS was announced on December 30, 2022.

The final revised rule is “founded upon the pre-2015 definition of WOTUS,” providing jurisdiction over traditional navigable waters, territorial seas, and interstate waters. In determining whether certain upstream waters that significantly affect the integrity of downstream waters are subject to the WOTUS definition, the final rule provides an approach that accounts for regional and geographic differences in such waters. The final rule also “codifies eight exclusions from the WOTUS definition in the regulatory text,” which include prior converted cropland, waste treatment systems, ditches, artificially irrigated areas, artificial lakes or ponds, artificial reflecting pools or swimming pools, waterfilled depressions, and swales and erosional features.

This report was compiled and edited by Caleb Bowers of Sidley Austin, Los Angeles, California, and Paige Samblanet of Brownstein Hyatt Farber Schreck, Los Angeles, California. Contributing authors are Allison (AJ) Blair of Latham & Watkins, Costa Mesa, California; Caleb Bowers of Sidley Austin, Los Angeles, California; Courtney Lem of Latham & Watkins, Costa Mesa, California; Matthew Brewer of Sidley Austin, Washington, D.C.; Megan Meadows of The Law Offices of Jennifer Novak, Los Angeles, California; Paige Samblanet of Brownstein Hyatt Farber Schreck, Los Angeles, California; and Robert Abrams of Sidley Austin, Washington, D.C.