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The Year in Review

Environment, Energy, and Resources Law: The Year in Review 2023

Water Quality and Wetlands Committee Report

Caleb James Bowers, Chayla Witherspoon, Hannes David Zetzsche, Matthew C Brewer, Megan Meadows, Nichole Fandino, Riley Desper, and Rob Abrams


  • The Water Quality and Wetlands Committee Report for The Year in Review 2023.
  • Summarizes significant legal developments in 2023 in the area of water quality and wetlands, including water quality standards, WOTUS, NPDES, and more.
Water Quality and Wetlands Committee Report
Bruce Heinemann via Getty Images

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I. Judicial

A. CWA Section 303 – Water Quality Standards (“WQS”)

In Northwest Environmental Advocates v. U.S. Fish & Wildlife Service, the court held that, because the Environmental Protection Agency (“EPA”) had the ability to re-open approved water quality standards (“WQS”), it retained sufficient discretionary involvement over federal action to require reinitiation of consultation with Fish and Wildlife Services (“FWS”) under the Endangered Species Act (“ESA”). EPA argued it lacked discretion because it had already approved the State of Oregon’s WQS and the WQS could only be changed through two procedures under the CWA section 303(c)(3)-(4), both of which would constitute “new agency actions…supported by a new record and new ESA section 7 consultation.” The court disagreed with this argument, finding persuasive a precedential case’s determination that a Memorandum of Agreement (“MOA”) between EPA and FWS, as well as a Policy Memo, “clearly demonstrate EPA’s ongoing ‘discretionary involvement’ in state water quality standards under the CWA—including standards it has already approved.” The court, citing the MOA, found that “EPA has ‘considerable judgment’ in approving WQS, that endangered and threatened species ‘are an important component of the aquatic environment that the CWA is designed to protect,’ and that re-opening existing [WQS] are well within the CWA.”

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

In Center for Biological Diversity v. Environmental Protection Agency, a federal judge in Arizona found that EPA’s issuance of recommended water-quality criteria (“WQC”) for cadmium under CWA section 304(a) is an “action” under ESA section 7 that requires consultation with expert agencies before publication. The Center for Biological Diversity (“CBD”) sued EPA in 2022 over four WQC EPA issued to states and tribes in 2016, one of which substantially raised the chronic freshwater criterion for cadmium. EPA argued that the cadmium WQC were nonbinding recommendations, which states and tribes could either accept, modify, or reject, and the ESA requires EPA to consult with expert agencies only when states apply to adopt or modify the recommended WQC.

The court held that EPA issuing the nonbinding WQC was an “action” under the ESA that required consultation with FWS and the National Marine Fisheries Service (“NMFS” and collectively with FWS, the “Services”) because it was affirmative, discretionary, and influential on state WQS, which may affect protected species. The court reasoned that the WQC were affirmative because they directly or indirectly caused modifications to the water and established conditions under which states had to explain any departure from such criterion. The court found that the WQC were discretionary because EPA had broad latitude in choosing when and how to update them based on its own judgment and assumptions. The court determined that the WQC were influential because they created a strong incentive for states to adopt them verbatim, as most states did, and because they signaled EPA’s future actions in cases of state noncompliance or other scenarios. The court vacated the freshwater chronic criterion, but remanded the other three WQC, which EPA had lowered, without ordering consultation. An appeal was filed with the Ninth Circuit Court of Appeals on October 20, 2023.

On August 8, 2023, in Center for Biological Diversity v. Environmental Protection Agency, a federal judge in Washington, D.C., held for the first time that EPA has an “ongoing duty” under the ESA to reinitiate consultation with the Services on its approval of state WQC in cases where new data shows potential risks to listed species or their habitat. In 1992, the State of Washington submitted its first proposed WQC for cyanide in freshwater sources, which EPA approved in 1993, along with EPA’s included promulgation of a marine chronic WQC for cyanide. EPA did not consult the Services regarding its approval of Washington’s WQC or the promulgation of the marine chronic WQC. EPA initiated consultation with the Services in 1997, when Washington submitted a revised cyanide WQC for marine waters in Puget Sound, but approved the WQC in 1998 without the Services issuing a final biological opinion. In 2007, EPA again approved Washington’s new revised cyanide WQC for marine waters in Puget Sound (changed to match the National Toxics Rule). In 2010, the Services issued a draft biological opinion that stated EPA’s approval of the latest cyanide WQC would likely jeopardize endangered species. In 2016, EPA terminated consultations with the Services without having a completed ESA section 7 consultation.

CBD sued EPA over EPA’s failure to consult with the Services before approving Washington state’s cyanide WQC in 1993, 1997, and 2007. EPA argued the statute of limitations had expired as over six years had passed since the 2007 approval. The court rejected EPA’s argument and held EPA was required to reinitiate consultation regarding its approval for the state’s WQS, taking into consideration the Services’ 2016 designation of a new critical habitat and the Services’ 2021 final rule revising the critical habitat designation.

In Cape Fear River Watch v. Environmental Protection Agency, EPA issued notice on March 1, 2023, that it had entered a proposed consent decree with the plaintiffs. The consent decree obligated EPA to sign a notice of proposed rulemaking by December 13, 2023, and sign a decision taking final action by August 31, 2025, to revise Effluent Limitation Guidelines (“ELGs”) and promulgate pretreatment standards for the Meat and Poultry Products industrial category. The consent decree was approved by the court on May 3, 2023.

C. CWA Section 309 – Enforcement

In United States v. ABF Freight System, Inc., EPA, the Louisiana Department of Environmental Quality, the state of Maryland, and the state of Nevada entered into a consent decree with ABF Freight Systems, Inc. (“ABF”), a freight carrier that operates more than 200 transportation facilities in 47 states and Puerto Rico. The consent decree resolves allegations that ABF failed to comply with certain conditions of their CWA permits (e.g., spills that had not been cleaned up; failure to implement required spill prevention measures; failure to implement measures to minimize contamination of stormwater runoff; failure to conduct monitoring of stormwater discharges as required; and failure to provide all required training to ABF’s employees) at nine of its transportation facilities. Under the consent decree, ABF will enhance and implement its comprehensive, corporate-wide stormwater compliance program at all its transportation facilities except those located in the State of Washington, and pay a civil penalty of $535,000, a portion of which will be directed to the states who joined this settlement.

In United States v. City of Holyoke, Massachusetts, the U.S. District Court for the District of Massachusetts lodged a consent decree between EPA, the Commonwealth of Massachusetts, and the City of Holyoke, Massachusetts. The consent decree resolves allegations against Holyoke for illegal discharges from Holyoke’s combined sewer overflow (“CSO”) to the Connecticut River during periods of heavy rain, when the wastewater volume can exceed the capacity of the sewer system or the treatment facility. Holyoke, in cooperation with federal and state environmental agencies, has taken steps in recent years to address the unlawful discharges, including finalizing a long-term overflow control plan, separating sewers, and eliminating certain overflows. The consent decree requires Holyoke to undertake further sewer separation work that will eliminate or reduce additional CSO discharges and pay a $50,000 penalty for past permit violations. Holyoke must also conduct sampling of its storm sewer discharges, work to remove illicit connections, and take other actions to reduce pollution from stormwater runoff. The total cost to comply with the proposed consent decree is estimated at approximately $27 million.

D. CWA Section 401 – Water Quality Certification

In Sierra Club v. West Virginia Department of Environmental Protection, the U.S. Court of Appeals for the Fourth Circuit vacated West Virginia’s section 401 certification for Mountain Valley Pipeline, LLC’s (“MVP”) natural gas pipeline construction permit. The Fourth Circuit held the Department of Environmental Protection’s conclusion that MVP’s activities would not violate West Virginia’s WQS was arbitrary and capricious. Specifically, the court found the certification insufficiently addressed MVP’s history of WQS violations, its lack of conditions requiring compliance with MVP’s general construction permit and stormwater pollution prevention plans, and its decision to forgo location-specific antidegradation review.

E. CWA Section 402 – National Pollutant Discharge Elimination System (“NPDES”)

In Idaho Conservation League v. Poe, the U.S. Court of Appeals for the Ninth Circuit held that “suction-dredge mining” constituted the “addition” of a pollutant under section 402. Suction-dredge mining uses a floating watercraft device with a pump to suck water, riverbed sands, and minerals through a nozzle. The water and riverbed material flow through a “sluice box” that sorts out gold and other heavy metals. Water, sand, and minerals are then discharged to the river, along with sediments and other pollutants. A miner had engaged in suction-dredge mining without a National Pollutant Discharge Elimination System (“NPDES”) permit for years when an environmental organization filed a citizen suit. The trial court granted summary judgment to the plaintiff, and the Ninth Circuit affirmed.

The Ninth Circuit held that the miner’s dumping of suction-dredge mining waste into the river constituted a point-source discharge for which a NPDES permit was required. In protest, the miner had claimed that a person does not illegally discharge a pollutant unless he or she adds new material from the outside world. But the court disagreed, contending the mining waste was in fact from beneath the riverbed and thus from outside the river’s world. As such, the court upheld summary judgment for the environmental organization.

In City & County of San Francisco v. U.S. Environmental Protection Agency, the U.S. Ninth Circuit Court of Appeals held that inclusion of general, narrative provisions in a NPDES permit was a permissible exercise of EPA’s authority. At issue was a NPDES permit regulating a sewer system and wastewater treatment facility for the City and County of San Francisco. In the permit, EPA stated “[d]ischarge shall not cause or contribute to a violation of any applicable water quality standard . . . .” San Francisco filed a petition for review challenging that provision, along with others, as violating the CWA and lacking a factual basis.

The Ninth Circuit, however, denied San Francisco’s petition for review. The Court instead held the EPA’s conditions were supported by sufficient evidence. For instance, the Court cited evidence in the administrative record that the facilities at issue had caused discharges in the past impairing popular recreation areas, including nearby beaches. Because of the CWA’s broad mandate to impose limitations necessary to ensure adherence to “any applicable water quality standard,” the Court also held the narrative conditions were consistent with the CWA. Thus, while a dissenting judge would have vacated the provisions in the permit, the Court upheld them over San Francisco’s challenge.

In United States v. Southern Coal Corporation, the U.S. Court of Appeals for the Fourth Circuit held that a company may not allow its NPDES permits to lapse to avoid obligations under a consent decree. The defendant, a coal company, had formed a consent decree with the U.S. Department of Justice over alleged violations of its NPDES permits. When the company then allowed its NPDES permits to lapse, it defended itself by claiming that nothing in the decree had obligated it to renew its NPDES permits. The trial court compelled compliance with the decree and ordered the company to stipulated penalties under the decree.

The Fourth Circuit affirmed. It held that even setting aside the decree’s context, its plain language imposed on the company an obligation to maintain its NPDES permits. Among other similar provisions, the decree contained a general requirement for the company to comply with “all applicable federal, state and local laws, regulations and permits.” Moreover, the court held that to the extent the company had intended “a backdoor to compliance,” that would have constituted bad faith. Over a partial dissent, the Court upheld the trial court’s compliance order and award of penalties.

F. CWA Section 404 – Wetlands, including Waters of the United States (“WOTUS”)

In Sackett v. Environmental Protection Agency, the United States Supreme Court was tasked with deciding the test for identifying whether wetlands are “waters of the United States” (“WOTUS”) under the CWA. The Sacketts’ plan to construct a house on their vacant lot was put on hold for over 16 years, as they alleged their property did not contain a protected wetland. Yet, EPA found that the plaintiff’s property did contain a WOTUS subject to regulation under the CWA. EPA classified the Sacketts’ wetlands as “waters of the United States” because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable interstate lake. To establish a significant nexus, EPA employed dual reasoning. First, EPA argued that the Sackett’s wetlands were “adjacent to” an unnamed tributary on the other side of a road, which then connected to a non-navigable creek and eventually to Priest Lake. Second, EPA grouped the Sacketts’ lot with the Kalispell Bay Fen, a nearby wetland complex it deemed “similarly situated.” Combining these two perspectives, EPA asserted that the Sacketts’ property had a substantial impact on the ecology of Priest Lake, justifying the classification as having a significant nexus and being a WOTUS. EPA’s interpretation was ultimately found to be inconsistent with the text and structure of the CWA.

In a 5-4 decision, the United States Supreme Court held that the CWA applies only to wetlands that are practically indistinguishable from waters of the United States. This practical indistinguishability is achieved when wetlands have a continuous surface connection to bodies recognized as “waters of the United States,” creating a challenge in distinguishing where the WOTUS ends and the wetland begins. To assert jurisdiction over such wetlands, two key elements must be demonstrated: (1) that the adjacent body of water qualifies as a WOTUS; and (2) that the wetland maintains a continuous surface connection with that water, making it difficult to discern the boundary between the WOTUS and the wetland. It was also acknowledged that a continuous surface connection could still be established, even if temporary interruptions in surface connection occur due to phenomena such as low tides or dry spells.

In Hillcrest Natural Area Foundation, Inc. v. Montana Department of Environmental Quality, protesters contested the Montana Department of Environmental Quality’s (“DEQ”) issuance of a solid waste management system (“SWMS”) license to a city for the prospective expansion of its regional landfill. The Supreme Court of Montana determined that the DEQ’s conditioning of the city’s permit to expand the landfill into wetlands, contingent on obtaining a CWA section 404 permit, fell within a reasonable range of action. The Court also found that DEQ thoroughly evaluated pertinent factors, ultimately concluding that the Development and Management Plan did not introduce a conflict resulting in a substantial adverse impact on the human environment; thus, negating the necessity for an Environmental Impact Statement (“EIS”). The Court ultimately deferred to DEQ’s judgment since there were no conflicts with statutory requirements and steps were taken to minimize the loss of wetlands.

In D’Andrea v. U.S. Army Corps of Engineers, the plaintiff entered into a settlement agreement with the Army Corps of Engineers (the “Corps”), which recognized the property had wetlands under the Corps’ jurisdiction. The Corps granted the plaintiff a permit that allowed 0.06 acres of fill to remain in wetlands on the property and required restoration of the remaining 2.8 acres of filled wetland. The plaintiff, after spending over $400,000 to fulfill the agreement, hired a consultant who determined that the wetlands were actually uplands. The plaintiff requested that the settlement agreement be modified, claiming that the agreement was based on a mutual mistake about the location of wetlands versus uplands. The central contentions included assertions of arbitrary and capricious final agency actions by the New Jersey Department of Environmental Protection (“NJDEP”), subject to review under the Federal Administrative Procedure Act (“APA”). However, the court clarified that the APA does not apply to state agencies, citing the statutory definition of “agency” as being limited to federal entities. The plaintiff also invoked the doctrine of pre-enforcement review based on the Sackett v. EPA decision, which the court held was also not applicable to state agencies. Ultimately, the court determined that the plaintiff lacked standing and, thus, must adhere to the specified remediation and restoration outlined in the settlement agreement. An appeal was filed with the U.S. Circuit Court of Appeals for the Third Circuit on July 13, 2023.

In O’Reilly v. All State Financial Company, the plaintiffs successfully challenged the Corps’ issuance of a section 404 permit for the Timber Branch II (“TB II”) residential development project, arguing the Corps’ Environmental Assessment (“EA”) failed to adequately consider the potential impacts of the project in violation of the CWA and the National Environmental Policy Act (“NEPA”). Notably, the EA indicated the project’s impact on wetlands was a “minor effect (long term)” and suggested compensatory mitigation. The court held that the Corps acted arbitrarily and capriciously in relying on an EA that lacked sufficient detail and explanation for its significance determinations. The court found that the Corps did not articulate a reasonable basis for its findings of no or minor effects on various environmental factors, did not independently evaluate the applicant-submitted information or respond to public comments, and did not conduct a meaningful cumulative impact analysis as required by both the CWA and NEPA.

In Healthy Gulf v. United States Army Corps of Engineers, the petitioners challenged the Corps’ decision to issue a Coastal Use Permit to Driftwood LNG and Driftwood Pipeline (“Driftwood”) for a natural gas liquefaction and export project in Louisiana. The Corps justified its decision based on rigorous scientific analysis, pointing to proposals that promised extensive marsh habitat restoration exceeding the project’s impact. The court deferred to the Corps’ evaluation of complex scientific data, finding that the Corps adequately explained its decision based on the record and upheld the Corps’ use of the Louisiana Rapid Assessment Methodology (“LRAM”). The court further dismissed concerns about dredged material impacts, citing the Corps’ detailed analysis, accountability measures, and its imposition of permit conditions to ensure driftwood would not dredge and use contaminated material.

In United States v. Andrews, the United States (“U.S.”) brought an action against a landowner for filling in 13.3 acres of 16.3 acres of jurisdictional wetlands. The court granted the U.S.’s motion for summary judgment, finding the landowner to have violated the CWA by discharging pollutants into wetlands without the necessary permit. The evidence demonstrated that the landowner engaged in activities such as clear-cutting, stumping, filling, and grading on their property, leading to the discharge of pollutants into approximately 13.3 acres of wetlands. The court’s decision highlighted the undisputed facts, including aerial images and EPA observations, indicating the plaintiff’s direct involvement in filling wetland areas with heavy machinery. This conduct ultimately resulted in the court finding violations of CWA section 308 for the filling of wetlands on the property.

In Reyes v. Dorchester County of South Carolina, the plaintiffs claimed a regulatory taking under the U.S. Constitution’s Fifth Amendment, asserting that Dorchester County’s regulation of a stormwater pond significantly diminished the value of their property. The court, engaging in a de novo analysis of the three Penn Central factors, found that plaintiffs failed to show a substantial diminution in value to their property, that they had a reasonable investment-backed expectation to alter the stormwater pond, or that the ordinance was not a valid exercise of the county’s police power to protect the public interest. Under the third Penn Central factor (i.e., the character of the governmental action), the plaintiffs contended that the Supreme Court’s decision in Sackett v. EPA stripped Dorchester County of the authority to regulate stormwater facilities on their property. The plaintiffs asserted that the lack of water on their premises or a continuous connection to “waters of the United States” limits the county’s jurisdiction. The court rejected that argument, clarifying that Sackett addresses federal agency control over wetlands and doesn’t impede local regulations. Concluding that the principles set forth in Sackett do not apply; therefore, the court deemed it unnecessary to determine whether the property qualifies as “waters of the United States.” Consequently, the court granted summary judgment in favor of the defendant, dismissing the regulatory taking claim, and emphasized the continued validity of local ordinances regulating wetlands.

G. CWA Section 505 – Citizens Suits

In Pacific Coast Federation of Fishermen’s Associations v. Conant, the parties were before the court on a motion for summary judgment. Pacific Coast Federation and other environmental groups filed a CWA citizen suit against Ernst Conant, in his capacity as the Regional Director of the Bureau of Reclamation’s California-Great Basin Region, for allegedly discharging pollutants from an agricultural drainage project to a wetland without a NPDES permit. The case also raised the question of whether the water project was required to have a NPDES permit or whether it qualified under a NPDES exception for discharges composed entirely of return flows from irrigated agriculture.

The environmental groups’ associational standing was challenged based on the redressability requirement of Article III, requiring the plaintiff to show relief is substantially likely to redress the claimed injuries and is within the court’s power to award. The project was already regulated under California Waste Discharge Requirements, and therefore, defendant argued it was not required to have a NPDES permit. If that were the case, there would be no relief available to the plaintiffs, and without redressability, the plaintiffs would not satisfy standing requirements. In addition, the project ceased all agricultural related subsurface discharges in 2019, while the plaintiffs initiated their case 8 years earlier in 2011. The court noted that when analyzing Article III standing, it must look at the facts as they existed at the time the complaint was filed. Thus, just because certain discharges had been voluntarily stopped, did not negate the plaintiffs’ claims or right to enforce the CWA. The court also ruled that the allegations made by the plaintiffs did not correlate to the prior cessation of the specific subsurface discharges. The court granted summary judgment to the plaintiffs on the issue of Article III standing. On April 24, 2023, an appeal was filed with the U.S. Court of Appeals for the Ninth Circuit.

In Conservation Law Foundation, Inc. v. Massachusetts Water Resources Authority, the court issued an order granting the defendant’s motion to dismiss. The case relates to a 37-year cleanup effort of the Boston Harbor, overseen by the federal court. The court-ordered steps included an EPA-approved Enforcement Response Plan (“ERP”) setting forth criteria by which the Massachusetts Water Resources Authority (“MWRA”) is to both investigate and respond to discharge violations by industrial users. The plaintiff, an environmental advocacy group, alleged that MWRA violated its NPDES permit by failing to take sufficient enforcement action against its industrial users, who have violated pollutant parameters and other permit conditions. The defendant argued that the plaintiff’s claim was barred by sovereign immunity, as the right of enforcement of the discharge violations in this case is discretionary and vested solely with EPA. The court found that the plaintiff did not have statutory authorization to sue under the CWA’s citizen-suit provision because EPA has the exclusive discretion to review and enforce the MWRA’s ERP under 33 U.S.C. § 1319(f). The court reasoned that allowing citizen suits to second guess EPA’s discretionary determinations of the appropriateness of an ERP enforcement action would raise public policy concerns, such as excessive litigation, inconsistent remedies, lack of expertise, and lack of accountability. The court advised that in the event EPA was in dereliction of its duty to enforce violations, that suit would be better brought by a writ of mandamus under 33 U.S.C. § 1365(a)(2), seeking to compel EPA’s Administrator to act.

In South River Watershed Alliance, Inc. v. Dekalb County, Georgia, the court considered whether a 2011 CWA consent decree and efforts to enforce it are considered a diligent prosecution bar to filing a CWA citizen suit. The diligent prosecution bar prevents CWA citizen suits when EPA or a state has commenced and is diligently prosecuting an action under the CWA. South River argued that the “best efforts” to achieve full compliance with the CWA does not equate to a required compliance under the CWA, thereby leaving room for CWA citizen-suits to require full compliance. The court applied the following two-part inquiry to determine whether the diligent prosecution bar applied: first, whether the government’s civil action addressed the same CWA violations that the citizen suit sought to remedy, and second, whether the government’s prosecution was diligent. The court found that both prongs were satisfied, as the consent decree’s express goal was to achieve full compliance with the CWA and eliminate all sewage spills, and the government had been diligent in monitoring, penalizing, and modifying the consent decree to enforce its terms. The court rejected the plaintiff’s arguments that the consent decree was insufficient or lax, and deferred to the government’s discretion and strategy in enforcing the CWA.

In South Carolina Coastal Conservation League v. United States Army Corps of Engineers, the plaintiffs consisted of a number of conservation organizations bringing a civil action to contest EPA and the Corps’ approval of filling wetlands for mixed-use development in Berkeley County, South Carolina. The case discusses the overlap of CWA sections 404 and 505. The question was whether the plaintiffs could file a CWA citizen suit for the Corps’ failure to prepare an EIS and to choose the least environmentally damaging practicable alternative and for EPA’s failure to object to issuance of the 404 permit or, in the alternative, under the APA, to its exercise oversight under the CWA. The CWA citizen-suit provision permits action under the CWA only for non-discretionary agency actions that the agency is required to take (in other words, a citizen suit is not permitted for non-discretionary acts). The court determined that the Corps has a mandatory duty to regulate dredge and fill material, EPA has ultimate responsibility for the protection of wetlands, and both the Corps and EPA had a mandatory duty not just to issue permits under section 404, but also to enforce them. For that reason, the plaintiffs were authorized to bring suit against the Corps and EPA.

Similarly, in Naturaland Trust v. Dakota Finance LLC, the defendants filed a petition for writ of certiorari with the United States Supreme Court based on a divided ruling from the U.S. Court of Appeals for the Fourth Circuit. The Court was asked to decide the proper test for determining whether the diligent prosecution bar precludes CWA citizen-suits when a state has commenced and is prosecuting an action under a state law that is comparable to the Clean Water Act’s enforcement scheme for assessing penalties. The petition was denied on May 15, 2023.

II. Legislative and Rulemaking

A. CWA Section 303 – Water Quality Standards (“WQS”)

On May 5, 2023, EPA published its proposed rule to develop baseline WQS that would be applicable to over 250 Native American reservations. “The proposed baseline [WQS] would provide a common set of designated uses[,] . . . establish pollution limits to advance progress toward clean and safe water, and include antidegradation policies to protect Tribal waters from becoming more polluted.” These baseline WQS would apply until Tribes replace them with their own CWA WQS. However, exceptions to these WQS would be granted to Tribes upon request, on a case-by-case basis, and would automatically be granted to: (1) Tribes with existing EPA-approved WQS; (2) those water bodies where a state’s WQS or federal WQS already apply; and (3) off-reservation allotments or dependent Tribal communities. The comment period for the proposed rule ended on August 3, 2023.

B. CWA Section 401 – Water Quality Certification

On September 27, 2023, EPA published its final CWA Section 401 Water Quality Certification Improvement Rule, altering the 2020 Certification Rule through what EPA describes as a “return to past practices with added clarity.” In particular, the 2023 certification rule redefines the role of states, territories, and Tribes by restoring their authority over federal infrastructure projects. The rule restores the scope of review whereby certifying authorities may consider whether the “‘activity as a whole will comply with [all applicable] water quality requirements,’” but further clarifies that they should exclusively consider “adverse water quality-impacts” in their activity analysis. The final rule additionally:

  • Sets requirements to begin agency coordination before the statutory time period for certification review begins to run, by providing for pre-filing meetings where the project proponent ordinarily must request an agency meeting at least 30 days before submitting a request for certification;
  • Sets a six-month default timeline for certification review that the federal and certifying agencies can agree to extend (the one-year statutory maximum still applies);
  • Establishes a “bright-line approach” for project proponents on the content requirements of certification requests; and
  • Provides four certification decisions with recommendations for minimum information the certifying authority should include in its decision.

The final rule went into effect on November 27, 2023.

C. CWA Section 404 – Wetlands, including Waters of the United States (“WOTUS”)

On August 29, 2023, EPA and the Corps issued a final rule to amend the “Revised Definition of ‘Waters of the United States’” Rule issued January 18, 2023. The final rule, which became effective on September 8, 2023, conforms the definition of “waters of the United States” to the U.S. Supreme Court’s May 25, 2023 decision in Sackett v. EPA by addressing provisions invalidated by that ruling. Notably, the final rule removes the “significant nexus” standard established in Justice Kennedy’s concurring opinion in Rapanos v. U.S. and amends the definition of “adjacent,” specifying that wetlands will no longer be automatically considered jurisdictional “solely because they are ‘bordering, contiguous, or neighboring . . . [or] separated from other ‘waters of the United States’ by man-made dikes or barriers, natural river berms, beach dunes and the like.’” The final rule also invalidates the provision for assessing streams and wetlands under the “additional waters” provision of the former rule, consolidating their evaluation under other provisions of the final rule. Lastly, the final rule removed “interstate wetlands” from the definition “waters of the United States” because the Sackett Court clarified that the CWA’s predecessor statute exclusively defined “interstate waters” as open waters crossing state boundaries, and not wetlands. Consequently, the provision enabling wetlands to be deemed jurisdictional solely due to their interstate status is declared invalid.

III. Administrative

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

On March 29, 2023, EPA issued a 2024 Integrated Reporting memorandum (“IR Memo”) to assist states, territories, and authorized tribes in consideration and development of their 2024 Integrated Reports concerning CWA sections 303(d), 314, and 505(b). Integrated reports (“IRs”) are biennial submissions to meet requirements under sections 303(d) and 505(b); however, new considerations may arise based on EPA’s 2022-2032 Vision for the Clean Water Act Section 303(d) Program (“2022 Vision”). One of the first goals in the 2022 Vision encouraged states, territories, and tribes to submit to the EPA by April 1, 2024, a “Prioritization Framework” outlining long-term priorities that included supporting rationales and strategies. The IR Memo is intended to assist in the development and implementation of such frameworks, and to provide considerations and guidance for future IRs. Specifically, the IR Memo includes the following topics: (1) 2022-2032 CWA Section 303(d) Vision; (2) Clarification Regarding Priority Rankings and TMDL Submission Schedules; (3) Environmental Justice; (4) Participatory Science; (5) Climate Change; (6) Indian Tribes and Tribal Water Resources; (7) CWA Section 303(d) Assessment/Listing for Trash-Related Impairments; (8) CWA Section 303(d) Assessment/Listing for Nutrient-Related Impairments; and (9) Identification of Pollutants Causing or Expected to Cause an Exceedance of Applicable WQS for Waters on the CWA 303(d) List.

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

On January 12, 2023, EPA released a draft guidance, entitled Frequently Asked Questions: Implementing the 2021 Recommended Clean Water Act Section 304(a) Ambient Water Quality Criteria to Address Nutrient Pollution in Lakes and Reservoirs, for states to implement the 2021 Recommended CWA section 304(a) Ambient Water Quality Criteria to Address Nutrient Pollution in Lakes and Reservoirs. In October 2023, EPA released the final guidance (“FAQ”). EPA’s 2021 recommended criteria provided metrics for managing levels of nitrogen, total phosphorus, and chlorophyll a in lakes and reservoirs. Excessive nitrogen and phosphorus can stimulate excess growth of algae. This can impair the recreational use of lakes or reservoirs and also increase organic matter (which when decomposed) can depress dissolved oxygen concentrations harming aquatic life. Further, excessive nutrients can stimulate nuisance algae, which can produce cyanotoxins. A significant portion of EPA’s FAQ focuses on the implementation of nutrient criteria under the authority of the CWA. The FAQ is divided into four sections:

  • Section 1 provides information for states and authorized tribes that choose to adopt the 304(a) recommended nutrient criteria into state or tribal WQS;
  • Section 2 provides information for implementing the 304(a) recommended nutrient criteria through NPDES permits;
  • Section 3 provides information for implementing the 304(a) recommended nutrient criteria in monitoring and assessing ambient waters, determining whether to list waters as not attaining their WQS, and developing TMDLs for those listed waters; and
  • Section 4 provides information for implementing the 304(a) recommended nutrient criteria for drinking water source protection.

On January 20, 2023, EPA published the final Effluent Limitation Guidelines (ELGs) Program Plan 15 (“Plan 15”), which governs EPA’s ELG program over the next two years. Plan 15 updates earlier agency proposals for addressing nutrient releases from concentrated animal feeding operations (“CAFOs”) and meat processing, and notes EPA plans to impose more stringent standards on discharges from coal-fired power plants.

ELGs apply to discharges from industrial facilities to waterbodies. CWA section 304(m) requires EPA to annually review the ELGs and revise them if appropriate. Plan 15 announces that EPA plans to initiate one new rulemaking and several new studies:

  • EPA will revise the ELG and pretreatment standards for the Landfills Category (40 C.F.R. pt. 445) in light of per-and polyfluoroalkyl substances (“PFAS”) found in landfill leachate;
  • EPA will expand the study of the Textile Mills Category (40 C.F.R. pt. 410) to gather information on the use and treatment of PFAS in this industry and associated PFAS discharges;
  • EPA will initiate a publicly owned treatment works (“POTW”) Influent Study of PFAS, which will collect data on industrial discharges of PFAS to POTWs to both verify sources of PFAS wastewater and to discover new PFAS wastewater sources; and
  • EPA will undertake a detailed study of the CAFOs Category (40 C.F.R. pt. 412) to determine whether to revise the ELG for CAFOs.

EPA is not pursuing further action for the Electrical and Electronic Components (“E&EC”) Category (40 C.F.R. pt. 469) but will continue monitoring for PFAS discharge data through the POTW Influent Study. EPA will also continue to monitor PFAS use and discharges from the Pulp, Paper, and Paperboard Category (40 C.F.R. pt. 430) and airports.

Plan 15 also provides updates of four ongoing rulemakings: (1) Steam Electric Power Generating Category rulemaking to strengthen certain wastewater pollution discharge limitations for coal power plants that use steam to generate electricity; (2) Meat and Poultry Products Category rulemaking to address nutrient discharges; (3) Organic Chemicals, Plastics & Synthetic Fibers Category rulemaking to address PFAS discharges; and (4) Metal Finishing Category and Electroplating Category rulemakings to address PFAS discharges.

On April 21, 2023, EPA issued notice that it had submitted an information collection request (“ICR”) for Chromium Finishing Industry Data Collection to the Office of Management and Budget (“OMB”) for review. The ICR was narrowed from an earlier version in response to metal finishers’ comments on the original draft ICR. The purpose of the ICR is primarily to facilitate EPA determining whether new regulations are needed to control PFAS discharges from metal finishing and electroplating facilities by developing new ELGs.

C. CWA Section 402 – National Pollutant Discharge Elimination System (“NPDES”)

On November 8, 2023, EPA’s proposed 2026 Pesticide General Permit was signed by the parties in Center for Biological Diversity v. EPA. On July 25, 2023, these parties entered into a settlement agreement regarding the permit and resolving the case. The case began in October 2021, when Center for Biological Diversity filed a petition in the Ninth Circuit challenging EPA’s issuance of the 2021 Pesticide General Permit. The petition alleged inter alia that EPA had failed to comply with the CWA in issuing the permit. The parties have now proposed a settlement agreement that contains permit requirements for point source discharges of biological pesticides and chemical pesticides that leave a residue. These include mosquito and other flying insect pest control, weed and algae pest control, animal pest control, and forest canopy pest control. EPA received comments on the proposed settlement agreement through May 24, 2023. EPA received comments on the proposed 2026 Pesticide General Permit through January 12, 2024.

This report was compiled and edited by Chayla A. Witherspoon, Matthew C. Brewer, and Hannes D. Zetzsche. Contributing authors for this report were Chayla A. Witherspoon, Rob H. Abrams, Matthew C. Brewer, Caleb Bowers, Riley Desper, Hannes D. Zetzsche, Nichole Fandino, and Megan S. Meadows. This report summarizes significant developments, legislation, and decisions regarding the Clean Water Act (“CWA”) from January 2023 through December 2023; however, it does not purport to summarize all developments, legislation, and decisions.