However, at the same time, Congress exempted some stormwater discharges from the NPDES permit program, which later expired in 1994. 33 U.S.C. § 1342(p)(1)(2). Congress further limited this exemption by carving out five categories of stormwater discharges (i.e., USEPA’s RDA), including “[a] discharge for which the Administrator or the State, as the case may be, determines that the stormwater discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.”

33 U.S.C. §§ 1311, 1362(7), (12), (14). The EPA and the Corps administer the permitting programs under 33 U.S.C. § 1342 and § 1344, respectively. The Act provides that certain of the agencies’ actions are directly and exclusively appealable to federal courts of appeal, including those “approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345” (Effluent Limitations Exception) and “issuing or denying any permit under section 1342 of this title” (Permitting Exception).

The Sixth Circuit recently ruled that facilities holding a Clean Water Act (“CWA”) Section 402 general permit – one of two types of National Pollutant Discharge Elimination System (“NPDES”) permits – may avail themselves of the CWA’s permit shield provision, 33 U.S.C. § 1342(k), which “insulates permit holders from liability for certain discharges of pollutants that the permit does not explicitly mention.” SeeSierra Club v. ICG Hazard, LLC, App. No. 13-5086, Slip Op. at 6 (6th Cir. Jan. 27, 2015).

This case was consolidated with Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center. Additional background information on this case is set forth in prior alerts.2 40 C.F.R. § 122.27(b)(1).3Id.4 33 U.S.C. § 1342(p)(2)(B). The 1987 amendments employed what is referred to as a Phase I and Phase II regulatory structure.

17Id.18Id.19Id.20Id. at 11 (citing 33 U.S.C. §1342(p)(2)(B)).21Id. at 11 (citing 33 U.S.C. §1342(p)(1)).22Id.

The agencies define "subsurface drainage system" as "an agricultural practice designed to drain subsurface water through a below ground pipe system in order to maintain the groundwater table below the root zone to facilitate crop production." Id. at 21 n.xii.2See U.S. Department of the Interior, Bureau of Reclamation, Grassland Bypass Project, available at http://www.usbr.gov/mp/grassland/ (last visited Sept. 25, 2012).3See 33 U.S.C. §§ 1342(a)(1), 1362(6), (12), (14), (19).4The CWA defines "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged."

1 The Court issued its original opinion in this case on August 17, 2010. That opinion was reported at 617 F.3d 1176. 2 33 U.S.C. § 1342(p).3 617 F.3d 1176, 1198 (9th Cir. 2010).4Id. at 1181.5See 40 C.F.R. § 122.27.6Id.7Id.

Download PDFThe Sierra Club and a number of other environmental organizations submitted to the United States Environmental Protection Agency (“EPA”) on September 26th Petition for Rulemaking (“Petition”) styled:To Establish Nationwide National Pollutant Discharge Elimination System Permit for Uncovered Railcars Transporting Coal Pursuant to 33 U.S.C. § 1342(a)The other environmental organizations joining in the Petition included:Natural Resources Defense CouncilColumbia RiverkeeperSan Francisco BaykeeperPuget Soundkeeper AllianceSpokane RiverkeeperPUBLIC JUSTICEYellowstone Bend Citizens CouncilNew Virginia MajoritySouth Baltimore Land Community TrustAppalachian VoicesSouthern Appalachian Mountain StewardsMontana Environmental Information CenterSunflower AllianceNorthern Plains Resource CouncilAPPALACHIAN MOUNTAIN ADVOCATES(Collectively, “Sierra Club”)The Petition requests pursuant to 5 U.S.C. § 553(a) that EPA engage in rulemaking to establish a nationwide Clean Water Act National Pollutant Discharge Elimination System (“NPDES”) permit regulating the discharge of coal and other coal-related pollutants to navigable waters from uncovered railcars transporting coal across the United States.Section 301 of the Clean Water Act prohibits the discharge of any pollutants to waters of the United States except in compliance with certain sections of th

extent of “adjacent wetlands,” since that term has now been defined in Sackett (e.g., a “neighboring” wetland located thousands of feet away from and that never exhibits a continuous surface flow into a stream, river, or lake). However, any activity approaching a conceivable “continuous surface connection” in some form is not free of risk — including, for example, projects that impact a wetland that “continuously” flows into a stream in the rainy season but exhibits a “temporary interruption” in a “dry spell.” Until the Agencies issue additional guidance, agency determinations, project plans and schedules, and investment decisions will likely need to take this uncertainty into account.Latham & Watkins will continue to monitor developments related to the Agencies’ implementation of Sackett and any forthcoming WOTUS rulemaking.This post was prepared with the assistance of Layla Rao in the Washington, D.C. office of Latham & Watkins.Endnotes 143 S. Ct. 1322 (2023); 33 U.S.C. §§ 1362(7), 1342, 1344. An approved jurisdictional determination is “a Corps document stating the presence or absence of waters of the United States on a parcel or a written statement and map identifying the limits of waters of the United States on a parcel.” 33 C.F.R. § 331.2.See https://www.usace.army.mil/Media/Announcements/Article/3409141/26-may-2023-supreme-court-ruling-in-sackett-v-environmental-protection-agency/; see also https://www.lrc.usace.army.mil/Missions/Regulatory/Jurisdictional-Determinations/ (“As this decision will have implications on the determination of waters covered under the CWA, the issuance of all Approved Jurisdictional Determinations is on hold until further notice. Additional information will be provided as it becomes available.”); https://www.epa.gov/wotus/about-waters-united-states (“The agencies continue to review the decision to determine next steps.”).Seehttps://www.epa.gov/sites/default/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf (2008 guida

nce at last 70 timesFailure to take the required level of enforcement action following significant noncompliance by an Industrial User at least 83 times during the past five yearsFrequent failure to escalate enforcement actions for repeated Industrial User violationsFailure to issue penalties to Industrial Users consistent with the requirement of the ERPMWRA filed a motion to dismiss the CLF complaint.Arguments put forth by MWRA in support of its motion to dismiss included:Absence of Statutory Authorization to Sue.MWRA argued that sovereign immunity bars suits against government agencies and their officials. However, Congress was noted to have waived immunity under the Clean Water Act by providing that any citizen was authorized to bring a civil action against any person:. . . who is alleged to be in violation of an effluent standard or limitation under this chapter.CLF responded that MWRA’s alleged failure to comply with its ERP/NPDES permit is a violation of 33 U.S.C. §§ 1311(a) and 1342(k). Both statutory sections are encompassed by the citizen-suit provision.MWRA’s counterargument was that the United States Congress specifically vested discretionary right of review in the EPA Administrator. A parallel right was noted to have not been granted to private citizens.Consequently, the utility argued that citizen suits seeking to enforce the provisions of an ERP were precluded. This view was challenged by CLF stating that Congress included bars to citizen suits in the Clean Water Act but these did not encompass challenges to a public owned treatment works’ (“POTW”) implementation of its ERP (among other provisions).The Court acknowledged that neither Section 1365 nor 1319(f) explicitly state that the EPA Administrator’s right to review a POTW’s ERP is exclusive. In addition, no legislative history was identified addressing this issue. Therefore, the Court utilized what it described as “external considerations.”First, the Court stated that:. . . despite decades of litigation i