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April 24, 2014

Courts in Two Recent Decisions Refuse to Expand the Regulatory Authority of the EPA Under the Clean Water Act

Two recent cases have signaled that federal courts remain willing to resist efforts by EPA to expand the scope of its regulatory authority under the Clean Water Act. In yesterday’s unanimous five-page opinion authored by Justice Ginsburg, Los Angeles County Flood Control District v. Natural Resources Defense Council, the U.S. Supreme Court reversed and remanded the decision of the Ninth Circuit Court of Appeals, holding that ” the flow of water from an improved portion of a navigable waterway into an unimproved portion of that same waterway does not qualify as a ‘discharge of a pollutant’ under the CWA. “ In doing so, the Supreme Court reaffirmed South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 109 – 112 (holding that the transfer of polluted water between “two parts of the same water body” does not constitute a discharge of pollutants under the Clean Water Act).

On January 3, 2013, the district judge for the Eastern District of Virginia in Virginia Department of Transportation v. U.S. Environmental Protection Agency, No.1: 12-CV-775 (E.D.Va. 2013), when confronted with another aspect of agency jurisdiction under the Clean Water Act, held that the U.S. Environmental Protection Agency lacks authority to regulate stormwater runoff through the establishment of flow-rate based Total Maximum Daily Loads (TDML) . The judge concluded that Congress has spoken and the statutory language of 33 U.S.C. Section 1313 (d) (1) (C) is unambiguous; EPA’s authority does not extend to establishing TMDL’s for nonpollutants (stormwater flow rates) as surrogates for pollutants (e.g., sediment). In granting the plaintiffs’ motion for judgment on the pleadings, the district court rejected the EPA’s attempted regulation of stormwater flow as a surrogate for sediment load as an impermissibly broad construction of 33 U.S.C. Section 1313, notwithstanding the deference due the agency under the two-step analysis set forth in Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984). The challenged TMDL is the fourth flow rate-based TMDL that EPA has attempted impose, all of which have been challenged. It is unclear whether EPA will appeal the ruling. Stay tuned here.

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About the Author

Kerri L. Barsh, Environmental Compliance Attorney, Greenberg Traurig, Law firm
Co-Chair, National Environmental and Land Development Practice

Kerri L. Barsh practices environmental compliance including permitting, enforcement and litigation, and land use law.  Kerri has represented public and private clients on environmental issues including mold, hazardous waste regulatory and liability matters; wetlands and coastal permitting; air quality permitting; petroleum product contamination; and other compliance and enforcement matters.

305-579-0772

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