Recent Posts

Giving notice before State initiates administration action combined with timely filing of complaint permits CWA citizen suit to go forward despite settlement between State and defendant, 11th Cir. holds
Posted on 15 Nov 2008 by Thomas H. Clarke, Jr.

Cherokee Mining, LLC (CML) obtained permits from the Alabama Department of Environmental Management (ADEM) to discharge pollutants into the waterways surrounding its mining operations in northern Alabama. CML was accused by Black Warrior Riverkeeper ... Read More

CWA regulation of discharges to sewers and POTWs is valid under Commerce Clause
Posted on 12 Nov 2008 by Thomas H. Clarke, Jr.

Defendants Rosenblum and Meister were the President/CEO and Plant Manager of Eco Finishing, respectively. Eco had a discharge permit from Metropolitan Council Environmental Services, which operates several POTWs in the Minneapolis/St. Paul area. Wastewater... Read More

EPA issues new rule requiring improved handling of manure by concentrated animal feeding operations
Posted on 4 Nov 2008 by Thomas H. Clarke, Jr.

In response to a 2005 ruling by the 2nd Circuit [ Waterkeeper Alliance, Inc. et al v. EPA et al , 399 F.3d 486 (2nd Cir. 2005)], EPA has now issued a new rule, developed in conjunction with USDA, requiring improved handling of manure by concentration... Read More

The Ninth Circuit reaffirms that CWA Section 401 only applies to point sources
Posted on 14 Dec 2008 by Thomas H. Clarke, Jr.

On February 23, 2006, the Forest Service issued federal term grazing permit # 01825 authorizing the Colvin Cattle Company (Colvin) to graze cattle within the boundaries of the Lower Middle Fork Allotment on the Malheur National Forest. The Forest Service... Read More

Senator Feingold (D., WI) introduces bill (with 23 co-sponsors) to overturn SWANCC and Rapanos
Posted on 3 Apr 2009 by Thomas H. Clarke, Jr.

Senator Feingold (D., WI) has reintroduced the Clean Water Restoration Act; the legislation has 23 co-sponsors; the legislation is also endorsed by the Governor, Attorney General, or lead environmental agency of well over a dozen States. The objective... Read More

Legislation introduced to bar manufacture of chlorine in chlor-alkali plants
Posted on 26 May 2009 by Thomas H. Clarke, Jr.

A prior post noted that causatic soda made in chlor-alkali plants, which use mercury cells, is the most likely cause of the mercury found in corn syrup used in various food products. Representative Schakowski (D., IL) has introduced legislation to amend... Read More

National Research Council recommends major changes to EPA's stormwater management program
Posted on 8 Nov 2008 by Thomas H. Clarke, Jr.

The National Research Council has recommended major, significant changes to EPA's stormwater management program; these changes are necessary so that there is a reasonable possibility that stormwater controls will be effective. It would be fair to... Read More

State waives 11th Amendment immunity when it is a plaintiff in a CWA enforcement action
Posted on 12 Jun 2009 by Thomas H. Clarke, Jr.

The U.S. and the State of Missouri filed a CWA enforcement action against the Metropolitan St. Louis Sewer District seeking penalties and injunctive relief to limit discharges of untreated sewage by the district. The District raised affirmative defenses... Read More

EPA to reconsider whether to regulate perchlorate in drinking water, and sets an interim health advisory standard of 15 ppb
Posted on 14 Jan 2009 by Thomas H. Clarke, Jr.

As noted in a prior post, EPA had decided earlier this year to not set a Federal MCL for perchlorate even though the chemical was allegedly detected at almost 400 sites in 35 states at levels high enough to interfere with thyroid function and pose developmental... Read More

California's Ocean Protection Council proposes some worthy goals, but suggests ineffective means to accomplish them
Posted on 28 Jan 2009 by Thomas H. Clarke, Jr.

Extensive areas of the oceans are being impacted by plastic trash and other debris. See, for example, http://www.nytimes.com/2008/06/22/magazine/22Plastics-t.html . In 2004, California adopted the Ocean Protection Act, which is Division 26.5 of the California... Read More

EPA reevaluating prior perchlorate decision
Posted on 6 Sep 2009 by Thomas H. Clarke, Jr.

Prior posts have noted the decision by the Bush Administration to not regulate perchlorate, EPA's decision in January to reconsider that decision by the Bush EPA, and the EPA Inspector General's report criticizing the Bush EPA's risk assessment... Read More

Fecal bacteria prevalent in water samples taken from California beaches
Posted on 29 Jul 2009 by Thomas H. Clarke, Jr.

Prior posts have noted that sewer systems leak, often a lot; in my practice I have seen sewer systems that appear to loose as much as 1/3 (no kidding) of the sewage before it reaches the POTW. Prior posts have also questioned the accuracy of EPA's... Read More

Gulf of Mexico dead zone is smaller, but thicker, NOAA reports
Posted on 2 Sep 2009 by Thomas H. Clarke, Jr.

Prior posts have noted the size and causes of the Gulf of Mexico Dead Zone, and the target for reducing the zone set for 2015. A July 27 report by NOAA notes that the Gulf of Mexico dead zone has changed its shape. Over the past decade the dead zone... Read More

Eighth Circuit follows the First Circuit and finds CWA jurisdiction if either the plurality opinion or the opinion of Justice Kennedy applies to the site in question
Posted on 20 Aug 2009 by Thomas H. Clarke, Jr.

As noted in prior posts, the divided opinion of Rapanos decision of the U.S. Supreme Court re what are waters of the U.S. sometimes causes difficulties. Most Courts of Appeals are following the views of Justice Kennedy, and one case noted previously found... Read More

New USGS Report Finds Wells Contaminated
Posted on 3 Oct 2011 by E. Lynn Grayson

By E. Lynn Grayson, Partner, Jenner & Block According to a new study by the U.S. Geological Survey, Trace Elements and Radon in Groundwater Across the United States, 1992-2003 , about 20% of untreated water samples from public, private and monitoring... Read More