Water Quality, Wetlands, & Clean Water Act

The State Water Resources Control Board is poised to release a final draft of the Industrial General Permit by April 2013. Public comments will be received for 45 days, and a formal workshop will be held on May 8, 2013.

For more details visit: http://www.waterboards.ca.gov/water_issues/programs/stormwater/

By Glen C. Hansen

An environmental group sued various timber companies along with the Oregon State Forester and the individual members of the Oregon Board of Forestry for violations of Clean Water Act (“CWA”) on the grounds they did not obtain permits from the U. S. Environmental Protection Agency (“EPA”) for stormwater runoff that flows from logging roads into systems of ditches, culverts, and channels, which is eventually discharged into forest streams and rivers. The Ninth Circuit Court of Appeals concluded that such runoff from logging roads is a point source discharge and thus, an NPDES permit is required. That ruling reversed a 30-year practice of exempting stormwater from forest roads from NPDES permitting (i.e., the “Silvicultural Rule”).

Continue Reading EPA Tells Supreme Court Its Actions Were “Suboptimal” — But The Oral Argument On The Challenge To EPA’s Silvicultural Rule Raises More Questions Than It Answers.

By Kate J. Hart

The California Building Industry Association (BIA) challenged several provisions of the State Water Board’s newly adopted general NPDES construction permit. While a majority of their claims were denied and most of the permit provisions were upheld, the court struck down the newly imposed numeric effluent limits set for pH and turbidity.

Continue Reading SACRAMENTO TRIAL COURT STRIKES DOWN KEY PROVISIONS OF STATE WATER BOARD’S GENERAL NPDES CONSTRUCTION PERMIT

By Glen C. Hansen

Two Federal District Court opinions in California examined the sufficiency of pre-lawsuit notices that must be given to responsible parties and relevant agencies before citizen suits are filed either under the Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq. (“60-Day Notice”), and/or under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq. (“90-Day Notice”). In one case, the District Court held that the notices of CWA and RCRA claims were sufficient and did not have to be as specific as defendants suggested; in the other case, the pre-lawsuit notices of the RCRA claims were merely “boilerplate and conclusory” and therefore insufficient.

Continue Reading Two Instructive District Court Opinions on RCRA (90-Day) and CWA (60-Day) Pre-Lawsuit Notices: One “Boilerplate” Notice Was Insufficient; the Other Was Specific Enough

By Katherine J. Hart

In Northwest Environmental Defense Center, et al. v. Marvin Brown, et al., an environmental group sued various timber companies along with the Oregon State Forester and the individual members of the Oregon Board of Forestry for violations of the Clean Water Act on the grounds they did not obtain permits from the Environmental Protection Agency (EPA) for stormwater runoff that flows from logging roads into systems of ditches, culverts, and channels, which is eventually discharged into forest streams and rivers. The Ninth Circuit Court of Appeals concluded that such runoff from logging roads is a point source discharge and thus, an NPDES permit is required. The Court all but directed the EPA to prepare a general NPDES permit for stormwater runoff from logging roads which is discharged to navigable waters via ditches, culvert, and channels, and further indicated its confidence that the EPA would be able to do so in an expeditious manner. In California, the State Water Resources Control Board will be tasked with preparing and adopting such a general permit.

On May 17, 2011 the Ninth Circuit denied reconstruction of it forest roads decision in NEDC v. Brown.

Katherine J. Hart is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

By Cori M. Badgley

As mining companies continue attempting to lay claim to gold in the state known as “the last frontier,” environmental groups continue in their efforts stop them. At issue in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (2009) 129 S. Ct. 2458 was the proposed disposal of “slurry” from the Kensington Gold Mine into Lower Slate Lake. The United States Army Corps of Engineers (“USACE”) issued a 404 permit for the “fill” of the lake, which was challenged by the Southeast Alaska Conservation Council (“SEACC”), among others, on the grounds that the new source performance standards found in Section 306 of the Clean Water Act (33 U.S.C. § 1251 et seq.) (“CWA”) prohibited the discharge of the slurry.

Continue Reading Alaska’s Gold Rush Continues: USACE 404 Permit Upheld by the Supreme Court

By Leslie Z. Walker

In White Tanks v. Strock (9th Cir. 2009) 563 F.3d 1033, the Ninth Circuit held the Army Corps of Engineers (“USACE”) had improperly confined the geographic scope of its environmental analysis under the National Environmental Policy Act (42 U.S.C. § 4321 et seq.) (“NEPA”) in issuing a permit under Section 404 of the Clean Water Act (33 U.S.C. § 1251 et seq.) (“CWA”).  The Court held that because the feasibility of the whole project depends upon the Corps granting a Section 404 permit, the entire project is within the purview of the Corps and thus subject to environmental review under NEPA.

Continue Reading Geographic Scope of Environmental Study Depends on Feasibility of Project without Federal Action

By Glen Hansen

On February 3, 2009, the State Water Resources Control Board adopted its long-awaited Recycled Water Policy. The new policy is intended to support the Water Board’s strategic plan to increase sustainable local water supplies. The purpose of the new policy is to increase the beneficial use of recycled water from municipal wastewater sources in a manner that fully implements state and federal water quality laws. Pursuant to Water Code sections 13550 et seq., the Water Board declared: “[I]t is a waste and unreasonable use of water for water agencies not to use recycled water when recycled water of adequate quality is available and is not being put to beneficial use…”

Continue Reading State Water Board Issues New Recycled Water Policy

By Leslie Z. Walker

According to a Ninth Circuit decision in Natural Resources Defense Council v. U.S. EPA  (9th Cir. 2008) 542 F.3d 1235, once the EPA has published a determination that a particular activity is a pollution source, The EPA has a mandatory duty to publish Effluent Limitation Guidelines (“ELGs”) within three years of that determination under section 304 of the CWA.

Continue Reading EPA May Not Delist Pollution Sources

By Katherine J. Hart and Leslie Z. Walker

On February 9, 2009, the California Supreme Court held the State Water Resources Control Board (“Board”) did not violate the due process rights of the recipients of a proposed license revocation by refusing to disqualify the enforcement team because one or more members had advised the Board on other, unrelated issues. (Morongo Band of Mission Indians v. State Water Resources Control Board 2009 Cal. LEXIS 1009.)

Continue Reading No Conflict Between Prosecutorial and Advisory Positions