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Environmental Blog

  • 10
  • November
  • 2016

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Fourth Circuit Considers CWA Permit Shield Defense, Again

On October 6, 2016, EPA filed an amicus brief in the Fourth Circuit in Ohio Valley Environmental Coalition v. Fola CoalCo., LLC, No. 16-1024 (“Fola”) supporting a decision from the Southern District of West Virginia. The district court held that discharges from a coal mine that raised conductivity levels violated the Clean Water Act (“CWA”) even though the mine’s permit did not contain express limits for conductivity. The case will test whether West Virginia’s narrative water quality standards, which the mine’s permit incorporated by reference, take precedence over the fact that regulators knew the mine’s discharges might increase conductivity but declined to incorporate conductivity into the permit explicitly. If the court adopts EPA’s position, then the case could significantly impact the scope of the permit shield defense under the CWA.

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  • 23
  • February
  • 2016

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Decision Invalidating TCEQ’s Drought Curtailment Rules is Final

On February 19, 2016, the Texas Supreme Court declined to hear a challenge to a lower court ruling in Texas Commission on Environmental Quality v. Texas Farm Bureau et al., which held that Texas cannot treat cities and power generators preferentially compared to parties with more senior water rights, even if the state declares it necessary to protect the public health, safety, and welfare.

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  • 06
  • April
  • 2015

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Sixth Circuit Extends Permit Shield Test to General Permits

On January 27, 2015, the U.S. Court of Appeals for the Sixth Circuit held in Sierra Club v. ICG Hazard that the defendant’s compliance with the terms of its Clean Water Act (CWA) general permit “shielded” the company from citizen suit enforcement. It is the first case to extend the so-called Piney Run test for permit shield applicability to general permits, rather than individual permits.

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  • 21
  • November
  • 2014

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Ninth Circuit Narrows CWA “Shield” for Non-Stormwater Discharges

On October 31, 2014, the Ninth Circuit declined to rehear Alaska Community Action on Toxics (ACAT) v. Aurora Energy Services, LLC. The Ninth Circuit decided that case on September 3, 2014, holding that the district court erred when it found that the Multi-Sector General Permit (“MSGP”) for Stormwater Discharges Associated with Industrial Activity “shielded” Aurora from liability for non-stormwater coal discharges.

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