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Water 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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Sixth Circuit Declines to Revisit Its Decision to Keep Jurisdiction Over WOTUS Litigation

On Thursday, April 21, the full Sixth Circuit denied six petitions for en banc rehearing of a three-judge panel’s February 2016 decision that the court of appeals has jurisdiction to hear challenges to the controversial Waters of the United States (“WOTUS”) rule. The decision is a disappointment for states and industry groups, who seek to litigate the rule in district courts across the country.

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  • 01
  • March
  • 2016

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WOTUS Challengers Begin Responding to the Sixth Circuit’s Order Retaining Jurisdiction

Yesterday, we wrote about last week’s Sixth Circuit decision to keep jurisdiction over challenges to the federal government’s rule redefining “Waters of the United States” (“WOTUS”) under the Clean Water Act. We suggested that given the fractured nature of the Sixth Circuit panel’s opinion, the case was ripe for parties to request en banc rehearing before the full Sixth Circuit.

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