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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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  • 02
  • November
  • 2016

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California Study Finds Water Used in Fracking is Safe for Agricultural Uses

Officials in the Cawelo Water District (“Cawelo”), a public water agency in Bakersfield, California, recently commissioned an analysis of water quality and food crop data in order to assess the safety of utilizing blended produced water for agricultural irrigation purposes. Cawelo receives approximately 10.4 billion gallons of produced water a year from regional oil producers that thoroughly monitor and treat the produced water before sending it to Cawelo for agricultural use. The produced water is then blended with water from other groundwater and surface water sources and tested before being approved for agricultural use.

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  • 26
  • October
  • 2016

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Water Data, Water Data Everywhere

Several years ago, analytics guru Gary Cokins popularized the notion that organizations are drowning in data but starving for information. The waterbody metaphor is apt, particularly for water management agencies that would like to swim—but not drown—in the data they and others collect that can help them better manage scarce water resources. Propelled by lingering pains of California’s recent drought, the California legislature took a step in this direction last month when it passed, and the governor signed, the Open and Transparent Water Data Act.

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  • 25
  • October
  • 2016

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EPA Wants CWA Section 316(b) Rule Left in Place Unchanged

Environmental groups were not entirely satisfied with the U.S. Environmental Protection Agency’s (EPA) Cooling Water Intake Structure Rule promulgated under section 316(b) of the Clean Water Act (CWA) in 2014. As previously discussed, this case has seen a heavy degree of venue shopping, with challenges initially being filed in six circuits, consolidation of those challenges in the Fourth Circuit, only to then to have the case transferred to the Second Circuit upon urging from environmental groups.

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  • 14
  • October
  • 2016

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Industry Advocates Sue Over Pennsylvania’s New Hydraulic Fracturing Rules

We recently posted an update on Pennsylvania’s new hydraulic fracturing regulations, noting that the new rules would likely be subject to legal challenges from the oil and gas industry. On Thursday, October 13, a trade group representing unconventional gas producers filed suit asking a Pennsylvania court to delay implementation of the rules until the appeal is decided.

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  • 13
  • October
  • 2016

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Mississippi v. Tennessee: Are Aquifers "Interstate Waters"?

A dispute in the United States Supreme Court between Mississippi and Tennessee may have lasting effects on interstate water law. The primary issue is whether an aquifer that crosses state lines should be considered “interstate waters,” subject to the doctrine of equitable apportionment. Equitable apportionment is used by the Court to resolve interstate disputes over surface water. But, the Court has never applied this doctrine to ground water, which has traditionally been viewed as an intrastate matter.

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