On October 15, 2009, the U.S. Environmental Protection Agency’s (EPA’s) Office of Enforcement and Compliance Assurance released an Action Plan, which announces the agency’s intent to dramatically increase federal enforcement of the Clean Water Act (CWA). The Plan points to serious water quality threats from stormwater runoff from streets, construction sites, sewer overflows, agricultural fields and concentrated animal feeding operations, and voices the agency’s concern over “widespread” violation of discharge permits. The Plan further announces the EPA’s conclusion that state enforcement of the CWA has been grossly inadequate. It declares that the agency intends to “hold states accountable,” and will, in the future, step in to disapprove permits that are not sufficiently protective and pursue federal enforcement where necessary. Notably, the Action Plan points out recent U.S. Supreme Court decisions (Solid Waste Agcy. of Northern Cook Cty. v. United States Army Corps of Engineers, 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006)) which are said to have interfered with the EPA’s enforcement of the CWA by adding what the agency calls “layers of confusion regarding which water bodies are covered by the CWA.”
The EPA’s announcement of its intent to “intensify vigorous civil and criminal enforcement against traditional end-of-pipe pollution,” coupled with comments about recent Supreme Court cases that impose limitations on CWA jurisdiction, suggests that a new wave of enforcement actions is on the way. It also hints that the agency may be poised to try and test the Rapanos and SWANCC decisions by intentionally pressing up against the jurisdictional limitations imposed by those cases. Businesses and municipalities are therefore cautioned to prepare for a dramatic increase in the number and extent of CWA-related inspections, and for heightened scrutiny in the permit process.
For further information, please contact Charles F. Helsten or your regular Hinshaw attorney.
This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. |