The Great Clean Water Act Divide

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Pillsbury attorneys Anthony Cavender and Amy Pierce recently published their Law360 article titled 6th Circ. Creates Deep Divide Over Reach Of CWA. Their article discusses recent decisions from the federal appellate courts that have raised new questions about the scope of Clean Water Act-related (CWA) issues that once seemed settled. These issues include, for example

  • Whether discharges into groundwater that reach navigable waters are subject to the jurisdiction of the Environmental Protection Agency or the U.S. Army Corps of Engineers and, therefore,  require the issuance of a National Pollution Discharge Elimination System permit.
  • Whether a regulated “point source” can also include landfills and other waste disposal and storage areas used for handling coal ash waste.
  • Whether there are temporal limitations to the invocation of “ongoing violations” of the CWA when the initial violations were corrected years ago.

These decisions have created uncertainty within the regulated community affecting many industries and commercial activities. For that reason, and the fact that petitions for certiorari are piling up at the U.S. Supreme Court, the Court is expected to decide to review these cases and resolve this stark conflict between the circuits.

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