The Deep

Thoughtful analysis of major developments in federal and state regulatory policy and key court decisions

On November 20, with no fanfare at all, not even a press release, U.S. Environmental Protection Agency (EPA) issued its Draft Guidance: Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program to Discharges Through Groundwater. This draft guidance is the agency’s second effort to guide implementation of the U.S. Supreme Court’s 2020 decision, which extends applicability of the National Pollutant Discharge Elimination System (NPDES) permitting program to include the “functional equivalent” of point source discharges of pollutants to waters of the U.S.Continue reading EPA’s New Proposed Maui Guidance: Underwhelming and Sneaky

The US Environmental Protection Agency (EPA) has finalized a new regulation to implement the Clean Water Act (CWA) section 401 water quality certification program. Continuing the recent practice of promulgating regulations and then promptly replacing them, EPA’s “CWA Section 401 Water Quality Certification Improvement Rule”(the 2023 Rule) replaces the “Clean Water Act Section 401 Water Quality Certification Rule” that was finalized in 2020 (the 2020 Rule). The 2023 Rule was published in the Federal Register on September 27, 2023 and will become effective on November 27, 2023. This article provides background on the CWA water quality certification program, followed by a deep dive into the 2023 Rule and how it compares to the 2020 Rule.Continue reading EPA’s New 401 Certification Rule: Expanded Scope and Unanswered Questions

A filing in a California federal court indicates that EPA is planning to apply its new Clean Water Act section 401 certification rule to all certification requests, including those that are currently pending and that were submitted in accordance with the 2020 Certification Rule. If EPA attempts to retroactively apply its new rule to pending certification requests, it will guarantee immediate litigation and the challengers will have a strong likelihood of success.Continue reading Will EPA Apply the New 401 Certification Rule Retroactively to Pending Requests?

EPA has proposed to establish “baseline” water quality standards that would apply to all Indian reservation waters where the tribe has not received “treatment as a state” (TAS) authority, the state does not have authority, and the federal government has not already promulgated water quality standards. Under the proposal, tribes will have a limited opportunity to request that certain waters be excluded from the federal baseline standards, but that decision will ultimately be made by the EPA regional administrator. If a tribe receives TAS, promulgates its own water quality standards, and obtains EPA approval of those standards, the federal baseline standards would no longer apply.Continue reading Another EPA Proposal to Overhaul the Water Quality Standards Program

With little fanfare, EPA has finally proposed to approve Louisiana’s Class VI underground injection control (UIC) well program. The proposal to approve Louisiana’s program comes nearly two years after the state submitted its package for consideration.

The pre-publication version of EPA’s proposal walks through the agency’s process and substantive consideration of Louisiana’s statutes, regulations…

On March 13, the Environmental Protection Agency (EPA) took the long-anticipated step of proposing maximum contaminant level goals (MCLGs), as well as individual maximum contaminant levels (MCLs), for six PFAS compounds under the Safe Drinking Water Act. PFAS are a large family of synthetic chemicals that have been in use since the 1940s. Many PFAS…

Yesterday, EPA announced a proposed rule that would revise the agency’s regulations to include a requirement that water quality standards protect reserved tribal reserved rights. This proposal is a major milestone for the agency that has tried to incorporate reserved tribal reserved rights into its water quality standards program since at least 2015.

According…

The Biden administration has enormous climate and carbon management goals, which rightfully include the geologic sequestration of carbon dioxide as a core part of its climate adaptation strategy. The administration, to its credit, has worked with Congress to provide tax credits and billions of dollars of new funding for programs targeting the transportation and sequestration…

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