The Nickel Report

Yesterday the Supreme Court of the United States issued its most significant Clean Water Act decision in more than a decade, resolving a split among lower courts over the reach of the Clean Water Act’s “point source” or National Pollutant Discharge Elimination System (NPDES) program. Pollutants travel to bodies of water in many ways: by pipe, ditch, or runoff, for example. The Clean Water Act defines some of those ways of moving pollutants as “point sources”—specifically, pipes, ditches, and similar “discernible, confined and discrete conveyance[s]”—and bans the “addition of any pollutant to navigable waters from any point source” without an NPDES permit. But no similar permitting requirement applies to pollution added from nonpoint sources, which is instead controlled by state and other federal environmental laws.

The U.S. Environmental Protection Agency (EPA) is attempting to thread the needle in responding to the COVID-19 pandemic: offering clarity about ongoing federal environmental obligations to the broad swath of regulated entities faced with the threat of significant disruptions and other challenges, while contending with intense opposition from others who perceive its temporary enforcement policy as a “free pass to pollute” and a failure to enforce legal requirements. Notwithstanding the mounting scrutiny from U.S. Senators, states, and citizens groups, and now a legal challenge, EPA’s Office of Enforcement and Compliance Assurance (OECA) has continued implementing its temporary policy regarding the exercise of enforcement discretion due to the COVID-19 pandemic via issuance of additional guidance on National Pollutant Discharge Elimination System (NPDES) reporting. Other state and federal agencies, including the U.S. Department of Justice (DOJ), the Texas Commission on Environmental Quality (TCEQ), the Railroad Commission of Texas (RRC), and the California Environmental Protection Agency (CalEPA) (addressed in a separate blog post) have followed EPA’s lead in issuing their own temporary policies related to the pandemic.