Abstract

Notable cases decided in the United States Court of Appeals for the Eleventh Circuit in 2019 all arose out of disputes that originated under the Clean Water Act (CWA). The Eleventh Circuit held that, in preparing an Environmental Impact Statement (EIS) in connection with its decision to issue a dredge and fill permit under Section 404 of the CWA, the Corps of Engineers (Corps) was not required to consider potentially negative environmental effects resulting from activity made possible by the permit where the agency had no authority independently to regulate the effects. The court also held that the Environmental Protection Agency (EPA) had the discretion to decide whether to commence withdrawal proceedings as to Alabama's authority to operate the CWA's National Pollution Discharge Elimination System (NPDES) permitting program even where the agency acknowledged that the state had not at all times fully complied with program requirements. The United States District Court for the Southern District of Georgia, one of several courts in the country taking up challenges to the EPA's and the Corps' 2015 Rule defining the term "Waters of the United States" under the CWA, concluded that the Rule was beyond the scope of the agencies' statutory authority in several respects, including the agencies' use of the term "interstate waters," which had been included in the regulatory definition of the term since 1978. Finally, the United States District Court for the Northern District of Georgia concluded that the proper mechanism for a defendant to challenge the sufficiency of the 60-day ante litem notice under the CWA's citizen-suit provision was a motion to dismiss for insufficiency of process under Federal Rule of Civil Procedure 12(b)(4), and that the plaintiffs' failure in the notice to reference the specific statutory provision of the CWA which the plaintiffs claimed the defendants violated did not make the notice deficient so as to justify dismissal of the plaintiffs' claim.

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