March 2, 2010

A March 1, 2010 New York Times front page story entitled: “Rulings Restrict Clean Water Act, Foiling EPA” highlights the impact of two recent U. S. Supreme Court decisions, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers and Rapanos v. United States, on federal efforts to enforce provisions of the Clean Water Act. Although the cases focused on the federal government’s jurisdiction over wetlands, the decisions have, according to the article, had the effect of thwarting EPA enforcement in related areas under the Clean Water Act. A copy of the story can be viewed at:

According to the story, enforcement cases now are lost because the company is discharging into a stream that flows into a river, rather than the river itself. The New York Times article quotes David M. Uhlmann, an environmental law professor at the University of Michigan who led the environmental crimes section of the Justice Department during the Bush administration.

The article points out that in 2007, after a pipe manufacturer in Alabama, a division of McWane Inc., was convicted and fined millions of dollars for dumping oil, lead, zinc and other chemicals into a large creek, an appellate court overturned that conviction and fine, ruling that the U. S. Supreme Court precedent exempted the waterway where the discharge occurred from the Clean Water Act. The company eventually settled the federal violations by agreeing to pay a smaller amount and submit to probation.

According to the New York Times story, Congress may consider whether the Clean Water Act should be modified or clarified to resolve the issue that was raised as a result of the cases decided by the U.S. Supreme Court.

At Hessian & McKasy, our environmental lawyers advise clients as to the applicability of federal and state environmental laws.  We regularly assist clients in conducting audits of operations which may be subject to federal and state environmental regulations.  The purpose of an audit is to detect and correct potential violations. Federal and state environmental laws permit self-disclosure of violations.  In these cases penalties for noncompliance may be mitigated or avoided.  A business should consider contacting an environmental law attorney to determine if their business may qualify for these protections.  We also assist companies who are involved in enforcement actions. We offer a variety of innovative and cost effective legal service packages for our clients. To learn more, please visit: For more information about our environmental law practice, please visit:

The views expressed here are my own and do not reflect the views of my employer, Hessian & McKasy, P.A.

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