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Litigation

COURT DECLINES TO LIMIT CONSTITUTIONAL IMMUNITY FOR WASTEWATER PROBES

A federal appellate court has rejected a broad argument by EPA enforcement agents that could have made it easier for federal and state inspectors to gather wastewater samples at permitted facilities.

Instead, the court granted the agents so-called qualified immunity on narrow, fact-specific grounds in this case that protects the agents from charges that their wastewater sampling efforts violated the facility and its owner's Fourth Amendment protections against unreasonable searches.

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SETTLEMENT LIMITS IMPACT OF KEY CALIFORNIA WATER 'TAKINGS' RULING

A recent settlement agreement between the federal government and four California water districts in a closely watched takings case will limit the scope of the precedent to a federal district court. This agreement comes after environmentalists and some lawmakers had urged the government to appeal the case because the precedent could hinder the San Francisco Bay-Delta project.

The case marked the first time a federal judge declared that water diverted from a water district to protect endangered species constitute a taking.

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ACTIVISTS SAY EPA NUTRIENT PLAN FOR CHESAPEAKE BAY VIOLATES WATER ACT

Environmentalists say EPA's non-binding permitting approach for nitrogen and phosphorus discharges into the Chesapeake Bay violates Clean Water Act (CWA) mandates to set enforceable permit limits based on the best available technology.

Activists say the approach, released in December 2004, is an extension of the status quo because it places no requirements on the six states with wastewater plants discharging into the Chesapeake Bay, but instead allows them significant flexibility in determining the appropriate way to address nutrients in their permits.

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STATE CAUTIONS EPA CHANGE TO STORMWATER PERMIT MAY LIMIT CITIZEN SUITS

EPA's recent modifications to its stormwater general permit for construction sites will sharply curtail citizens' ability to successfully file suit against builders for failing to implement stormwater control measures, according to a source with the New York attorney general's office.

The source notes that New York is considering its options, including court action challenging the permit modification, but has not made any decisions yet.

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State Push To Overhaul EPA Water Permit Program Gains Momentum

State efforts to build support for changes to EPA's clean water permitting, as well as standards for cleaning up polluter water bodies, are meeting with support from industry organizations and a key agency official. But environmentalists have yet to determine whether they will support the initiative.

Although EPA has not taken a formal position, the agency's water chief says he is "extremely attracted to the notion of a permit term that may be longer than five years, if it results in greater progress and effective use of resources by the states."

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High Court Justices Express Skepticism Over FIFRA Preemption Claims

During oral arguments in Bates v. Dow Agrosciences, Supreme Court justices appeared to express skepticism that federal pesticide law preempts all litigation under state law seeking damages that occurred from use of an allegedly mislabeled pesticide.

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Court Narrows Precedent-Setting Ruling 'Vacating' Clean Air Rule

A federal appellate court has narrowed its previous precedent-setting decision to vacate an EPA air rule in its rejection of a Bush administration request to reconsider the case. The latest ruling, which backs an industry challenge to an EPA-approved list of alternatives to an ozone-depleting chemical, grants future courts the discretion in allowing the agency to revise allegedly flawed regulations.

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Environmentalists Say Georgia Power Case May Spur Tougher Particulate Controls

Environmentalists say a recent court ruling highlights their ability to use citizen suits as a tool to force utilities to reduce particulate matter (PM) emissions, underscoring a possible strategy by environmentalists for seeking emission cuts beyond the pending requirements under EPA's new nonattainment designations for fine particles.

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Court Grants EPA Limited Constitutional Immunity In Wastewater Investigation

A federal appellate court has rejected a broad argument by EPA enforcement agents that could have made it easier for federal and state inspectors to gather wastewater samples at permitted facilities.

Instead, the court granted the agents so-called qualified immunity on narrow, fact-specific grounds to protect the agents from charges that their wastewater sampling efforts violated the facility and its owner's Fourth Amendment protections against unreasonable searches.

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EPA AGREES TO LIMIT ENFORCEMENT OVER BUILDERS' STORMWATER PERMITS

EPA has decided to limit its enforcement against developers who fail to install stormwater runoff prevention requirements at construction sites before they are covered by the agency's new general permit for stormwater at construction sites.

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