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On November 22, 2019, the Army Corps of Engineers (Corps) agreed to obtain a National Pollutant Discharge Elimination System (NPDES) permit for the operation of the federally owned and operated Chief Joseph Dam, the second-largest hydropower producing dam in the United States, as part of a settlement with the Columbia Riverkeeper. The settlement resolves litigation (previously addressed on this blog) brought by the Columbia Riverkeeper, which claimed that the Corps’ dam operations had long been discharging oil, grease, and heated water into the Columbia River without a permit.

Sections 301(a) and 402 of the Clean Water Act (CWA) prohibit anyone, including a federal agency, from discharging “pollutants” through a “point source” into a “water of the United States” except as authorized by a NPDES permit. Section 505 of the CWA provides any citizen, including a citizen group like Columbia Riverkeeper, the ability to bring a civil action against any person, including the United States, that is violating an effluent standard or limitation. As detailed by its complaint, the Columbia Riverkeeper alleged that the Corps has been in violation of CWA standards by allowing oils and grease to accumulate in sumps that drain into the river and utilizing hydro-carbon based lubricants on generation equipment that become discharged with cooling water without a NPDES permit.
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On June 7, 2019, the Advisory Council on Historic Preservation’s (ACHP) Office of General Counsel issued a memorandum to ACHP staff, clarifying the distinction between direct and indirect effects in meeting obligations under section 106 of the National Historic Preservation Act (NHPA).  ACHP’s memorandum is important to utilities, industrial, commercial and other entities because federal licensing and permitting agencies (e.g., U.S. Army Corps of Engineers (Corps), Federal Energy Regulatory Commission, U.S. Forest Service, and U.S. Department of the Interior) are required under NHPA section 106 to evaluate effects of the license or permit on properties that are listed, or eligible for listing, in the National Register of Historic Places.  ACHP’s memorandum clarified that direct effects may be the result of a physical connection, but may also include visual, auditory, or atmospheric impacts as well.
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On Friday, August 9, the Environmental Protection Agency (“EPA”) unveiled a pre-publication version of a notice of proposed rulemaking (“NOPR”) to clarify state water quality certification (“certification”) procedures under Section 401 of the Clean Water Act (“CWA”) to allow for increased regulatory certainty in federal licensing and permitting activities, and particularly authorization of infrastructure projects.  EPA Administrator Andrew Wheeler announced on Friday that the “proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act.”  The NOPR proposes substantive changes to the scope of state water quality certification authority under the CWA and the procedures governing these certifications, focusing on the plain language of the statute and at times departing from prior case law precedent.

Significant components of the NOPR are summarized below.  EPA has established a 60-day period for public comment on the proposed rule, from the date of publication in the Federal Register.  In light of the substantial modifications to the scope, substance and procedures related to state water quality certification, the NOPR presents a unique opportunity for utilities, manufacturers, developers, and other regulated business entities to help shape a significant regulatory program. 
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On April 15, 2019, the environmental group Columbia Riverkeeper (Riverkeeper) filed suit against the U.S. Army Corps of Engineers (Corps) in the U.S. District Court for the Eastern District of Washington, alleging that the Corps’ operation of the Chief Joseph Dam is in violation of the Clean Water Act (CWA). Riverkeeper’s complaint raises important questions as to whether certain discharges from hydropower facilities trigger the need for an authorization under the National Pollutant Discharge Elimination System (NPDES) pursuant to section 402 of the CWA, 33 U.S.C. § 1342.
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The U.S. Department of the Army’s Assistant Secretary for Civil Works has issued a policy directive memorandum requiring the U.S. Army Corps of Engineers (USACE) to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under Clean Water Act Section 401 with regard to USACE’s issuance of dredge and fill permits under CWA Section 404.  The policy memorandum also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification.

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On January 25, 2019, the U.S. Court of Appeals for the D.C. Circuit, in a unanimous decision, granted a petition for review in Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Cir., Jan. 25, 2019). The key holding in the case, which concerns the ongoing Federal Energy Regulatory Commission’s relicensing of the Klamath Hydroelectric Project, is that the States of California and Oregon waived their authorities under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341, by failing to rule on the applicant’s submitted application for water quality certification within one year from when it was initially filed in 2006. The applicant for many years had followed, at the request of the States, the common industry practice of “withdraw-and-resubmit” of its water quality certification application in an attempt to annually reset the one-year time period for the States to act, as established under CWA section 401. The D.C. Circuit in Hoopa Valley Tribe invalidated this practice as a means of resetting the statutory clock, instead holding that the clear text of CWA establishes that “a full year is the absolute maximum” time for a state to decide on a water quality certification application.
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Troutman Sanders partner Chuck Sensiba and Associate Morgan Gerard authored the main feature article in the January 2019 issue of The Water Report, a monthly publication focused on federal and state water issues. In the article, Sensiba and Gerard discuss how a rule proposed by the Trump Administration would significantly narrow the number of

On December 11, 2018, the Environmental Protection Agency (“EPA”) and the Department of the Army (“DOA”) (“Agencies”) released their much-anticipated Notice of Proposed Rulemaking (“Proposed Rule”), which if adopted would scale back the jurisdictional reach of the Clean Water Act (“CWA”) by narrowing the definition of “Waters of the United States” (“WOTUS”) to include only those waters that are oceans, rivers, streams, lakes, ponds, and wetlands, and their “naturally occurring surface water channels.”  The practical implications for project proponents of the Proposed Rule are that ephemeral streams and many ponds and ditches used in agricultural, industrial and construction activities would no longer be within the jurisdictional reach of the CWA, alleviating the requirement for and uncertainty surrounding permitting requirements and related mitigation measures.  The next step in the Proposed Rule’s process is publication in the Federal Register, after which the Agencies will accept public comments on the proposal until 60 days after Federal Register publication.

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On July 20, 2018, President Trump signed into law two pieces of legislation alleviating complex federal land use issues for two FERC-licensed hydropower projects in Alaska.  Strongly supported by the entire Alaska congressional delegation, Public Law No: 115-200 and Public Law No: 115-201 respectively allow the Swan Lake Hydroelectric Project (“Swan Lake”) and Terror Lake Hydroelectric Project (“Terror Lake”) to pursue needed and scheduled updates to their operations to maintain sufficient electric capacity for their customers in the Last Frontier.

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