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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In Kisor v. Wilkie, 588 U.S. __ (2019), a five Justice majority substantially narrowed, but did not wholly overturn, the embattled doctrines arising from Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945).  Under the Auer deference doctrine, courts must defer to reasonable agency interpretations of their own regulations.  Several Justices and prominent scholars had criticized Auer deference on statutory, constitutional, and practical grounds.  While Auer deference lives on after Kisor, the continuing practical relevance of the doctrine is doubtful for most cases.  Further, Kisor’s limitations on Auer deference may portend a similar fate for Chevron deference, in future cases.
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EPA Region 6 has proposed to withdraw a 2015 finding that Texas’s State Implementation Plan (SIP) is substantially inadequate to comply with the Clean Air Act (CAA) because of state rules that provide an affirmative defense for excess air emissions that occur during upsets and unplanned maintenance, startup, and shutdown activities. 82 Fed. Reg. 17,986 (Apr. 29. 2019). Region 6 is now proposing to find that Texas’s affirmative defense provisions for so-called “startup, shutdown, and malfunction” or “SSM” events are “narrowly tailored and limited to ensure protection of the National Ambient Air Quality Standards (NAAQS),” as required by EPA guidance. Accordingly, Region 6 is proposing to withdraw EPA’s 2015 “SSM” SIP call issued to Texas based on the finding of substantial inadequacy.
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On April 15, 2019, EPA issued its long-awaited Interpretative Statement addressing the Clean Water Act’s applicability to releases of pollutants from point sources into groundwater that subsequently migrate to jurisdictional surface waters. The question this interpretation addresses stems from the 2018 federal circuit split previously discussed here. On February 19, 2019, the Supreme Court granted certiorari in one of the cases that contributed to the split, County of Maui v. Hawai’i Wildlife Fund. The United States filed its amicus brief in that case, urging the highest court to review County of Maui, but not a similar ruling from the Fourth Circuit. As the question was being reviewed by the federal courts, EPA requested public comment on this issue and received over 50,000 comments. EPA is addressing some of these comments in the Interpretative Statement.
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The Northwest Hydroelectric Association (NWHA) has appointed Troutman Sanders partner Angela Levin to serve as general counsel for a three-year term beginning February 2019. Established in 1981, the NWHA serves the hydropower industry, promoting the region’s waterpower as a clean, efficient energy while protecting the fisheries and environment. As general counsel, Levin will serve as the chief legal officer of the organization, responsible for all NWHA legal affairs, including acting as policy and regulatory counsel on federal, regional, and state issues affecting hydropower interests in the Western U.S.

“I am honored to serve the Northwest Hydroelectric Association in the capacity of general counsel,” Levin said. “The organization provides a vital voice for the hydropower community, promoting regulation and advocating for protection and advancement of existing hydropower resources, as well as responsible development of untapped hydro in the United States.”
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Troutman Sanders partners Douglas Henderson and Lindsey Mann and associate Nicholas Howell had an Insight piece published in Bloomberg Law titled, “Contamination ‘Issue’ Class Actions—Recent Certification Realities.”

In the article, the authors review the confusing outcomes and mistaken promise of environmental “issue” class actions under Rule 23(c). Two cases from 2018—involving virtually identical facts—reach fundamentally

Troutman Sanders has formed a new group, Species Strategies and Solutions (S3), which will track policy, regulatory, legislative, and litigation developments regarding federally-protected wildlife and plants.  Initiatives to address infrastructure projects, and how those initiatives relate to species-related review requirements, will also be featured.  S3 will be focused primarily on national-level species-related developments that have the potential to affect construction and operation of projects in those sectors. S3 is not a lobbying or advocacy group; rather, its purpose is to facilitate a better understanding of the issues associated with compliance with the Endangered Species Act, and strategies for addressing those issues.
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On May 23rd, the Trump administration released its full fiscal year 2018 budget proposal, continuing its call for significant funding cuts for many EPA programs. Consistent with the framework outlined in the administration’s “skinny” budget issued earlier in March, the proposal would cut EPA’s overall budget by 31.4 percent, reducing overall spending from $8 billion in 2017 to $5.7 billion for 2018.  The plan would eliminate approximately 20 percent of the agency’s workforce, reducing the number of staff from over 15,000 to approximately 11,600, a reduction of approximately 3,800 jobs.

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The EPA published a notice in the April 13th Federal Register requesting public comments on regulations that may be appropriate for repeal, replacement, or modification.  This request follows President Trump’s February 24th Executive Order that, among other things, requires federal agencies to establish a Regulatory Reform Task Force (“Task Force”) to make recommendations targeting specific federal regulations for elimination or modification.  Task Forces must seek input from entities affected by federal regulations, including businesses, consumers, non-governmental organizations and trade associations.  EPA’s Task Force is requesting comments on regulations that eliminate jobs or stifle their creation, impose costs that exceed benefits, implement Executive Orders or other Presidential directives that have been rescinded or modified, or are otherwise ineffective or outdated.  Comments will be accepted through May 15.

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