The United States Supreme Court announced today that it will hear oral argument in the Florida v. Georgia lawsuit on January 8, 2018. In that case, Florida sought to mandate a statewide water usage cap for Georgia but was held to have failed to establish by clear and convincing evidence that such a remedy would be effective where the U.S. Army Corps of Engineers, a major manager of impoundments along the Chattahoochee River, was not a party to the lawsuit. The lawsuit represents the most recent battle in the long-running “water wars” among the Southeastern states over the Apalachicola-Flint-Chattahoochee River Basin.
On November 9, 2017, on the heels of New Jersey’s move to set a maximum contaminant level for certain perfluoroalkyl substances, California’s Office of Environmental Health Hazard Assessment (OEHHA) added perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) to the list of chemicals known to the state of California to cause reproductive toxicity (also known as the Prop 65 list).
On November 1, 2017, New Jersey officials announced that they would set Maximum Contaminant Levels (MCLs) for public drinking water systems for PFOA and PFNA, making the Garden State the first in the nation to do so.
FERC released a policy statement on October 19, 2017, revising its longstanding approach to setting the license terms for hydroelectric projects. The new policy establishes a default term of 40 years for non-federal projects, which can be shortened or extended in certain identified circumstances. According to Section 6 of the Federal Power Act, the term of a license may not exceed 50 years — the Act sets no minimum license term. It has been FERC’s policy to set a 50-year term for licenses issued to federal projects and to base the license term for non-federal projects on the level of redevelopment, new construction, or environmental mitigation and enhancement slated for the project. For projects involving little to no activity, FERC has set a 30-year term, for a moderate amount of activity, a 40-year term, and for extensive activity, a 50-year term.
A new chapter opened last week in the perennial water wars between Georgia and Florida. After briefing by both sides, including amici, relative to whether Special Master Ralph Lancaster correctly decided that Florida had failed to carry its burden in this original jurisdiction action, the Supreme Court in an October 10, 2017 Order granted oral argument in the case to be heard “in due course.” Presumably, that will yield an argument during the Court’s October Term which usually completes in June or July. Spokesmen for Georgia and Florida welcomed the opportunity to address the Court on the merits.
The dispute involves the water of the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”), a network of rivers, dams, and reservoirs that begins in northern Georgia and ends in the Florida panhandle. Georgia and Florida have been disputing the extent of each state’s use of the ACF Basin waters for years but recently, in 2014, the dispute made its way to the United States Supreme Court. There, Florida argued that overconsumption of waters in Georgia, particularly in connection with agribusiness uses on the Flint River, have led to dangerously low flows of waters into Florida from the ACF Basin and the downfall of the Apalachicola Bay’s oyster fishery. Florida requested that the Court cap the amount of water Georgia can use at levels that existed in 1992. Continue Reading Supreme Court Orders Oral Argument On GA-FL Water Wars
On August 28, 2017, the Environmental Protection Agency (EPA) and the U.S. Department of the Army (Army) published a Federal Register notice announcing that the agencies will hold ten teleconferences to hear from stakeholders on recommendations to revise the definition of ‘‘Waters of the United States’’ or “WOTUS” under the Clean Water Act. Nine of the teleconferences will be stakeholder specific calls, i.e., agriculture (row crop, livestock, silviculture); conservation (hunters and anglers); small entities (small businesses, small organizations, small jurisdictions); construction and transportation; environment and public advocacy (including health and environmental justice); mining; industry (energy, chemical, oil/gas); scientific organizations and academia; and stormwater, wastewater management, and drinking water agencies. One of the teleconferences will be open to the general public.
Yesterday a group of organizations with ties to the Shenandoah River sued the EPA claiming that EPA violated the Clean Water Act (CWA) by approving Virginia’s 2014 305(b)/303(d) Water Quality Assessment Integrated Report (Integrated Report) which includes a listing of Virginia’s water quality-impaired rivers. The groups claim that Virginia failed to evaluate data and information showing impairments to the North Fork, South Fork, and main stem of the Shenandoah River and their tributaries (collectively the Shenandoah River) due to algae blooms resulting from nutrient over enrichment, and as a result failed to add the Shenandoah River to the impaired waters list. The groups claim that EPA’s approval of Virginia’s Integrated Report violated the CWA because EPA relied on Virginia’s determination that it is too challenging to apply Virginia’s water quality standards to algal blooms, and therefore EPA failed to require that the Shenandoah River be listed as impaired by excessive algae and that as a result EPA also failed to promulgate a Total Maximum Daily Load (TMDL) for the pollutants causing the impairment in violation of its obligations under CWA § 303(d)(2). Continue Reading Suit against EPA Claims CWA Violations for Approving Virginia’s Water Quality Assessment Integrated Report
On April 5, 2017, the EPA responded to a request from industry stakeholders saying it will reconsider the Obama-era Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category rule (“ELG Rule”) that set the first federal limits on how much toxic metal can be discharged with power plants’ wastewater. 80 Fed. Reg. 67838 (Nov. 3, 2015).
On April 10, the D.C. Circuit heard oral argument in an appeal filed by Sierra Club and other environmental groups seeking to force EPA to release utility effluent treatment data that the agency used to inform its Steam Electric Effluent Limitations Guidelines (ELG) rule. The environmental groups are requesting that the D.C. Circuit overturn the district court’s ruling, which sides with EPA. EPA collected the data from electric utility companies on their wastewater treatment technologies, pollutants, and incremental costs. The environmental groups plan to use the data to support their appeal of the ELG rule, which is pending in the 5th Circuit.
Among the provisions of President Trump’s March 28, 2017, Executive Order “Promoting Energy Independence and Economic Growth” (the “Executive Order”) is the repeal of President Obama’s November 3, 2015, Presidential Memorandum entitled “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment” (the “Obama Memorandum”). The Executive Order also directed all agencies to identify “Agency Actions” (existing regulations, orders, guidance documents, polices, and other similar agency actions) arising from the Obama Memorandum and, as appropriate, and “as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules [to do so]…”