On January 23, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers (collectively, “Agencies”) released the pre-publication version of the much-anticipated final rule narrowing the meaning of the term “waters of the United States,” which defines waters subject to federal jurisdiction under the Clean Water Act (“CWA”). The final rule, called the “Navigable Waters Protection Rule,” represents the latest development in the Trump Administration’s extensive effort to repeal and replace the Obama Administration’s 2015 rule redefining the term (“2015 Rule”) and will become effective 60 days after its publication in the Federal Register.

Notably, the final rule eliminates the 2015 Rule’s “significant nexus” test dictating the jurisdictional status of certain waters on a case-by-case basis, and instead only provides categories of jurisdictional and non-jurisdictional waters which the Agencies believe will provide much needed certainty and predictability. It also excludes ephemeral streams (i.e. having flow only in response to precipitation) and introduces the concept of a “typical year” to qualify a water’s jurisdictional status. In light of the more limited federal jurisdiction in the final rule, the Agencies acknowledge the flexibility afforded to states to manage their own waters and wetlands.

In accordance with Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006), the Agencies interpret jurisdictional waters as being “relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters.” The final definition accordingly includes four categories of jurisdictional waters:

  1. The territorial seas and waters capable of being used in interstate or foreign commerce (i.e. traditional navigable waters);
  2. Tributaries directly or indirectly contributing surface water flow to traditional navigable waters in a typical year;
  3. Lakes and ponds, and impoundments of jurisdictional waters directly or indirectly contributing surface water to traditional navigable waters in a typical year; and
  4. Wetlands adjacent to these jurisdictional waters.

The final rule also identifies eleven categories of non-jurisdictional waters, which cannot qualify as one of the four types of jurisdictional waters listed above. According to the Agencies, many of these exclusions reflect longstanding agency practices.

  1. Groundwater;
  2. Ephemeral features;
  3. Diffuse stormwater runoff and directional sheet flow over upland;
  4. Ditches that are not traditionally navigable or constructed in a tributary to traditional navigable waters, as well as ditches constructed in adjacent wetlands that do not qualify as adjacent wetlands;
  5. Prior converted cropland;
  6. Artificially irrigated areas that would revert to upland if irrigation ceased;
  7. Artificial lakes and ponds constructed in upland areas or in non-jurisdictional waters;
  8. Water-filled depressions incidental to mining, and pits excavated to obtain fill, sand, or gravel, that are located in upland areas or non-jurisdictional waters;
  9. Stormwater control features constructed in upland or in non-jurisdictional waters;
  10. Groundwater recharge, water reuse, and wastewater recycling structures constructed in upland or in non-jurisdictional waters; and
  11. Waste treatment systems.

Substantively, the final rule is very similar to the proposed rule, which we summarized in a previous blog post. According to the Agencies, most changes were to provide clarity, rather than substantive alterations in jurisdictional coverage.

The final rule is the most recent development in the disputed meaning of “waters of the United States.” Since 2015, states and interested stakeholders have challenged nearly every effort by the Agencies to define the term. After the implementation of the 2015 Rule, a variety of states brought suit challenging the expanded scope of the definition in the 2015 Rule as an overreach by the Agencies. At least 27 states successfully sought injunctions to block enforcement of the 2015 Rule—creating a patchwork of enforcement where only some states operated under 2015 Rule. See, e.g., Georgia v. Wheeler, 2:15-cv-0079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019); North Dakota v. U.S. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015).

In 2018, when the Agencies attempted to suspend the 2015 Rule, lawsuits were also filed to prevent the Agencies’ action. In South Carolina Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018), environmental groups successfully argued that the Agencies’ attempt to suspend the 2015 Rule violated the rulemaking procedure required in the Administrative Procedure Act (“APA”) and was arbitrary and capricious under the APA. Ultimately, the court issued a nationwide injunction preventing the suspension of the 2015 Rule.

In 2019, when the Agencies formally repealed the 2015 Rule, lawsuits were also filed challenging that action. In New York v. Wheeler, 1:19-cv-11673 (S.D.N.Y. filed Dec. 20 2019), New York, 13 other states, the District of Columbia and New York City brought suit challenging the Agencies’ efforts. In that lawsuit, the plaintiffs allege that the Agencies’ repeal of the 2015 Rule was “arbitrary, capricious, not accordance with law, and without observance of procedure required by law under the APA.”

Following this pattern, the Trump Administration’s redefining of “waters of the United States” will certainly be challenged in the very near future, which could result in a reviewing court blocking its implementation. We will continue to provide updates as courts begin to review the challenges to the rule, as well as other notable challenges brought during its implementation. For more information on this rule or its implications, please contact Fitzgerald Veira, William Droze, Patrick Fanning, Houston Shaner, Morgan Gerard, Rich Pepper, and Mandi Moroz.

On January 27, EPA published a preliminary list of manufacturers that are potentially subject to a fee obligation under the Toxic Substances Control Act (“TSCA”). This is a follow-up notice to EPA’s designation of 20 additional substances as High Priority Substances in December, for which the agency will now go through a risk evaluation, including:

  • p-Dichlorobenzene
  • 1,2-Dichloroethane
  • trans-1,2- Dichloroethylene
  • o-Dichlorobenzene
  • 1,1,2-Trichloroethane
  • 1,2-Dichloropropane
  • 1,1-Dichloroethane
  • Dibutyl phthalate (DBP) (1,2-Benzene- dicarboxylic acid, 1,2- dibutyl ester)
  • Butyl benzyl phthalate (BBP) – 1,2-Benzene- dicarboxylic acid, 1- butyl 2(phenylmethyl) ester
  • Di-ethylhexyl phthalate (DEHP) – (1,2-Benzene- dicarboxylic acid, 1,2- bis(2-ethylhexyl) ester)
  • Di-isobutyl phthalate (DIBP) – (1,2-Benzene- dicarboxylic acid, 1,2- bis-(2methylpropyl) ester)
  • Dicyclohexyl phthalate
  • 4,4′-(1-Methylethylidene)bis[2, 6-dibromophenol] (TBBPA)
  • Tris(2-chloroethyl) phosphate (TCEP)
  • Phosphoric acid, triphenyl ester (TPP)
  • Ethylene dibromide
  • 1,3-Butadiene
  • 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta [g]-2-benzopyran (HHCB)
  • Formaldehyde
  • Phthalic anhydride

Under the Frank R. Lautenberg Chemical Safety for the 21st Century Act of 2016, EPA has the right to collect fees from manufacturers (including importers) of substances that are undergoing a risk evaluation.

EPA has prepared lists of manufacturers for each substance, which are available in Docket EPA-HQ-OPPT-2019-0677. The fee obligation can be imposed on a company even if the substance is imported as part of an article, manufactured in small amounts or even as a byproduct or an impurity. Nevertheless, because EPA used Toxic Release Inventory (“TRI”) reports as a source to generate its preliminary lists, it is also possible that EPA has incorrectly identified companies as manufacturers.

EPA is opening a 60-day comment period for companies to either disagree with EPA’s conclusion that they qualify as a manufacturer or to self-identify as a manufacturer if the Agency inadvertently left them off the list. EPA notes that a failure to self-identify during the comment period would qualify as a violation of TSCA, and subject the company to per-day penalties for failure to report. Companies also have the opportunity to submit a certification that the company ceased manufacture prior to March 20, 2019, which would exempt them from the fee, or to submit a small business certification, which would substantially reduce the fee for that manufacturer. The comment period will close on March 27, 2020.

This notice potentially has significant implications as the fee for each risk evaluation is $1.35 million, to be divvyed up between all of the manufacturers that EPA lists in its final rule (which is expected to be published concurrently with the scoping document for each substance’s risk evaluation). As a result, it will be important for listed companies to evaluate whether EPA’s designation is correct, whether the company is eligible to submit a certification that it ceased manufacture prior to the cutoff date, and whether the company qualifies as a small business. Finally, companies that are not on the list should nevertheless review their manufacturing processes over the past five years carefully to ensure that they do not have an obligation to self-identify for any substances.

Plaintiffs across the country have filed suit seeking relief for their exposure to per– and polyfluoroalkyl substances (“PFAS”), a group of man-made chemicals that the plaintiffs hope to link to a variety of adverse health effects, including cancer. While the health effects attributable to these chemicals are under study by state and federal regulators, decisionmakers have been slow to implement rules and regulations that provide those who have been exposed to these chemicals with a clear path for recovery. While regulators grapple with these emerging contaminants, courts are weighing in on whether those injured by exposure to PFAS are entitled to relief under the existing regulatory landscape.

In Giovanni v. United States Department of the Navy, No. 16-04873, 2020 WL 224683 (E.D. Pa. Jan.15, 2020), the District Court for the Eastern District of Pennsylvania became one of the most recent courts to address the PFAS regulatory gap. In Giovanni, two families discovered that their private wells were contaminated with two types of PFAS: perfluorooctanoic sulfonate (“PFOS”) and perfluorooctanoic acid (“PFOA”). After discovering that the contamination was the result of the Navy’s disposal of the chemicals at two of its nearby facilities, the families brought suit under Pennsylvania’s Hazardous Site Cleanup Act (“HSCA”), requesting costs for medical monitoring and an order directing the Navy to perform a health assessment and health effects study.

Initially, the district court dismissed the families’ request for a government-led health assessment and health effect study by finding that the requested relief was barred from review under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). On January 15, 2020, the district court also dismissed the families’ request for medical monitoring. Here, the court found that the HSCA did not regulate either PFOS or PFOA. The district court acknowledged that, although state regulators were in the process of considering regulations to provide relief for exposure to these chemicals, the court was required “to decide cases based on what the law is, not what the law may be at some point in the future.”

As recognized in Giovanni, state and federal regulators are actively considering how to define and regulate different PFAS. In 2019, the Environmental Protection Agency (“EPA”) released a multi-pronged action plan to delineate its goals for addressing and regulating PFAS. The action plan details the EPA’s plans to regulate PFAS across a variety of the agency’s statutory programs including, among others, the Safe Drinking Water Act, CERCLA, and the Clean Water Act. (A summary of the action plan can be viewed here.) Following the EPA’s lead, many states are also considering how to address PFAS. While regulators continue to assess how to handle these emerging contaminants, litigation continues in courts across the country as plaintiffs seek relief under the existing regulatory scheme.

As state and federal regulation of these emerging contaminants continues to evolve, we will continue to provide updates on how these claims are developing in the court system.

The district court’s decision in Giovanni can be reviewed here. Please direct any questions to William Droze or Mandi Moroz.

On January 13 and 15, 2020, EPA and the U.S. Department of Labor (DOL), respectively, published their annual civil monetary penalty adjustments in the Federal Register. The Federal Civil Penalties Inflation Adjustment Act of 2015 requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. The annual inflation adjustments are based on a cost-of-living multiplier determined by changes to the Consumer Price Index. This year’s inflation multiplier is 1.01764.

For EPA, the increased civil penalty amounts apply to every major environmental statute, including the Clean Air Act (CAA), the Clean Water Act (CWA), the Safe Drinking Water Act (SDWA), the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), and the Emergency Planning and Community Right-to-Know Act (EPCRA), among others.  For these programs the civil penalty amounts increased as follows:

  • CAA civil penalties increased to $101,439 (from $99,681) per day, per violation
  • CWA civil penalties increased to $55,800 (from $54,833) per day, per violation
  • SDWA civil penalties increased to $58,328 (from $57,317) per day, per violation
  • RCRA civil penalties increased to $75,867 (from $74,552) per day, per violation
  • TSCA civil penalties increased to $40,576 (from $39,873) per day, per violation
  • EPCRA civil penalties increased to $58,328 (from $57,317) per day, per violation

The adjusted amounts apply to penalties assessed on or after January 13, 2020 for violations that occurred after November 2, 2015, the date Congress enacted the penalty adjustment legislation.

For OSHA, the adjusted penalty amounts apply to any penalties assessed after January 15, 2020, even where inspections may have occurred earlier. The civil penalties for key violations increased as follows:

  • For willful and repeat violations: to $134,937 (from $132,598)
  • For serious and other-than-serious violations: to $13,494 (from $13,260)
  • For failure to correct a violation: to $13,494 (from $13,260)
  • For posting requirement violations: to $13,494 (from $13,260)

For more information regarding civil monetary penalties, please contact Brooks Smith or Patrick Fanning.

On January 10, 2020, the Council on Environmental Quality (CEQ) published the long-awaited proposed rule to amend its regulations implementing the National Environmental Policy Act of 1969 (NEPA).  The statute, sometimes pejoratively referred to as a “paper-tiger,” requires a federal agency to take a hard look at the environmental impacts of certain proposed projects, but does not mandate any particular outcome.

The CEQ promulgates NEPA regulations and coordinates the other Executive branch agencies’ implementation of NEPA.  The CEQ originally adopted NEPA implementing regulations in 1978 and while it has issued over 30 guidance documents since, the rules have not been materially amended until last week.  The proposed rulemaking contains numerous revisions, reshuffles existing provisions and adds many new provisions, all aimed at speeding up infrastructure projects by reducing delays and paperwork during NEPA reviews.  For example, the proposal establishes a 75-page limit for environmental assessments (EAs) and a 150-page limit or, for proposals of unusual scope and complexity, a 300-page limit for environmental impact statements (EISs), and 1-year and 2-year time limits for review to complete these respective documents.  Today, an EIS can take up to 4.5 years to complete and averages 600 pages.

Among other significant changes, the proposal would modify how agencies review environmental impacts of their proposed actions.  The proposal dramatically revises the definition of “effects,” which traditionally has included a review and discussion of “direct, indirect, and cumulative effects,” by reducing it to one short paragraph and eliminating references to these three categories.  Per the proposed language, the effects should be “reasonably foreseeable” – an ordinary person’s standard – and have a reasonably close causal relationship to the proposed action or alternatives.  The agencies will not be required to consider effects that they have no authority to prevent, including those resulting from projects outside their jurisdictions.

The proposed “reasonably foreseeable” revision to NEPA is also particularly important for the proponents of pipeline projects, many of which have come under scrutiny for their upstream and downstream impacts from greenhouse gases (GHGs).  The proposal requests comments on whether it should codify elements of its Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions (84 FR 30097 (June 26, 2019)), which allows the use of GHG emissions from a project as a proxy for the direct and indirect effects of those emissions on the affected environment.  The effect of those emissions on environment under the draft guidance is based on a close causal relationship between the emission and the effect.  Recognizing the complexity of the issue, the proposal seeks comments on whether and how agencies should address GHGs in NEPA reviews.  Extensive comments on this issue are anticipated.

Of equal importance is CEQ’s incorporation of existing guidance that requires agencies to provide a detailed analysis of the reasonable alternatives to the proposed action, not “all” alternatives.  Reasonable alternatives, according to the revised definition, must be technically and economically feasible and meet the purpose and need of the proposed action.  Further, under the proposed rule, agencies need not analyze alternatives outside the jurisdiction of the lead agency.  The proposal requires the agency to solicit public comment on the completeness of the submitted alternatives, information, and analyses section of the draft EIS.  A new corresponding section in the draft and final EIS and record of decision (ROD) would provide a summary of the submitted information and alternatives, and the ROD would require the agency’s certification to serve as a “conclusive presumption” that it has considered submitted alternatives.

The proposed rule includes many changes in other important categories, which are summarized below.

NEPA Review & Documentation

  • No requirement to publish a draft EA for public review.
  • Clarifies that the lead agency is responsible for determining the purpose and need and alternatives in consultation with any cooperating agencies, as well as the schedule for environmental review, and resolution of disputes and other issues that may cause delays in the schedule.
  • Directs the lead and cooperating agencies to prepare a single EIS or EA and issue a joint ROD or FONSI when practicable.
  • Allows agencies to continue to use a categorical exclusion (CE) for projects where extraordinary circumstances would otherwise not allow the use of CE, as long as mitigating circumstances exist that would allow the proposed project to avoid the significant effects that create the extraordinary circumstances.
  • Allows an agency to adopt another agency’s EA in its FONSI and a different agency’s determination that a CE applies.
  • Provides that other documents or analyses under other environmental statutes, for example, the regulatory impact analysis, may serve as EIS’s functional equivalents and be sufficient to comply with NEPA. Although some judicial decisions have permitted using analyses under other environmental statutes (e.g., RCRA, CERCLA, etc.) to satisfy NEPA requirements, CEQ proposes to grant agencies discretion to extend this overlap to environmental analyses developed under other statutes.
  • Gives agencies greater flexibility to allow applicants and contractors to contribute information and materials to aid in the preparation of environmental documents, subject to agency evaluation.
  • Provides federal agencies with greater flexibility to “tier” their environmental documents or “incorporate by reference” other existing environmental studies and analyses.
  • Revises the definition of a “major federal” action to exclude non-federal projects with minimal federal funding/involvement.
  • Allows the scoping process to start before the agency publishes a Notice of Intent (NOI) alerting interested and affected parties to a project proposal. The increased flexibility afforded to agencies in issuing NOI will presumably provide agencies more flexibility in meeting the 1-year and 2-year timing requirements for EAs and EISs since these timelines begin at the NOI issuance.
  • Clarifies that supplementation of NEPA documents is only needed if there is a major federal action that remains outstanding and there are substantial changes to the proposed action or significant new circumstances or information become apparent. This is meant to clarify that there is a finality to agency review, and there is no “ongoing” major federal action that requires continuous supplementation.

Judicial Review

  • Revises the timing of judicial review from the filing of an EIS or FONSI to the issuance of a signed ROD or taking of another final agency action (the agency may designate the issuance of the EIS, EA, FONSI, or CE as its final agency action).
  • Adds a new § 1500.3(d), “Remedies,” which explicitly states that harm from the failure to comply with NEPA can be remedied by compliance with NEPA’s procedural requirements, and that CEQ’s regulations do not create an independent cause of action for violation of NEPA.

Public Participation

  • Requires that all comments be made as specific as possible. Although this language is not new, the proposed rule would require commenters to explain why the issue they raise is significant, reference specific pages of the draft EIS, and propose “specific changes.”
  • Requires that agencies consider only timely submitted comments (within 30 days). Untimely comments are considered “exhausted and forfeited,” making it harder to challenge issues not commented upon in a later proceeding.
  • Relaxes the agency’s response to comments requirement by relieving the agency from the need to provide a detailed response explaining why comments do not warrant a response.

Other provisions generally favorable to project proponents include allowing agencies to authorize land acquisitions while NEPA review is ongoing, and a provision that would allow agencies to retroactively apply the regulations to ongoing reviews.

If the rule is finalized, other agencies would have 12 months to align their regulations to conform with the rule.  But for a proposal as comprehensive as this, legal challenges are very likely.  If finalized, the proposal may result in less agency paperwork and faster NEPA reviews, which should achieve the goal of the revisions.  The proposal, however, does not free federal agencies from their core NEPA duties: to take a hard look at environmental impacts.  As this review often hinges on a reasoned consideration of the potential impacts of a proposed project and proper documentation of the analysis, agency staff may be reluctant to simplify the reviews in favor of speeding up projects.  And with the upcoming election season, it is possible that a final rule may fall within the scrutiny of the Congressional Review Act (which may allow the Congress to override the regulation if not finalized by May 20, 2020) or that the lay of the NEPA landscape may shift again in favor of broader reviews.

Comments on the proposed rule should be submitted on or before March 10, 2020.  Additionally, CEQ will hold public hearings on the proposal on February 11, 2020 in Denver, CO and February 25, 2020 in Washington, DC.

On January 8, 2020, the U.S. Senate Environment and Public Works Committee heard testimony from representatives of Wyoming and Maryland in an effort to evaluate the effectiveness of programs under the Clean Water Act (“CWA”) designed to reduce nonpoint source (“NPS”) pollution.

NPS pollution, unlike point source pollution that can typically be traced to an industrial or sewage treatment facility, is created by land runoff that results from rainfall or snowmelt. As the water moves over and through the ground, it picks up sediment and other pollutants that are eventually deposited into nearby waterways. According to the Environmental Protection Agency, NPS “pollutants have harmful effects on drinking water supplies, recreation, fisheries, and wildlife.”

While the CWA places strict regulations on discharges from point sources, regulating NPS pollution is more difficult. As a result, 1987 amendments to the CWA created the Section 319 Nonpoint Source Management Program (“Section 319”). This program seeks to reduce NPS pollution by providing states, territories, and tribes with grant money for education, training, technical assistance, or restoration projects related to NPS pollution.

The issue of nonpoint source pollution has received great focus lately in the closely related issue of groundwater given the case of County of Maui, HI v. Hawaii Wildlife Fund, _   U.S. ___, Case No. 18-260 (Argued Nov. 6, 2019; Decision Below 886 F.3d 737).  In the CWA, Congress differentiated between point source and nonpoint source pollution in controlling pollution of navigable waters. The CWA regulates point source pollution through permits, while nonpoint source pollution is controlled through federal oversight of state management programs and other non-CWA programs. The Supreme Court and several courts of appeals have read the CWA’s line dividing point source and nonpoint source pollution to turn on whether pollutants are delivered to navigable waters by a point source.  In County of Maui however, parting with those cases, the Ninth Circuit concluded that point source pollution also includes pollutants that reach navigable waters by nonpoint sources so long as the pollutants can be “traced” in more than “de minimis” amounts to a point source. This holding if affirmed potentially expands CWA permitting to millions of sources previously regulated as nonpoint source pollution. The question presented in the case is whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.

During the hearing to evaluate the effectiveness of Section 319 programs, senators heard from Maryland’s Secretary of the Environment, Ben Grumbles. Grumbles discussed remediation efforts, including the installation of an oxidizing pond and limestone leach bed, used by Maryland’s Department of the Environment to reduce NPS pollution in Aaron Run, a stream affected by runoff from abandoned coal mines. Senators also heard from the Nonpoint Source Program Coordinator at the Wyoming Department of Environmental Quality, Jennifer Zygmunt. Zygmunt discussed the best management practices (“BMPs”) used to reduce NPS pollution in Chugwater Creek, a water source listed as an impaired water under the CWA. The BMPs included the installation of a riparian fence and modifications to cattle grazing patterns in the area.

Despite the successes in Maryland and Wyoming, NPS pollution remains a potential source of pollution. It remains to be seen whether changes will be made to Section 319 or whether other measures will be taken to help reduce NPS pollution.

The text of the Section 319 Nonpoint Source Management Program can be found here. Additional information related to the efforts to reduce NPS pollution in Chugwater Creek can be viewed here and information related to the remediation efforts at Aaron Run can be viewed here.

Any questions regarding the foregoing may be directed to William Droze or Mandi Moroz.

EPA’s New Source Review (NSR) reform efforts have been in full swing over the past month or so as the Agency released two final guidance documents, issued a pre-publication version of a proposed rule, took final action to end a years-old reconsideration of a 2007 rulemaking, and released its Fall Unified Agenda detailing dates for a number of upcoming NSR-related actions. While these actions may not have immediate consequences for many regulated sources, they are evidence that EPA continues to pursue its NSR reform agenda.  Continue Reading EPA Engages in Flurry of NSR-Related Actions as 2019 Draws to a Close

Somewhat like a soccer game, time on the dispute between Florida and Georgia over the waters of the Apalachicola Chattahoochee Flint (ACF) basin seems to be kept on the field. It is difficult to know from the stands exactly where the game stands notwithstanding the score.  But the report issued by Special Master Hon. Paul J. Kelly, Jr. on December 11, 2019, plainly tipped the balance in Georgia’s favor when Special Master Kelly stated that he did not recommend that “the Supreme Court grant Florida’s request for a decree equitably apportioning the waters of the ACF Basin because the evidence has not shown harm to Florida caused by Georgia; the evidence has shown that Georgia’s water use is reasonable; and the evidence has not shown that the benefits of apportionment would substantially outweigh the potential harms.”  Rep’t of Sp. Mast. at 81. Continue Reading Florida/Georgia Water Wars: Advantage Georgia

On December 9, 2019, the U.S. Supreme Court decided not to revisit the U.S. Court of Appeals for D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (2019), allowing the lower court’s ruling to stand.

The key holding of the D.C. Circuit’s opinion, which concerned the ongoing Federal Energy Regulatory Commission’s (FERC) 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 request for water quality certification within one year.  The D.C. Circuit held that the plain language of CWA section 401 establishes a maximum period of one year for states to act on a request for water quality certification.  Accordingly, the court further held that FERC erred in concluding that the “withdrawal-and-resubmittal” of the water quality certification application on an annual basis resets the one-year statutory time period for state action under section 401. Continue Reading Supreme Court Declines to Hear Clean Water Act Section 401 Case

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. Continue Reading Army Corps Agrees to Obtain Clean Water Act Permit to Operate Federal Hydroelectric Dam