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.

Continue Reading FERC Issues Policy Statement Extending License Terms for Hydro Projects

The battle over regional haze in Texas continued this week, as EPA published a final rule for the state to address visibility degradation in its national parks.  The rule itself appears relatively plain on its face—it simply approves for Texas a regional haze policy that is similar to what EPA has approved for many other states.  That is, it deems compliance with an emission trading program to be sufficient to satisfy the regional haze requirement for Best Available Retrofit Technology (BART).  However, the Texas rule is the most recent and obvious indication that the Trump EPA is taking a very different tack on regional haze than the Obama EPA.

Continue Reading EPA Action on a Texas Rule the Latest Indication of a Reversal in Regional Haze Policy

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 October 10, EPA Administrator Scott Pruitt signed a proposal to repeal the Clean Power Plan (CPP).  The CPP was one of the Obama Administration’s signature environmental regulatory initiatives, designed to reduce CO2 emissions from fossil-fueled electric generating stations.  The repeal proposal asks for public comments within 60 days from the day it is published in the Federal Register.  It is expected that it will be published relatively quickly in the coming weeks.

Continue Reading EPA Takes Step to Rescind, Possibly Replace the Clean Power Plan

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. Continue Reading Troutman Sanders Forms Group Focused on Species Issues

 

On August 17, 2017, the National Marine Fisheries Service (NMFS) published in the Federal Register a final rule designating over 3,900 river miles along the east coast as critical habitat for five distinct population segments (“DPS”) of Atlantic Sturgeon (New York Bight, Chesapeake Bay, Carolina, South Atlantic and Gulf of Maine).  The agency chose these areas based on the presence of “physical or biological factors” (PBFs) essential for the conservation of the species and that may require special management considerations or protection.  Back in 2012, NMFS had listed each of the five Atlantic Sturgeon DPS as either endangered or threatened.  77 Fed. Reg. 5880; 77 Fed. Reg. 5914.  Once a species is listed, the relevant agencies must identify critical habitat for the species.  Under the ESA, impacts to critical habitat must be evaluated in federal permitting actions, in addition to impacts to the species itself.

Continue Reading NMFS Designates Critical Habitat for Atlantic Sturgeon

On August 15, 2017, EPA issued non-binding guidance providing insight of EPA’s expectations for states to assume regulation authority over coal combustion residuals (CCRs).   Comments on this guidance are due September 14, 2017. Under the Water Infrastructure and Improvements for the Nation Act, states may develop their own CCR permit programs that are “at least as protective” as the federal CCR rule.  EPA must review these programs at least every 12 years.  Upon the submission of a program application by a state, EPA will have 180 days to act, which includes a period of public notice and comment.  States may choose not to submit such a program, and instead opt to remain under the federal scheme.

Continue Reading Environmental Protection Agency Issues Guidance on Approving State Permit Programs under the WIIN Act

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.

Continue Reading EPA and Army Schedule Public Meetings on Revisions to Definition of WOTUS

On August 22, 2017, EPA released its proposed area designations in the latest round of designations under the 2010 SO2 National Ambient Air Quality Standard (NAAQS).  The proposed designations largely track the states’ recommendations; however, EPA has identified a number of areas, recommended by states as “attainment,” that EPA believes “may be violating” the standard, including areas in Florida, Guam, Indiana, Louisiana, Minnesota, Ohio, Puerto Rico, and Wisconsin.  In addition, EPA has proposed to designate some areas as unclassifiable as opposed to unclassifiable/attainment.  EPA has published a table that compares its intended designations with the state recommended designations.  https://www.epa.gov/sulfur-dioxide-designations/intended-sulfur-dioxide-area-designations-august-2017

Continue Reading EPA Releases Proposal in the Third Round of Designations for the 2010 SO2 NAAQS