Section 401 of the Clean Water Act: Is It Time to Update?

Margaret Anne Hill and Frederick M. Lowther

On Wednesday April 18, 2018, from 1:00 to 1:30 p.m. (EDT), Blank Rome Partners Margaret Anne (“Peg”) Hill and Frederick M. Lowther will present a live webinar where they will discuss adjustments that might be made to the Clean Water Act to restore the originally-intended cooperation between state and federal authorities, and what remedies might be available in lieu of congressional action.

The federal Clean Water Act (“CWA”) has been in existence since 1972. For the states that implemented EPA-sanctioned water quality standards, the CWA (specifically Section 401) gave those states the power to enforce those standards by granting or denying certifications to federally-regulated projects impacting state waters. The concept of state veto power over federally-regulated projects was known as “cooperative federalism.”

By 2005, it became clear that Section 401 rights provided a means for states to delay or frustrate projects on grounds only tangentially related to water quality. In the Energy Policy Act of 2005 (“EPACT”), Congress responded by providing for direct, expedited review of adverse state action in the U.S. Courts of Appeals. Notwithstanding EPACT, several states continued to use Section 401 for purposes broader than originally intended and the direct appellate remedy proved ineffective.

Starting with Islander East in 2007, and culminating recently in Constitution Pipeline, states have effectively blocked a number of federally-approved interstate pipeline projects. The impact of these decisions suggests that it is time to revisit the “cooperative federalism” concept.

For more information about this event or to register, please click here.

SCOTUS Holds that Challenges to the Definition of Waters of the United States Must Be Heard in the U.S. District Courts

Benjamin Stonelake

In a unanimous decision and opinion delivered by Justice Sotomayor on January 22, 2018, in National Association of Manufacturers v. U.S. Department of Defense, the United States Supreme Court (“SCOTUS”) held that challenges to the June 29, 2015 regulation defining the term “waters of the United States” (“WOTUS”) must be filed in the federal district courts. The Court reasoned that the plain text of the judicial review provisions set forth in 33 U.S.C. §1369(b)(1) of the Clean Water Act does not authorize direct challenges to this regulation (the 2015 WOTUS Rule) in the U.S. Circuit Court of Appeals and, therefore, such challenges must be filed in the federal district courts. Continue reading “SCOTUS Holds that Challenges to the Definition of Waters of the United States Must Be Heard in the U.S. District Courts”

Mountain Valley Pipeline: West Virginia Cements the Need for FERC and Congressional Action to Curb State Overreach on FERC Jurisdictional Pipelines

Michael L. Krancer, Frederick M. Lowther, and Margaret Anne Hill

As we have noted in our prior blog posts on the Constitution Pipeline and Millennium Valley Lateral projects, §401 of the Federal Clean Water Act has become a focal point in the growing efforts by States to exercise dominant authority over FERC jurisdictional pipelines. This time, the West Virginia Department of Environmental Protection (“WVDEP”) has taken the unprecedented step of actually revoking a §401 certification it had granted in March 2017 and then reaffirmed in May. This action by WVDEP may be the final straw in State authority to review FERC jurisdictional pipelines as FERC and the Congress will be energized to react to the oversteps by New York in Millennium and now West Virginia in Mountain Valley. Continue reading “Mountain Valley Pipeline: West Virginia Cements the Need for FERC and Congressional Action to Curb State Overreach on FERC Jurisdictional Pipelines”