Jeanne M. Grasso and Dana S. Merkel
The U.S. Environmental Protection Agency (“EPA”) published a Supplemental Notice of Proposed Rulemaking (“SNPR”) on October 18, 2023, modifying its initial proposed rule from three years ago on performance standards for vessel incidental discharges. 2023-22879.pdf (govinfo.gov) The SNPR addressed only three limited areas—ballast water, hulls and associated niche areas, and graywater—and did not make any sweeping changes to the prior proposal of October 26, 2020. 2020-22385.pdf (govinfo.gov)
In December 2018, the Vessel Incidental Discharge Act (“VIDA”) was signed into law, which amended the Clean Water Act (“CWA”) and was intended to replace the EPA’s 2013 Vessel General Permit (“VGP”) to bring uniformity, consistency, and certainty to the regulation of incidental discharges from U.S. and foreign-flag vessels. VIDA required EPA to finalize uniform performance standards for each type of incidental discharge by December 2020, a deadline that is nearly three years past, and requires the United States Coast Guard (“USCG”) to implement EPA’s final standards within two years thereafter.
In October 2020, EPA published a proposed rule titled Vessel Incidental Discharge National Standards of Performance to implement VIDA, but the proposal languished with the change from the Trump Administration to the Biden Administration. EPA’s delay in finalizing its performance standards prompted the Center for Biological Diversity and Friends of the Earth to file a lawsuit in February 2023 to force EPA to finalize its performance standards. Center for Biological Diversity, et al., v. Regan, et al., No. 3:23-cv-535 (N.D. Cal. 2023). The premise of the environmental groups’ complaint was that EPA’s inaction harmed aquatic ecosystems, with the principal allegations focused on ballast water discharges. The parties thereafter negotiated a Consent Decree that requires EPA to finalize its performance standards by September 23, 2024. To keep EPA accountable, EPA is also required to provide updates to the court every three months on the status of the rulemaking.
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David J. Oberly
Why It Matters
In recent years, the question of whether groundwater that migrates into federally protected navigable waters falls under the purview of the Clean Water Act (“CWA”) has been fiercely debated and heavily litigated across the country. To date, the Fourth and Ninth Circuits have both interpreted the CWA broadly, ruling that the CWA extends to reach groundwater discharges. Just recently, however, the Sixth Circuit in Kentucky Waterways Alliance v. Kentucky Utilities Company, No. 18-5115 (6th Cir. Sept. 24, 2018) and Tennessee Clean Water Network v. Tennessee Valley Authority, No. 17-6155 (6th Cir. Sept. 24, 2018) weighed in on the issue, and rejected the theory that pollutants reaching navigable waters as a result of passing through groundwater (or soil) are discharges that fall under the auspices of the CWA. The Sixth Circuit decisions are noteworthy, as they create a clear conflict among the federal circuit courts regarding the scope of the CWA and, more specifically, whether the Act reaches the issue of groundwater discharges, further increasing the likelihood that the United States Supreme Court will take up the matter to issue a decisive ruling on the proper scope of the CWA and provide a definitive resolution to this hotly contested issue of environmental law. Continue reading “Sixth Circuit Limits Reach of Clean Water Act to Groundwater Discharges, Creates Circuit Split on Proper Scope of CWA”
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.
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”
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”