After conducting a “listening tour” in 14 cities across the state, the Texas Water Development Board (TWDB) has recently released proposed new rules for flood mitigation funding.  The proposed rules implement new legislation and measures[1] adopted in the aftermath of recent notable flooding events experienced in Texas, including Hurricane Harvey, a storm that resulted in an estimated $125 billion in damages.  As a result, the state will now play a significant role in funding flood mitigation infrastructure.  The new measures include, among other things, the TWDB’s implementation of the legislative transfer of about $800 million from the state’s rainy day fund, mainly funded by oil and gas taxes, to a newly-established flood infrastructure fund (FIF).   Continue Reading Texas Water Development Board Releases Proposed Flood Mitigation Funding Rules for Public Comment

Safe Harbor regulations were implemented in August 2016 to require “clear and reasonable” warnings of the potential danger of exposure to consumers. Hunton Andrews Kurth partners Malcolm Weiss and Shannon Broome pick up their discussion, this time exploring aspects of the Safe Harbor regulations and the expectations for companies with products sold in California. Continue Reading VIDEO Inside Look: California Prop 65 Safe Harbor Regulations

One of the Supreme Court’s recurring environmental law topics is the scope of Clean Water Act (CWA) jurisdiction. Various aspects of CWA jurisdiction and implementation have been addressed over the years by the Court, including the meaning of “navigable waters” in U.S. v. Riverside Bayview Homes, Inc. (1985); Solid Waste Agency of N. Cook Cnty v. Army Corps of Eng’rs (2001); and Rapanos v. U.S. (2006), and judicial review of agency actions related to the applicability of the CWA dredge and fill permit program in Sackett v. EPA (2012) and U.S. Army Corps of Eng’rs v. Hawkes Co. (2016). Most recently, the Supreme Court heard oral argument on November 6 in County of Maui v. Hawai’i Wildlife Fund, et al., a case that addresses the applicability of the CWA’s prohibition on “point source” discharges to “navigable waters” to releases from point sources to groundwater. The Court granted certiorari to address whether releases from point sources that are carried to navigable waters by groundwater are regulated under the federal NPDES permit program or under state non-point source management programs.

 This case presents a fact pattern similar to those that have given rise to a number of other recent citizen suits, including a suit in Massachusetts claiming that the septic system of a resort located near navigable waters should have obtained a federal NPDES permit. As EPA explained in a recent (April 2019) interpretive notice addressing the applicability of the CWA to releases to groundwater, “[i]t is a fundamental principle of hydrology that many groundwaters and surface waters are linked through the hydrologic cycle.” As a result, waste water treatment systems such as septic tanks, leach fields, green infrastructure and stormwater management systems that slowly release effluent into the soil can lead to pollutants being dispersed and carried by groundwater to surface waters. As EPA explained, “neither EPA nor states have generally required NPDES permits for these types of activities.” Nevertheless, some lower courts have applied the CWA prohibition on point source discharges to navigable waters to require NPDES permits when groundwater is the medium that carries the point source release to navigable waters. The Supreme Court in County of Maui granted certiorari to address the growing confusion in this area of law. Reflecting the importance of this issue to municipal storm and waste water treatment systems and to green infrastructure, briefs in support of the County were filed by numerous municipalities and states, including the cities of New York and San Francisco, the National Association of Clean Water Agencies, the National League of Cities, the Association of California Water Agencies, the League of California Cities, the National Water Resources Association, the WateReuse Association and many others.

Confirming the confusion that has developed over the years regarding the applicability of the CWA NPDES permit program to point source releases to groundwater, the briefs in County of Maui offered a variety of jurisdictional tests for the Court’s consideration. The decision from the Ninth Circuit would require NPDES permitting for point source releases to groundwater in instances where pollutants that reach navigable waters are “fairly traceable” to the point source, as long as those pollutants reach surface waters in more than “de minimis” amounts. In the Supreme Court, Respondents did not defend this Ninth Circuit test but, rather, argued that CWA NPDES permitting should apply if (i) a release to groundwater was touched by a “point source” at some point along its route to navigable waters, (ii) the pollutant that found its way to surface waters was “fairly traceable” to the point source, and (iii) the presence of the pollutant in navigable waters was a “foreseeable” or “natural and probable consequence” of the release to groundwater.

In the ruling below, the Ninth Circuit rejected a test offered by EPA in the prior administration: NPDES permitting applies if the point source releases a pollutant to groundwater that has a “direct hydrological connection” to navigable waters. According to the Ninth Circuit, this test adds words to the statute. Nevertheless, some of Respondents’ amici continued to advance the “hydrological connection” test in their Supreme Court briefs. The United States government, for its part, offered a “bright line” test under which any release to groundwater is exempt from the NPDES permit program and would be subject to the nonpoint source management programs.

The County of Maui argued that the answer to this jurisdictional question is found in the definition of “point source” as a “discernible, confined and discrete conveyance.” Because a point source is defined as a conveyance, the County argued, the NPDES program can apply only where a point source is the thing that delivers the pollutant to navigable waters. Like the government, the County argued that this test preserves the line drawn by Congress in the CWA between federal point source and state nonpoint source regulation.

During oral argument, the Justices grappled with these various views of CWA jurisdiction. On one hand, Justice Sotomayor expressed concern about the adequacy of state nonpoint source regulation. If the line between point and nonpoint source programs is drawn as suggested by the County of Maui, Justice Sotomayor commented: “[B]ut that’s the problem, isn’t it? Because it presumes the states will regulate, and some states won’t.” On the other hand, Justice Alito expressed concern “whether any limiting principle…can be found in the text [that]…is workable and does not lead to absurd results.”

In the search for a workable line between the point and nonpoint source regulatory programs, Justice Breyer offered a test of his own: “[I]f it’s the functional equivalent of a direct discharge,” Justice Breyer posited, a release to groundwater could be regulated under the NPDES program. According to Justice Breyer, this test would “leave[] a lot of room for the EPA to write regulations, to decide what is the functional equivalent of a direct discharge.”

Ultimately, a majority of Justices seemed concerned with finding a test that is predictable and has a basis in the statute. Justice Gorsuch commented, “there are other regulations for nonpoint sources….you don’t want a subjective test…” defining when the different programs apply, “…you want an objective test.” He observed that for “septic tank[s]—and we might put in San Francisco’s green water treatment plants and a whole lot else—[it is] foreseeable [that releases are]…going to wind up in the waters of the United States.” He asked, “[w]hat…limiting principle do you have to offer the Court?”

Justice Breyer picked up on this line of questioning: “[V]irtually every little drop of rain that falls finds its way to the sea. And…that’s an overstatement but not by much. So it’s not just septic tanks…. [T]he brief…of the scientists [in support of Respondents] really convinced me …they can trace all kinds of things.” Justice Breyer continued, “I am worried about the 300 million people…suddenly discovering that they have to go apply for a permit [to] the EPA” for common activities like septic tanks that release pollutants to groundwater.

What then, is the best reading of the CWA? If both sides have a good textual argument, Justice Kavanaugh asked, “[w]hat then should we look at to help us decide how to interpret it?” Among relevant considerations, he suggested, are whether a given interpretation would result in a “massive increase in the permitting program,” in “uncertainty about when and whether you would need to get a permit,” and in “transforming the federal/state balance.”

It goes without saying that it is difficult to predict the outcome of a case from oral argument. What is clear, though, is that until there is resolution of how the jurisdictional line between the CWA NPDES permit program and state nonpoint source programs is drawn, state and municipal water management and regulatory agencies around the country will face continuing uncertainty, the diversion of regulatory resources and the potential for retroactive liability for choosing the wrong regulatory program.

On November 4, 2019, the US Court of Appeals for the Eleventh Circuit upheld the Clean Water Act (CWA) section 404 permit issued by the US Army Corps of Engineers (Corps) for the extension of an existing phosphate mine in central Florida. Center for Biological Diversity v. U.S. Army Corps of Engineers, No. 18-10541 (11th Cir. Nov. 4, 2019). The Corps permit authorizes the discharge of dredged or fill material into waters of the United States that comprise a small portion of the mining extension. Opponents challenged the permit in the Middle District of Florida, claiming the issuance of the permit violated the CWA, the National Environmental Policy Act (NEPA) by not considering “downstream” effects, and the Endangered Species Act (ESA). The district court rejected all of the claims, and the Eleventh Circuit affirmed.

The Eleventh Circuit’s decision reinforces key NEPA principles the Supreme Court recognized in its 2004 decision in Department of Transportation v. Public Citizen and that other federal courts of appeals have since applied. Emphasizing that the proper scope of an agency’s NEPA analysis starts with an accurate description of the agency action, the court noted that the 404 permit only authorizes the discharge of dredged or fill material into waters of the United States. Citing Public Citizen, the court recognized that a NEPA review is limited in scope to those effects proximately caused by the agency action. Because the Corps has control and responsibility only over the discharge of dredged and fill material, not over fertilizer plants regulated by the State of Florida and EPA, the Corps properly concluded that the effects of separate fertilizer plants that process mined phosphate ore are not effects of the Corps permit. The plaintiffs argued that the Corps’ NEPA review should have extended to environmental effects related to waste from fertilizer plants using phosphate ore from the mine.

The decision confirms important principles governing NEPA reviews. The scope of a NEPA review must be tied to the specific agency action. And only those effects the agency action proximately causes need be considered as direct or indirect effects of the action. The decision thus provides important guidance regarding the proper scope of NEPA analysis for Corps permits and other federal agency actions. The Corps permit holder is represented by Hunton Andrews Kurth attorneys George P. Sibley III, Jonathan L. Caulder, Deidre G. Duncan, Andrew J. Turner, Kerry L. McGrath, Brian Levey and Jamie Zysk Isani.

Last week, Annie Kuster (D-NH) along with four other Democratic members of Congress introduced a proposed Natural Gas Act (NGA) amendment aimed at banning the use of eminent domain for construction or expansion of interstate natural gas pipeline infrastructure through lands subject to conservation restrictions in favor of, or owned by, non-profit entities or local governments. The proposed legislation is “The Protecting Our Conserved Lands Act of 2019.” Continue Reading Proposed Legislation Seeks to Block Pipelines From Vaguely-Defined “Conservation” Lands without Considering Adverse Impacts of Re-Routes

Over the past few years, certain states have relied on ambiguities in the Clean Water Act (CWA) Section 401 water quality certification process to block the construction of significant energy infrastructure projects (e.g., oil and gas pipelines, coal export facilities, and liquid natural gas [LNG] terminals) determined by federal agencies to be in the public interest of individual states, regions, and the nation as a whole. Consistent with the cooperative federalism structure of the CWA—and the important role of states in protecting water quality within their borders—Section 401 requires applicants for a federal license or permit anticipated to result in discharges to navigable waters to obtain a certification from the relevant state that the discharge will comply with applicable state water quality standards. States can waive this requirement, and if they do not act within “a reasonable period of time (which shall not exceed one year) after receipt” of the request for the certification, waiver is automatic. 33 U.S.C. § 1341(a). Continue Reading EPA Proposes to Increase Predictability and Timeliness of Water Quality Certification Process

Under the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) and California’s Porter-Cologne Water Quality Control Act, industrial facilities in California are required to obtain coverage under the state’s NPDES general permit for discharges associated with industrial storm water activities (General Industrial Permit) or justify why they are exempt. For regulated facilities, including manufacturing facilities, landfills, mining operations, steam electric power generating facilities, hazardous waste facilities, and oil and gas facilities, failure to obtain coverage under the General Industrial Permit is a potential violation of the Clean Water Act (in addition to state law), which could expose the owner or operator of the facility to potential civil penalties of up to $54,833 per day. Enforcement, however, largely is dependent upon agency inspections or enforcement by citizen groups. Based on estimates by the California Coastkeeper Alliance, many facilities in California may have failed to enroll in the industrial storm water permit program. Continue Reading You Say You Want a Business License? California Enacts New Law to Improve Compliance with Industrial Storm Water Permitting Requirements

Recent headlines underscore the security challenges faced by public-facing businesses. From physical threats to cyber attacks targeting a wide range of critical infrastructure, companies in diverse sectors, such as the financial, retail, entertainment, energy, transportation, real estate, communications and other areas, face a challenging landscape of risks and potential liabilities. Join us on October 28, 2019, at 12:00 p.m. EST, for a webinar to discuss these issues, including why companies should consider SAFETY Act protection and how to obtain it. Continue Reading Webinar on the SAFETY Act, Security and Insurance

California’s Proposition 65 (Prop 65), adopted in 1986 by state voters, has long been considered among the most far-reaching right-to-know and toxic chemical reduction statutes in the country. It now has competition from Washington State’s Pollution Prevention for Healthy People and Puget Sound Act (the “Act”), SSB 5135 (Chapter 292, 2019 Laws), signed into law on May 8, 2019, by former 2020 presidential candidate Governor Jay Inslee. Numerous commentators have called the Act, the nation’s “strongest” policy for regulating toxic chemicals in consumer products. Continue Reading Washington State Ramps Up Chemical Regulation

In August 2018, the US Environmental Protection Agency announced it was rebranding its National Enforcement Initiatives as National Compliance Initiatives, and specifically stated it was no longer targeting oil and gas sources as deserving of extra scrutiny. In addition, since taking office in January 2017, the Trump administration has aggressively rolled back many environmental regulations promulgated under the Obama administration. Despite what some may perceive as a kinder, gentler EPA and the Trump administration’s “deregulatory” agenda, however, the EPA has continued to pursue enforcement cases against many of the same businesses believed to benefit the most from the administration’s policies. Notably, this includes midstream oil and gas sources, as recently evidenced by EPA’s September 2019 Enforcement Alert (EA) titled, “EPA Observed Air Emissions from Natural Gas Gathering Operations in Violation of the Clean Air Act.” Continue Reading Don’t Be a Pig: EPA Focuses Enforcement Alert Against Mid-Stream Gas Gathering Operations