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My Mitchell Williams Law Firm colleagues Allan Gates and Jordan Wimpy undertook a presentation at the April 18th Arkansas Environmental Federation seminar titled:

Legal Updates in Water Law (“Presentation”)

The topics addressed in the Presentation included:

1. Waters of the United States (“WOTUS”) – Discussing how a criminal sentencing case may impact the revision of the WOTUS rule
2. Groundwater – Does a discharge to Groundwater require a Clean Water Act National Pollution Discharge Elimination System (“NPDES”) Permit?
3. Anti-Duplication – How the United States Environmental Protection Agency (“EPA”) “discretion” to regulate stormwater led to potential Resource Conservation and Recovery Act (“RCRA”) enforcement
4. Clean Water Act 401 Certification – March 2018 decisions providing clarity to Section 401 Water Quality Standard (“WQS”) certification process

1) Criminal Sentencing Case/WOTUS Rule

The Presentation addressed the impact of Hughes v. United States, 849 F.3d 1008 (11th Cir. 2017), in relation to the WOTUS rule.

The issue considered was whether the 4-1-4 decision in Freeman v. United States should be applied to a “C-Plea” defendant’s request for sentence reduction.

Conclusions reached include:

• Confusion persists in how to apply 4-1-4 decisions
• The SCOTUS decision in Hughes v. United States may trump the Executive Order directing revision of WOTUS in line with Justice Scalia’s opinion in Rapanos

2. Groundwater

The Presentation also discusses case law considering whether a discharge to groundwater requires an NPDES Permit. The three cases addressed included:

1. Hawai’i Wildlife Fund v. County of Maui, ___F.3d___(9th Cir., Feb. 1, 2018)

   Note – a previous post in this blog addressed this decision in some detail (see previous post).

   Further note that the United States Court of Appeals for the 4th Circuit recently issued an opinion addressing this issue. The blog lawandenvironment notes in an April 23rd post that:

   Last week, the 4th Circuit Court of Appeals . . . – not the most liberal court in the land – joined the 9th Circuit . . . in ruling that discharges from a point source to groundwater can be subject to the Clean Water Act. (see http://www.lawandenvironment.com/2018/04/18/another-ruling-that-discharges-to-groundwater-are-subject-to-the-clean-water-act/)

2. Kentucky Waterways Alliance v. Kentucky Utilities Co., 2017 WL 6628917 (E.D. Ky, Dec. 28, 2017), appeal pending, No. 18-5115 (6^th Cir.)
3. Tennessee Clean Water Network v. TVA, 273 F. Supp. 3d 775 (M.D. Tenn 2017), appeal pending, No. 17-6155 (6th Cir.)

The Presentation asked whether a discharge to Groundwater that ultimately affects navigable surface waters require an NPDES permit.

Rulings on the issue from the respective decisions include:

• County of Maui – Yes, groundwater is conduit
• Kentucky Utilities – No, groundwater is not a point source
• Tenn. Clean Water – Yes, groundwater is a point source

The Presentation concludes that confusion persists and notes that EPA recently requested comments on the issue.

3. Anti-Duplication

The Presentation addressed whether EPA’s “discretion” to regulate stormwater led to potential RCRA enforcement.

The case – Ecological Rights Found. V. Pac. Gas & Elec. Co., 874 F3d 1083 (9th Cir. 2017) is discussed.

The decision examines the scope of the RCRA Anti-Duplication Provisions, which states in relevant part:

“Nothing in this chapter shall be construed to apply to . . . any activity or substance which is subject to the Federal Water Pollution Control Act, the Safe Drinking Water Act . . . except to the extent that such application (or regulation) is not inconsistent with the requirements of such Act.” RCRA Section 1006(a), 42 USC § 6905(a) and (b).

(See previous post here describing an anti-duplication case from a United States District Court in Oklahoma.)

The Presentation concludes:

• Fact specific application with fact specific inquiry
• Must show specific contradictory permit conditions

4. 401 Certification

The Presentation addresses whether certain March 2018 decisions provide clarity to the Section 401 Clean Water Act WQS process.

The cases discussed include:

• New York State Dep’t of Envtl. Conservation v. Sarah Burns, et al. , No. 17-3770-ag, slip opinion (2d Cir. 2018)
• FEB Missouri 15, LLC, 162 FERC 61,327 (Mar. 15, 2018)

The Section 401 Waiver Provision was addressed, which states:

“If the State . . . fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements . . . shall be waived with respect to such Federal application.” CWA Section 401, 33 USC § 1341(a)(1).

The Presentation concludes that the cases provide clarity to the 401 process but that concerned states could still deny the application without prejudice and request re-application.

A copy of the slides for the Presentation can be downloaded here.