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EPA Proposes Restrictions to State Water Quality Certifications

A proposed rule issued August 9th appears to move in a different direction from the approach to cooperative federalism promoted by recent EPA initiatives.  EPA’s new Water Quality Certification rule seeks to restrict the authority of states and authorized tribal agencies – at least with respect to certain actions under the Clean Water Act. This is a rule to watch for utilities and businesses seeking licenses from the Federal Energy Regulatory Commission, and for developers who need Clean Water Act Section 404 permits from the Army Corps of Engineers.

Section 401 of the Clean Water Act Section gives states and authorized tribes the authority to assess the potential water quality impacts of discharges from federally permitted or licensed projects that may affect navigable waters.  This certification process is triggered by a range of federal permitting and licensing decisions.  Significantly, the Water Quality Certification is the mechanism by which state and tribal permitting agencies provide input to the Army Corps of Engineers’ issuance of Clean Water Action Section 404 Dredge and Fill permits and the Federal Energy Regulatory Commission’s hydropower and pipeline licensing process.

According to EPA, the proposed rule is “intended to increase the predictability and timeliness of section 401 certification by clarifying timeframes for certification, the scope of certification review and conditions, and related certification requirements and procedures.” (August 9th News Release)

As compared to past practice, including actions upheld by the U.S. Supreme Court, the newly proposed rule would narrow the scope of what a state or tribal authority could consider or require as part of a certification.  Under the new rule, a certifying authority’s evaluation and any actions directed as part of a certification decision, would be limited to:

  • Considerations of water quality only: States could no longer consider the effects on, or require actions regarding matters outside water quality, for example air quality or public access to waters.
  • Water quality impacts from the potential discharge associated with a project: States could not consider or mitigate potential impacts from the project generally, but must evaluate and address only the discharge to water.
  • Water quality impacts to waters of the United States resulting from a point source discharge: Impacts from run-off or indirect discharges could not be considered.

Additionally, the proposed rule more firmly defines the timeline.  The statute and existing regulations require that a state or other certifying authority must act within a “reasonable period of time,” which shall not exceed a year.  The proposed rule would direct federal agencies to establish the “reasonable period of time” for a given review and provides that there is no tolling provision to stop the clock at any time.  The failure to issue or deny certification within the time set, or one year at the most, will result in a waiver of the certification requirement.

EPA developed the proposed rule in response to the Administration’s April Executive Order on Promoting Energy Infrastructure and Economic Growth.  The proposed rule follows on guidance issued in June pursuant to the Executive Order.

The proposed rule, Updating Regulations on Water Quality Certification, will be open for public comment for 60 days. Companies seeking federal licenses or Clean Water Act Section 404 permits should evaluate the proposed rule, including those topics EPA has specifically identified for input, and consider whether there are topics that warrant comment.

EPA has indicated that the anticipated timeline for finalizing the rule is May 2020.

This post was drafted by Jessica Merrigan, an attorney in the Kansas City, MO office of Spencer Fane LLP. For more information, visit spencerfane.com.

Colorado Mining Operations Face Temporary Cessation Roadblock

Case of First Impression Overturns Mined Land Reclamation Board Ruling

On July 25, 2019, the Colorado Court of Appeals reversed a ruling of the Colorado Mined Land Reclamation Board (“MLRB” or “agency”) which had authorized a second period of temporary cessation for a uranium mine.  The Court in Information Network for Responsible Mining, Earthworks, and Sheep Mountain Alliance v. Colorado Mined Land Reclamation Board was asked to determine if the agency properly authorized a “second period of temporary cessation” which would allow the mining permit issued by the MLRB to remain in effect.

The Role of States in Environmental Enforcement – EPA Issues Final Policy Outlining State Responsibility

Continuing its focus on cooperative federalism under the current Administration, EPA issued its final policy on Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work on July 11, 2019.  EPA’s guidance memorandum follows review of comments from the draft policy published in May 2019 and replaces the January 2018 interim guidance on enhancing partnerships.  EPA’s final policy expands and clarifies earlier direction on communication planning between EPA and its state counterparts with authorized or delegated programs under various federal statutes such as the federal Clean Air Act, Clean Water Act, and RCRA.

Takings Claims in Federal Court

Affected by a local government just compensation action? Your remedies have now changed significantly. The Supreme Court on June 21, 2019 overturned 35 years of precedent. In Knick v. Township of Scott, Pennsylvania the Court held that you can now take your federal takings claims pursuant to 42 U.S.C. § 1983 directly to federal court without exhausting state court remedies.

Minnesota Employers: Don’t be Caught Off Guard

All companies and organizations with Minnesota-based employees must update their employment policies and practices due to recent state law changes going into effect on July 1, 2019.  These updates are necessary due to the Minnesota Legislature’s passage of a law imposing new recordkeeping and notice requirements intended to protect all employees working in Minnesota.  These new requirements are catching many employers off guard due to the lack of publicity for the new law and the short period to achieve compliance.

SEC Adopts Rulemaking Package – “Solely Incidental” Broker-Dealer Exclusion

On June 5, 2019, the Securities and Exchange Commission adopted a rulemaking package that applies to investment advisers and broker-dealers.

This is the fourth in a series of articles describing the SEC’s rulemaking package.  This article addresses the SEC’s Interpretation of the “Solely Incidental” Broker-Dealer Exclusion.  That exclusion allows broker-dealers to provide certain advisory services without becoming subject to regulation as investment advisers under the Advisers Act, as long as those services are “solely incidental” to the broker-dealers’ core business.  The SEC’s new interpretation of this exclusion provides some helpful guidance for broker-dealers and dually-registered firms.

SEC Adopts Rulemaking Package – Form CRS

On June 5, 2019, the Securities and Exchange Commission adopted a rulemaking package that applies to investment advisers and broker-dealers.  These rules include a new set of disclosure requirements to address retail investor confusion over brokerage and investment advisory services.

This is the third in a series of articles describing the SEC’s rulemaking package.  This article provides an overview of the Form CRS – Relationship Summary portion of the package.

Missouri Proposes to Reduce Reporting Timeframe for Start-Up, Shutdown, and Malfunction Conditions

Facilities that own and operate air emissions sources in the State of Missouri, such as manufacturing plants, chemical plants, and similar industrial air sources, will want to take note of recent proposed changes to the notification obligations involving certain excess emission events.

SEC Adopts Rulemaking Package – Investment Adviser Standard of Conduct

On June 5, 2019, the Securities and Exchange Commission adopted a rulemaking package that applies to investment advisers and broker-dealers.  In a series of four articles, Spencer Fane LLP outlines the SEC’s rulemaking package.  Our first article summarized “Regulation Best Interest” a new standard of conduct governing broker-dealers.  In this second article, we describe the SEC’s interpretation of the standard of conduct that applies to investment advisers when they engage with their clients.

SEC Adopts Rulemaking Package – Regulation Best Interest

On June 5, 2019, the Securities and Exchange Commission adopted a rulemaking package that is applicable to investment advisers and broker-dealers.  The package includes two final rules and two interpretations – Regulation Best Interest, Investment Adviser Standard of Conduct Interpretation, Form CRS – Relationship Summary, and Solely Incidental Broker-Dealer Exclusion Interpretation.  The Regulation Best Interest and Form CRS requirements are effective 60 days after they are published in the Federal Register, with a transition period for compliance that ends on June 30, 2020.  The SEC’s interpretations are effective immediately upon publication in the Federal Register.  In a series of four articles, Spencer Fane LLP outlines the SEC’s rulemaking package.  This first article describes the Regulation Best Interest portion of the SEC’s package.

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