Join Husch Blackwell and the Texas Renewable Energy Industries Alliance (TREIA) for a webinar series focused on topics that affect the Texas renewable energy industry.

Don’t miss the first in this webinar series, ITC & PTC Status Overview, on Tuesday, May 7, 2019, Noon – 1:00 p.m. CDT.

The first installment of the 2019 series will be an overview of the current status and future of the Investment Tax Credit (ITC) and Production Tax Credit (PTC). Presenters from Husch Blackwell and OnPeak Power will discuss commercial application and roles of the solar investment tax credit and wind production tax credit in financing and project development. In addition, they will cover the expected future of wind and solar development as credits are reduced or expired, the current legal status of wind and solar credits, and the legal eligibility for these credits.

Presenters include Ian Davis, Vice President, OnPeak Power and Jason Reschly, Partner, Husch Blackwell.

Who Should Attend?

Renewable developers, solar service providers, public officials, investors, lenders, general counsel, private equity companies, environmental entities, and other development consultants and service providers.

This webinar introduces topics that will be featured at the 2019 GridNEXT Conference, to be held June 26-27, 2019 in San Antonio.

Continuing Education Credit

This program is pending approval for Texas continuing legal education credit.

Registration

This webinar is complimentary; however, registration is required. We encourage you to share this webinar with interested colleagues.

As discussed in prior blog posts, the Federal Circuits became split (Part 1) in 2018 on whether the Clean Water Act (“CWA” or the “Act”) regulates discharges of pollutants from point sources that reach navigable waters through nonpoint sources, such as groundwater. Recently, the U.S. Supreme Court granted certiorari in one of those Circuit decisions (Part 2), and the case is still in front of the Supreme Court. While U.S. EPA had requested comments on this and other issues (Part 3), the agency’s current position was unknown until recently. On April 15, 2019, EPA released an interpretive statement and corresponding press release providing new guidance on whether the CWA permitting requirements apply to discharges directly to groundwater (78 Fed. Reg. 16810 (April 23, 2019)).

The Agency’s Interpretative Statement

In a fact sheet about the recent statement, EPA stated that “releases of pollutants to groundwater are categorically excluded from the Act’s permitting requirements.” EPA notes in its interpretative statement that it is a fundamental principle of hydrology that many groundwaters and surface waters are linked through the hydrologic cycle. However, EPA then builds a case that the text, structure, and legislative history of the Act demonstrate Congress’s intent to leave the regulation of groundwater wholly to the states. EPA notes that the operative, enforceable provisions of the Act that make up the National Pollutant Discharge Elimination System (NPDES) permitting program neither reference nor contemplate releases to groundwater, and that the legislative history of the Act supports Congress’s intent to deliberately exclude groundwater.

EPA also distinguishes and explains its prior statements on this topic. Of particular note, EPA has previously made statements indicating that discharges to groundwater with a direct hydrologic connection to surface water are subject to CWA NPDES requirements. EPA indicates that many of these statements were made in situations where the complex jurisdictional issues of releasing pollutants to groundwater were not the central focus or where the rule or permit was never finalized. EPA believes that when these prior statements were made, EPA had failed to take into account Congress’s unique treatment of groundwater in the CWA. EPA also explicitly notes that it has consistently maintained the position that groundwater is not a “water of the United States” and that groundwater is not a point source.

Lastly, EPA discusses court decisions, policy considerations, and other federal statutes. Consistent with the Trump Administration’s reliance on state rights, EPA indicates that it is up to states to regulate groundwater quality in the manner best suited to their particular circumstances. EPA also notes that several other federal statutes, specifically the Safe Drinking Water Act, Resource Conservation and Recovery Act (RCRA), and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), contain provisions aimed at protecting groundwater quality and, which unlike the CWA, provide a clear federal role for regulating groundwater.

Conclusion

EPA has stated that the interpretative statement is effective immediately in all states except states within the Fourth and Ninth Circuits due to the pending U.S. Supreme Court case. In those states where it is now effective, the interpretative statement adds clarity to the CWA NPDES permitting process for situations where point sources discharge into groundwater.
Unfortunately, there is no way of knowing how this interpretation will affect the U.S. Supreme Court’s ruling, or how the Court’s ruling will affect this interpretation. Until the U.S. Supreme Court rules on this issue, there will continue to be some uncertainty regarding whether discharges to groundwater which are hydrologically connected to surface waters require NPDES permits under the CWA.

Contact Us

For more information about EPA’s Interpretive Statement or the CWA, please contact Phillip R. Bower or Daniel A. Fanning of Husch Blackwell’s Environmental team.

The Trump administration announced in December 2018 its proposed replacement rule defining “waters of the United States.” Under the proposed rule, the number of wetlands that fall outside of federal jurisdiction is expected to increase.

Phillip Bower and Megan McLean weigh in on what this means for state regulation of non-federal wetlands in the recent article published in the American Bar Association’s March/April 2019 edition of Trends, the ABA Section of Environment, Energy, and Resources newsletter.

What are Wisconsin, Minnesota and other states doing? What’s next?

Check out the full article: The Proposed WOTUS Rule: How do states regulate non-federal wetlands?

yellow blue smoke from two tubes of plantPer- and polyfluoroalkyl substances (“PFAS”) are synthetic chemicals used in a number of industrial processes and in the manufacturing of certain consumer goods because of their fire resistance and because they repel oil, stains, grease, and water. There are approximately 3,500 different compounds under the umbrella of PFAS. Some of these were used in firefighting foam, which in some places, including near airports, were spread over the ground to prevent forest fires. The most well-known versions, and considered to be of greatest concern, are long chain PFAS, perfluoroctanoic acid (“PFOA”) and perfluoroctane sulfonate (“PFOS”). Continue Reading PFAS: A new source for regulatory concern

Previously, we reported the Federal Circuit split (Part 1) regarding indirect discharges to navigable waters through groundwater and the Supreme Court’s grant of certiorari in one of those cases (Part 2), which will hopefully settle whether the Clean Water Act (“CWA” or the “Act”) governs an indirect discharge to navigable waters. Whether the CWA applies to particular surface waters remains a hot topic almost 50 years since the modern-day CWA was passed in 1972, as the litigation continues over the Obama Administration’s rule (promulgated in 2015) defining the scope of the CWA, as well as the Trump Administration’s attempts to repeal that rule.   Continue Reading CWA Series: In redefining the scope of the Clean Water Act, will the new WOTUS rule truly be a sea change?

By the time the March 8, 2019 bill filing deadline for the 86th Texas Legislature passed, many bills concerning the electric industry had been filed. Storage, cybersecurity of the electric grid, and capital project tax abatements are among the energy issues Texas lawmakers are considering. This reviews the major filed bills before the current Texas Legislature.

Continue Reading 86th Texas Legislature to Consider Bills Concerning Cybersecurity and Storage, Among Other Electric Industry Issues

Rock Products magazine recently published an article by Daniel Fanning discussing a proposed rule revising the definition of “waters of the United States” and its potential effects. The rule is intended “to increase CWA program predictability and consistency.” Will this change impact your operations?

Continue Reading What Are ‘Waters of the United States’?