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?
The Renewable Fuels Association National Ethanol Conference (NEC) concluded on February 13. During the last few quarters, ethanol margins have been at the lowest levels in many years resulting in reduced production and the permanent closure of some plants. A number of plants are seeking buyers. In this climate, the focus of the NEC was on the future of the industry. Here are some key points gleaned from multiple conference presentations.
Under the CWA, the discharge of pollutants, meaning the “addition of any pollutant to navigable waters from any point source,” without a permit is prohibited. Previously, we reported on the circuit split (Part 1) between the Fourth, Sixth, and Ninth Federal Circuit Court of Appeals regarding whether indirect discharges to WOTUS through groundwater required a CWA permit. Continue Reading CWA Series: SCOTUS Agrees to Grant Certiorari on Indirect Discharge Question
Members of Husch Blackwell’s renewable energy team attended the 2019 Infocast Wind Power Finance & Investment Summit in Carlsbad, CA, February 5-7. Here are some of the themes from the conference:
- While there is a push to complete many projects in 2020, there was a lot of discussion about how the industry and project financing will evolve in coming years as the Production Tax Credit steps down and after it sunsets. The industry is becoming increasingly complex with ever-changing state and federal policies, an increase in C&I offtakers, increasingly complex non-traditional offtake arrangements, and new financing parties waiting in the wings. It is important to understand the challenges and opportunities that these changes create. Husch Blackwell’s renewable energy team can help you navigate these ever changing challenges and opportunities and ensure that your project is completed on time and in compliance with all state and federal policies.
The U.S. Environmental Protection Agency (EPA) is accepting comment through March 11, 2019, on its proposed “National Compliance Initiatives” for fiscal years (FY) 2020-2023.
Members of the Husch Blackwell bioenergy team are deep into the Winter/Spring conference season, attending major national and regional conferences in biogas, biodiesel, ethanol and biomass. Here are some of the themes that are consistent across the conferences.
In December, the U.S. Fish and Wildlife Service (USFWS) announced that the agency will be proposing a streamlined eagle incidental take permitting process for wind energy projects that are considered “low-risk” to eagles. Although this new low-risk framework has not been finalized or formally proposed yet, USFWS has made available a presentation outlining the framework.
The Federal Energy Regulatory Commission (FERC) issued an Order clarifying that a bankruptcy court cannot unilaterally amend or reject a wholesale power purchase agreement (PPA) or wholesale power contract that is subject to the Commission’s jurisdiction.
As mentioned in a prior blog post, the Menominee Indian Tribe of Wisconsin (“Tribe”) sued the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) over the proposed Aquila Resources Back Forty Mine (“Mine”) located in Michigan, arguing that EPA and Corps have failed to take responsibility under the Clean Water Act (“CWA”) for reviewing wetland permits for the project. Michigan is responsible for issuing the Section 404 wetland fill permits for the Mine because EPA delegated such permitting authority to Michigan in 1984 as allowed under the CWA.
A federal judge in Wisconsin recently ruled against the Tribe and dismissed the lawsuit, generally because the EPA and Corps did not violate any mandatory duties or make any final agency actions related to the Mine. More specifically, the judge addressed four claims made by the Tribe.
The court considered two claims made by the Tribe in its original complaint:
- The Tribe claimed the EPA and Corps had a mandatory duty under the CWA to assume jurisdiction over the Section 404 permit process, and the Tribe could enforce this under the CWA’s citizen suit provision. The court first held the CWA does not authorize citizen suits against the Corps, so the court lacked subject matter jurisdiction over this claim as it pertained to the Corps. The court further held this claim must be dismissed as to the EPA because the Tribe failed to identify a nondiscretionary duty which the EPA had not performed. If the Tribe wished to challenge the EPA’s decision to allow Michigan to assume authority of the Section 404 permitting process, it would have to challenge this under the Administrative Procedures Act (“APA”), and not a citizen suit.
- The Tribe claimed the EPA’s and Corps’ refusal to assert jurisdiction over the Section 404 permitting was arbitrary and capricious and in violation of the APA. The court held that this “as-applied” challenge to the APA must rest on final agency action, and that the final agency action was EPA’s 1984 decision to allow Michigan to assume permitting authority for Section 404 permits, not any recent letters sent by EPA to the Tribe about the permitting process.
In addition, the Tribe filed a motion to amend its complaint and to add two new claims, and the court discussed these proposed claims as follows:
- The Tribe claimed the EPA’s withdrawal of its objections to Michigan’s wetland permit was arbitrary and capricious and in violation of the APA. The court held the EPA’s decision to withdraw its objections was discretionary, not mandatory, and therefore is not reviewable under the APA.
- The Tribe claimed the EPA’s failure to consult with the Tribe pursuant to the National Historic Preservation Act (“NHPA”) before Michigan issued its permit for the mine was arbitrary and capricious and in violation of the APA. The court held the EPA was not required to consult with the Tribe about the mining project because the NHPA only requires consultation when a project is federally funded or federally licensed. The Back Forty Mine is not federally funded, and the permits are being issued by Michigan, not the federal government.
Therefore, the court denied the Tribe’s motion to amend the complaint and held that the Tribe failed to state a claim upon which relief can be granted and dismissed the Tribe’s case.
The Tribe appealed the decision to the Seventh Circuit Court of Appeals on January 17, 2019, arguing that the Clean Water Act requires the federal government to retain jurisdiction and apply federal safeguards for the benefit of everyone who has access to interstate and commercially used waters such as the Menominee River. We will continue to provide substantive updates on this case as they develop.
At the January 17, 2019 Open Meeting, the Public Utility Commission of Texas (Commission) addressed several highly contested issues, including storage, Operating Reserve Demand Curve, Real-Time Co-optimization, and Marginal Losses. First, in Project No. 48023, Rulemaking to Address the Use of Non-Traditional Technologies in Electric Delivery Service (the Battery Project), dealing with utility ownership of battery storage, the Commission decided to defer further action until Texas Legislature’s regular session concludes. This decision comes after 63 comments were filed with the Commission, expressing widely varying views on whether a transmission and distribution utility within ERCOT may legally own and operate battery storage facilities. The Commission previously submitted through its Scope of Competition Report a request for the Legislature to enact legislation clarifying this legal point.