“Round 4” in the battle over Clean Water Act jurisdiction





















The following ‘alert’ is authored by K&L Gates environmental attorneys Ankur K. Tohan, John P. Krill, Jr., Cliff L. Rothenstein, Barry M. Hartman, Tad J. Macfarlan, and Endre M. Szalay 

Last month the Trump Administration announced a proposed rule that would dramatically reduce the scope of federal authority under the Clean Water Act (“Act”).   If finalized in its current form, the rule would eliminate federal jurisdiction over a significant number of streams, wetlands, and other waters. 


The proposed rule will impact a wide range of individuals and businesses—as well as agencies and municipalities—that engage (or have a financial stake) in land and project development activities on these areas, while reducing the time and costs associated with obtaining Army Corps of Engineers ‘dredge and fill permits.’ 


While the proposal would not restrict the ability of states to regulate activities in these areas, the extent to which states will step in and do so is unclear.  The 60 day period for commenting on the rule will start as soon as it is published in the Federal Register.

BACKGROUND
The Clean Water Act grants to the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) the authority to require federal approval before any entity discharges pollutants, including dredged or fill material, into the “navigable waters.” [2] That means that any project impacting the use of these areas requires federal approval which can be a long, arduous, and expensive process, if it is granted at all.
The Act defines the term “navigable waters” as “the Waters of the United States, including the territorial seas.” [3] The ambiguity of what Congress meant by defining the scope of “navigable waters” to include all so-called “waters of the United States” (“WOTUS”) has led to a long history of shifting interpretations and legal challenges.
Round 1: In the 1970’s and 1980’s, EPA and the Corps (consistent with a 1985 Supreme Court decision) [4] issued regulations and guidance—including the Corps’ infamous1987 “Wetlands Delineation Manual”—establishing relatively broad and convoluted applications of WOTUS. Under these early rules and guidance, the agencies would assert jurisdiction over a wide swath of waters far removed from those which are navigable-in-fact, often requiring landowners to retain geological, hydrologic, and other experts to help them determine if their property contained ‘jurisdictional’ wetlands—wetlands that were subject to permitting requirements.
However, Supreme Court decisions in 2001 (in Solid Waste Agency of Northern Cook Cnty. v. U.S. Army Corps of Engineers (“SWANCC”)) [5] and in 2006 (in Rapanos v. United States (“Rapanos”)), [6] swung the pendulum in the opposite direction, with the Court placing renewed emphasis on the statutory and constitutional limits to federal authority over what constitutes “navigable waters.” In its most recent case, Rapanos, the court failed to reach agreement on the scope of Clean Water Act jurisdiction. As a result, in Rapanos, a plurality of four Justices signed onto an opinion, authored by the late Justice Antonin Scalia, which limits federal authority to “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface connection to” such relatively permanent waters. [7] In contrast, Justice Anthony Kennedy, who cast the deciding fifth vote in the case—but wrote a separate concurring opinion—concluded that Clean Water Act jurisdiction can extend to all waters that possess a “significant nexus” to navigable waters (regardless of the existence of a surface connection). [8]

“Round 4” in the battle over Clean Water Act jurisdiction Read More »

Christie McMullen takes top post at E-Town Gas

Christie McMullen

Christie McMullen

Tom Johnson reports for NJ Spotlight:
Elizabethtown Gas, the state’s smallest gas utility, has appointed Christie McMullen as president and chief operations officer. An industry veteran with 30 years of experience in utility operations, McMullen also will fill both roles at Elkton Gas.
McMullen will be responsible for the day-to-day operations of New Jersey-based Elizabethtown Gas and Maryland-based Elkton Gas, both of which were acquired by South Jersey Industries last year in a $1.7 billion deal.
Before joining Elizabethtown last month, McMullen previously served as vice president of gas distribution at Baltimore Gas and Electric where she oversaw a gas-main replacement program and was chief safety officer.
Elizabethtown also is undertaking a huge main replacement program. It filed a petition with the New Jersey Board of Public Utilities this past November, seeking to spend more than $500 million over five years to replace 300 miles of pipeline.

Safety, the ‘top priority’

“Christie brings a wealth of experience in the gas industry and we are confident she can deliver on the legacy of safety, community and service that Elizabethtown Gas and Elkton Gas have built,’’ said Dave Robbins, president of SJI Utilities, the holding company for the two utilities and South Jersey Gas.
“I’m excited to join the team, leading incredible service-focused professionals who maintain safety as their top priority,’’ McMullen said. “I intend to leverage the talents of our employees and my experience to continue to deliver award-winning, safe, reliable affordable natural gas service to our 299,000 customers.
Elizabethtown has roots stretching back to 1855 and once was owned by the Kean family. It was purchased by AGL Resources in 2004 after its parent NUI ran into deep financial trouble, as well as problems with state regulators after the utility’s earnings were mixed with unregulated subsidiaries.
Elizabethtown became part of the Southern Company when AGL Resources was acquired by the former in 2016.

Christie McMullen takes top post at E-Town Gas Read More »

Devastating fires force CA’s PG&E to file for bankruptcy

Reuters’ Liana B. Baker, Mike Spector, Jessica DiNapoli report

PG&E Corp (PCG.N), owner of the biggest U.S. power utility by customers, said on Monday it is preparing to file for Chapter 11 bankruptcy protection as soon as this month amid pressure from potentially crushing liabilities linked to California’s catastrophic wildfires in 2017 and 2018.

PG&E, which provides electricity and natural gas to 16 million customers in northern and central California, faces widespread litigation, government investigations and liabilities that could potentially exceed $30 billion due to the fires, the company said.

The most recent fire last November killed at least 86 people in the deadliest and most destructive blaze in California history.

Its shares plunged 55 percent on Monday to $8.92, giving it a market capitalization of less than $5 billion. The stock is down 88 percent from late 2017, before wildfires devastated PG&E’s service areas.

PG&E’s chief executive officer was replaced on Sunday by General Counsel John Simon on an interim basis.

San Francisco-based PG&E is working on lining up roughly $5.5 billion in so-called debtor-in-possession financing to help operations during bankruptcy proceedings.

The utility said the bankruptcy process will not affect electric or natural gas services for customers. Company advisers expect that it may take up to two years to emerge from bankruptcy.

In theory, California politicians could avert PG&E’s bankruptcy with legislative action. Last year, the state approved a law helping utilities recoup costs from fires in 2017, but not blazes in 2018.


Devastating fires force CA’s PG&E to file for bankruptcy Read More »

Birders and photographers: NYDEC needs your help

Atlantic brant
From the NY Department of Environmental Conservation:

Last year, DEC kicked-off a five-year Atlantic brant migration and breeding ecology study with the New Jersey Department of Environmental Protection and the Canadian Wildlife Service.

Crews began marking brant with geolocators attached to red and white plastic-colored leg bands, which have a three-digit code of letters and numbers on them (left photo). The geolocators themselves are clear, plastic electronics about the size of a “fat nickel” and have a plastic cable lock tie.

In addition, crews will begin marking brant with two smaller colored leg bands, one on each leg. These bands will consist of one letter or number on a white background (right photo). Some birds also have GPS transmitters on their backs (middle photo).

How can you help? Sightings and/or photographs of color bands and birds with transmitters are very helpful to the study.

  • If you see a brant with either type of colored leg band, please report the observation to the Patuxent Bird Banding Laboratory website. When you complete the report, the bird banding lab will e-mail you a certificate of appreciation for your time and assistance.
  • If you see a bird with a transmitter on its back, but no color leg bands, please e-mail us to report your observation. Pictures of the bird would be greatly appreciated.


Birders and photographers: NYDEC needs your help Read More »

DRPA to use bridges and stations for solar power project

The Delaware River Port Authority is planning an ambitious project to
site new solar panels on their bridges and stations| for a greener future








Sam Newhouse reports for Metro Philadelphia

The future of solar power is looking brighter – with DRPA the latest local agency to seek out a new solar power deal. Pictured, a solar panel field near Bavaria, Germany. (Wikimedia Commons)

The City of Philadelphia and SEPTA recently announced moves toward getting more electricity from green (solar or wind) sources, and now, the South Jersey-based Delaware River Port Authority (DRPA) has revealed similar, even grander plans.

DRPA’s board in November 2018 approved plans to source more than 50 percent of the electricity they use and to power PATCO trains from South Jersey to Philly using solar power.

To do it, they aim to set up solar panels on top of PATCO stations and bridges across the Delaware River. The Commodore Barry Bridge, Betsy Ross Bridge, and their headquarters, One Port Center on the Camden waterfront, along with Lindenwold Yard, Lindenwold Station, Woodcrest Station, Ashland Station, and Ferry Ave Station will also host solar panels. Solar canopies would go over parking, storage, and work areas, with ground-mounted arrays and ballasted flat roof mounts also used for solar panels.

All told, DRPA plans to set up a 22-Megawatt solar panel array. That’s about five times more power than Lincoln Financial Field generates in green power (four megawatts) from its 11,108 solar panels, the largest solar-panel array in Philadelphia, plus 14 wind turbines. It would be six times larger than SEPTA’s planned three-megawatt solar panel array on the roofs of its three largest maintenance facilities. The project is targeted for completion by October 2020.

“The Authority’s strategic goal to advance sustainability and environmental stewardship in 2019 and beyond is improving the environmental impact of the organization,” Christina Maroney, Director of Strategic Initiatives at DRPA/PATCO, said via email when asked why the proposal came about.

But even if you don’t care about climate change or the environment, solar and other renewable energy sources – which for years have been called overly expensive and inefficient by detractors – increasingly seem to make economic sense for municipal agencies and authorities.

DRPA said over 20 years, they expect to save $12.2 million on electricity under a 20-year power-purchase agreement with Sunpower Corporation, by locking in solar prices that are 2.3 cents lower per kilowatt-hour than the blended rate they currently pay for electricity.

Likewise, the City of Philadelphia says it will save money through a new 20-year power purchase agreement to meet 22 percent of city government’s electricity needs from a proposed 70-megawatt solar facility in Adams County. SEPTA is reviewing proposals to source 10 to 20 percent of their electricity needs from green sources, and Temple University is rumored to be looking into a long-term green energy contract as well. (Temple did not immediately respond to requests for comment). Earlier this week, Gov. Tom Wolf declared new environmental priorities via executive order – including a call for the state to procure approximately 40 percent of its electricity needs from renewable sources.

Read the full story

Like this? Click to receive free updates

DRPA to use bridges and stations for solar power project Read More »

Newark landmark Gateway Center bought for $300 million; high-end shopping, public spaces planned

Newark landmark Gateway Center bought for $300 million; high-end shopping, public spaces plannedSETH WENIG / APHenry Goldman reports for Bloomberg(Bloomberg) — The nascent recovery of Newark, New Jersey, has gotten a boost with a deal to transform an outdated downtown office complex with high-end shopping and lively public spaces.A group of five investors bought Gateway Center, near the Penn Station rail hub, for about $300 million, according to a person with knowledge of the matter. The 5-acre (2-hectare) complex was conceived more than 40 years ago as a way for visitors to enter the blighted city, conduct business, and walk within its concourses and skyway — all without encountering street life.“The Gateway complex is many people’s first experience of this city, and for so long it’s been under-invested, under-maintained, unpleasant,” said Ommeed Sathe, vice president for impact investment at Prudential Financial Inc., one of the partners. “It actually had a chilling effect on the market, a downside reminder of a time when Newark was so blighted, it was built to disengage visitors from the city.”The deal is a bet that a long-hoped-for recovery is finally taking hold in Newark, which was devastated by riots in 1967 and has struggled to overcome its reputation for crime and poverty. Now, an influx of real estate investment is remaking swaths of the city, an effort that landed the former shipping hub on Amazon.com Inc.’s shortlist of 20 cities for its second North American headquarters.The partners bought the towers known as Gateway One, Two and Four and the concourses that link them and provide a conduit between Newark Penn Station and the city’s increasingly bustling downtown.

Downtown revival

About 60,000 people either work inside or walk through the Gateway Center each day, arriving by Amtrak, New Jersey Transit or the Port Authority PATH tube linking the city to New York. The complex is within a 10-minute walk to the headquarters of Panasonic Corp., the Prudential Center arena, Seton Hall and Rutgers University law schools, the New Jersey Performing Arts Center, the city’s historic Ironbound section and thousands of units of newly built housing units.The recent developments in Newark — whose population peaked in 1930 — are built upon a decade of political leadership that has gained the trust of the city’s business community, said Sathe of Prudential. The Gateway partnership expects to attract tenants from within New Jersey and others drawn to the area as a cost-effective alternative to New York.The buildings are about 70 percent occupied, with tenants including the law firm McCarter & English and Broadridge Financial Solutions. It also houses a Hilton hotel.

Broken escalators

The partners intend to invest about $35 million sprucing up Gateway’s moribund concourse, fixing its frequently broken escalators and revamping its lighting. Plans also call for new street access, public outdoor spaces and retail offerings and eateries. Currently, the complex has two of each Dunkin’ Donuts and Subway sandwich shops.When the concourses and public spaces are transformed, the partnership expects the area to gain new amenities — shopping, entertainment venues, restaurants — to serve the additional pedestrian street traffic. There are no public or government subsidies associated with the purchase, Sathe said.Read the full storyLike this? Click to receive free updates

Newark landmark Gateway Center bought for $300 million; high-end shopping, public spaces planned Read More »