Results tagged “point source” from GTH Energy & Natural Resources Law Blog

Poles Left Standing: Ninth Circuit Rejects Claim That Utility Poles Must Be Regulated Under the Clean Water Act and the Resource Conservation and Recovery Act

April 9, 2013

In an important victory for users of treated wooden poles, the U.S. Court of Appeals for the Ninth Circuit last week concluded that wooden utility poles are neither a "point source" subject to regulation under the Clean Water Act ("CWA") nor a "solid waste" subject to regulation under the Resource Conservation and Recovery Act ("RCRA"). The decision is an important landmark for electric utilities, telecommunications carriers, and other companies using treated wooden poles. If the court had reached the opposite result, these industries could have been subject to burdensome new regulation under both the CWA and RCRA.

The Ninth Circuit's decision, Ecological Rights Foundation v. Pacific Gas & Electric Co., rejects a lawsuit brought under the citizen suit provisions of the CWA and RCRA by a California environmental organization. The environmental plaintiff claimed that PCP and other wood treating chemicals are washed into the environment by rainwater, resulting in a "discharge" of a pollutant requiring the owner of wood poles to obtain a NPDES permit under the CWA. Relying on the U.S. Supreme Court's recent decision rejecting a similar claim with respect to logging roads, the Ninth Circuit rejected this claim, as well. The court found that wooden poles are not a "point source" subject to CWA regulation. In particular, under EPA's approach to regulation of stormwater discharges, governed by 1987 amendments to the CWA, no NPDES permit is required because wood poles are not "associated with industrial activity," as would be the case at an industrial plant or storage area where rainwater is captured and channeled.

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Floodgates Open to Takings Claims? Supreme Court Finds That Even Temporary Flooding From Government-Owned Dams May Constitute a "Taking"

December 10, 2012

As reported in our posting of November 2, the U.S. Supreme Court this term is considering two cases of particular significance for dam operators. The first, Arkansas Fish & Game Commission v. United States, was decided last week. The court rejected the proposition that no Fifth Amendment taking can occur from temporary flooding caused by a government-owned dam. This result will give little comfort to dam operators since takings claims will now be decided on a fact-intensive balancing test rather than on the basis of a per se rule that takings can arise only from permanent or predictable periodic flooding.

The case arose from seasonal flooding at the Donaldson Black River Wildlife Management Area ("WMA") in northwest Arkansas caused the U.S. Army Corps of Engineers' Clearwater Dam, located 115 miles upstream in Missouri. In the 1990s, the Corps began to deviate from its accepted operating plan for the Clearwater reservoir in order to reduce damage to crops upstream from the dam. Arkansas sued the Corps, asserting that deviations from operating rules increased flooding in the WMA, damaging hardwoods and reducing the value of the habitat in the WMA. The claim succeeded in the lower court, but the U.S. Court of Appeals for the Federal Circuit, in a split en banc decision, reversed, holding that the flooding was only temporary and therefore could not support a takings claim. This holding was primarily based on Supreme Court takings precedents from 1924 and 1917 involving dams.

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