GTH Energy & Natural Resources Law Blog

On March 20, the U.S. Supreme Court ruled that the discharge of channeled stormwater runoff from logging roads is not a "point source," and logging operators therefore are not required to obtain a permit from the Environmental Protection Agency ("EPA") under the Clean Water Act ("CWA"). Although important to a key Northwest industry, the decision is not unexpected. Under its "Silviculture Rule" (40 C.F.R. Sec. 122.27(b)(1)), an administrative interpretation of the "point source" requirement, EPA has long held that stormwater runoff from logging roads is not a point source, and timber harvesters are therefore not required to obtain an NPDES permit before constructing roads. The decision, Decker v. Northwest Environmental Defense Center, also follows a pattern that has become almost routine in recent years -- the Supreme Court reversing the Ninth Circuit in an environmental case where the Ninth Circuit embraces a novel reading of the relevant statute. In fact, as previously noted here, the Supreme Court this term has already reversed a Ninth Circuit decision on the "point source" question in a case with strong implications for operators of dams, flood control facilities, canals, and other kinds of water works.

More surprising are strong suggestions in the concurring and dissenting opinions that the Court's conservative wing may be ready to re-examine one of the foundational principle of administrative law -- that an agency's interpretation of its own regulation is entitled to deference from the courts. Justice Scalia's dissent in Decker attacks this rule as an affront to "a fundamental principle of separation of powers -- that the power to write a law and the power to interpret it cannot rest in the same hands." Stepping past the EPA's interpretation, Justice Scalia sides with the environmental plaintiffs (and the Ninth Circuit), concluding that runoff from logging roads that is channeled into ditches and culverts is a "point source" under the statutory definition, which includes any "pipe, ditch, channel, tunnel, [and] conduit."

Continue reading "U.S. Supreme Court Rules That Logging Roads Do Not Require NPDES Permits; Scalia Dissent Suggests Major Change Afoot in Administrative Law" »

Yesterday, the Federal Energy Regulatory Commission ("FERC") and the U.S. Coast Guard ("USCG") released a Memorandum of Understanding ("MOU") designed to simplify and expedite the process of licensing hydrokinetic projects. Hydrokinetic technology, described by FERC Chairman Jon Wellinghoff as an "up and coming resource," includes projects designed to capture the energy of waves, tides, currents, and the free-flow of rivers and streams. The MOU will help coordinate the FERC licensing authority for non-federal hydropower projects with the USCG's authority to over navigation safety, maritime security, and stewardship of marine environmental resources.

The MOU requires applicants for a preliminary FERC hydrokinetic permit to notify the USCG, among other agencies. The USCG will then become a participant in FERC's pre-filing process, and will provide comments to the FERC and the applicant setting forth any concerns it has with a proposed project and identifying any needed studies. If a NEPA process is undertaken, FERC will be the lead agency, with the USCG providing input on, for example, scoping, as well as identifying any USCG concerns a regarding the project that should be considered in the environmental analysis process. The MOU also provides that, by participating in the NEPA process, the USCG agrees not to become a party to the licensing process.

Yesterday's MOU, along with guidelines issued jointly by FERC and the Bureau of Ocean Energy Management, Regulation & Enforcement last year for hydrokinetic projects on the Outer Continental Shelf, demonstrate that FERC intends to encourage hydrokinetic resources by reducing regulatory barriers to new hydrokinetic technologies.

If you have any questions about the MOU, FERC licensing, hydrokinetic technology, or other matters involving the development of renewable energy projects, please contact a member of GTH's Energy, Telecommunications, and Utilities practice group or Environment & Natural Resources practice group. These practice groups are consistently recognized as among the best, both nationally and in the Pacific Northwest.

Renewable energy developers and businesses operating on tribal lands have received a nice holiday gift from the Department of Interior's Bureau of Indian Affairs ("BIA"). Effective January 4, 2013, new regulations will govern leases for the development of renewable energy, as well as non-energy businesses and residences, on 56 million acres of tribal lands. The new regulations promise to reduce delays and uncertainty associated with the current leasing process, thereby improving the climate for investment for renewable energy and other business ventures on tribal lands. BIA's summary of the new rule is available here.

While the old rules lumped surface leases into a single process, the new rules create several different categories of leases, including two types of leases intended to encourage renewable energy development on tribal lands, leases for other kinds of businesses, and residential leases. The rules provide specific limits on the time allowed for BIA to review each type of lease, increase deference to tribal decisions on leasing, and provide greater flexibility on issues such as lease valuation and in-kind compensation for leasing.

Continue reading "Interior Department Streamlines Rules for Renewable Energy Development and Business Leases on 56 Million Acres of Tribal Lands" »

To support the twin goals of increasing the nation's energy security and promoting development of renewable energy resources, the Department of Defense ("DOD") and Department of the Interior ("DOI") recently signed a Memorandum of Understanding ("MOU") focusing on 13 million acres of federal land that have been "withdrawn" for military purposes, as well as lands on the Outer Continental Shelf ("OCS") suitable for offshore wind development. By clarifying jurisdictional lines and administrative responsibilities, the MOU helps ease renewable energy development, especially for wind, solar, and geothermal power.

In the West, millions of acres of federal land have been "withdrawn" from general use, and instead have been reserved for military uses, principally military bases and vast training ranges such as those in central Washington, southwest Idaho, southern Nevada, and eastern California. The MOU promises cooperation between DOD and DOI to encourage development of geothermal, solar, and wind resources on these lands. Without such cooperation, developing these lands can be a daunting prospect. For example, in may cases, withdrawn lands under DOI jurisdiction are interspersed with DOD-owned lands, resulting in different legal regimes governing immediately adjacent parcels. If these obstacles can be overcome, the potential pay-off is huge. For example, the U.S. Army Corps of Engineers has estimated that military bases in the continental U.S. have the potential to produce between 630 and 926 GW of electric power from geothermal resources.

Continue reading "More Military Movement: Department of Defense and Department of Interior Sign MOU Encouraging Development of Renewable Energy on Federal Lands" »