2019 Ohio 5179
Ohio Ct. App.2019Background
- Ohio Attorney General sued Rover Pipeline and drilling subcontractors, alleging unpermitted discharges of drilling fluids, stormwater, and related violations during construction of a 713-mile interstate pipeline crossing Ohio. Plaintiff sought civil penalties and injunctive relief.
- Complaint raised seven counts: unpermitted pollutant discharges (Counts 1–3), wetland violations (Count 4), failure to obtain construction stormwater and hydrostatic permits (Counts 5–6), and operation without a §401 water-quality certification (Count 7).
- Defendants moved to dismiss under Civ.R. 12(B)(1) and (6), arguing (1) Ohio waived §401 certification conditions by failing to act within one year, (2) FERC approvals and EIS-process involvement preclude additional state requirements, (3) federal preemption under the Natural Gas Act, and (4) plaintiff’s claims impermissibly collateral-attacked FERC orders.
- Trial court dismissed the complaint, finding Ohio waived its §401 rights by failing to act on Rover’s Nov. 16, 2015 certification request within one year; a later resubmission did not restart the one-year period.
- On appeal the Attorney General limited review to Counts 1–6; the appellate court affirmed, holding the §401 waiver applied and rendering other defenses largely moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio waived its §401 certification authority by failing to act within one year on Rover's original request | Ohio contends it retained enforcement authority for Counts 1–6 despite not issuing timely §401 conditions | Defendants contend the State's failure to act within the one-year statutory period waived Ohio's right to impose §401 conditions or enforce related state water-quality requirements | Court held waiver occurred: Ohio failed to act within one year and thus waived §401 participation for that application, affirming dismissal of Counts 1–6 |
| Whether §401 certification in Ohio is limited to dredge-and-fill activities (OAC scope) | Ohio argues OAC 3745-32-02(A) limits §401 certification to dredged/fill discharges, so Counts 1–6 fall outside §401 waiver | Defendants argue federal §401 applies to any discharge; state rule cannot narrow federal statute or preserve separate enforcement after waiver | Court held federal §401 covers any discharge into navigable waters; Ohio cannot rely on its administrative rule to avoid the federal waiver consequence |
| Whether resubmission of the §401 request (Feb. 2017) or agreements/permits listed in the EIS undo the waiver | Ohio argued resubmission and later actions restored its authority or that specific permits (e.g., hydrostatic) remained enforceable | Defendants argued resubmission does not restart the one-year clock and prior waiver stands; voluntary permits/agreement cannot revive waived authority | Court held resubmission did not restart the one-year period and waiver cannot be undone by later agreements or permits listed in the EIS |
| Whether FERC approval, preemption, or collateral-attack concerns bar the State's claims | Ohio disputed that FERC oversight or NGA preemption prevent state enforcement of water-quality law here | Defendants argued FERC's EIS and approvals, and federal preemption, bar the State's claims as either addressed federally or as collateral attacks on FERC orders | Appellate court deemed these issues moot after finding waiver; trial court had noted preemption arguments in a footnote but appellate disposition rested on waiver |
Key Cases Cited
- PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994) (states may condition §401 certifications to ensure compliance with state water-quality standards)
- Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006) (PUD No. 1 permits states to impose certain conditions but does not compel them to do so)
- New York State Dept. of Environmental Conservation v. Fed. Energy Regulatory Comm'n, 884 F.3d 450 (2d Cir. 2018) (one-year §401 timeline is a bright-line limit; failure to act within a year results in waiver)
- Hoopa Valley Tribe v. Fed. Energy Regulatory Comm'n, 913 F.3d 1099 (D.C. Cir. 2019) (withdrawal and resubmission of same §401 request does not restart the one-year review period; state waiver can stand despite parties' procedural maneuvers)
- Sierra Club v. State Water Control Bd., 898 F.3d 383 (4th Cir. 2018) (a state, when acting on §401 requests, may grant, condition, deny, or waive certification)