Morgan Gerard

Blogs: Environmental Law & Policy Monitor, Washington Energy Report

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EPA Proposes Sweeping Changes to Clean Water Act Section 401 Water Quality Regulations

By Chuck Sensiba, Elizabeth McCormick & Morgan Gerard on August 13, 2019

On Friday, August 9, the Environmental Protection Agency (“EPA”) unveiled a pre-publication version of a notice of proposed rulemaking (“NOPR”) to clarify state water quality certification (“certification”) procedures under Section 401 of the Clean Water Act (“CWA”) to allow for increased regulatory certainty in federal licensing and permitting activities, and particularly authorization of infrastructure projects. EPA Administrator Andrew Wheeler announced on Friday that the “proposal is intended to help ensure that states adhere to the…

Environmental Law & Policy Monitor

Trump Administration Finalizes Broad Changes to Endangered Species Act Regulations

By Angela Levin, Andrea Wortzel, Rich Pepper & Morgan Gerard on August 13, 2019

On August 12, 2019 the U.S. Fish Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) released pre-publication versions of three final rules that are expected to significantly affect the applicability and implementation of the Endangered Species Act (“ESA”). These regulations relate to the process and standards for listing species and designating critical habitat, the scope of protections for threatened species, and the process for consultations with federal agencies under Section 7.…

Environmental Law & Policy Monitor

Fish and Wildlife Service Faces Challenge on Delay in Listing Species

By Andrea Wortzel, Angela Levin & Morgan Gerard on May 28, 2019

On May 23, 2019, the Center for Biological Diversity and San Francisco Baykeeper (collectively “Center”) filed a lawsuit against the Fish and Wildlife Service (“Service”) in the United States District Court for the Northern District of California alleging the Service failed to protect eight species under the Endangered Species Act (“ESA”). The eight species at issue are the longfin smelt (San Francisco Bay-Delta population), Hermes copper butterfly, Marron bacora (a plant), Sierra Nevada red fox,…

Washington Energy Report

Commissioner Glick Provides Insight into Climate and Hydro’s Role

By Morgan Gerard & Charles Sensiba on May 15, 2019

In the April 27, 2019 edition of the Energy Bar Association’s Energy Law Journal, FERC Commissioner Richard Glick and legal advisor Matthew Christiansen published an article titled “FERC and Climate Change,” describing that the actions of the Commission, as well as the family of federal and state agencies, have “substantial consequences” for climate change. The authors argue that the threat of climate change does not necessitate “a wholesale reinterpretation of the Commission’s jurisdiction or a…

Environmental Law & Policy Monitor

Fish and Wildlife Service Proposes Downlisting of the American Burying Beetle

By Angela Levin & Morgan Gerard on May 3, 2019

On May 1, 2019, the Fish and Wildlife Service (“FWS” or “Service”) issued a proposed rule “downlisting” Endangered Species Act (“ESA”) protections for the American burying beetle from endangered to threatened. The burying beetle was listed as endangered in 1989 and its listing has been particularly impactful to oil and gas development in Texas and Oklahoma. Once with a range across thirty-five states, the beetle’s range when listed had been depleted to just two areas—Oklahoma…

Washington Energy Report

FERC Holds that California Waived Clean Water Act Authority in Pending Hydropower Project Relicensing

By Morgan Gerard & Charles Sensiba on April 24, 2019

On April 18, 2019, FERC issued a unanimous order, supported by all FERC Commissioners, ruling that the California State Water Resources Control Board (“SWRCB”) waived authority to issue a water quality certification under Section 401 of the Clean Water Act (“CWA”), 33 U.S.C. § 1641, in the pending hydropower relicensing of the Middle Fork American River Project (“Project”). Applying the U.S. Court of Appeals for the D.C. Circuit’s (“D.C. Circuit”) seminal opinion in Hoopa Valley Tribe…

Environmental Law & Policy Monitor

D.C. Circuit Strikes Down “Withdraw-and-Resubmit” Practice for State Water Quality Certifications

By Chuck Sensiba & Morgan Gerard on January 31, 2019

On January 25, 2019, the U.S. Court of Appeals for the D.C. Circuit, in a unanimous decision, granted a petition for review in Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Cir., Jan. 25, 2019). The key holding in the case, which concerns the ongoing Federal Energy Regulatory Commission’s relicensing of the Klamath Hydroelectric Project, is that the States of California and Oregon waived their authorities under section 401 of the Clean Water Act…

Washington Energy Report

D.C. Circuit Opinion Strikes Down “Withdraw-and-Resubmit” Practice for State Water Quality Certifications

By Charles Sensiba & Morgan Gerard on January 30, 2019

On January 25, 2019, the U.S. Court of Appeals for the District of Columbia (“D.C. Circuit”) in a unanimous decision granted a petition for review in Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Cir., Jan. 25, 2019). The key holding in the case, which concerns the ongoing FERC’s relicensing of the Klamath Hydroelectric Project, is that the States of California and Oregon waived their authorities under section 401 of the Clean Water Act (“CWA”),…

Environmental Law & Policy Monitor

Déjà Vu All Over Again: Re-redefining Waters of the United States Under the Clean Water Act

By Chuck Sensiba & Morgan Gerard on January 15, 2019

Troutman Sanders partner Chuck Sensiba and Associate Morgan Gerard authored the main feature article in the January 2019 issue of The Water Report, a monthly publication focused on federal and state water issues. In the article, Sensiba and Gerard discuss how a rule proposed by the Trump Administration would significantly narrow the number of waterways and wetlands that fall within the jurisdictional reach of the Clean Water Act (CWA). “The practical implications of the…

Washington Energy Report

Trump Administration Releases “WOTUS” Rule Proposal

By Morgan Gerard & Russell Kooistra on December 18, 2018

On December 11, 2018, the Environmental Protection Agency (“EPA”) and the Department of the Army (together, “Agencies”) released their much-anticipated Notice of Proposed Rulemaking (“Proposed Rule”), which if adopted would scale back the jurisdictional reach of the Clean Water Act (“CWA”) by narrowing the definition of “Waters of the United States” (“WOTUS”) to include only those waters that are oceans, rivers, streams, lakes, ponds, and wetlands, and their “naturally occurring surface water channels.” The practical…

Morgan Gerard

EPA Proposes Sweeping Changes to Clean Water Act Section 401 Water Quality Regulations

Trump Administration Finalizes Broad Changes to Endangered Species Act Regulations

Fish and Wildlife Service Faces Challenge on Delay in Listing Species

Commissioner Glick Provides Insight into Climate and Hydro’s Role

Fish and Wildlife Service Proposes Downlisting of the American Burying Beetle

FERC Holds that California Waived Clean Water Act Authority in Pending Hydropower Project Relicensing

D.C. Circuit Strikes Down “Withdraw-and-Resubmit” Practice for State Water Quality Certifications

D.C. Circuit Opinion Strikes Down “Withdraw-and-Resubmit” Practice for State Water Quality Certifications

Déjà Vu All Over Again: Re-redefining Waters of the United States Under the Clean Water Act

Trump Administration Releases “WOTUS” Rule Proposal

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