Hot Topics in Clean Water Law Webinars
March 9, 2017
Horizon 2017: Regulatory Reform Opportunities in the New Administration
Water Transfers Rule & the State of Chevron Deference in Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA
On January 18, 2017, the U.S. Court of Appeals for the Second Circuit upheld the Water Transfers Rule in Catskill Mountains Chapter of Trout Unlimited Inc. v. EPA, providing a key legal victory for the water sector. The rule exempts transfers of untreated water for purposes of water supply or flood control from regulation under the NPDES program. NACWA filed a brief in the litigation, highlighting the significant operational and regulatory challenges presented by permitting of water transfers. In upholding the rule, the Second Circuit relied heavily on the U.S. Supreme Court’s 1987 decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., which requires courts to defer to federal agency interpretation of statutes—a doctrine called into question by Justices Scalia and Thomas and currently under attack by Congress. Hilary’s presentation and the discussion will focus on the history, outcome, and impact of the Trout Unlimited case, as well as the future of Chevron deference and potential implications for agency rulemaking.
Chair NACWA Legal Affairs Committee
Deputy Chief, Environmental Law Division,
NYC Department of Law
Hilary Meltzer has been Deputy Chief of the Environmental Law Division of the New York City Law Department since 2010, and has been a member of that Division since 1992. She practices environmental and municipal law, focusing primarily on issues relating to New York City’s drinking water supply and stormwater management systems.
She has worked on the negotiations of the 1997, 2002, and 2007 Filtration Avoidance Determinations for the City’s Catskill and Delaware Water Supply Systems – which together supply approximately 1.1 billion gallons a day of high quality, affordable drinking water to over nine million people. She also remains involved in implementing the 1997 New York City Watershed Memorandum of Agreement, a landmark agreement among the City, New York State, the U.S. EPA, the communities in the watershed, and several environmental advocacy organizations to protect water quality as well as the economic vitality of the upstate communities.
Her work includes counseling and litigation – both affirmative lawsuits to protect water quality and compliance work and defending against challenges to the City’s operation of its water supply system. She participated in the negotiation of New York City’s 2005 CSO consent order and the Citywide MS4 permit that took effect in 2015, and is currently working with over a dozen City agencies to develop a workable approach to compliance.
Hilary received a JD from Yale Law School and a bachelor’s degree with distinction in mathematics from Swarthmore College. She is admitted to the bars of New York State, the Southern, Eastern, and Northern Districts of New York, the Second and Eleventh Circuits, and the U.S. Supreme Court.
Endangered Species Act Obstacles to Increased Water Recycling
As extraordinary droughts have parched the western United States over the past decade, water reuse and recycling have become increasingly attractive options for potable and non-potable water uses. This trend is actively encouraged by EPA and the federal Bureau of Reclamation, and has been driven in part by the increasing stringency of treatment requirements and the potential for treated effluent to become a high-quality source of water that is often more reliable and cost effective than importing water from distant locations. Even so, some environmental groups strongly object to reuse projects, claiming that the Endangered Species Act (ESA) requires the maintenance of historic effluent flows in these arid areas, where rivers and streams often dry up in their absence. Mr. Randle’s presentation will review some of the ESA objections raised in permit proceedings and in threatened citizen suits concerning curtailment of discharges into water bodies in these arid locations, and how CWA statutory language and guidance documents suggest some of the responses.
Russel V. Randle
Squire Patton Boggs
Russ Randle has practiced environmental law since 1981, with extensive experience not only with superfund and contaminated properties, but also with the Clean Air, Clean Water, and Oil Pollution Acts (OPA), and antimicrobial issues under FIFRA. Mr. Randle has been published extensively on the issues, including the 2012 Environmental Law Institute’s Oil Pollution Deskbook. His current work includes helping Leon County, Florida in federal clean water permitting controversies.
Mr. Randle has helped clients with the environmental aspects of hundreds of transactions since 1987. He has litigated or settled cases concerning cleanup of well over 100 contaminated sites, many of them on the National Priorities List.
Mr. Randle serves as Chair of the Superfund and Natural Resource Damages Litigation Committee of the ABA’s Section on Environment, Energy and Resources, which he served as Vice-Chair from 2009-2014. He has also assisted pro bono on Anacostia River cleanup standards and sustainable design efforts to help in that cleanup, working with DC Appleseed. He has helped various Episcopal Church entities comply with OFAC sanctions rules.
Mr. Randle graduated from Princeton University magna cum laude with an AB degree and received his JD from Yale Law School.