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Court decision keeps Ohio from pursuing water charges against Rover Pipeline

An Ohio appeals court upheld a decision that found that the state had waived its right to enforce water quality standards against Rover Pipeline LLC after the company's contractors spilled drilling fluids during construction of the 3.25-Bcf/d Rover natural gas pipeline.

Ohio had appealed the judgment of the Stark County Common Pleas Court, which in March dismissed the state's charges that Rover and its horizontal directional drilling contractors had illegally discharged millions of gallons of drilling fluids into Ohio waters and degraded waters across the state.

In doing so, the trial court agreed with Rover — an Energy Transfer LP company — that Ohio had waived its rights under the Clean Water Act because it had failed to act on the pipeline developer's 2015 request for Clean Water Act Section 401 water quality certification within the one year required by the statute.

The Ohio Court of Appeals for the 5th Appellate District agreed with the trial court in a Dec. 9 opinion. The Ohio appeals court cited a decision from the U.S. Appeals Court for the District of Columbia Circuit that involved a hydropower project, the Federal Energy Regulatory Commission and the Hoopa Valley Tribe, which strictly enforced the Clean Water Act's one-year deadline. The state appeals court said the Section 401 waiver remained in place even though Rover did obtain a hydrostatic water permit from the state's Environmental Protection Agency.

"The mere fact [that Rover and its contractors] chose to obtain a certificate from the state ... does not change the fact the state waived its right to enforce its hydrostatic water laws by failing to include such permit requirement in a timely issued 401 certificate," the Ohio appeals court wrote. (Ohio Court of Appeals for the 5th Appellate District docket 2019CA00056)

On Dec. 9, the U.S. Supreme Court denied a request that it hear the Hoopa Valley case, which meant the D.C. Circuit decision and its strict interpretation of the Clean Water Act deadline remains in place. (U.S. Supreme Court docket 19-257)

The Rover pipeline went into full service in November 2018.