United States: Ohio Appeals Dismissal of the State's Complaint Against Rover Pipeline LLC Due to Ohio EPA's Failure to Timely Respond to Request for CWA Section 401 Certification

Last Updated: July 24 2019
Article by E. Nicki Hewell

On March 12, 2019, Judge Kristin G. Farmer for the Stark County Court of Common Pleas dismissed the State of Ohio's Third Amended Complaint against Rover Pipeline. The State alleged that Rover had committed widespread environmental violations during the construction of its 713-mile interstate natural gas pipeline. The court dismissed the complaint on the grounds that it lacked jurisdiction to hear the case because the State had waited over a year to "act" on Rover's Clean Water Act §401 Certification request. On April 10, 2019, the State appealed that decision to the Court of Appeals for the Fifth District of Ohio. 

The Roles of the Natural Gas Act, the Clean Water Act, and FERC

Construction of interstate natural gas pipelines involves substantial cooperation between state and federal law and authorities. The Natural Gas Act (NGA) is the federal law that governs the transportation of natural gas in interstate commerce. Congress gave regulatory authority over such interstate natural gas pipelines to the Federal Energy Regulatory Commission (FERC). In addition, the NGA designates FERC as the lead agency for coordination of all federal permits, special use authorizations, certifications, or other approvals of a natural gas pipeline. The NGA also requires all federal and state agencies considering an aspect of a natural gas pipeline to cooperate with FERC.

The NGA, however, is subservient to the Clean Water Act (CWA), a federal law that reserves to the states the right to adopt and enforce standards or limitations involving discharges of pollutants into state waterways. Importantly, the CWA requires any project in which discharge of a pollutant into navigable waters may occur to obtain certification from the state in which the discharge will originate. Such certification is known as the §401 Certification.

Rover Pipeline's Alleged Environmental Violations

During the construction of its pipeline, Rover allegedly committed environmental violations in more than a dozen counties across Ohio due to sediment-laden stormwater, leaks and spills of clay-based drilling fluid and/or the release of water used to pressure-test the pipeline. In the Third Amended Complaint, the State alleges that there were over 23 incidences of drilling-fluid spills into waters of the state. The single largest spill allegedly occurred in April 2017 when several million gallons of drilling fluid were discharged into a Category 3 wetland in Navarre Township, Stark County.

In response to Rover's alleged environmental violations, the State of Ohio filed suit against Rover and five other defendants in Stark County on November 3, 2017. The State asked the court to issue an order requiring defendants to pay, jointly and severally, a civil penalty of up to $10,000 per day for each violation in addition to reimbursing Ohio EPA and paying the costs of the court action.

Removal to Federal District Court

After the State filed its First Amended Complaint, the case was removed to the U.S. District Court for the Northern District of Ohio by the defendants. Less than two months later, however, the case was remanded back to the Stark County Court of Common Pleas. In the court's order to remand the case back to state court, Judge John R. Adams concluded that although "[t]his matter necessarily raises a federal issue in some capacity . . . [because] there is a significant interplay herein between Ohio law, the Natural Gas Act ('the NGA') and the Clean Water Act ('the CWA')," "this Court cannot exercise jurisdiction without disrupting the division of labor between the state of Ohio and the federal government."

Dismissal of Claims against Rover in the Stark County Court of Common Pleas

With the case back in state court, the Stark County Court of Common Pleas was tasked with determining whether it had jurisdiction over the case. In Rover's Motion to Dismiss the State's Third Amended Complaint, Rover argued that the State waived its authority to require the §401 Certification under the federal Clean Water Act because the State failed to respond to Rover's §401 Certification request within one year of its filing. Rover also made three other arguments for dismissal, which centered on FERC's role in approving natural gas pipelines under the Natural Gas Act.

As the court noted in its holding, the CWA provides that "[i]f the State . . . fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application."  The court reiterated that the one-year time frame is a "'bright-line rule' and not a 'subjective standard.'"

Rover submitted its §401 Certification request on November 16, 2015, but the State did not act on the request until it asked Rover to resubmit its request on February 23, 2017. The State's delay in responding to Rover's original §401 Certification request resulted in a waiver of the State's authority to enforce the limitations and monitoring requirements under §401. Because the State's complaint was grounded in its authority under §401, the court dismissed the State's Third Amended Complaint.

The court's holding, however, was narrow in its scope. Namely, the court emphasized that the holding "in no way stands for the proposition that the State of Ohio does not have rights relative to the construction of a natural-gas pipeline through the State and a right to impose regulations to curb disastrous environmental impacts on its waterways as a result of such construction." Instead, the holding simply stands for the proposition that "in order to assert its rights, the State of Ohio is required to act in conformance with the Clean Water Act, as opposed to instigating litigation as a collateral attack subsequent to the completion of a pipeline." Importantly, the court concluded its holding by noting that "despite the State of Ohio's inability to pursue the instant litigation, all aspects of the construction of the pipeline, including the discharging of pollutants into waterways, were subject to oversight by FERC, which responded to environmental concerns presented by the State of Ohio, including, but not limited to, halting construction operations." (Emphasis added.)

To date, there have been no substantive rulings in the appeal. The Sierra Club filed an amicus brief supporting Appellant State of Ohio on June 6th, and the State of Ohio filed its brief one week later. Appellee Rover Pipeline's brief is currently due July 23rd. Squire Patton Boggs will continue to monitor this litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions