Petition for Writ of Certiorari — Ohio, ex rel. Dave Yost, Attorney General of Ohio, Petitioner v. Rover Pipeline, LLC, et al.

No. _____

In the Supreme Court of the United States

______________________________

STATE OF OHIO, EX REL.

DAVE YOST, OHIO ATTORNEY GENERAL,

v.

Petitioner,

ROVER PIPELINE, LLC, ET AL.,

Respondents.

______________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

______________________________

APPENDIX

______________________________

DAVE YOST

Ohio Attorney General

T. ELLIOT GAISER*

Ohio Solicitor General

*Counsel of Record

ZACHERY P. KELLER

Deputy Solicitor General

AARON S. FARMER

MORGAN N. STARIC

Assistant Attorneys General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614.466.8980

thomas.gaiser@ohioago.gov

Counsel for Petitioner

Dave Yost, Ohio

Attorney General

TABLE OF CONTENTS

Page

Appendix A: Entry, Supreme Court of Ohio,

January 28, 2025 ...................................................... 1a

Appendix B: Opinion, Court of Appeals of

Ohio, Fifth Appellate District, October 1, 2024 ....... 2a

Appendix C: Judgment Entry, Court of

Common Pleas, Stark County, Ohio, October

20, 2023 ................................................................... 37a

Appendix D: Opinion, Supreme Court of Ohio,

March 17, 2022 ....................................................... 61a

Appendix E: Opinion, Court of Appeals of

Ohio, Fifth Appellate District, December 9,

2019 ......................................................................... 79a

Appendix F: Judgment Entry, Court of

Common Pleas, Stark County, Ohio, March 12,

2019 ......................................................................... 96a

Appendix G: Fourth Amended Complaint,

Court of Common Pleas, Stark County, Ohio,

May 6, 2022 ........................................................... 109a

Appendix H: Select Statutory Provisions ........... 150a

1a

APPENDIX A

THE SUPREME COURT OF OHIO

State of Ohio, ex rel. Dave Yost Ohio Attorney

General

v.

Rover Pipeline, LLC and Pretec Directional Drilling,

LLC

Case No. 2024-1603

ENTRY

Upon

consideration

of

the

jurisdictional

memoranda filed in this case, the court declines to

accept jurisdiction of the appeal pursuant to

S.Ct.Prac.R. 7.08(B)(4).

(Stark

County

2023CA00151)

Court

of

Appeals;

s/ Sharon L. Kennedy

Sharon L. Kennedy

Chief Justice

No.

2a

APPENDIX B

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX REL. DAVE YOST, OHIO

ATTORNEY GENERAL

Plaintiff-Appellant

-vsROVER PIPELINE, LLC AND PRETEC

DIRECTIONAL DRILLIING, LLC

Defendants-Appellees

JUDGES:

Hon. Patricia A Delaney, P.J.

Hon. W. Scott Gwin, J.

Hon. Craig R. Baldwin, J.

Case No. 2023CA00151

OPINION

CHARACTER OF PROCEEDING: Appeal from the

Stark County Court of Common Pleas, Case No. 2017CV-02216

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY:

APPEARANCES:

3a

For: Appellant

DAVE YOST, Ohio Attorney General

BY: AARON S. FARMER

Environmental Enforcement Section

30 East Broad Street, 25th Floor

Columbus, OH 43215

For: Rover Pipeline, LLC

GREGORY DEGULIS

The Caxton Building

812 Huron Road, Suite 650

Cleveland, OH 44115

For: Pretec Directional Drilling, LLC

JOSEPH KONCELIK

950 Main Avenue

Suite 100

Cleveland, OH 44113-7213

Gwin, J.,

{¶1} Appellant State of Ohio, ex rel. Dave Yost,

Ohio Attorney General, appeals the judgment of the

Stark County Court of Common Pleas dismissing its

fourth amended complaint against appellees Rover

Pipeline, LLC and Pretec Directional Drilling, LLC.

Facts & Procedural History

{¶2} Appellee Rover Pipeline, LLC (“Rover”) is the

owner and operator of the drilling operations for the

Rover pipeline. Appellee Pretec Directional Drilling,

LLC (“Pretec”) is a subcontractor hired by Rover to

perform horizontal-directional drilling related to

construction of the pipeline.

4a

{¶3} In February of 2015, Rover filed an

Application for a Certificate of Public Convenience

and Necessity with the Federal Energy Regulatory

Commission (“FERC Certificate”), as required by

federal law, to construct the 713-mile interstate

pipeline. The pipeline is designed to transport natural

gas from the Marcellus and Utica shale supply areas

through West Virginia, Pennsylvania, Ohio, and

Michigan, to outlets in the Midwest and elsewhere.

{¶4} As required by Section 401 of the Clean Water

Act (“Section 401”), 33 U.S.C. 1341(a)(1), Rover

applied for water quality certification from appellant

on

November

10,

2015

(hereinafter

“401

Certification”). Appellant did not respond to Rover’s

application within one year. FERC issued an

Environmental Impact Statement (“EIS”) in July of

2016. In February of 2017, FERC issued its

Certificate, granting approval for construction of the

pipeline, subject to 45 environmental conditions.

FERC gave Rover the authorization to begin

construction in March of 2017. In May of 2017, the

Ohio Environmental Protection Agency asked FERC

to halt construction of the pipeline based on concerns

of inadvertent returns and failure to adequately

control storm water runoff. FERC stopped

construction until Rover implemented protective

measures. In September of 2017, FERC allowed Rover

to resume activity. Additionally, in 2017, the FERC

Office of Enforcement opened an investigation into the

discharge of diesel fuel, hydraulic oil, contaminated

fluids, and unapproved additives into the water in

various locations across Ohio caused by the

construction of the Rover pipeline.

5a

{¶5} On May 6, 2022, appellant filed a fourth

amended complaint, the dismissal of which is the

entry appealed in the instant action. The complaint

alleges appellees illegally discharged millions of

gallons of drilling fluids into Ohio’s waters, causing

pollution and degrading water quality across the state

during construction of the Rover pipeline.

{¶6} Appellant alleges, “during construction of an

interstate, natural-gas pipeline, [appellees] illegally

discharged millions of gallons of drilling fluids to

Ohio’s waters, causing pollution and degrading water

quality on numerous occasions and in various counties

across the state” on multiple dates in April and May

of 2017. Further, Rover “discharged sediment-laden

stormwater” during construction on dates in April

through October of 2017. Appellant states appellees

failed to secure any permits designed to control these

discharges, and, because appellees had control,

authority,

direction,

and

responsibility

for

construction of the pipeline, Rover violated Ohio state

law.

{¶7} In its complaint, appellant sought both civil

penalties and injunctive relief. However, the pipeline

became fully operational in 2018. Thus, appellant is

seeking civil penalty damages only for past violations.

{¶8} The fourth amended complaint contains the

following counts:

Count One – Rover and Pretec discharged

pollutants (drilling fluids) to the waters of the

State without point-source NPDES permits, failing

to apply for and obtain point-source NPDES

permits in violation of Ohio law.

6a

Count Two – Rover failed to obtain a general storm

water permit for its storm water discharges

Count Three – Rover and Pretec violated Ohio’s

general water quality standards for unpermitted

drilling fluid discharges into waters of the state

and unpermitted storm water discharges into the

waters of the State.

Count Four – Rover and Pretec violated Ohio’s

wetland water quality standards (unpermitted

drilling fluid discharges and unpermitted storm

water discharges severe enough to violate

standards).

Count Five – Rover violated the Director’s Orders

by failing to obtain coverage or even submit a

notice of intent to obtain coverage under the Ohio

EPA’s Construction Storm Water Permit.

Count Six – Rover violated the Hydrostatic Permit

(the permit that covers discharge of water that a

pipeline company places into the pipe, during the

construction phase, for safety testing).

{¶9} The trial court held pre-trials with the parties.

As stated in the trial court’s judgment entry, “the

parties agreed that, instead of addressing the matters

on remand, they wished to readdress the arguments

made in the prior motions to dismiss that were

summarily addressed by the Court in the footnote.”

Appellees each filed motions to dismiss appellant’s

fourth amended complaint on August 1, 2022.

Appellant filed a memorandum in opposition to the

motions to dismiss on October 3, 2022. Appellees each

filed replies.

{¶10} The trial court issued a judgment entry on

October 20, 2023, granting appellees’ motion to

7a

dismiss. The trial court found the Natural Gas Act

(“NGA”) is a “comprehensive scheme,” wherein FERC

serves as the lead agency in regulating and assuring

compliance with the National Environmental Policy

Act. The trial court went through the various

applicable provisions of the NGA, in addition to the

Clean Water Act (“CWA”), and found that, through the

NGA, the federal government exclusively occupies the

field of sale and transportation of natural gas, which,

by necessity, includes the construction of natural gas

pipelines. Further, that the NGA creates a scheme so

pervasive as to make reasonable the inference that

Congress left no room for the states to supplement it.

{¶11} As to the argument by appellant that the

CWA’s “Savings Clause,” prevents preemption, the

trial court found such a reading would allow appellant

to independently attack the FERC-certified project

and, while Congress carved out the ability of states to

have the right to approve or disapprove certain

discharges and certifications under the 401

Certification process, the “Savings Clause” does not

create independent rights. The trial court held such a

reading of the “Savings Clause” would undermine the

regulatory nature of the NGA. The trial found the

NGA preempts the claims asserted by appellant in its

fourth amendment complaint. Consequently, the trial

court dismissed the complaint.

{¶12} Appellant appeals the October 20, 2023

judgment entry of the Stark County Court of Common

Pleas and assigns the following as error:

{¶13} “I. THE TRIAL COURT ERRED AS A

MATTER OF LAW WHEN IT HELD THAT THE

STATE OF OHIO’S CLAIMS AGAINST ROVER AND

PRETEC, WHICH ALLEGED VIOLATIONS OF

8a

OHIO’S WATER POLLUTION LAW, WERE EITHER

PREEMPTED BY THE NATURAL GAS ACT OR

WAIVED UNDER THE CLEAN WATER ACT,

SECTION 401, THOUGH THE TRIAL COURT DID

NOT

HEAR

ANY

EVIDENCE,

THEREBY

IGNORING THE OHIO SUPREME COURT’S

DIRECTIVES ON REMAND.”

Standard of Review

{¶14} If the claims of appellant are federally

preempted, the common pleas court does not have

jurisdiction over the matter. The standard of review

regarding a claimed lacked of subject matter

jurisdiction is “whether any cause of action cognizable

by the forum has been raised in the complaint.” State

v. Spurlock, 42 Ohio St.3d 77 (1989). When

determining its subject matter jurisdiction, “the trial

court is not confined to the allegations of the

complaint.” Southgate Dev. Corp. v. Columbia Gas

Transmission Corp., 48 Ohio St.2d 211 (1976). The

trial court can consider material beyond the complaint

“without converting the motion into one for summary

judgment.” Id.

{¶15} This case is before us based on the trial

court’s grant of appellees’ motions to dismiss pursuant

to Civil Rule 12(B)(1) and (6). We review dismissals

pursuant to Civil Rule 12(B)(6) de novo, presume the

truth of all material factual allegations in the

complaint, and make all reasonable inferences in

appellant’s favor. Alford v. Collins-McGregor

Operating Co., 2018-Ohio-8. We also review

dismissals under Civil Rule 12(B)(1) de novo. State ex

rel. Ohio Civ. Serv. Emps. Assn. v. State, 2016-Ohio478.

9a

Law of the Case

{¶16} This case was remanded to the trial court

from the Ohio Supreme Court in State ex rel. Yost v.

Rover Pipeline, LLC, 2022-Ohio-766 (“Rover I”). In the

majority opinion, the Supreme Court held appellant

waived its authority with respect to issues related to

the Section 401 Certification. Id. However, if the

allegations are “outside the contours” of the Section

401 Certification, waiver does not apply. Id. The

Supreme Court remanded to the trial court to

determine whether any allegations in the complaint

were “outside the contours” of the Section 401

Certification. Id.

{¶17} Upon remand from the Supreme Court, the

trial court held several pre-trial conferences with the

parties. In its judgment entry, the trial court stated it

held these conferences “for remaining parties to

discuss proceeding on the remand from the Ohio

Supreme Court.” Further, “pursuant to discussions,

the parties agreed that, instead of addressing the

matters on remand,” they wanted to address

jurisdictional issues such as preemption. In its

appellate brief, appellant states the “parties agreed to

address the issue of preemption and other

jurisdictional issues within the motions to dismiss

first, instead of the matters on remand because the

motions to dismiss are jurisdictional and thus could be

dispositive * * * the State understood that the hearing

on the scope of the State’s 401 waiver would follow the

jurisdictional briefing below if the trial court did not

dismiss the State’s case entirely on preemption

grounds.”

10a

{¶18} In its assignment of error, appellant

contends the trial court violated the law of the case by

ignoring the directives of the Ohio Supreme Court.

{¶19} The law of the case doctrine provides that the

decision of a reviewing court in a case remains the law

of the case on the legal questions involved for all

subsequent proceedings in the case at both the trial

and reviewing levels. Giancola v. Azem, 2018-Ohio1694. However, the doctrine of the law of the case only

comes into play with respect to issues previously

determined and “while a mandate is controlling as to

matters within its compass, on remand a lower court

is free as to other issues.” Id. at ¶16. The doctrine is

considered to be a rule of practice rather than a

binding rule of substantive law and will not be applied

so as to achieve unjust results. Nolan v. Nolan, 11

Ohio St.3d 1 (1984). However, the rule is designed to

ensure consistency of results in a case. Id.

{¶20} Appellant contends the trial court did not

rely on preemption as the sole basis to dismiss the

complaint and instead dismissed the claims based

upon waiver, improperly determining the waiver issue

without conducting the hearing contemplated by the

Ohio Supreme Court in Rover I. Appellant bases its

conclusion on a footnote by the trial court stating, “the

parties have agreed to address the issue of preemption

prior to addressing the remanded issue. However,

even if the Court had the hearing contemplated by the

remand and determined that the counts in the

complaint were outside of the 401 certification,

dismissal of the complaint would still be appropriate

as such claims would be preempted by the NGA for the

reasons set forth in this judgment entry.”

11a

{¶21} We find nothing in this language violating

the law of the case. Appellant contends this language

means the trial court improperly based its decision on

the waiver issue. This Court reads the text appellant

focuses on to mean that, even if the court held the

hearing and determined there were claims that fell

outside of the “contours” of Section 401, the claims in

the complaint that do not fall within the “contours” of

Section 401 are preempted by the NGA. The trial

court’s judgment entry focuses on preemption, and

issues its ruling based upon preemption, not waiver.

As noted by the trial court and both parties in their

appellate briefs, the parties agreed they wanted the

trial court to rule on the preemption issue prior to

conducting any hearing on remand due to the

jurisdictional nature of preemption.

{¶22} While the dissent in the Rover I case

addressed the preemption argument and found the

NGA preempted the majority of appellant’s claims,

the majority opinion did not address the preemption

issue at all. Accordingly, the preemption issue was not

“an issue previously determined” by the Ohio

Supreme Court, and thus the doctrine of law of the

case does not come into play on the issue of

preemption. Giancola v. Azem, 2018-Ohio-1694. The

trial court did not act contrary to the mandates of any

superior tribunal, and the law the case doctrine did

not preclude the trial court from resolving the dispute

by considering an alternative legal theory on remand.

Id. at ¶17.

{¶23} Appellant also contends the trial court’s

statement that a certain paragraph in the Supreme

Court’s Rover I opinion regarding the text of the CWA

was “dicta,” means the trial court violated the law of

12a

the case because it wrongly considered this paragraph

“dicta.” However, the trial court clearly stated the

reason it considered the paragraph dicta is because

the majority in Rover I did not consider the

preemption issue. The trial court did not consider it

dicta for the waiver issue (which was specifically ruled

on by the Court), but did consider it dicta for the

preemption issue (which was not ruled on by the

Court). As discussed above, the parties sought to have

the trial court deal with the issue of preemption first,

and the trial court based its holding upon preemption,

not waiver.

{¶24} Finally, appellant contends the language

utilized by the Ohio Supreme Court means that some

of the claims in appellant’s complaint must survive,

but the trial court failed to follow this holding in

violation of the law of the case. The Ohio Supreme

Court held that some of appellant’s claims may not

have been waived. However, as noted above, the

majority opinion never deals with preemption. Simply

because some of appellant’s claims may not have been

waived does not mean they cannot be preempted. The

legal issue of preemption was not an “issue previously

determined” by the Supreme Court. Accordingly, the

trial court did not violate the law of the case in this

regard.

{¶25} As to the parties’ agreement to address the

preemption issue first before having the trial court

determine which claims were and were not within the

“contours” of the 401 Certification, any such argument

on appeal that this was incorrect or violated the law

of the case is barred by the doctrine of invited error.

The invited-error doctrine is a well-settled principle of

law under which a “party will not be permitted to take

13a

advantage of an error which he himself invited or

induced.” Hal Artz Lincoln-Mercury, Inc. v. Ford

Motor Co., 28 Ohio St.3d 20 (1986). Appellant failed to

object to the trial court ruling on the preemption issue

first, agreed to having the trial court decide the

preemption issue first, and argued the case on that

basis. Appellant cannot now take advantage of any

error in that regard. Wojcik v. Pratt, 2011-Ohio-5012

(9th Dist.).

{¶26} While this Court does not believe the trial

court impermissibly premised its opinion on waiver or

violated the law of the case, we note that any

confusion as to or mention of waiver is due to the

fluctuating arguments by appellant at the various

stages in these proceedings. In response to motions to

dismiss filed by appellees in 2018, appellant argued it

was exercising its powers under the CWA Sections 303

and 402. At the Supreme Court level, appellant

instead argued it was exercising its “traditional power

to regulate water quality,” which was authority that

allegedly existed independently of the CWA.

Appellant’s Supreme Court Brief at p. 4, 21, 32 (claims

are saved from waiver due to state’s “traditional

power to regulate water quality,” “traditional and

primary power over land and water use,” and

“traditional authority over water quality”). In its

response to the 2022 motions to dismiss at issue in

this case, appellant returns to the CWA Sections 303

and 402 arguments. The Supreme Court did not

directly decide the CWA Section 303 or 402 issue,

because it based its decision on the state’s

“traditional” authority to bring these claims. Thus, the

law of the case is not violated.

14a

Preemption Law

{¶27} The doctrine of federal preemption originates

from the Supremacy Clause of the United States

Constitution in Article VI, clause 2. Pursuant to the

Supremacy Clause, the United States Congress has

the power to preempt state laws.

{¶28} There are three ways federal law can

preempt state law: (1) where federal law expressly

preempts state law (express preemption); (2) where

federal law has occupied the entire field (field

preemption); or (3) where there is conflict between

federal law and state law (conflict preemption). State

ex rel. Yost v. Aktiengesellschaft, 2019-Ohio-5084.

{¶29} Conflict preemption is a form of “implied”

preemption, and occurs where it is impossible for a

private party to comply with both state and federal

requirements, or where state law stands as an

obstacle to the accomplishment and execution of the

full purposes and objectives of Congress. Id. at ¶13.

{¶30} Field preemption is also a form of “implied”

preemption, in which Congress meant to preempt

state law without explicitly saying so, and in which

the state law regulates conduct in a field Congress

intended the Federal Government to occupy

exclusively. State ex rel. Yost v. Volkswagen

Aktiengesellschaft,

2021-Ohio-2121.

“Field

preemption,” occurs when Congress has enacted a

legislative and regulatory scheme that is so pervasive

as to make reasonable the inference that Congress left

no room for the States to supplement it, or where an

Act of Congress touches a field in which the federal

interest is so dominant that the federal system will be

assumed to preclude enforcement of states law on the

same subject. Id. at ¶13.

15a

{¶31} In determining whether federal law

preempts state law, “the purpose of Congress is the

ultimate touchstone.” Malone v. White Motor Corp.,

435 U.S. 497, 504 (1978). Congress’ intent is primarily

discerned from the language contained in the

preemption statute and the statutory framework

around it. State ex rel. Yost v. Aktiengesellschaft, 2019Ohio-5084 at ¶14. Also relevant is the structure and

purpose of the statute as a whole as revealed through

text

and

the

reviewing

court’s

reasoned

understanding of the way in which Congress intended

the statute and its surrounding regulatory scheme to

affect business, consumers, and the law. Id. A court

reviewing possible preemption must consider

federalism as part of its analysis because both

national and state governments have elements of

sovereignty the other is bound to respect. Id. at ¶1415.

Preemption by the NGA

{¶32} It is well-established that under the

Commerce Clause, U.S. Constitution, Article I,

Section 8, cl. 3, the federal government “has dominion,

to the exclusion of the States, over navigable waters of

the United States.” City of Tacoma v. Taxpayers of

Tacoma, 357 U.S. 320 (1958). The NGA has long been

recognized as a “comprehensive scheme of federal

regulation of all wholesales of natural gas in

interstate commerce.” Schneidewind v. ANR Pipeline

Co., 485 U.S. 293, 300 (1988). The NGA confers upon

FERC exclusive jurisdiction over the transportation of

sale of natural gas in interstate commerce for resale.

Id. at 300-301. Thus, FERC is the regulatory body

charged with implementation of the NGA. FERC

serves as the lead agency to coordinate all applicable

16a

federal authorizations and for the purposes of

complying with the National Environmental Policy

Act of 1969. 15 U.S.C. 717n(b)(1).

{¶33} The NGA mandates each federal and state

agency considering an aspect of an application for

federal authorization to “cooperate” with FERC and

comply with deadlines established by FERC. 15 U.S.C.

717n(b)(1). FERC has the authority to establish a

schedule for all federal authorizations. 15 U.S.C.

717n(c). Additionally, the NGA requires FERC to,

“with the cooperation of Federal and State

administrative agencies and officials, maintain a

complete consolidated record of all decisions made or

actions taken by the Commission * * * with respect to

any Federal authorization.” 15 U.S.C. 717n(d). This

record maintained by FERC serves as the record for

judicial review under section 717r(d) of “decisions

made or actions taken of Federal and State

administrative agencies and officials.” Id.

{¶34} Among other duties, FERC must determine

the public necessity for the development of natural gas

pipelines. This determination is made by FERC when

they issue a “certificate of public convenience and

necessity.” 15 U.S.C. 717f(c). The NGA details a

specific procedure for an applicant to obtain a FERC

Certificate, and no company may construct any

facilities for the transportation in interstate

commerce of natural gas without obtaining this

certificate from FERC. The applicant must first: (1)

describe the proposed pipeline project, (2) explain why

the project is required, and (3) estimate the beginning

date and completion date for the project. Notice of the

application is filed in the Federal Register, a period of

17a

public comment and protest is allowed, and FERC

conducts public hearings on the application. Id.

{¶35} In evaluating an application, FERC must

investigate “the environmental consequences of the

proposed project and issue an environmental impact

statement.” Id. FERC must ensure that the proposed

pipeline construction complies with specific federal

environmental

regulations,

including

those

promulgated under the CWA. 15 U.S.C. 717b(d); 18

CFR 4.38. The EIS addresses multiple areas,

including water use and water quality. FERC also

requires natural gas companies to develop and comply

with contingency and mitigation plans for

construction, including the measures to be taken in

the event of an inadvertent release. Rover Pipeline,

LLC, and Energy Transfer Partners, LP, 177 FERC P

61182 (F.E.R.C.), 2021 WL 5982321. In this case,

during the EIS process, FERC required as a condition

of its FERC Certificate that Rover comply with an

“HDD Contingency Plan,” and required Rover to

comply with specific procedures to address storm

water discharges and potential discharges of fuel and

fuel oil.

{¶36} If, after completing the process, FERC finds

the proposed project “is or will be required by the

present or future public convenience or necessity,” and

the applicant demonstrates it will conform to the rules

and regulations of FERC, FERC will issue the

certificate. 15 U.S.C. 717f(e). FERC has the “power to

attach to the issuance of the certificate and to the

exercise of the rights granted thereunder such

reasonable terms and conditions as the public

convenience and necessity may require.” Id.

18a

Clean Water Act

{¶37} Congress established the CWA to “restore

and maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. 1251(a).

Under CWA Section 401, any applicant for a federal

license or permit to conduct any activity that may

result in any discharge into navigable waters –

defined in the statute as “waters of the United States,”

shall provide the federal licensing or permitting

agency with a 401 Certification. This certification

issued by the state in which the discharge originates,

attests that the discharge will comply with applicable

provisions of certain enumerated sections of the CWA.

These include effluent (i.e., discharge) limitations and

standards of performance for new and existing

discharge sources (Sections 301, 302, and 306), water

quality standards and implementation plans (Section

303), and toxic pretreatment effluent standards

(Section 307). Effluent limitations establish the levels

of specific pollutants that are allowable in a

discharger’s effluent based on levels necessary to

attain water quality standards in the waterbody

receiving the discharge (water quality-based effluent

limitations). Water-Quality Based Effluent Limits.

U.S.

Environmental

Protection

Agency

https://www3.epa.gov/npdes/pubs/chapt_06.pdf

(accessed September 15, 2024).

{¶38} The CWA gives states the opportunity to

have a substantial role in the FERC certification

proceedings, and specifically allows states to

participate in environmental regulation of natural gas

facilities pursuant to the CWA. “By enacting the

[Clean Water Act], Congress provided states with an

offer of shared regulatory authority.” Arkansas v.

19a

Oklahoma, 503 U.S. 91 (1992). The Supreme Court

has established that the CWA is a valid exercise of

Congress’ power under the Commerce Clause, and, in

regard to the CWA, Congress has the power to offer

states the choice of regulating activity according to

federal law or having state law preempted by federal

law. New York v. U.S., 505 U.S. 144 (1992).

{¶39} In this comprehensive regulatory scheme,

Congress has delegated to the states the option to

exercise

some

authority

to

enforce

state

environmental laws that are more stringent or

broader than federal laws. The U.S. Supreme Court

has held that the authority given to the states in the

401 Certification process is broad, as state approval

through the 401 Certification process is required any

time a federally licensed activity “may” result in a

“discharge.” S.D. Warren Co. v. Maine Board of

Environmental Protection, 547 U.S. 370 (2006).

Further, that the authority given to the states via the

401 Certification process in the CWA “provides for a

system that respects the State’s concerns,” and state

certifications under the CWA are “essential in the

scheme to protect state authority to address the broad

range of pollution.” Id. at 386.

{¶40} However, in order for a state to avail itself of

this option to exercise authority, the state must follow

a certain procedure. If the state fails to exercise this

option to participate in the 401 Certification process,

waiver applies. State ex rel. Yost v. Rover Pipeline,

LLC, 2022-Ohio-766; FFP Missouri 15, LLC, FFP

Missouri, LLC, 162 FERC 61237 (F.E.R.C.), 2018 WL

1364654 (March 15, 2018) (“as a result of the state’s

waiver, the conditions listed in its waived

certifications were no longer mandatory”). This is

20a

because the waiver provisions were created to prevent

a state from indefinitely delaying a federal licensing

proceeding. Hoopa Valley Tribe v. Federal Energy

Regulatory Commission, 913 F.3d 1099 (Dist. Col.

2019).

“Savings Clause”

{¶41} Appellant contends it maintains all of its

authority pursuant to the “Savings Clause” contained

in the NGA. Appellant believes it has the authority to

adopt or enforce any standard or limitation regarding

discharges of pollutants, separate and distinct from its

ability to regulate through its issuance of the 401

Certification or its participation (or lack thereof) in

the 401 Certification process, due to the broad nature

of the “Savings Clause” in the NGA. The “Savings

Clause” in the NGA provides, “Except as specifically

provided in this chapter, nothing in this chapter

affects the rights of States under * * * (3) the Federal

Water Pollution Control Act (commonly known as the

“Clean Water Act”).

{¶42} We find appellant’s reading of the Savings

Clause to be too broad. The Savings Clause

specifically preserves the “rights of the States” under

the CWA. However, as discussed further below, the

“right of the States” under the CWA is the federally

delegated power to participate in the 401 Certification

process. Outside of these federally delegated “rights”

referenced in the Savings Clause, states have no

power to regulate the construction of interstate

natural gas pipelines due to the dominion the federal

government has, to the exclusion of the states, over

navigable waters of the United States. Unlike an

antitrust claim that “affected” the FERC-regulated

field of wholesale natural gas rates but was not “aimed

21a

directly” at the field, in this case, the claims set forth

in appellant’s complaint are aimed directly at the

heart of a FERC-regulated field (the construction of an

interstate natural gas pipeline). Oneok v. Learjet, Inc.,

575 U.S. 373 (2015) (no preemption because antitrust

law was not aimed at natural gas companies and

broadly aimed at all businesses, so not directly aimed

at FERC-regulated field).

{¶43} The Savings Clause does not separately

create any independent rights for appellant. As stated

by the EPA, the CWA “does not provide an

independent regulatory enforcement role” for states

once they have waived certification. 2020 EPA Rule,

85 Fed. Reg. at 42,255, 42,276. Rather, the rights

protected from preemption via the Savings Clause are

those rights delegated to the state from the federal

government in the 401 Certification process. The

object of giving states broad authority during the 401

Certification process is to maintain states’ water

quality standards. S.D. Warren Co. v. Maine Board of

Environmental Protection, 547 U.S. 370 (2006).

{¶44} To read the Savings Clause as broadly as

appellant would like this Court to would allow

appellant to independently attack a FERC-certified

project, despite having the opportunity and authority

to utilize their authority during the 401 Certification

process. It would also give states a second chance to

regulate through the Savings Clause, as appellant is

essentially seeking to impose new requirements after

the FERC Certificate has already been issued, even

though they were given the chance to participate in

process. See S.D. Warren Co. v. Maine Board of

Environmental Protection, 547 U.S. 370 (2006)

(stating Congress provided states with power to

22a

enforce “any other appropriate” requirement of state

law” in the 401 Certificate). Given the detailed

regulations promulgated by the NGA and the power

given to FERC throughout these regulations, we find

such a broad reading would undermine the

regulations contained in the 401 Certification process.

See Arizona v. U.S., 567 U.S. 387 (2012) (permitting

state to impose its own penalties would conflict with

careful framework Congress adopted).

{¶45} We find preemption is consistent with the

text and purpose of the NGA. 15 U.S.C. 717(a)

provides that “federal regulation in matters relating

to the transportation of natural gas and the sale

thereof * * * is necessary in the public interest.”

Additionally, 15 U.S.C. 717r specifically provides that,

after a FERC Certificate is issued, as it was in this

case, the way in which to challenge or contest that

order is to: (a) apply for a rehearing with FERC and

(b) by filing a petition in the court of appeals of the

United States for any circuit wherein the natural-gas

company to which the order relates is located or has

its principal place of business, or in the United States

Court of Appeals for the District of Columbia.

Additionally, the NGA provides states with the ability

to petition FERC to investigate a potential violation of

the NGA or the FERC Certificate. 15 U.S.C. 717m; 15

U.S.C. 717n.

{¶46} FERC has the authority to pursue an

enforcement action and penalties for violations of the

NGA. 15 U.S.C. 717s; 15 U.S.C. 717t and t-1. FERC

initiated an enforcement action against Rover for the

same actions appellant in this case lists in its

complaint: (1) intentionally including diesel fuel and

other toxic substances and unapproved additives in

23a

the drilling mud during its horizontal directional

drilling operations; (2) failing to adequately monitor

and (3) improperly disposing of inadvertently released

drilling mud that was contaminated by diesel fuel and

hydraulic oil. FERC directed Rover to show cause why

it should not be assessed a civil penalty under 15

U.S.C. 717t in the amount of $40 million. Rover

Pipeline, LLC, and Energy Transfer Partners, LP, 177

FERC P 61182 (F.E.R.C.), 2021 WL 5982321. FERC

has thus crafted a multi-million dollar penalty that

balanced a variety of financial and environmental

factors. Id.

{¶47} Courts examining the issue have also found

the preemptive effect of the NGA to be broad. Karuk

Tribe of Northern California v. California Regional

Water Quality Control Board, North Coast Region, 183

Cal.App.4th 330 (1st Dist. March 20, 2010) (it is only

when states attempt to act outside of the federal

context and federal scheme under authority of

independent state law that such collateral assertions

of state power are nullified); Delaware Riverkeeper

Network v. Secretary, Pennsylvania Dept. of

Environmental Protection, 833 F.3d 350 (3rd Cir. Aug.

8, 2016) (holding when a state declines to exercise its

authority to issue a Water Quality Permit, this nonparticipation returns the state’s delegated authority

to enforce Section 401 to FERC with respect to the

project due to NGA preemption); Islander East

Pipeline Co., LLC v. Connecticut Dept. of

Environmental Protection, 482 F.3d 79 (2nd Cir. Oct.

5, 2006) (Congress wholly preempted and completely

federalized the area of natural gas regulation, but

provided states with the option of being deputized

regulators under the 401 Certification process);

Islander East Pipeline Co., LLC v. Blumenthal, 478

24a

F.Supp.2d 289 (D. Conn. March 22, 2007) (state

permitting preempted by NGA once FERC certificate

was issued); National Fuel Gas Supply Corp. v. Public

Service Commission of New York, 894 F.2d 571 (2nd

Cir. Jan. 24, 1990) (the matters sought to be regulated

by the state were directly considered by FERC in the

401 Certification process, this direct consideration is

more than enough to preempt state regulation);

Northern Natural Gas Co. v. Munns, 254 F.Supp.2d

1103 (S.D. Iowa Feb. 28, 2003) (considerations of state

regulations does not change the fact FERC considers

and determines a full range of environmental and

land use standards); Northern Natural Gas Co. v.

Iowa Utilities Board, 377 F.3d 817 (8th Cir. 2004)

(NGA preempts laws state was attempting to enforce;

because

FERC

has

authority

to

consider

environmental issues, states may not engage in

concurrent environmental review; FERC policy to

require certain companies cooperate with state and

local authorities does not change the preemptive effect

of NGA); No Tanks, Inc. v. Public Utilities

Commission, 697 A.2d 1313 (Maine 1997) (state

commission’s review of environmental issues would be

an attempt to regulate matters within FERC’s

exclusive jurisdiction contrary to preemption rule).

{¶48} The U.S. EPA itself recognizes the limited

role the states have, and also recognizes that the

ability of the state to participate in the 401

Certification process is a carve-out from what

otherwise would be preempted by federal law. As

stated by the EPA, “Section 401 * * * provides specific

and defined authority for States and Tribes to protect

their water quality in the context of a federal licensing

and permitting process, including those processes in

which State or Tribunal authority may otherwise be

25a

entirely preempted by federal law.” 2020 EPA Rule, 85

Fed. Reg. at 42,255, 42,276. The EPA also recognizes

that while there may be situations in which “state

enforcement under state authorities may be lawful

where State authority is not preempted by federal

law,” one example of a situation “where State

authority would be preempted by federal law includes

FERC’s sole authority to approve the construction of

interstate natural gas pipelines * * * under the

National Gas Act.” 2020 EPA Rule, 85 Fed. Reg. at

42,255, 42,276.

{¶49} Appellant contends it is conflicting and not

possible for a court to find the federal government

occupies the field of the sale and transportation of

natural gas, which includes the construction of a

natural gas pipeline, while at the same time

recognizing the state retains some authority under the

CWA 401 Certification process (assuming they do not

waive the right). According to appellant, (1) either

Congress has exclusive governance of the field, or (2)

the states maintains all of its powers under the

Savings Clause. We find this argument is too narrow,

and misapprehends the fact that preemption can be

limited in scope. In fact, when preemption is used, it

should be used in as narrow scope as possible so as to

retain as much of the state’s historical police powers

as possible. City of Girard v. Youngstown Belt Railway

Co., 2012-Ohio-5370; Matthews v. Centrus Energy

Corp., 15 F.4th 714 (6th Dist. Oct. 6, 2021) (even

absent complete preemption, can have partial

preemption).

{¶50} We find that, during the permitting process,

states can exercise their CWA permitting authority,

and choose to regulate the activity. However, once the

26a

state waives this authority, state law is preempted by

federal law. See Millennium Pipeline Co., LLC v.

Seggos, 860 F.3d 696 (Dist. Col. 2017) (stating once the

CWA’s requirements have been waived, the CWA

“falls out of the equation” and “there is nothing left for

the state to do.”) Appellant’s “either/or” scenario

misses a crucial and important detail: Congress has

set up the regulatory system to offer a state the option

to regulate the activity. The state retains their

authority and ability to regulate through the CWA

when the state imposes conditions, limitations, and

specific permits on the project to assure compliance

with various provisions of the CWA through the 401

Certification process.

{¶51} However, once the state gives up this

authority Congress offered to them by waiving

participation in the 401 Certification process, the

state’s delegated authority to enforce is returned to

FERC, and the NGA preempts the field. “Where

Congress has the authority to regulate private activity

under the Commerce Clause, [the Supreme Court]

recognized Congress’ power to offer States the choice

of regulating that activity according to federal

standards or having state law preempted by federal

regulation.” Islander East Pipeline Co., LLC v.

Connecticut Dept. of Environmental Protection, 482

F.3d 79, 92 (2nd Cir. Oct. 5, 2006); see also: Karuk

Tribe of Northern California v. California Regional

Water Quality Control Board, North Coast Region, 183

Cal.App.4th 330 (1st Dist. March 20, 2010) (state

must exercise its authority through the 401

Certification process or preemption applies);

Delaware Riverkeeper Network v. Secretary,

Pennsylvania Dept. of Environmental Protection, 833

F.3d 350 (3rd Cir. Aug. 8, 2016) (holding when a state

27a

declines to exercise its authority to issue a Water

Quality Permit, this non-participation returns the

state’s delegated authority to enforce Section 401 to

FERC with respect to the project); Islander East

Pipeline Co., LLC v. Connecticut Dept. of

Environmental Protection, 482 F.3d 79 (2nd Cir. Oct.

5, 2006) (stating if state chooses not to regulate

through the 401 Certification process, the regulatory

decision-making reverts back to federal authorities).

We find this is not an either/or proposition, as

Congress has clearly stated its intention as to the

scope of preemption, i.e., either participate, regulate,

and enforce through the 401 Certification process or

lose authority under the CWA because this ability to

regulate and enforce reverts back to the federal

authorities.

Specific Clean Water Act Provisions

{¶52} Appellant contends it retains power or

authority under the CWA other than the power or

authority that it derives from the 401 Certification

process. However, Congress has provided direction

regarding the scope of what a state should consider in

making a Section 401 Certification decision. Section

401(a)(1) provides that, in the 401 Certification

process, the state must certify that a discharge to

navigable waters that may result from a proposed

activity will comply with specific enumerated sections

of the CWA, including Sections 301, 302, 303, 306, and

307, and also whether the proposed activity will

comply with any other appropriate requirement of

state law. 2020 EPA Rule, 85 Fed. Reg. at 42,255,

42,276. Section 401(d) of the CWA provides that any

401 Certification by the state “shall set forth any

effluent limitations and other limitations, and

28a

monitoring requirements necessary to assure that any

applicant for a Federal license or permit will comply

with any applicable effluent limitations and other

limitations, under Section 301 or 302 of this title,

standard of performance under section 306 of this

title, or prohibition, effluent standard, or

pretreatment standard under section 307 of this title,

and with any other appropriate requirement of State

law set forth in such certification, and shall become a

condition on any Federal license or permit subject to

the provisions of this section.” Id.; 33 U.S.C.§ 1341(d).

{¶53} Specifically, appellant contends that Sections

303 (33 U.S.C. 1313) and 402 (33 U.S.C. 1342) of the

CWA provide it independent authority to require the

permits listed in their complaint or allow them to set

water quality standards even though they waived

their opportunity to participate in the 401

Certification process. Appellant contends Section 303

“saves” Counts 3 and 4 from preemption, and Section

402 “saves” Counts 1, 2, and 5 from preemption.

{¶54} However, both Sections 303 and 402 take

their force from 301(a) of the CWA, which prohibits

the “discharge of any pollutant” into U.S. waters

“except as in compliance” with certain enumerated

provisions of the CWA, including state quality

standards under 303 and permitting requirements

under 402. In turn, Section 401 of the CWA, the

section that deals with the 401 Certification process,

specifically provides that compliance with Section 301

(including the requirements of Sections 303 and 402

incorporated therein) must be addressed during the

401 Certification process (“any applicant for a federal

permit to conduct * * * construction * * * which may

result in any discharge into the navigable waters,

29a

shall provide * * * a certification from the State * * *

that any such discharge will comply with the

applicable provisions of sections 1311, 1312, 1313,

1316, and 1317 of this title”). Section 401(d) makes it

mandatory for appellant, through the 401

Certification process, to set forth and include in the

401 Certification, any limitations it seeks to impose

via Section 301 of the CWA, which includes any

permits or limitations sought pursuant to Sections

303 and 402.

{¶55} Viewing these provisions of the CWA

together and examining the statutory text, it is clear

that these provisions do not separately create any

independent rights for appellant. Rather, to the extent

that these sections provide any authority to appellant,

they provide the authority through the 401

Certification process. See PUD No. 1 Jefferson County

v. Washington Dept. of Ecology, 511 U.S. 700, 712

(upholding state’s ability to impose limitations on the

project through the 401-certification process to assure

compliance with various provisions of CWA). Based

upon the unambiguous statutory language, if the state

wanted to require permits or impose limitations

pursuant to Sections 301, 303, and 402, they had to

participate in the 401-certification process.

{¶56} Appellant also contends that Section 510 (33

U.S.C. 1370) of the CWA provides it authority to

require the permits listed in the complaint or allow

them to set water quality standards even though they

waived their opportunity to participate in the 401

Certification process. Appellant argues Section 510

triggers the NGA “Savings Clause,” and creates rights

for them independent of the 401 Certification. Section

510 of the CWA provides, “except as expressly

30a

provided in this chapter, nothing in this chapter shall

(1) preclude or deny the right of any State or political

subdivision thereof or interstate agency to adopt or

enforce (A) any standard or limitation respecting

discharge of pollution * * * except that if an effluent

limitation, or other limitation * * * is in effect under

this chapter, such State * * * may not adopt or enforce

any effluent limitation or other limitation * * * which

is less stringent than the effluent limitation, or other

limitation * * * under this chapter.”

{¶57} We find Section 510 does not separately

create any rights or “independent authority” for a

state who has waived its participation in the 401

Certification process. Section 510 does provide that a

state who participates in the 401 Certification process

is permitted to require “more stringent” limitations

than the federal government does on effluent and

other limitations. The purpose of Section 510 is to

clarify that the CWA does not prohibit states from

adopting water quality standards that are stricter

than federal standards. International Paper v.

Ouelette, 479 U.S. 481 (1987). However, these

limitations must be set forth in the 401 Certification,

because Section 401 requires a state to attach

conditions to the 401 Certificate related to any part of

the proposed “activity,” which, in this case, is the

construction of the pipeline. PUD No. 1 v. Jefferson

County v. Wash. Dep’t of Ecology, 511 U.S. 700, 712

(1994),

{¶58} The first words of Section 510 are instructive

and important. Section 510 states, “except as

expressly provided in this chapter * * *.” Chapter 26

of the CWA expressly contains the 401 Certification

provisions that (1) requires the state to grant, deny, or

31a

waive participation in the 401 Certification process

and (2) requires a state, as part of the 401

Certification process, to set forth any effluent

limitations, other limitations, or monitoring

requirements necessary to assure the applicant will

comply with the CWA and any other appropriate

requirement of State law so they can be included in

the FERC Certificate. Application of state law

pursuant to Section 510 as appellant seeks to do would

allow the state to circumvent the permit system

established by the CWA. Id. Notably, Section 510

makes no mention of the NGA. Accordingly, Section

510 does prevent the presumptive effect of the NGA

from applying to a situation in which the state has

waived its participation in the 401 Certification

process.

{¶59} We note that our discussion of Sections 301,

303, 402, and 510 are not designed to indicate we

premise our opinion on waiver in violation of the

Supreme Court’s Rover I opinion. Rather, our analysis

is done to explain why Sections 303, 402, and 510 of

the CWA cannot “save” appellant’s complaint from

preemption, i.e., because Sections 301, 303, 402, and

510 do not create any independent rights, and

appellant waived any authority it did have under

these sections by waiving their participation in the

401 Certification process. If appellant retained power

or authority under the CWA in Sections 301, 303, 402,

and 510 to regulate these items, the waiver by

appellant in the 401 Certification process would be

meaningless. Additionally, it would allow the state

two opportunities to regulate discharges from natural

gas pipeline construction, first, through the 401

Certification process, and second, through state court

litigation premised on other CWA provisions.

32a

Congress

specifically

prohibited

this

“two

opportunity” theory in Section 401(d), which

mandates that the state, through the 401 Certification

process, include any limitations it seeks to impose via

Sections 301, 303, and 402.

{¶60} Permitting a state to essentially regulate

twice – once in the 401 Certification process, and then

again after the FERC Certificate is issued utilizing

their “powers” under the CWA would run afoul of

Section 401(d) of the CWA, which requires (as

evidenced by the use of the word “shall”) the state to

set forth ANY effluent limitations, other limitations,

or monitoring requirements necessary to ensure

compliance with the CWA “and with any other

appropriate requirement of state law.” These

limitations and monitoring requirements, even if they

are more stringent than federal law requires,

automatically become a condition of the FERC

Certificate. 401(d). “In 401(d), the Congress has given

the States the authority to place any conditions on a

water quality certification that are necessary to

assure that the applicant will comply with effluent

limitations, water quality standards * * * and with

‘any other appropriate requirement of State law.’ “

PUD No. 1 v. Jefferson County v. Wash. Dep’t of

Ecology, 511 U.S. 700, 712 (1994), quoting EPA,

Wetlands and 401 Certification 23 (April 1989). If a

state could, after the FERC Certificate is issued,

simply use their alleged “independent” powers

pursuant to the CWA, the plain language contained in

Section 401(d) would be rendered meaningless, as

would the regulatory framework designed by

Congress in the CWA.

33a

Hydrostatic Permit

{¶61} Count 6 of appellant’s fourth amended

complaint alleges Rover violated the hydrostatic

permit issued by the State of Ohio. Unlike the other

counts in which the permits and/or regulations the

state alleges were violated were not included in the

FERC Certificate, the hydrostatic permit was

included in the FERC Certificate. However, the

permit was obtained by Rover because FERC required

it as part of the FERC Certification process, not

because it was required by the State of Ohio.

{¶62} The hydrostatic permit was not obtained

independently of the 401 Certification process. Since

appellant waived its participation in the 401

Certification process and FERC was the regulatory

body that required the permit, it is FERC who has to

enforce the permit. Federal courts have recognized

that FERC is charged with policing compliance with

the FERC Certificate it issues. Waldock v. Rover

Pipeline, LLC, 2020-Ohio-3307 (6th Dist.). 15 U.S.C.

717m explicitly provides FERC with the power to

investigate violations of the provisions of FERC’s

orders.

{¶63} “[T]he federal agency issuing the applicable

federal license or permit is responsible for enforcing

certification conditions that are incorporated into a

federal license or permit.” 2020 EPA Rule, 85 Fed.

Reg. at 42,255, 42,276. Here, the hydrostatic permit

was incorporated into the federal license or permit, as

required by FERC. Thus, it became a requirement of

federal law, not state law. Karuk Tribe of Northern

California v. California Regional Water Quality

Control Board, North Coast Region, 183 Cal.App.4th

330 (1st Dist. March 20, 2010). FERC, in its exercise

34a

of regulatory authority pursuant to the power

specifically given to it under 15 U.S.C. 717f(e), elected

to require Rover to cooperate with state authorities in

obtaining the hydrostatic permit despite the state’s

waiver. This policy decision “does not change the

preemptive effect of the NGA.” Hoopa Valley Tribe v.

Federal Energy Regulatory Commission, 913 F.3d

1099 (Dist. Col. Jan. 25, 2019); See National Fuel Gas

Supply Corp. v. Public Service Commission of New

York, 894 F.2d 571 (2nd Cir. Jan. 24, 1990). (state

permit does not lessen presumptive effect).

{¶64} Pursuant to the complaint, the alleged

violation of the hydrostatic permit occurred due to

Rover’s

“control,

authority,

direction,

and

responsibility over the construction of the pipeline.”

Accordingly, this claim is preempted by the NGA.

Conclusion

{¶65} At various times throughout these

proceedings, appellant has argued that it can enforce

its state laws due to its “traditional” or “inherent”

powers, while at other times arguing it can enforce its

laws through power “delegated” to it by the federal

government in the CWA.

{¶66} To avoid any confusion, we conclude the

following: Counts 1, 2, and 5 of appellant’s fourth

amended complaint allege violations under state law

for inadvertent returns of drilling fluid and storm

water runoff without obtaining permits from the state.

Counts 3 and 4 allege violations of Ohio’s general

wetland-specific-water quality standards. To the

extent appellant argues these claims are permitted as

an exercise of their “traditional” or “inherent” state

authority, we find this does not fall within the NGA

Savings Clause and these claims are therefore

35a

preempted. If appellant is arguing these claims are

permitted due to powers “delegated” to them from the

federal government by the CWA, we find the state has

no “independent” authority from the CWA; the only

powers delegated to them are those delegated to them

through the 401 Certification process. If the state

wanted to require permits or impose limitations

pursuant to Sections 301, 303, and 402, they had to

participate in the 401 Certification process, which

they did not.

{¶67} Each of the claims in appellant’s fourth

amended complaint falls within the field of natural

gas pipeline construction preempted by the NGA. The

complaint expressly ties each of the alleged discharges

and/or storm water runoff to natural gas pipeline

construction. The complaint states the drilling fluid

release occurred “during construction of an interstate,

natural gas pipeline,” and that the discharges of storm

water were “from Rover’s construction activities.” We

agree with the trial court that our finding is narrowly

tailored to the specific situation. During the

construction of a natural gas pipeline certified by

FERC when a state has waived its ability to

participate in the 401 Certification process and there

are discharges of pollutants into waterways, a state’s

recourse for such discharges is limited to those

provided in the 401 Certificate. Any claims outside

thereof are preempted by the NGA.

{¶68} The state’s waiver and the preemption of

claims does not mean the state is without remedy for

damages from violations of the federal permit. The

U.S. Supreme Court has stated that the state may still

sue for violations of federal law. U.S. Dept. of Energy

v. Ohio, 503 U.S. 607 (states may bring suit under

36a

CWA pursuant to act’s citizens-suit provision, 33

U.S.C. 1365). Further, the state had, and continues to

have, despite any waiver or preemption, the ability to

petition FERC to revisit its CWA permitting pursuant

to the procedures set forth in 15 U.S.C. 717r.

{¶69} Based on the foregoing, appellant’s

assignment of error is overruled. The October 20, 2023

judgment entry of the Stark County Court of Common

Pleas is affirmed.

By: Gwin, J.,

Delaney, P.J., and

Baldwin, J., concur

s/ W. Scott Gwin

HON. W. SCOTT GWIN

s/ Patricia A. Delaney

HON. PATRICIA A. DELANEY

s/ Craig R. Baldwin

HON. CRAIG R. BALDWIN

WSG:clw 0924

37a

APPENDIX C

IN THE COURT OF COMMON PLEAS

STARK COUNTY, OHIO

STATE OF OHIO, EX REL., MICHAEL DEWINE,

OHIO ATTORNEY GENERAL,

Plaintiff,

-vsROVER PIPELINE, LLC, et al.,

Defendant.

CASE NO. 2017CV02216

JUDGE KRISTIN G. FARMER

JUDGMENT ENTRY

This matter came before the Court upon the

motions of the following defendants to dismiss the

Fourth Amended Complaint filed by the plaintiff, The

State of Ohio ex rel. Michael Dewine, Attorney

General (“State of Ohio”): Rover Pipeline, LLC

(“Rover”) Group and Pretec Directional Drilling, LLC

(“Pretec”). The State of Ohio filed a combined response

to the motions to dismiss 1, to which the individual

defendants have replied. Upon review, the Court finds

as follows.

1 The State of Ohio has requested an oral argument on the

motions to dismiss. As this Court has previously found that the

claims at issue were preempted by federal law, this entry serves

to set forth this Court’s reasoning for such finding. As such, the

Court finds that oral argument on the issue is unnecessary.

38a

Procedural History

The State of Ohio filed an Amended Complaint on

November 30, 2017. After the filing of the amended

complaint, a “Notice of Removal to Federal Court” was

filed on December 8, 2017. The Federal Court

remanded this matter back to the Stark County Court

of Common Pleas on January 31, 2018. In his Order

remanding this matter back to Stark County, Judge

John R. Adams found that, although the State of

Ohio’s complaint necessarily raises a federal issue in

some capacity, the focal point of the litigation will be

the Clean Water Act and as such, the federal court

“cannot exercise jurisdiction without disrupting the

division of labor between the state of Ohio and the

federal government.”

Upon remand, the State of Ohio filed a motion for

leave to file a Second Amended Complaint. The Court

granted the motion and the Second Amended

Complaint was filed on April 17, 2018. After the filing

of the Second Amended Complaint, the defendants

filed motions to dismiss. Prior to ruling upon said

motions, the State of Ohio filed an unopposed motion

for leave to file a Third Amended Complaint. The

Third Amended Complaint was filed on July 19, 2018.

Thereafter, the defendants again filed motions to

dismiss. This Court granted the motions to dismiss.

Although the judgment entry focused on its finding of

waiver by the State of Ohio under Section 401 of the

Clean Water Act, this Court specifically noted that:

Although not specifically addressed in this entry,

the Court has reviewed the arguments relative to

dismissal on grounds other than a waiver under

Section 401. The Court finds that, even if such

waiver had not occurred, the defendants would be

39a

entitled to dismissal on the alternative grounds

presented by the motions to dismiss, including, but

not limited to, preemption.

Judgment Entry filed March 12, 2019, footnote 2.

The State of Ohio appealed this Court’s entry to

the Fifth District Court of Appeals on April 16, 2019,

in Fifth District Case No. 2019CA00056. In the

appeal, the State of Ohio asserted two assignments of

error:

1. The trial court erred as a matter of law when it

held that, under the Clean Water Act, 33U.S.C.

1341, the State of Ohio waived all of its water

pollution authority over environmental violations

occurring during the construction of Rover’s

interstate pipeline,

2. The trial court erred as a matter of law when it

found, in a footnote, that even without the waiver,

the other defenses raised by Rover and its

contractors including preemption barred the State

of Ohio’s counts one through six.

State of Ohio ex rel. Yost v. Rover Pipeline, LLC, et al,

5th District No. 2019CA00056, 2019-Ohio-5179. The

Fifth District Court of Appeals affirmed this Court’s

decision regarding waiver under the Clean Water Act.

As such, the Court found that assignment of error

regarding other basis for dismissal, including

preemption, moot. The State of Ohio appealed the

Fifth District Court of Appeal’s decision to the

Supreme Court of Ohio.

The Supreme Court of Ohio accepted the State of

Ohio’s appeal on propositions of law relating to waiver

under the Clean Water Act. In a 4-3 decision, the

Court held as follows:

40a

We conclude that the state waived its right to

participate with respect to certification under 33

U.S.C. 1341 and, therefore, that the state cannot

assert rights related to that certification. That

waiver does not extend, however, to the state’s

rights and authority that are unrelated to that

certification. Accordingly, we reverse the judgment

of the court of appeals, and we remand to the trial

court to determine whether any of the allegations

in the seven 1 specific counts set forth by the state

address issues that are outside the contours of the

Section 401 certification.

State ex. rel. Yost v. Rover Pipeline, LLC, 167 Ohio

St.3d 223, 2022-Ohio-766.

Upon remand, the State of Ohio dismissed

defendants Mears Group, Inc., Laney Directional

Drilling Co., Atlas Trenchless, LLC., and B & T

Directional Drilling, Inc., as well as Count 7

(Defendant Rover Pipeline LLC engaged in activities

without effective state 401 water quality certification)

as set forth in the Third Amended Complaint.

Additionally, the State of Ohio filed a Fourth

Amended Complaint to reflect the dismissals.

The Court held telephonic conferences with

counsel for remaining parties to discuss proceeding on

the remand from the Supreme Court of Ohio.

Pursuant to discussions, the parties agreed that,

instead of addressing the matters on remand, they

wished to readdress the arguments made in the prior

motions to dismiss that were summarily addressed by

the Court in the footnote. As a result of those

discussions, Rover and Pretec filed the instant

motions to dismiss.

41a

The Complaint filed by the State of Ohio

The State of Ohio’s complaint alleges that the

defendants illegally discharged millions of gallons of

drilling fluids to Ohio’s waters, causing pollution and

degrading water quality across the state in

construction of the Rover Pipeline, a 713-mile

interstate natural gas pipeline crossing 18 counties.

Rover was the owner or operator of the drilling

operations for the construction of the pipeline. Pretec

was a contractor hired by Rover to perform horizontaldirectional-drilling

activities

related

to

the

construction of the pipeline.

More specifically, the State of Ohio’s Fourth

Amended Complaint alleges the following:

Count One: Defendants (Rover and Pretec)

discharged pollutants (drilling: fluids) to waters of the

state, without point source NPDES permits.

Count Two: Defendant Rover failed to obtain a

necessary storm water permit for its storm water

discharges.

Count Three: Defendants (Rover and Pretec)

violated Ohio’s general water quality standards

(unpermitted drilling fluid discharges into waters of

the state and unpermitted storm water discharges

into waters of the state).

Count Four: Defendants (Rover and Pretec)

violated Ohio’s wetland water quality standards

(unpermitted drilling fluid discharges into wetlands).

Count Five: Defendant Rover violated the

Director’s Orders by failing to obtain coverage or even

submit a notice of intent to obtain coverage under the

Construction Storm Water Permit.

42a

Count Six: Defendant

Hydrostatic Permit.

Rover

violated

the

In its prayer for relief, the State of Ohio seeks

injunctive relief, requesting that the defendants be

permanently enjoined to comply with RC Chapter

6111, and the imposition of civil penalties. However,

the pipeline at issue has been completed. As such, the

requested relief by the State of Ohio now sounds in

civil penalties for past violations.

Motions to Dismiss

Through their motions, both Rover and Pretec

request dismissal of the State of Ohio’s Fourth

Amended Complaint on the basis that the claims

asserted therein are preempted by the Natural Gas

Act and, as such, this Court lacks subject matter

jurisdiction. Additionally, Rover argues that the State

of Ohio’s claims are challenges to FERC’s approval of

the pipeline project and improper collateral attacks on

FERC’s orders. In response, the State of Ohio asserts

that the claims are an exercise of the State’s

independent authority under the Clean Water Act.

Civil Rule 12(B)(1) Standard

In their motions, the defendants seek dismissal of

the State of Ohio’s Fourth Amended Complaint for

lack of subject matter jurisdiction. Civ.R. 12(B)(1)

provides for the defense of lack of subject matter

jurisdiction to be raised by motion. Subject matter

jurisdiction generally concerns “a court’s power to

hear and decide a case on the merits and does not

relate to the rights of the parties.” Pacific Indemnity

Co. v. Deems, 10th Dist. No. 19AP-349, 2020-Ohio349, citations omitted. “In considering a Civ.R.

12(B)(1) motion to dismiss for lack of subject-matter

43a

jurisdiction, a trial court ‘determines whether the

claim raises any action cognizable in that court.’” Id.

The trial court is not confined to allegations of

complaint when determining its subject matter

jurisdiction pursuant to a Civ.R. 12(B)(1) motion to

dismiss, and it may consider material pertinent to

such inquiry without converting the motion into one

for summary judgment. Civ.R. 12(B) (1,6). Southgate

Dev. Corp. v. Columbia Gas Transmission Corp., 48

Ohio St. 2d 211 (1976).

Preemption

The Court finds the following relatively recent

analysis regarding the principle of preemption by the

Tenth District Court of Appeals in State ex rel. Yost v.

Volkswagen Aktiengesellscharft,10th Dist. No. 19AP7, 2019-Ohio-5084, judgment affirmed in State ex rel.

Yost v. Volkswagen Aktiengesellscharft, 165 Ohio

St.3d 223, 2021-Ohio-2121, instructive in its analysis

of the instant motions:

The doctrine of federal preemption arises from the

Supremacy Clause of the United States

Constitution, which provides that “the Laws of the

United· States * * * shall be the supreme Law of

the Land; and the Judges in every State shall be

bound thereby, any Thing in the Constitution or

Laws

of

any

State

to

the

Contrary

notwithstanding.” U.S. Constitution, Article VI, cl.

2. Pursuant to the Supremacy Clause, the United

States Congress has the power to preempt state

laws. In re Miamisburg Train Derailment

Litigation, 68 Ohio St.3d 255, 259, 626 N.E.2d 85

(1994).

44a

There are three ways federal law can preempt

state law: (1) where federal law expressly preempts

state law (express preemption); (2) where federal

law has occupied the entire field (field preemption);

or (3) where there is a conflict between federal law

and state law (conflict preemption). Norfolk S. Ry.

Co. v. Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248,

875 N.E.2d 919, ¶ 7. Express preemption occurs

when Congress explicitly defines the extent to

which its enactments preempt state law. English

v. Gen. Elec. Co., 496 U.S. 72, 78, 110 S.Ct. 2270,

110 L.Ed.2d 65 (1990). In the case of field

preemption, “state law is pre-empted where it

regulates conduct in a field that Congress intended

the Federal Government to occupy exclusively.

Such an intent may be inferred from a ‘scheme of

federal regulation * * *so pervasive as to make

reasonable: the inference that Congress left no

room for the States to supplement it,’ or where an

Act of Congress ‘touches a field in which the federal

interest is so dominant that the federal system will

be assumed to preclude enforcement of state laws

on the same subject.’” Id. at 79, 110 S.Ct. 2270,

quoting Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947).

Conflict preemption occurs “where it is impossible

for a private party to comply with both state and

federal requirements,” or “where state law stands

as an obstacle to the accomplishment and

execution of the full purposes *1272 and objectives

of Congress.’” English at 79, 110 S.Ct. 2270,

quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61

S.Ct. 399, 85 L.Ed. 581 (1941). “What is a sufficient

obstacle is a matter of judgment, to be informed by

examining the federal statute as a whole and

45a

identifying its purpose and intended effects.”

Crosby v. Natl. Foreign Trade Council, 530 U.S.

363, 373, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000).

In determining whether federal law preempts

state law, “‘[t]he purpose of Congress is the

ultimate touchstone.’” Malone v. White Motor

Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d

443 (1978), quoting Retail Clerks Internatl. Assn.

v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11

L.Ed.2d 179 (1963); see Riverside v. State, 190 Ohio

App.3d 765, 2010-Ohio-5868, 944 N.E.2d 281, ¶ 22

(10th Dist.) (“The Supreme Court has framed

preemption analysis as asking whether Congress

intended to exercise its constitutionally delegated

authority to set aside state laws.’“). “Congress’

intent, of course, primarily is discerned from the

language of the pre-emption statute and the

‘statutory framework’ surrounding it. * * * Also

relevant, however, is the ‘structure and purpose of

the statute as a whole,’ * * * as: revealed not only

in the text, but through the reviewing court’s

reasoned understanding of the way in which

Congress intended the statute and its surrounding

regulatory scheme to affect business, consumers,

and the law.” (Internal citations omitted.)

Medtronic, Inc. v. Lohr, 518 U.S. 470, 486, 116

S.Ct. 2240, 135 L.Ed.2d 700 (1996).

Additionally,

a

court

reviewing

possible

preemption must consider federalism as part of

that analysis. Federalism, which is “central to the

constitutional design, adopts the principle that

both the National and State Governments have

elements of sovereignty the other is bound to

respect.” Arizona v. United States, 567 U.S. 387,

46a

398, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012).

“[B]ecause the States are independent sovereigns

in our federal system,” the United States Supreme

Court has “long presumed that Congress does not

cavalierly pre-empt state-law causes of action.”

Medtronic at 485, 116 S.Ct. 2240. The “historic

police powers of the states are not to be superseded

by federal law unless that is the clear and manifest

purpose of Congress,” and therefore “a

presumption exists against preemption of state

police-power regulations.” Darby v. A-Best Prods.

Co., 102 Ohio St.3d 410, 2004-Ohio-3720, 811

N.E.2d 1117, 27; PNH, Inc. v. Alfa Laval Flow,

Inc., 130 Ohio St.3d 278, 2011-Ohio-4398, 958

N.E.2d 120, 18, Wyeth v. Levine, 555 U.S. 555, 565,

129 S.Ct. 1187, 173 L.Ed.2d 51 (2009); Rice at 230,

67 S.Ct. 1146.

“[I]f a claim is federally preempted, the common pleas

court does not have subject matter jurisdiction over

the matter.” Machlup v. TIAA-CREF Indiv. & Inst.

Serv., 8th Dist. No. 99298, 2013-Ohio-2704, see also

Steele v. Aultcare Corp., 5th Dist. No.2005CA00241,

2006-Ohio-2200.

Applicable Federal Law

A. Natural Gas Act and FERC

Congress enacted 15 U.S.C. §717 et seq., which is

known as the Natural Gas Act (“NGA”), to govern the

transportation of natural gas in interstate commerce.

The NGA specifically states that the “business of

transporting and selling natural gas for ultimate

distribution to the public is affected with a public

interest, and that Federal regulation in matters

relating to the transportation of natural gas and the

sale thereof in interstate and foreign commerce is

47a

necessary in the public interest.” 15 U.S.C. §717a. The

authority to regulate natural gas companies and the

interstate sale and transportation of natural gas, as

well as the construction of natural gas facilities,

including natural gas pipelines, rest with the Federal

Energy Regulatory Commission (“FERC”), formerly

known as the Federal Power Commission. “The NGA

long has been recognized as a ‘comprehensive scheme

of federal regulation of all’ wholesales of natural gas

in interstate commerce,” which “confers upon FERC

exclusive jurisdiction over the transportation and sale

of natural gas in interstate commerce for resale.”

Schneidewind v. ANR Pipeline Co., 485 U.S. 293

(1988), citations omitted.

Any entity desiring to construct an interstate

natural gas pipeline must obtain a FERC Certificate

prior to doing so. 15 U.S.C. §717f(c). The process for

obtaining a FERC Certificate was explained by the

Court in Waldock v. Rover Pipeline, 6th Dist. No. WD19-048, 2020-Ohio-3307, as follows:

The process begins with an application from the

gas company (1) describing the proposed pipeline

project, (2) explaining why the project is required,

and (3) estimating the beginning date and

completion date for the project. E. Tennessee Nat.

Gas Co. v. Sage, 361 F.3d 808, 818 (4th Cir.2004),

citing 15 U.S.C. 717f(d); 18 C.F.R. 157.6(b). Notice

of the application is filed in the Federal Register, a

period of public comment and protest is allowed,

and FERC conducts public hearings on the

application. Id., citing 18 C.F.R. 157.9-11. In

evaluating an application, FERC must investigate

“the environmental consequences of the proposed

48a

project and issue an environmental impact

statement.” Id., citing 42 U.S.C. 4332.

If after completing this process FERC finds that

the proposed project “is or will be required by the

present or future public convenience and

necessity,” it will issue the certificate. Id., citing

15 U.S.C. 717f(e). “The certificate may include any

terms and conditions that FERC deems ‘required

by the public convenience and necessity.’” Id.,

citing 18 C.F.R. 157.20. A person or entity seeking

review of the FERC order may do so “by way of

petition to the court of appeals where the proposed

pipeline is located or the holder of the FERC

Certificate has its principal place of business or to

the Court of Appeals for the District of Columbia.”

[Grdn. Pipeline, L.L.C. v. 529.42 Ac.res of Land,

210 F.Supp.2d 971, 973 (N.D. Ill. 2002)] at 973,

citing 15 U.S.C. 717r.

In its consideration of the environmental impact of a

proposed natural gas pipeline, FERC must ensure

that it complies with specific federal environmental

regulations, including those promulgated under 33

U.S.C. §1251 et seq., The Clean Water Act, formerly

called the Federal Water Pollution Control Act. 15

U.S.C. §717b(d). In so doing, FERC serves as the lead

agency for the purpose of coordinating all federal

authorizations, as well as compliance with National

Environmental Policy Act (“NEPA”). 15 U.S.C.

§717n(b).

The NGA also charges FERC with establishing a

schedule for all required Federal authorizations which

ensures “expeditious completion of all proceedings”

and compliance with any other applicable schedules

established by Federal law. 15 U.S.C. §717n(c)(1). Any

49a

state agency that is considering involvement in an

application made to FERC is required to cooperate

with FERC and comply with its schedules. 15 U.S.C.

§717n(b)(2). If a federal or state agency fails to adhere

to FERC’s schedule, it may appeal directly to federal

circuit court for relief. 15 U.S.C. §717n(c)(2).

The NGA authorizes FERC to hold hearings on an

application for a proposed natural gas pipeline and

provides for any state, state commission, or “any other

person whose participation in the proceeding may be

in the public interest” to be admitted therein. 15

U.S.C. §717n(e). FERC is required to maintain a

complete record of all decisions that are made, which

shall serve as a basis for any appeal taken from such

decisions. 15 U.S.C. §717d.

In addition to the above regulatory scheme, the

NGA specifically provides “[e]xcept as specifically

provided in this chapter, nothing in this chapter

affects the rights of States under. . . (3) the Federal

Water Pollution Control Act (33 U.S.C. 1251 et seq.).”

15 U.S.C. §717b(d)(3). This provision has been

referred to by the parties in their briefs as the “savings

clause” of the NGA.

B. Clean Water Act

The objective of the Federal Water Pollution

Control Act, aka the Clean Water Act (“CWA”), found

in 33 U.S.C. §1251, is to “restore and maintain the

chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. §1251a. It further declares

that:

it is the policy of the Congress to recognize,

preserve, and protect the primary responsibilities

and rights of States to prevent, reduce, and

50a

eliminate pollution, to plan the development and

use (including restoration, preservation, and

enhancement) of land and water resources. . .

33 U.S.C §1251b, and that:

[i]t is the policy of Congress that the authority of

each State to allocate quantities of water within its

jurisdiction shall not be superseded, abrogated or

otherwise impaired by this chapter. It is the

further policy of Congress that nothing in this

chapter shall be construed to supersede or

abrogate rights to quantities of water which have

been established by any State. Federal agencies

shall co-operate with State and local agencies to

develop comprehensive solutions to prevent,

reduce and eliminate pollution in concert with

programs for managing water resources.

33 U.S.C. §1251g.

The CWA specifically preserves the right of the

states to adopt and enforce standards and

requirements regarding pollutants in waterways as

follows:

Except as expressly provided in this chapter,

nothing in this chapter shall (1) preclude or deny

the right of any State or political subdivision

thereof or interstate agency to adopt or enforce (A)

any standard or limitation respecting discharges of

pollutants, or (B) any requirement respecting

control or abatement of pollution; except that if an

effluent limitation, or other limitation, effluent

standard, prohibition, pretreatment standard, or

standard of performance is in effect under this

chapter, such State or political subdivision or

interstate agency may not adopt or enforce any

51a

effluent limitation, or other limitation, effluent

standard, prohibition, pretreatment standard, or

standard of performance which is less stringent

than the effluent limitation, or other limitation,

effluent standard, prohibition, pretreatment

standard, or standard of performance under this

chapter; or (2) be construed as impairing or in any

manner affecting any right or jurisdiction of the

States with respect to the waters (including

boundary waters) of such States.

33 U.S.C. 1370 (referred to by the parties as “Section

501”). In response, the State of Ohio has delegated to

its Director of Environmental Protection the authority

to promulgate rules and regulations, including the

issuing of permits, concerning the discharge of

pollutants into the waters within Ohio. R.C. 6111.03.

Such rules and regulations are found in OAC Chapter

3745, including, but not limited to OAC 3745-33-01, et

seq., and OAC 3745-38-02, et seq. However, such

water quality standards are subject to review and

approval by the EPA. 33 U.S.C. §1313.

In general, the CWA prohibits all discharges into

navigable waterways without a permit. Pursuant to

the CWA, any project in which discharge of a pollutant

into navigable waters may occur, must receive

certification from the state in which the discharge will

originate that such discharge will comply with the

state’s water quality standards. 33 U.S.C. §1341

(a)(1). Additionally, the Clean Water Act authorizes

the EPA to regulate the discharge of pollutants in

navigable waters under the National Pollutant

Discharge Elimination System (“NPDES”). 33 U.S.C.

§1342. The EPA has given such permitting authority

52a

to the States, including Ohio, that meet the EPA’s

requirements.

State certification of discharge of pollutants into

navigable waters related to a federal license or

sanctioned project is often referred to as “401

certification.” As to such “401 certification,”

Any applicant for a Federal license or permit to

conduct any activity including, but not limited to,

the construction or operation of facilities, which

may result in any discharge into the navigable

waters, shall provide the licensing or permitting

agency a certification from the State in which the

discharge originates or will originate, or, if

appropriate, from the interstate water pollution

control agency having jurisdiction over the

navigable waters at the point where the discharge

originates or will originate, that any such

discharge will comply with the applicable

provisions of sections 1311, 1312, 1313, 1316, and

1317 of this title.

*

*

*

If the State, interstate agency, or Administrator,

as the case may be, 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. No

license or permit shall be granted until the

certification required by this section has been

obtained or has been waived as provided in the

preceding sentence. No license or permit shall be

granted if certification has been denied by the

53a

State, interstate agency, or the Administrator, as

the case may be.

Therefore, if a state fails or refuses to act on a 401

Certification within one year from the request, the 401

Certification requirement is waived with respect to

any application. See, State ex. rel. Yost v. Rover

Pipeline, LLC, supra. If a 401 Certification request is

denied by the state, no permit shall be issued for the

requesting project. If the state approves the 401

Certification request upon any conditions or

limitations, such conditions or limitations shall be set

forth in the 401 Certification. 33 U.S.C. §1341(d). The

time frame set forth in Section 401 of the Clean Water

Act is a “bright-line rule” and not a “subjective

standard.” N.Y. State Dep’t of Envtl. Conservation v.

FERC, 884 F.3d 450, 456 (2nd Cir., 2018).

Analysis

In their motions, Rover and Pretec argue that the

remaining claims in the fourth amended complaint

should be dismissed under “field preemption” and that

they constitute a collateral attack on FERC authority.

In response, the State of Ohio asserts that the

“savings clause” of the NGA, and, thus, the CWA,

preserves its enforcement authority and, further, that

the claims are an independent exercise of authority

and not an attack on FERC’s authority.

The Court has thoroughly reviewed all of the briefs

and arguments submitted by the parties. Further, the

Court has carefully examined the specific language of

all applicable provisions of both the NGA and CWA,

including their textually expressed individual goals

and purposes. In so doing, the Court finds that,

through the enactment of the NGA, the Federal

Government exclusively occupies the field of the sale

54a

and transportation of natural gas, which, by necessity,

includes the construction of natural gas pipelines.

Further, in such field, the NGA creates a “scheme of

federal regulation * * * so pervasive as to make

reasonable the inference that Congress left no room

for the States to supplement it.” Volkswagen

Aktiengesellscharft, 10th Dist. No. 19AP-7, 2019-Ohio5084, supra, citation omitted. The perceived exception

being the “savings clause.”

However, given the framework establish by the

NGA and its’ expressed intent to control the

transportation of natural gas, the Court finds that the

“savings clause” cannot be read as suggested by the

State of Ohio. To do so, would allow the states to

infiltrate such regulation by providing for the right to

independently attack a FERC certified project, despite

having had the opportunity to “regulate” through a

401 Certification. Rather, the Court finds that,

through the enactment of the NGA, Congress

intended to control all things relating to the sale and

transportation of natural gas, which includes the

construction of natural gas pipelines that could impact

waterways within the states. In acknowledging the

states’ interests and rights under the CWA, through

the NGA’s “savings clause,” Congress carved out the

ability of the states to have the right to approve

discharges into waterways within their borders

during the construction of natural gas pipelines, or to

deny in its entirety such discharges, under the

401certification process. The “savings clause” does not

create any rights independent thereof 2.

2 Although there does not appear to be caselaw on-point with the

exact issue presented by the motions to dismiss, preemption of

55a

The State argues that, had Congress intended to

limit the “savings clause” to that which is provided for

in Section 401, it would have expressly stated such

limitation in the language of the “savings clause.”

Admittedly, such addition would have made the

analysis presented by motions to dismiss much easier.

However, given the clear and unambiguous intent of

the NGA to exclusively occupy the field of sales and

transportation of natural gas, the Court finds that

Congress’ failure to state such limitation is not

dispositive of the issue before the Court.

The concern with accepting the State’s reading of

the NGA’s “savings clause” becomes magnified when

it is considered that the Rover Pipeline was

constructed through multiple states, including Ohio,

Michigan, West Virginia, and Pennsylvania. If the

Court were to accept the position advanced by the

State, it would suggest that even states that had

properly participated in the 401 Certification Process

would have the proverbial “second bite at the apple”

in regulating discharges relating to the construction

the CWA by the NGA has been contemplated as set forth in U.S.

EPA, Clean Water Act Section 401 Certification Rule, 85

Fed.Reg. 42,210, 42,276: “State enforcement under State

authorities may be lawful where State authority is not

preempted by federal law.64 Nothing in this final rule prohibits

States from exercising their enforcement authority under

enacted State laws; however, the legality of such enforcement

actions may be subject to review by a court of competent

jurisdiction.”

Footnote 64 (in part): “Examples of situations where State

authority would be preempted by federal law include FERC’s sole

authority to approve the construction of interstate pipelines

under the Natural Gas Act (5 U.S.C. 717 et seq…”

56a

of a natural gas pipeline that had received a federal

permit. Such authority would undermine the

regulatory nature of the NGA.

Arguably in support of the State’s position, the

Supreme Court of Ohio, in its consideration the State’s

prior appeal, stated as follows:

Rover, Pretec Directional, and Mears Group argue

that the state’s “failure to timely act on the

certification request means that it cannot enforce

its water-pollution laws as to the pipeline

construction’s water-quality impacts.” But this

argument is contradicted by the Clean Water Act

itself: “[N]othing in this chapter shall (1) preclude

or deny the right of any State * * * to adopt or

enforce (A) any standard or limitation respecting

discharge of pollutants,” 33 U.S.C. 1370. The Clean

Water Act also states that “[n]othing in this section

shall be construed to limit the authority of any

department or agency pursuant to any other

provision of law to require compliance with any

applicable water quality requirements.” 33 U.S.C.

1341(b). See Natl. Assn. of Home Builders v. United

States Army Corps of Engineers, 453 F.Supp.2d

116, 134 (2006) (“the authority provided to the

states to control water quality is not usurped by

Section 401”).

State ex rel Yost v. Rover Pipeline, 167 Ohio St.3d 223,

2022-Ohio-766. Notably, however, the Supreme Court

was not presented with, nor did it consider, the issue

of preemption by the NGA. The same can be said about

the holding in Natl. Assn. of Home Builders v. United

States Army Corps of Engineers, supra, upon which

the Court based its conclusion. As such, this dicta is

not controlling on the issue before the Court. In fact,

57a

although the Supreme Court in Rover was not

presented with the issue of preemption, in his

concurrence/dissent, Justice Fischer noted as follows:

I would also conclude that the state’s preemption

argument is unavailing. It is well established that

under the Commerce Clause, U.S. Constitution,

Article I, Section 8, cl. 3, the federal government

“has dominion, to the exclusion of the States, over

navigable waters of the United States.” Islander E.

Pipeline Co., L.L.C. v. Connecticut Dept. of

Environmental Protection, 482 F.3d 79, 92 (2d

Cir.2006), citing Tacoma v. Taxpayers of Tacoma,

357 U.S. 320, 334, 78 S.Ct. 1209, 2 L.Ed.2d 1345

(1958). But “[b]y enacting the [Clean Water Act],

Congress provided states with an offer of shared

regulatory authority.” Id., citing Arkansas v.

Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117

L.Ed.2d 239 (1992) (stating that the Clean Water

Act “anticipates a partnership between the States

and the Federal Government, animated by a

shared objective”).

As the Supreme Court of the United States has

established, the Clean Water Act is a valid exercise

of Congress’s powers under the Commerce Clause,

and in regard to that Act, Congress has the power

to offer states the choice of regulating activity

according to federal law or having state law

preempted by federal law. See New York v. United

States, 505 U.S. 144, 167-168, 112 S.Ct. 2408, 120

L.Ed.2d 120 (1992). Moreover, this is not a

situation in which Congress requires states to

enact a certain piece of legislation. Instead,

Congress has effectively delegated to the states the

option to exercise some authority to enforce state

58a

environmental laws that are more stringent or

broader than federal laws if the states follow a

certain procedure. Significantly, Congress could

have completely prevented the states from

exercising any authority regarding this interstatepipeline project.

Rover Pipeline, supra.

Further, the Court is unpersuaded by the State’s

argument that preemption in this case would “gut” the

rights of the states under the CWA. To the contrary,

this Court’s finding is narrowly tailored to the specific

issue presented before it-in instances of discharge of

pollutants into waterways during the construction of

a natural gas pipeline certified by FERC, a state’s

recourse for such discharges is limited to those

provided in the 401 Certificate. Any claims outside

thereof, are preempted by the NGA 3. Further, to this

end, the Court reiterates the following from its March

12, 2019, judgment entry:

The holding of this Court in no way stands for the

position 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

In Rover, supra, the Supreme Court of Ohio remanded the

matter to this Court “to determine whether any of the allegations

in the seven specific counts set forth by the state address issues

that are outside the contours of the Section 401 certification.” As

previously noted, the parties have agreed to address the issue of

preemption prior to addressing the remanded issue. However,

even if the Court had the hearing contemplated by the remand

and determined that the counts in the complaint were outside of

the 401 certification, dismissal of the complaint would still be

appropriate as such claims would be preempted by the NGA for

the reasons set forth in this judgment entry.

3

59a

regulations to curb disastrous environmental

impacts on its waterways as a result of such

construction. Nor does this holding provide natural

gas companies carte blanche to perform drilling

and other construction related to natural-gas lines

regardless of the environmental impact of such

action. Rather, 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. Moreover, the Court finds

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. As such, any alleged

discharges were still subject to Federal

Regulations, including the Clean Water Act.

Conclusion

For the reasons set forth herein, as well as those

set forth in the motions to dismiss, the Court finds

that that the claims presented in the Fourth Amended

Complaint are preempted by the NGA and, as such,

the Court is without jurisdiction to consider the same.

Accordingly, the Fourth Amended Complaint filed by

the State of Ohio is, hereby, DISMISSED.

IT IS SO ORDERED.

s/ Kristin G. Farmer

Judge Kristin G. Farmer

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NOTICE TO THE CLERK:

FINAL APPEALABLE ORDER

Case No. 2017CV02216

IT IS HEREBY ORDERED that notice and a

copy of the foregoing Judgment Entry shall be served

on all parties of record within three (3) days after

docketing of this Entry and the service shall be noted

on the docket.

s/ Kristin G. Farmer

JUDGE KRISTIN G. FARMER

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APPENDIX D

THE STATE EX REL. YOST, ATTY. GEN., APPELLANT,

V. ROVER PIPELINE, L.L.C., ET AL., APPELLEES.

[Cite as State ex rel. Yost v. Rover Pipeline,

L.L.C., 167 Ohio St.3d 223, 2022-Ohio-766.]

Clean Water Act—33 U.S.C. 1341(A)(1)—State

certification—One-year period during which the

state must act on a request for certification under

33 U.S.C. 1341(A)(1) begins when application is

submitted, not when it is deemed complete—State

waives its rights or authority only with respect to

activities approved under federal application

when it fails to act on 33 U.S.C. 1341(A)(1)

application—Trial court’s dismissal was improper

because it failed to determine whether any

allegations brought by state address issues outside

the contours of the federal application.

(No. 2020-0091—Submitted January 26, 2021—

Decided March 17, 2022.)

APPEAL from the Court of Appeals for Stark County,

No. 2019CA00056, 2019-Ohio-5179.

DONNELLY, J.

{¶ 1} Appellee Rover Pipeline, L.L.C., sought a

license to construct an interstate pipeline that crossed

several counties in Ohio. As required by Section 401 of

the Clean Water Act (“section 401”), 33 U.S.C.

1341(a)(1), Rover applied for certification from the

state of Ohio that any discharge into the state’s

navigable waters would comply with applicable

provisions of federal law. When the pipeline

discharged pollutants into surrounding waters, the

state of Ohio sued Rover and other companies involved

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in building the pipeline. Rover argued that the state’s

complaint should be dismissed because the state had

waived its ability to participate in the certification

process when it did not respond to Rover’s application

within one year. We agree. The waiver applies,

however, only to issues that are related to the section

401 certification, the contours of which have not been

established by the trial court. Accordingly, we reverse,

and we remand with instructions to determine

whether the violations alleged by the state can be

prosecuted or whether the state has waived the right

to take action.

FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellant, the Ohio Attorney General (“the

state”), sought injunctive relief and other remedies

after pollutants were discharged from the pipeline

into Ohio’s navigable waters. On July 19, 2018, in a

third amended complaint, the state alleged, among

other things, that Rover and the other appellees,

Pretec Directional Drilling, L.L.C.; Laney Directional

Drilling Company; Atlas Trenchless, L.L.C.; Mears

Group, Inc.; and B&T Directional Drilling, Inc.

(collectively, “the defendants”) had “illegally

discharged millions of gallons of drilling fluids to

Ohio’s waters, causing pollution and degrading water

quality on numerous occasions and in various counties

across the state.” The state alleged seven specific

counts:

(1) “Defendants discharged pollutants to waters of the

state without point source [National Pollutant

Discharge Elimination System] permits.”

(2) “Rover failed to obtain a general storm water

permit for its storm water discharges.”

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(3) “Defendants violated Ohio’s general water quality

standards.”

(4) “Defendants violated Ohio’s wetland water quality

standards.”

(5) “Rover violated the [Ohio Environmental

Protection Agency] Director’s orders.”

(6) “Rover violated the hydrostatic permit.”

(7) “Rover engaged in activities without effective

certification.”

The state also asked the trial court to retain

jurisdiction “to carry out its judgment” and such other

relief as may be just.

{¶ 3} Rover and Mears filed a joint motion to

dismiss the complaint; the other defendants filed

separate motions to dismiss. In an order issued on

March 12, 2019, the trial court noted that the motions

were largely duplicative and it therefore focused on

the motion submitted by Rover and Mears, because

“the claims arising against the other defendants are a

result of actions taken at the behest of Rover.” The

trial court granted the various Civ.R.12(B) motions to

dismiss, stating:

On November 16, 2015, the State of Ohio

received a 401 Certification request from Rover. As

such, the State of Ohio had until November 16,

2016, to “act” on such request pursuant to Section

401 of the Clean Water Act. * * *

* * * The Court finds that, in order to assert its

rights under the Clean Water Act, the State of

Ohio was required to “act,” i.e., grant or deny, upon

Rover’s November 16, 2015, 401 Certification

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request on or before November 16, 2016. Its failure

to do so resulted in a waiver of rights.

The court concluded that it did not have jurisdiction

over the matter, because the state had “failed to act

upon rights specifically given to it pursuant to the

Clean Water Act within the Act’s specified period of

time.”

{¶ 4} The state appealed. The court of appeals

affirmed, stating that it “is undisputed in the case

[that the state] failed to act on Rover’s original

certification request within one year of November 16,

2015.” 2019-Ohio-5179, 150 N.E.3d 491, ¶ 20. With

respect to the extent of the waiver, the court of appeals

essentially deferred to the findings of the trial court.

Having overruled the first assignment of error, which

was related to the issue of waiver by the state, the

court of appeals deemed a second assignment of error

addressing other asserted defenses moot.

{¶ 5} The state timely appealed, and we accepted

the appeal. 158 Ohio St.3d 1482, 2020-Ohio-1487, 143

N.E.3d 520.

ANALYSIS

{¶ 6} This case is before us based on the trial

court’s grant of the defendants’ motions to dismiss

under Civ.R. 12(B)(1) and (6). We review dismissals

pursuant to Civ.R. 12(B)(6) de novo, Alford v. CollinsMcGregor Operating Co., 152 Ohio St.3d 303, 2018Ohio-8, 95 N.E.3d 382, ¶ 10, presume the truth of all

material factual allegations in the complaint, id., and

make all reasonable inferences in the state’s favor,

State ex rel. Bohlen v. Halliday, 164 Ohio St.3d 121,

2021-Ohio-194, 172 N.E.3d 114, ¶ 12, citing State ex

rel. Zander v. Judge of Summit Cty. Common Pleas

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Court, 156 Ohio St.3d 466, 2019-Ohio-1704, 129

N.E.3d 401, ¶ 4. We also review dismissals under

Civ.R. 12(B)(1) de novo. State ex rel. Ohio Civ. Serv.

Emps. Assn. v. State, 146 Ohio St.3d 315, 2016-Ohio478, 56 N.E.3d 913, ¶ 12.

{¶ 7} The state’s second proposition of law states:

“The one-year time limit in Section 401 of the Clean

Water Act begins to run only once the applicant

submits a completed application.” We disagree.

{¶ 8} Section 401 states:

If

the

State,

interstate

agency,

or

Administrator, as the case may be, 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.

33 U.S.C. 1341(a); see Sierra Club v. State Water

Control Bd., 898 F.3d 383, 388 (4th Cir.2018) (after

receiving a section 401 application, a state has four

options: grant a certificate without conditions, grant it

with conditions, deny it, or waive its right to

participate in the process).

{¶ 9} The state encourages us to rely on AES

Sparrows Point LNG, L.L.C. v. Wilson, 589 F.3d 721,

729 (4th Cir.2009), which deferred to an Army Corps

of Engineers’ determination that the clock did not

begin to run until a completed section 401 application

was submitted. The state argues that an application

is not valid unless it is complete, which had been the

practice of the Federal Energy Regulatory

Commission (“FERC”) until August 1985, see

California ex rel. State Water Resources Control Bd. v.

66a

Fed. Energy Regulatory Comm., 966 F.2d 1541, 1552

(9th Cir.1992).

{¶ 10} Rover, Pretec Directional, and Mears Group

argue that allowing the state to determine when the

one-year clock starts based on its own determination

whether an application is complete gives the state too

much discretion. In our view, it is discretion that is not

needed, because the state can reject an application as

incomplete or for another legitimate reason.

{¶ 11} Other courts have concluded that the clock

starts running upon the submission of an application.

In New York State Dept. of Environmental

Conservation v. Fed. Energy Regulatory Comm., 884

F.3d 450, 456 (2d Cir.2018), the court specifically

addressed the issue before us and concluded that

because the statute does not refer to “complete”

applications, the one-year period begins upon the

submission of an application. See California State

Water Resources Control Bd. at 1552 (noting that the

FERC had issued a new rule on February 11, 1987,

regarding section 401 certification, that stated that

the “one-year period for waiver would commence on

the date the certifying agency received the

certification request”).

{¶ 12} We conclude that the one-year period during

which the state must act on a request for certification

under section 401 begins when the application is

submitted, not when it is deemed complete. Though

we do not rely on it, we note that the federal

Environmental Protection Agency recently stated that

“the section 401 certification process begins on the

date when the certification request is received by a

certifying authority.” Clean Water Act Section 401

Certification Rule, 85 Fed.Reg. 42210, 42243 (July 13,

67a

2020); see also 40 C.F.R. 121.6(d) (“The Federal agency

may extend the reasonable period of time at the

request of a certifying authority or a project

proponent, but in no case shall the reasonable period

of time exceed one year from receipt”). It is clear from

the record, and the parties’ failure to dispute it, that

more than one year had passed between the date that

the application was filed and the date that the state

approved it. Accordingly, we agree with the court of

appeals that “the state failed to act on the certification

request in a timely manner, thereby waiving its right

to participation in the certification process.” 2019Ohio-5179, 150 N.E.3d 491, at ¶ 27.

{¶ 13} We turn now to the state’s first proposition

of law, which addresses the consequences of the state’s

waiver of its right to participate in the certification

process. The state argues that “[a] State’s decision not

to act on a Section 401 water-quality certification has

no effect on the State’s power to enforce state waterpollution laws.” We disagree. Frankly, it is not

plausible that the state’s failure to act would not have

any effect, and the state concedes that point.

{¶ 14} According to 33 U.S.C. 1341(a)(1), “the

certification requirements of this subsection shall be

waived with respect to such Federal application” if the

state fails to act on a request for certification. The

state’s failure to act on the section 401 application

means (quite plainly) that the state waived its rights

or authority only with respect to the federal

application. But the vast bulk of the state’s rights and

authority—those that apply to matters not

encompassed by the section 401 application—remain

intact. How could it be otherwise?

68a

{¶ 15} Rover, Pretec Directional, and Mears Group

argue that the state’s “failure to timely act on the

certification request means that it cannot enforce its

water-pollution laws as to the pipeline construction’s

water-quality impacts.” But this argument is

contradicted by the Clean Water Act itself: “[N]othing

in this chapter shall (1) preclude or deny the right of

any State * * * to adopt or enforce (A) any standard or

limitation respecting discharge of pollutants,” 33

U.S.C. 1370. The Clean Water Act also states that

“[n]othing in this section shall be construed to limit

the authority of any department or agency pursuant

to any other provision of law to require compliance

with any applicable water quality requirements.” 33

U.S.C. 1341(b). See Natl. Assn. of Home Builders v.

United States Army Corps of Engineers, 453

F.Supp.2d 116, 134 (2006) (“the authority provided to

the states to control water quality is not usurped by

Section 401”).

{¶ 16} Because this action was dismissed pursuant

to Civ.R. 12(B)(6), a full record has not been developed

and we do not know the extent to which the claims

asserted by the state fall within the four corners of the

federal application. The trial court concluded that “the

State of Ohio can prove no set of facts entitling it to its

requested relief.” We disagree. We consider it possible,

even likely, that given the opportunity to present

evidence, the state will be able to establish that

certain of its allegations fall outside the contours of

the Section 401 certification.

{¶ 17} For example, the state contends that

“[b]ecause none of the Defendants’ water pollution

discharges are from fill placement, all of the violations

are outside the scope of the 401 certification.”

69a

(Emphasis sic.) That the discharges are not “fill

placement” is a material factual assertion that must

be presumed to be true when considering a motion to

dismiss. Whether the discharges are outside the scope

of the 401 certification is a legal determination that

the trial court needs to address. Similarly, the state

contends that the flow of storm water is governed by

the federal and state environmental-protection

agencies, not by the 401 certification. At a minimum,

the trial court must determine whether these

assertions can be proved. If they can, the alleged

violations are outside the contours of the 401

certification and waiver does not apply.

{¶ 18} “In order for a trial court to dismiss a

complaint under Civ.R. 12(B)(6) for failure to state a

claim upon which relief can be granted, it must appear

beyond doubt that the plaintiff can prove no set of

facts in support of the claim that would entitle the

plaintiff to the relief sought.” Ohio Bur. of Workers’

Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio4432, 956 N.E.2d 814, ¶ 12. As mentioned above, we

are not convinced that the state can prove no set of

facts in support of its claims.

CONCLUSION

{¶ 19} We conclude that the state waived its right

to participate with respect to certification under 33

U.S.C. 1341 and, therefore, that the state cannot

assert rights related to that certification. That waiver

does not extend, however, to the state’s rights and

authority that are unrelated to that certification.

Accordingly, we reverse the judgment of the court of

appeals, and we remand to the trial court to determine

whether any of the allegations in the seven specific

70a

counts set forth by the state address issues that are

outside the contours of the Section 401 certification.

Judgment reversed

and cause remanded.

O’CONNOR, C.J., and STEWART and BRUNNER, JJ.,

concur.

FISCHER, J., concurs in part and dissents in part,

with an opinion joined by KENNEDY and DEWINE, JJ.

______________________________

FISCHER, J., concurring

dissenting in part.

in

part

and

{¶ 20} I agree with the conclusion set forth in the

majority opinion that the one-year period during

which the state must act on a request for certification

under Section 401 of the Clean Water Act (“section

401”), 33 U.S.C. 1341(a)(1), begins when the

application is submitted, not when the application is

deemed complete. However, I respectfully disagree

with the conclusion set forth in the majority opinion

that the contours of the section 401 certification have

not been established in this case.

I. The Parties’ Arguments

{¶ 21} In this appeal, the state argues that the

failure to timely act on a certification request waives

only the state’s ability to object if conduct that it has

allowed to proceed under the certification causes

pollution. In connection with this argument, the state

focuses on the phrase “with respect to such Federal

application” of section 401(a)(1). See 33 U.S.C. 1341(a)

(providing that if the state fails to act on a request for

certification, the certification requirements in that

section “shall be waived with respect to such Federal

71a

application”). It argues that the waiver provision of

section 401 applies only to discharges within the scope

of a federal application and thus the state may enforce

its laws in response to any discharge that is beyond

the scope of the certification at issue. As it pertains to

this case, the state asserts that appellee Rover

Pipeline, L.L.C. (“Rover”) was permitted to use only

naturally occurring, nontoxic bentonite clay and water

when drilling and that the state’s waiver applies only

to the discharge of this material into wetlands. It

argues that because nothing in the application

indicated that Rover would discharge diesel-laced

fluid, the discharge of that fluid is beyond the scope of

the application and the state is permitted to enforce

its laws in regard to that discharge.

{¶ 22} The state further argues that it has the

general power to enact and enforce water-pollution

laws and that federal approval under section 401 does

not free the applicant from having to comply with

state-issued permits and laws. It asserts that the

Clean Water Act, 33 U.S.C. 1251 et seq., does not

contain a clear statement of Congress’s intention to

preempt state water laws and that the Clean Water

Act should not be read to impermissibly require the

state to follow federal law in this area.

{¶ 23} Rover responds that section 401 applies

more broadly than the state argues. Rover asserts that

section 401 requires the state to consider the

eventuality of any discharge into state waters that

may result from any activity under the federal license

or permit. Rover argues that the state’s waiver applies

to any discharge that could result from the activity for

which the applicant sought a permit. In response to

the state’s preemption argument, Rover asserts that

72a

the Clean Water Act is a valid exercise of Congress’s

power under the Commerce Clause of the United

States Constitution and that there are no

constitutional concerns arising from interpreting

section 401 to impose a complete waiver of a state’s

ability to enforce its laws.

II. Section 401 Certification Applies to “Any

Discharge” that “May Result” from the Activity,

Resulting in a Broad Waiver

{¶ 24} Section 401 provides: “If 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.” 33

U.S.C. 1341(a). Relying on the reference to the federal

application in the statute, the majority concludes that

“[t]he state’s failure to act on the section 401

application means (quite plainly) that the state

waived its rights or authority only with respect to the

federal application.” Majority opinion, ¶ 14. This

conclusion, however, does not answer the question

before us; it is undisputed that the waiver relates to

the application for a federal permit. The issue in this

case turns on which activities performed as a result of

the application are encompassed within the scope of

the waiver. To answer that question, it is necessary to

look at other portions of section 401.

{¶ 25} In part, section 401 as codified in 33 U.S.C.

1341(a)(1), provides:

Any applicant for a Federal license or permit to

conduct any activity * * * which may result in any

discharge into the navigable waters, shall provide

the licensing or permitting agency a certification

73a

from the State in which the discharge originates or

will originate * * * that any such discharge will

comply with the applicable provisions of sections

1311, 1312, 1313, 1316, and 1317 of this title.

(Emphasis added.) Further, the statute requires that

a state’s section 401 certification “shall set forth any

effluent limitations and other limitations, and

monitoring requirements necessary to assure that any

applicant for a Federal license or permit will comply

with any applicable effluent limitations and other

limitations * * * and with any other appropriate

requirement of State law set forth in such

certification.” (Emphasis added.) 33 U.S.C. 1341(d).

The limitations set forth in the state’s section 401

certification “shall become a condition on” the federal

permit. Id.

{¶ 26} The United States Supreme Court has held

that these provisions authorize a state to impose

conditions and requirements related not just to the

specific discharge proposed in the federal application

for a permit but rather to the entire activity for which

the permit is being sought. PUD No. 1 of Jefferson Cty.

v. Washington Dept. of Ecology, 511 U.S. 700, 711-712,

114 S.Ct. 1900, 128 L.Ed.2d 716 (1994). Section 401,

the court explained, “allows the State to impose ‘other

limitations’ on the project in general to assure

compliance with various provisions of the Clean Water

Act and with ‘any other appropriate requirement of

State law.’ ” Id. at 711; see also id. at 712 (section

401(d) “is most reasonably read as authorizing

additional conditions and limitations on the activity

as a whole”).

{¶ 27} The state would have this court construe the

effect of its failure to attach conditions to the permit

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much more narrowly. It asserts that by failing to act

within the required one-year time frame, it waived the

ability to object only to the discharge method

authorized by the permit. If, however, as the United

States Supreme Court has explained, section 401

empowers the state to attach conditions related to any

part of the proposed activity, then the waiver of the

opportunity to impose requirements on the federal

project under that same provision must necessarily

apply just as broadly.

{¶ 28} As the state acknowledges, Rover applied to

construct an interstate natural-gas pipeline. Thus, the

“activity” contemplated under section 401 in this case

was construction of the pipeline. Both the state and

Rover contemplated that this activity could result in

the discharge of materials into Ohio waters. The state

argues that the only discharge contemplated involved

naturally occurring nontoxic bentonite clay and water,

while Rover argues that other discharges, including

discharges involving diesel-laced fluid, were

contemplated during the application process. What

type of discharges were contemplated is irrelevant to

this appeal, however, for the section 401 certification

applies to “any discharge” that “may result” from the

activity. There, accordingly, is no reason to remand

this case for the trial court to determine whether the

discharges at issue are outside the scope of the section

401 certification, as instructed in the majority opinion.

See majority opinion at ¶ 19. Because the federal

application at issue in this case permitted Rover’s

activity of building the pipeline, the state waived all

certification requirements with respect to that

application, including any requirements relating to

“any discharge” resulting from the activity, whether

75a

that discharge involved natural fluids or diesel-laced

fluids.

{¶ 29} I would also conclude that the state’s

preemption argument is unavailing. It is well

established that under the Commerce Clause, U.S.

Constitution, Article I, Section 8, cl. 3, the federal

government “has dominion, to the exclusion of the

States, over navigable waters of the United States.”

Islander E. Pipeline Co., L.L.C. v. Connecticut Dept. of

Environmental Protection, 482 F.3d 79, 92 (2d

Cir.2006), citing Tacoma v. Taxpayers of Tacoma, 357

U.S. 320, 334, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958).

But “[b]y enacting the [Clean Water Act], Congress

provided states with an offer of shared regulatory

authority.” Id., citing Arkansas v. Oklahoma, 503 U.S.

91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992)

(stating that the Clean Water Act “anticipates a

partnership between the States and the Federal

Government, animated by a shared objective”).

{¶ 30} As the Supreme Court of the United States

has established, the Clean Water Act is a valid

exercise of Congress’s powers under the Commerce

Clause, and in regard to that Act, Congress has the

power to offer states the choice of regulating activity

according to federal law or having state law

preempted by federal law. See New York v. United

States, 505 U.S. 144, 167-168, 112 S.Ct. 2408, 120

L.Ed.2d 120 (1992). Moreover, this is not a situation

in which Congress requires states to enact a certain

piece of legislation. Instead, Congress has effectively

delegated to the states the option to exercise some

authority to enforce state environmental laws that are

more stringent or broader than federal laws if the

states follow a certain procedure. Significantly,

76a

Congress could have completely prevented the states

from exercising any authority regarding this

interstate-pipeline project. For these reasons, there

are no constitutional concerns regarding section 401’s

broad waiver provision.

III. The State May Enforce the Hydrostatic

Permit

{¶ 31} While I would conclude that the state

waived all certification requirements with respect to

the federal section 401 application, I would note that

the state is not entirely barred from raising claims

against appellees. Although the state waived

participation in the federal permitting process, the

Federal Energy Regulatory Commission (“FERC”)

required Rover to obtain a hydrostatic permit from the

state in order for FERC to sign off on construction. The

Fifth District Court of Appeals concluded that because

of the state’s section 401 waiver, it could not enforce

the separately obtained hydrostatic permit. 2019Ohio-5179, 150 N.E.3d 491, ¶ 31. However, because

the hydrostatic permit was obtained independently of

the section 401 certification process at the behest of

FERC, I would conclude that the state may seek to

enforce the terms of the hydrostatic permit, and I

would reverse the Fifth District’s decision on this

limited basis.

{¶ 32} Finally, I would also note that the state’s

waiver in regard to the section 401 certification does

not necessarily mean that the state is without a

remedy for damages from violations of the federal

permit. As the Supreme Court of the United States

has noted, the state may still sue for violations of

federal law. United States Dept. of Energy v. Ohio, 503

U.S. 607, 613, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992),

77a

fn. 5 (states may bring a suit under the Clean Water

Act pursuant to the act’s citizen-suit provision, 33

U.S.C. 1365). The state’s ability to file a suit under the

Clean Water Act, coupled with its ability to enforce the

hydrostatic permit, means that the state has some

tools at its disposal to ensure Rover’s compliance with

its relevant obligations, despite the state’s section 401

waiver.

IV. Conclusion

{¶ 33} I would hold that when the state fails to act

within the one-year period specified in section 401 of

the Clean Water Act, the state waives its ability with

respect to that permit to enforce any conditions that it

could have otherwise imposed regarding the discharge

of any materials into Ohio water that may have

resulted from the permitted activity. In this case,

because the state failed to act within the one-year

period, it waived its ability in connection with the

federal permit to enforce any state laws regarding any

discharges resulting from the activity of constructing

the pipeline, not just the discharge of naturally

occurring nontoxic bentonite clay and water. For these

reasons, I would affirm the judgment of the Fifth

District Court of Appeals in part, but I would reverse

that court’s judgment to the extent that it concluded

that the state may not enforce the terms of its

hydrostatic permit. I accordingly concur in part, and I

would order a remand for further proceedings related

to the hydrostatic permit.

KENNEDY and DEWINE, JJ., concur in the foregoing

opinion.

______________________________

Dave Yost, Attorney General, Benjamin M.

Flowers, Solicitor General, Samuel C. Peterson,

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Deputy Solicitor General, and Aaron S. Farmer,

Janean R. Weber, and Amanda M. Ferguson,

Assistant Attorneys General, for appellant.

McMahon DeGulis, L.L.P., Erin M. McDevittFrantz, and Michael S. McMahon, Cleveland; and

Gibson, Dunn & Crutcher, L.L.P., William S.

Scherman, David DeBold, Ruth Porter, and Matthew

Rozen, for appellee Rover Pipeline, L.L.C.

Tucker Ellis, L.L.P., Joseph P. Koncelik, Anthony

R. Petruzzi, and Melissa Z. Kelly, Cleveland, for

appellee Pretec Directional Drilling, L.L.C.

Thompson Hine, L.L.P., Kip T. Bollin, and Heidi B.

Friedman, Cleveland, for appellee Laney Directional

Drilling Company.

Ulmer & Berne, L.L.P., Frederic X. Shadley, and

David A. Meyer, Cincinnati, for appellee Mears

Group, Inc.

Dworken & Bernstein Company, L.P.A., Grant

Keating, Richard N. Selby II, and Erik L. Walter,

Painesville, for appellee B&T Directional Drilling, Inc.

Murphy Landen Jones, P.L.L.C., Kevin L. Murphy,

J. Jeffrey Landen, and Michael S. Jones; and Atlas

Trenchless, L.L.C., and Philips J. Vallakalil, for

appellee Atlas Trenchless, L.L.C.

Trent Dougherty and Chris Tavenor, urging

reversal for amici curiae, Ohio Environmental Council

and Sierra Club.

______________________________

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APPENDIX E

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX REL., DAVE YOST, OHIO

ATTORNEY GENERAL

Plaintiff-Appellant

-vsROVER PIPELINE, LLC; PRETEC DIRECTIONAL

DRILLING, LLC; MEARS GROUP, INC.; LANEY

DIRECTIONAL DRILLING CO.; ATLAS

TRENCHLESS, LLC; AND B & T DIRECTIONAL

DRILLIING, LLC

Defendants-Appellees

JUDGES:

Hon. William B. Hoffman, P.J.

Hon. John. W. Wise, J.

Hon. Patricia A. Delaney, J.

Case No. 2019CA00056

OPINION

CHARACTER OF PROCEEDING: Appeal from the

Stark County Court of Common Pleas, Case No. 2017CV-02216

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY:

APPEARANCES:

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For Plaintiff-Appellant

DAVE YOST

Ohio Attorney General

AARON S. FARMER

JANEAN R. WEBER

AMANDA M. FERGUSON

Environmental Enforcement Section

Assistant Attorney General

30 East Broad Street, 25th Floor

Columbus, Ohio 43215

For Defendant-Appellee Mears Group, Inc., LLC

FREDERIC (“FRITZ”) X. SHADLEY

DAVID A. MEYER

600 Vine Street, Suite 2800

Cincinnati, Ohio 45202

For Defendant-Appellee Rover Pipeline, LLC

STEPHEN H. DANIELS

MICHAELS. MCMAHON

McMahon DeGulis LLP

The Caxton Building

812 Huron Road, E., Suite 650

Cleveland, Ohio 44115

WILLIAM S. SCHERMAN (pro hac vice admitted)

DAVID DEBOLD (pro hac vice admitted)

JASON FLEISCHER (pro hac vice admitted)

RUTH PORTER (pro hac vice admitted)

Gibson, Dunn & Crutcher LLP

1050 Connecticut Avenue, N.W.

Washington, DC 20036

For Defendant-Appellee B & T Directional Drilling

Inc.

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GRANT J. KEATING

Dworken & Bernstein Co., LPA

60 South Park Place

Painesville, Ohio 44077

For Amicus Curiae Sierra Club

RICHARD C. SAHLI

Richard Sahli Law Office, LLC

981 Pinewood Lane

Columbus, Ohio 43230-3662

NATHAN D. MATTHEWS

2101 Webster Street, Suite 1300

Oakland, CA 94612

For Defendant-Appellee Laney Directional Drilling

Co.

THOMAS A. KNOTH

J. WRAY BLATTNER

Thompson Hine LLP

10050 Innovation Drive, Suite 400

Miamisburg, Ohio 45342

For Defendant-Appellee Pretec Directional Drilling,

LLC

JOSEPH P. KONCELIK

ANTHONY R. PETRUZZI

MELISSA Z. KELLY

Tucker Ellis LLP

950 Main Avenue, Suite 1100

Cleveland, Ohio 44113-7213

For Defendant-Appellee Atlas Trenchless, LLC

PHILIPS J. VALLAKALIL

Atlas Trenchless, LLC

520 S. 6th Avenue

82a

Mansfield, TX 75054

KEVIN L. MURPHY

J. JEFFREY LANDEN

MICHAELS. JONES

MURPHY LANDEN JONES PLLC

2400 Chamber Center Drive, Suite 200

Fort Mitchell, KY 41017-0534

Hoffman, P.J.,

{¶1} Appellant State of Ohio, ex rel. Dave Yost,

Ohio Attorney General, appeals the judgment of the

Stark County Common Pleas Court dismissing its

complaint against Appellees Rover Pipeline, LLC;

Mears Group, Inc.; Pretec Directional Drilling, LLC;

Laney Directional Drilling Co.; Atlas Trenchless, LLC;

and B&T Directional Drilling, Inc.

STATEMENT OF THE CASE AND FACTS

{¶2} On July 19, 2018, Appellant filed a third

amended complaint, the dismissal of which is the

entry appealed from in the instant action. The

complaint alleged Appellees illegally discharged

millions of gallons of drilling fluids into Ohio’s waters,

causing pollution and degrading water quality across

the state during construction of the Rover Pipeline, a

713-mile interstate natural gas pipeline crossing 18

Ohio counties. Appellee Rover was the owner/operator

of the drilling operation for construction of the

pipeline.

The

remaining

Appellees

were

subcontractors hired by Rover to perform horizontaldirectional drilling related to construction of the

pipeline. Appellant sought civil penalties and

injunctive relief.

{¶3} Specifically, Appellant’s complaint alleged the

following:

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Count one: Appellees discharged pollutants

(drilling fluids) into the waters of the state without

point source NPDES permits.

Count two: Appellee Rover failed to obtain a

necessary storm water permit for its storm water

discharges.

Count three: Appellees violated Ohio’s general

water quality standards (unpermitted drilling

fluid discharges and storm water discharges into

waters of the state).

Count four: Appellees violated Ohio’s wetland

water quality standards by unpermitted drilling

fluid discharges into wetlands.

Count five: Appellee Rover violated the Director

of the EPA’s orders by failing to obtain coverage or

submit a notice of intent to obtain coverage for a

Construction Storm Water Permit.

Count six: Appellee

hydrostatic permit laws.

Rover

violated

the

Count seven: Appellee Rover engaged in

activity from February 14, 2017 through May 15,

2017, without the state 401 water quality

certification.

{¶4} Appellees moved to dismiss the complaint

pursuant to Civ. R. 12(B)(1) and (6), raising four basic

arguments.

{¶5} First, Appellees argued Appellant’s failure to

act within one year on Rover’s November 16, 2016,

application for the State to issue a § 401 certification

under the federal Clean Water Act resulted in the

State waiving its power to impose conditions and

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enforce environmental requirements for the pipeline

project as a matter of federal law.

{¶6} Second, Appellees argued Rover received all

necessary regulatory approvals from FERC (Federal

Energy Regulatory Commission). They argued

Appellant participated in the preparation of an

Environmental Impact Statement (EIS) as a part of

the process of obtaining FERC approval, and failed to

identify additional State permitting requirements

through the EIS process.

{¶7} Third, Appellees argued the State’s claims are

preempted by the Natural Gas Act, and the trial court

therefore lacked subject matter jurisdiction.

{¶8} Fourth, Appellees argued the State’s claims

are an improper collateral attack on FERC’s orders

approving the pipeline project.

{¶9} Appellant responded Counts 1-6 were not

subject to Section 401 certification. As to Count Seven,

Appellant argued waiver did not apply because Rover

reapplied for Section 401 certification on February 23,

2017, and the State granted the revised request on

February 24, 2017.

{¶10} The trial court granted Appellees’ motion to

dismiss on March 12, 2019. The court found by failing

to act on Rover’s November 16, 2015, request for 401

certification, Appellant waived its rights under the

Clean Water Act. The court found the resubmission of

the request for certification on February 23, 2017, did

not save the State from waiver, as the request was

resubmitted outside the one-year period for action on

the initial submission.

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{¶11} It is from the March 12, 2019 judgment of the

trial court Appellant prosecutes this appeal, assigning

as error:

I. THE TRIAL COURT ERRED AS A MATTER

OF LAW WHEN IT HELD THAT, UNDER THE

CLEAN WATER ACT, 33 U.S.C. 1341, THE

STATE OF OHIO WAIVED ALL OF ITS WATER

POLLUTION

AUTHORITY

OVER

ENVIRONMENTAL VIOLATIONS OCCURRING

DURING THE CONSTRUCTION OF ROVER’S

INTERSTATE PIPELINE.

II. THE TRIAL COURT ERRED AS A

MATTER OF LAW WHEN IT FOUND, IN A

FOOTNOTE, THAT EVEN WITHOUT WAIVER,

THE OTHER DEFENSES RAISED BY ROVER

AND

ITS

CONTRACTORS

INCLUDING

PREEMPTION BARRED THE STATE OF OHIO’S

COUNTS ONE THROUGH SIX.

I.

{¶12} Appellant argues the court erred in finding

its failure to act in a timely manner on Rover’s

application for Section 401 certification waived its

rights to enforce Ohio’s Clean Water Act in regards to

the violations alleged in Counts One through Six of its

third amended complaint. 1

{¶13} The trial court dismissed the complaint

pursuant to Civ. R. 12(B)(1), lack of subject matter

1 Appellant states in its brief, “While the State disagrees with the

conclusion below that it waived Count Seven, the State seeks

review of the trial court’s dismissal of the water pollution claims

alleged in Counts One through Six only.” Brief of Appellant, page

6.

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jurisdiction and Civ. R. 12(B)(6), failure to state a

claim upon which relief could be granted. An order

granting a Civ.R. 12(B)(1) or a 12(B)(6) motion to

dismiss is subject to de novo review. Moody v.

Frazeysburg, 5th Dist. Muskingum No. CT2005-0037,

167 Ohio App.3d 106, 2006-Ohio-3028, 854 N.E.2d

212, ¶ 9; Perrysburg Twp. v. Rossford, 103 Ohio St.3d

79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. In

determining whether the plaintiff has alleged a cause

of action sufficient to withstand a Civ.R. 12(B)(1)

motion to dismiss, a court is not confined to the

allegations of the complaint and may consider

material pertinent to the inquiry without converting

it into a motion for summary judgment. Moody, supra,

citing Southgate Dev. Corp. v. Columbia Gas Transm.

Corp., 48 Ohio St.2d 211, 2 O.O.3d 393, 358 N.E.2d

526, paragraph one of the syllabus (1976).

{¶14} The Federal Clean Water Act specifically

reserves to the states the right to adopt and enforce

standards and requirements regarding pollutants in

its waterways:

Except as expressly provided in this chapter,

nothing in this chapter shall (1) preclude or deny

the right of any State or political subdivision

thereof or interstate agency to adopt or enforce (A)

any standard or limitation respecting discharges of

pollutants, or (B) any requirement respecting

control or abatement of pollution; except that if an

effluent limitation, or other limitation, effluent

standard, prohibition, pretreatment standard, or

standard of performance is in effect under this

chapter, such State or political subdivision or

interstate agency may not adopt or enforce any

effluent limitation, or other limitation, effluent

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standard, prohibition, pretreatment standard, or

standard of performance which is less stringent

than the effluent limitation, or other limitation,

effluent standard, prohibition, pretreatment

standard, or standard of performance under this

chapter; or (2) be construed as impairing or in any

manner affecting any right or jurisdiction of the

States with respect to the waters (including

boundary waters) of such States.

{¶15} 33 U.S.C. 1370.

{¶16} Ohio has delegated to its Director of

Environmental

Protection

the

authority

to

promulgate rules and regulations, including issuing

permits, concerning the discharge of pollutants into

the State’s waters. R.C. 6111.03. These rules and

regulations are found in Ohio Administrative Code

Chapter 3745.

{¶17} The Federal Clean Water Act further

provides any project in which discharge of a pollutant

into navigable waters occur must receive certification

from the state in which the discharge will originate.

This certification, referred to as the “401 certification,”

is governed by 33 U.S.C. § 1341(a)(1), which provides:

Any applicant for a Federal license or permit to

conduct any activity including, but not limited to,

the construction or operation of facilities, which

may result in any discharge into the navigable

waters, shall provide the licensing or permitting

agency a certification from the State in which the

discharge originates or will originate, or, if

appropriate, from the interstate water pollution

control agency having jurisdiction over the

navigable waters at the point where the discharge

originates or will originate, that any such

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discharge will comply with the applicable

provisions of sections 1311, 1312, 1313, 1316, and

1317 of this title. In the case of any such activity

for which there is not an applicable effluent

limitation or other limitation under sections

1311(b) and 1312 of this title, and there is not an

applicable standard under sections 1316 and 1317

of this title, the State shall so certify, except that

any such certification shall not be deemed to

satisfy section 1371(c) of this title. Such State or

interstate agency shall establish procedures for

public notice in the case of all applications for

certification by it and, to the extent it deems

appropriate, procedures for public hearings in

connection with specific applications. In any case

where a State or interstate agency has no

authority to give such a certification, such

certification shall be from the Administrator. If the

State, interstate agency, or Administrator, as the

case may be, 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. No license or permit shall be

granted until the certification required by this

section has been obtained or has been waived as

provided in the preceding sentence. No license or

permit shall be granted if certification has been

denied by the State, interstate agency, or the

Administrator, as the case may be. (Emphasis

added).

{¶18} 33 U.S.C. § 1341(d) further provides:

89a

Any certification provided under this section

shall set forth any effluent limitations and other

limitations,

and

monitoring

requirements

necessary to assure that any applicant for a

Federal license or permit will comply with any

applicable effluent limitations and other

limitations, under section 1311 or 1312 of this title,

standard of performance under section 1316 of this

title, or prohibition, effluent standard, or

pretreatment standard under section 1317 of this

title, and with any other appropriate requirement

of State law set forth in such certification, and

shall become a condition on any Federal license or

permit subject to the provisions of this section.

{¶19} “The plain language of Section 401 outlines a

bright-line rule regarding the beginning of review: the

timeline for a state’s action regarding a request for

certification ‘shall not exceed one year’ after receipt of

such request.’” New York State Dept. of Environmental

Conservation v. Fed. Energy Regulatory Commission,

884 F.3d 450, 455 (2nd Cir. 2018). Further, the

withdrawal and resubmission of requests for

certification does not extend the time beyond one year

from the original request, as resubmissions of

requests involving the same project are not

independent requests, subject to a new period of

review. Hoopa Valley Tribe v. Fed. Energy Regulatory

Commission, 913 F.3d 1099, 1104 (D.C. Cir. 2019),

reh’g denied, 2019 WL 3928669.

{¶20} It is undisputed in this case Appellant failed

to act on Rover’s original certification request within

one year of November 16, 2015. Further, while

Appellant appears to have abandoned on appeal its

argument the resubmission of the certification request

90a

on February 23, 2017, restarted the one-year time

period, pursuant to Hoopa Valley, supra, we find the

trial court did not err in finding the resubmission did

not restart the one year period within which the State

must act on a request for certification.

{¶21} Appellant first argues Section 401(d)(1)’s

language stating the certification “shall” set forth any

conditions in a timely certification has been

interpreted by the courts to read “may.” Appellant

argues pursuant to O.A.C. 3745-32-02(A), Section 401

certification applies solely to fill dirt, and does not

apply to discharge of drilling fluids or stormwater.

{¶22} Appellant cites this court to PUD No. 1 of

Jefferson County v. Washington Dept. of Ecology, 511

U.S. 700, 713-714 (1994), and Great Basin Mine Watch

v. Hankins, 456 F3d 955, 963 (9th Cir. 2006) in

support of its argument we should interpret the

language of Section 401(d)(1) to read “may,” thus

reserving their rights over the types of effluents set

forth in counts one through six of the complaint.

{¶23} We find these cases distinguishable from the

issue presented in the instant case. PUD No. 1 dealt

with the question of whether a State could only impose

water quality limitations specifically tied to a

discharge. In finding Section 401(d)(1) allowed a state

to impose water quality standards to other types of

activities not involving discharges, the United States

Supreme Court held the states “may condition

certification upon any limitations necessary to ensure

compliance with state water quality standards.” Id. at

713-714. In Great Basin Mine Watch, the court held,

“PUD No. 1 merely holds that states may set

minimum flow standards as part of section 401

certification requirements; it does not hold that states

91a

must do so.” 456 F.3d at 963. However, the issue in

Great Basin was not whether the state could waive its

rights to enforce its water pollution statutes by failing

to timely act on a certification or to include all types

of pollution in its certification process, but rather

whether Congress can force a state to issue a 401

certification or to include specific conditions when it

does so. Neither of these cases stand for the

proposition the clear language of the statute should be

changed from “shall” to “may” when considering the

issue of whether a state has waived its right to

participate in the certification process.

{¶24} Appellant also cites this court to Ohio

Administrative Code 3745-32-02(A) which provides,

“Any applicant for a federal license or permit to

conduct any activity which may result in a discharge

of dredged or fill material to a water of the state shall

apply for and obtain a 401 certification from Ohio

EPA.” Appellant argues pursuant to this state

administrative code section, 401 certification in Ohio

only applies to the discharge of dredged or fill

material, and thus does not apply to the types of

discharges in counts one through six of the complaint,

which are governed by other regulatory schemes in

Ohio.

{¶25} However, we note 33 U.S.C. § 1341(a)(1) is

not limited to dredged or fill material, but specifically

applies to any discharge into the navigable waters.

Further, 33 U.S.C. § 1341(d) provides the certification

“shall set forth any effluent limitations and other

limitations, and monitoring requirements necessary

to assure that any applicant for a Federal license or

permit will comply with any applicable effluent

limitations and other limitations,” again without

92a

limiting the certification process to dredged or fill

material.

{¶26} A state receiving a Section 401 application

has four options: it may grant a certificate without

imposing any additional conditions, grant it with

additional conditions, deny it, or waive its right to

participate in the process. Sierra Club v. State Water

Control Bd., 898 F.3d 383, 388 (4th Cir. 2018). If we

accept Appellant’s argument Ohio Administrative

Code 3745-32-02(A) demonstrates Ohio’s participation

in the certification process is limited solely to

activities which result in the discharge of dredged or

fill material into the waters of the state, then Ohio has

waived its right to participate in the certification

process as to all activities other than those involving

dredged and fill material, despite the clear language

of the United States Code allowing much broader

participation. As Appellee Rover states in its brief, “In

short, States have choices; and their choices have

consequences.” Brief of Appellees Rover Pipeline LLC

and Mears Group, Inc., page 21.

{¶27} Appellant argues it could not anticipate the

extent of the types of pollution the pipeline project

would generate at the time of the certification request.

The record reflects the Ohio EPA participated in the

preparation of the Environmental Impact Statement

in the instant case, which provided a sweeping

exploration of the scope of the pipeline project. From

its active participation in the EIS process, Appellant

should have been aware of the types of pollution the

project would be likely to generate. Further, the State

could have simply denied the certification based on a

lack of information, or granted it by imposing

additional conditions subjecting all types of discharge

93a

to compliance with the laws of Ohio. See Sierra Club,

supra. However, the state failed to act on the

certification request in a timely manner, thereby

waiving its right to participation in the certification

process.

{¶28} Appellant also argues the trial court’s

interpretation of the certification rules runs contrary

to the overarching intent of the Federal Clean Water

Act. We agree with the findings of the trial court to the

contrary:

The holding of this Court in no way stands for

the position 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. Nor does this holding provide natural

gas companies carte blanche to perform drilling

and other construction related to natural-gas lines

regardless of the environmental impact of such

action. Rather, 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. Moreover, the Court finds

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. As such, any alleged

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discharges were still subject to Federal

Regulations, including the Clean Water Act.

{¶29} Judgment Entry, March 12, 2019, pp. 9-10.

{¶30} Finally, Appellant argues the court erred in

dismissing count six of its complaint regarding

hydrostatic water, because Appellees did obtain a

permit concerning hydrostatic water from the Ohio

EPA, which was listed in the Environmental Impact

Statement.

{¶31} We find a state’s 401 waiver cannot be

undone by agreement of the parties. See Hoopa Valley,

supra, at 1105, (state waived participation in

certification despite applicant’s agreement with state

in withdrawal and resubmission of certification

request in attempt to extend one year time deadline).

The mere fact Appellees chose to obtain a certificate

from the state, as set forth in the EIS, 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.

{¶32} The first assignment of error is overruled.

II.

{¶33} Any discussion of Appellant’s second

assignment of error is rendered moot by our

disposition of the first assignment of error.

{¶34} The judgment of the Stark County Common

Pleas Court is affirmed.

By: Hoffman, P.J.

Wise, John, J. and

Delaney, J. concur

95a

s/ William B. Hoffman

HON. WILLIAM B. HOFFMAN

s/ John W. Wise

HON. JOHN W. WISE

s/ Patricia A. Delaney

HON. PATRICIA A. DELANEY

96a

APPENDIX F

IN THE COURT OF COMMON PLEAS

STARK COUNTY, OHIO

STATE OF OHIO, EX REL., MICHAEL DEWINE,

OHIO ATTORNEY GENERAL,

Plaintiff,

-vsROVER PIPELINE, LLC, et al.,

Defendant.

CASE NO. 2017CV02216

JUDGE KRISTIN G. FARMER

JUDGMENT ENTRY

This matter came before the Court upon the

motions of the following defendants to dismiss the

Third Amended Complaint filed by the plaintiff, The

State of Ohio ex rel. Michael Dewine, Attorney

General (“State of Ohio”): Rover Pipeline, LLC

(“Rover”)/ Mears Group, Inc. (“Mears”), Pretec

Directional

Drilling,

LLC

(“Pretec”),

Laney

Directional Drilling Co. (“Laney”), Atlas Trenchless,

LLC. (“Atlas”), and B & T Directional Drilling, Inc. (B

& T”). The State of Ohio filed a combined response to

all of the motions to dismiss, to which the individual

defendants have replied. Upon review, the Court finds

as follows.

Procedural History

The State of Ohio filed an Amended Complaint on

November 30, 2017. After the filing of the amended

complaint, a “Notice of Removal to Federal Court” was

filed on December 8, 2017. The Federal Court

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remanded this matter back to the Stark County Court

of Common Pleas on January 31, 2018. In his Order

remanding this matter back to Stark County, Judge

John R. Adams found that, although the State of

Ohio’s complaint necessarily raises a federal issue in

some capacity, the focal point of the litigation will be

the Clean Water Act and as such, the federal court

“cannot exercise jurisdiction without disrupting the

division of labor between the state of Ohio and the

federal government.”

Upon remand, the State of Ohio filed a motion for

leave to file a Second Amended Complaint. The Court

granted the motion and the Second Amended

Complaint was filed on April 17, 2018. After the filing

of the Second Amended Complaint, the defendants

filed motions to dismiss. Prior to ruling upon said

motions, the State of Ohio filed an unopposed motion

for leave to file a Third Amended Complaint. The

Third Amended Complaint was filed on July 19, 2018.

Thereafter, the defendants again filed motions to

dismiss. Those motions, which have been fully briefed,

are as follows:

1. B & T Directional Drilling, Inc.’s Motion to

Dismiss Plaintiff’s Third Amended Complaint filed

on September 7, 2018;

2. Rover Pipeline LLC and Mears Group, Inc.’s

Motion to Dismiss filed on September 10, 2018

(referred to herein as “Rover’s Motion to Dismiss”);

3. Laney Directional Drilling Co.’s Motion to

Dismiss filed on September 10, 2018;

4. Pretec Directional Drilling LLC’s Motion to

Dismiss Third Amended Complaint filed on

September 10, 2018; and

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5. Atlas Trenchless LLC’s Motion to Dismiss filed

on September 10, 2018.

The State of Ohio filed a collective memorandum

contra to all defendants’ motions to dismiss on October

12, 2018. Defendants, Atlas Trenchless LLC, Pretec

Directional Drilling LLC, and Laney Directional

Drilling Co., and defendants, Rover, Mears, and B&T,

filed separate reply briefs on November 2, 2018.

The Complaint filed by the State of Ohio

The State of Ohio’s complaint alleges that the

defendants illegally discharged millions of gallons of

drilling fluids to Ohio’s waters, causing pollution and

degrading water quality across the state in

construction of the Rover Pipeline, a 713-mile

interstate natural gas pipeline crossing 18 counties.

Rover was the owner or operator of the drilling

operations for the construction of the pipeline. Pretec,

Laney, Atlas, Mears, and B&K were subcontractors

hired by Rover to perform horizontal-directionaldrilling activities related to the construction of the

pipeline.

More specifically, the State of Ohio’s complaint

alleges the following:

Count One: Defendants (Rover, Pretec, Laney,

Atlas, Mears, and B & T) discharged pollutants

(drilling fluids) to waters of the state without point

source NPDES permits.

Count Two: Defendant Rover Pipeline LLC failed

to obtain a necessary storm water permit for its

storm water discharges.

Count Three: Defendants (Rover, Pretec, Laney,

Atlas, Mears, and B & T) violated Ohio’s general

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water quality standards (unpermitted drilling

fluid discharges into waters of the state and

unpermitted storm water discharges into waters of

the state).

Count Four: Defendants (Rover, Pretec, Laney,

Atlas, Mears, and B & T) violated Ohio’s wetland

water quality standards (unpermitted drilling

fluid discharges into wetlands).

Count Five: Defendant Rover Pipeline LLC

violated the Director’s Orders by failing to obtain

coverage or even submit a notice of intent to obtain

coverage under the Construction Storm Water

Permit.

Count Six: Defendant Rover Pipeline LLC

violated the Hydrostatic Permit:

Count Seven: Defendant Rover Pipeline LLC

engaged

in

activities

without

effective

certification. Plaintiff alleges that the Defendant

engaged in activity from February 24, 2017

through May 15, 2017, without the state 401 water

quality certification.

Rover’s Motion to Dismiss

While separate, the defendants’ motions to dismiss

are, for the most part, duplicative in argument.

Because Rover is the main defendant in this litigation,

i.e., the claims arising against the other defendants

are a result of actions taken at the behest of Rover, the

Court will focus its consideration primarily on Rover’s

motion to dismiss. In its motion, Rover argues for

dismissal of the Third Amended Complaint on the

following assertions:

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1. The State of Ohio’s failure to act within one

year on Rover’s application for the State of Ohio to

issue a §401 certification (a Water Quality

Certification request) under the federal Clean

Water Act, resulted in the State of Ohio waiving its

power to impose conditions and to enforce

environmental requirements for the pipeline

project as a matter of federal statutory law;

2. Rover received all necessary regulatory

approvals from FERC for the construction of the

pipeline. In the process of obtaining these

approvals, an Environmental Impact Statement

(“EIS”) was completed, which the State of Ohio

helped to prepare. The State of Ohio now seeks to

impose additional permitting requirements

without any legal authority, as the permits sought

were not previously identified to the FERC

through the EIS process;

3. The State of Ohio’s claims are preempted by the

Natural Gas Act and, as such, this Court lacks

subject matter jurisdiction; and

4. The State of Ohio’s claims are challenges to

FERC’s approval of the pipeline project and

improper collateral attacks on FERC’s orders.

Civil Rule 12(B) Standard

In essence, the collective motions of the defendants

seek dismissal of the State of Ohio’s Third Amended

Complaint for failure to state a claim upon which

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relief may be granted and lack of subject matter

jurisdiction. 1

In construing a complaint under a Civ. R. 12(B)

motion to dismiss for failure to state a claim upon

which relief can be granted, the Court must presume

the truth of all factual allegations of the complaint and

make all reasonable inferences in favor of the

nonmoving party. Mitchell v. Lawson Milk Co. (1989),

40 Ohio St.3d 190. The Court, nonetheless, need not

assume the truth of the conclusions, which are not

supported by factual allegations. Id. at 193.

Dismissal is appropriate where it appears beyond

doubt that the complaining party can prove no set of

facts in support of the complaining party’s claim that

would entitle said party to relief. O’Brien v. Univ.

Community Tenants Union, Inc. (1975), 42 Ohio St.2d

242.

The trial court is not confined to allegations of

complaint when determining its subject matter

jurisdiction pursuant to a Civ.R. 12(B)(1) motion to

dismiss, and it may consider material pertinent to

such inquiry without converting the motion into one

for summary judgment. Civ.R. 12(B)(1,6). Southgate

Dev. Corp. v. Columbia Gas Transmission Corp., 48

Ohio St. 2d 211 (1976).

Applicable Federal Law

Congress enacted the Natural Gas Act to govern

the transportation of natural gas in interstate

While all of the Defendants have filed separate motions to

dismiss, all of the motions are based upon the same arguments.

In fact, arguments have been referenced, adopted, and restated

by some Defendants from other Defendants’ briefs.

1

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commerce. 15 U.S.C. §717. In so doing, Congress gave

authority to regulate natural gas companies and the

interstate sale and transportation of natural gas, as

well as the construction of natural gas facilities,

including natural gas pipelines, to the Federal Power

Commission, which ultimately became the Federal

Energy Regulatory Commission (“FERC”).

However, the Natural Gas Act is subservient to the

Federal Water Pollution Control Act, aka the Clean

Water Act, found in 33 U.S.C. §1251, which prohibits

the discharge of pollutants in waterways. 15 U.S.C.

§717(b)(d). The Clean Water Act specifically reserves

to the states the right to adopt and enforce standards

and requirements regarding pollutants in waterways

as follows:

Except as expressly provided in this chapter,

nothing in this chapter shall (1) preclude or deny

the right of any State or political subdivision

thereof or interstate agency to adopt or enforce (A)

any standard or limitation respecting discharges of

pollutants, or (B) any requirement respecting

control or abatement of pollution; except that if an

effluent limitation, or other limitation, effluent

standard, prohibition, pretreatment standard, or

standard of performance is in effect under this

chapter, such State or political subdivision or

interstate agency may not adopt or enforce any

effluent limitation, or other limitation, effluent

standard, prohibition, pretreatment standard, or

standard of performance which is less stringent

than the effluent limitation, or other limitation,

effluent standard, prohibition, pretreatment

standard, or standard of performance under this

chapter; or (2) be construed as impairing or in any

103a

manner affecting any right or jurisdiction of the

States with respect to the waters (including

boundary waters) of such States.

33 U.S.C. 1370. In response, the State of Ohio has

delegated to its Director of Environmental Protection

the authority to promulgate rules and regulations,

including the issuing of permits, concerning the

discharge of pollutants into the waters within Ohio.

R.C. 6111.03. Such rules and regulations are found in

OAC Chapter 3745, including, but not limited to OAC

3745-33-01, et seq., and OAC 3745-38-02, et seq.

In addition to the preservation of the states’ rights

to enforce and adopt standards and requirements

regarding the discharge of pollutants into waterways,

the Clean Water Act requires that any state

promulgated water quality standards be subject to

review and approval by the EPA. 33 U.S.C. §1313 (also

referred to as “Section 303 of the Clean Water Act”).

The Clean Water Act also provides that any project in

which discharge of a pollutant into navigable waters

may occur, must receive certification from the state in

which the discharge will originate that such discharge

will comply with the state’s water quality standards.

33 U.S.C. §1341 (a)(l) (also referred to as “Section

401of the Clean Water Act”). As to such “401

certification,”

If the State, interstate agency, or Administrator,

as the case may be, 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. No

license or permit shall be granted until the

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certification required by this section has been

obtained or has been waived as provided in the

preceding sentence. No license or permit shall be

granted if certification has been denied by the

State, interstate agency, or the Administrator, as

the case may be.

Id. Therefore, if a state fails or refuses to act on a

401Certification within one year from the request, the

401Certification requirement is waived with respect

to any application. If a 401 Certification request is

denied by the state, no permit shall be issued for the

requesting project. If the state approves the 401

Certification request upon any conditions or

limitations, such conditions or limitations shall be set

forth in the 401 Certification. 33 U.S.C. §1341(d). The

time frame set forth in Section401oftheClean Water

Actis a “bright­line rule” and not a “subjective

standard.” N.Y. State Dep’t of Envtl. Conservation v.

FERG, 884 F.3d 450, 456 (2nd Cir., 2018).

Additionally, the Clean Water Act authorizes the

EPA to regulate the discharge of pollutants in

navigable waters under the National Pollutant

Discharge Elimination System (“NPDES”). 33 U.S.C.

§1342. The EPA has given such permitting authority

to the States, including Ohio, that meet the EPA’s

requirements.

While, as previously noted, the Natural Gas Act

gives deference to the Clean Water Act, such deference

is not unlimited. Notably, the Natural Gas Act

designates FERC as the lead agency for the

coordination of all federal permits (which would

include any permit required under the Clean Water

Act), special use authorizations, certifications,

opinions, or other approvals regarding the

105a

construction of a natural gas pipeline. 15 U.S.C.

§717n(b). Further, the Act requires all federal and

state agencies considering an aspect of an application

for the construction of a natural gas pipeline to

cooperate with FERC and comply with the deadlines

established by FERC. Id.

Analysis

In its motion, Rover asserts that the State of Ohio

failed to “act” on its request for a 401 certification

within the one-year period provided in said section. As

such, Rover argues that the State of Ohio waived any

limitations on a discharge certification. The State of

Ohio argues that it did “act” upon such request within

one year. Moreover, the State of Ohio asserts that any

such waiver applies only to Count 7 of the complaint

and does not affect the other claims.

On November 16, 2015, the State of Ohio received

a 401 Certification request from Rover. As such, the

State of Ohio had until November 16, 2016, to “act” on

such request pursuant to Section 401 of the Clean

Water Act. However, the State of Ohio did not “act” on

the initial 401 Certificate request. Rather, the State of

Ohio required Rover to resubmit its request on

February 23, 2017, and the State granted the revised

request on February 24, 201

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