By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) proposed a rule that would add an applicability date two years in the future to the Obama-era Waters of the United States (WOTUS) rule. 82 Fed. Reg. 55542 (Nov. 22, 2017).

The WOTUS rulemaking has been frought with controversy, and has generated well over a million public comments.

We have previously blogged on the WOTUS rulemaking. See Executive Order on Restoring the Rule of Law … by Reviewing the “Waters of the United States” Rule, EPA and Army Corps of Engineers Propose to Rescind Obama Era Rule Redefining “Waters of the United States”, EPA Publishes Final Rule Expanding Definition of “Waters of the United States” Under the Clean Water Act, Proposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New Definition of “Waters of the United States”?

The November 22, 2017 proposed rule would extend the applicability date of the Obama-era 2015 WOTUS Rule by two years beyond the comment period, which closes on December 13, 2017. Should the November 22, 2017 proposed rule become “final” on that same day, which is unlikely, the earliest the 2015 WOTUS Rule could be “applicable” is December 13, 2019.

EPA claims that this applicability extension “would give the agencies the time needed to “fully reconsider” the definition of ‘waters of the United States’.”

EPA Administrator Scott Pruitt said of this proposal that it “shows our commitment to our state and tribal partners and to providing regulatory certainty to our nation’s farmers, ranchers and businesses…. This step will allow us to minimize confusion as we continue to receive input from across the country on how we should revise the definition of the ‘waters of the United States’.”

EPA also reiterated that the November 22, 2017 proposed rule is separate from the ongoing two-step process the Agencies are currently undertaking to reconsider and potentially revise the 2015 WOTUS Rule. The comment period for Step 1 of the reconsideration closed in September, receiving just under 700,000 comments. Meanwhile, the agencies are still reviewing the 1.1+ million comments received from the public for the 2015 Obama-era WOTUS Rule. The Agencies are also in the process of holding “listening sessions” with stakeholders to assist the Agencies in developing a proposed Step 2 rule that would again revise the definition of “waters of the United States.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis and Craig B. Simonsen

Seyfarth Synopsis: Pursuant to President Trump’s Executive Order (EO) on “Restoring the Rule of Law… by Reviewing the “Waters of the United States” Rule, the Agencies have scheduled ten teleconferences to collect stakeholder recommendations on the revision of the Waters of the United States (WOTUS) rule.

We had previously blogged on the WOTUS rulemaking. See EPA and Army Corps of Engineers Propose to Rescind Obama Era Rule Redefining “Waters of the United States”, EPA Publishes Final Rule Expanding Definition of “Waters of the United States” Under the Clean Water Act, Proposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New Definition of “Waters of the United States”?

The EPA and the Corps of Engineers have now issued an Announcement of Public Meeting Dates, 82 Fed. Reg. 40742 (August 28, 2017).  In the Announcement, the Agencies note that they intend to propose a new definition for WOTUS that would replace the approach in the 2015 Clean Water Rule with one that is consistent with the approach outlined in the EO.  The Agencies recently completed consultation processes with tribes and state and local governments on the rulemaking.

Now the Agencies seek to provide other interested stakeholders an opportunity to provide pre-proposal “feedback” on the rule to revise the definition of the WOTUS.

The teleconferences will be held on a weekly basis beginning September 19, 2017, and will continue each Tuesday thereafter for ten weeks.  Each session will run from 1:00 p.m. to 3:00 p.m., eastern time.  Information on how to register for the meetings is available on the EPA Web site.

Persons or organizations that wish to provide verbal recommendations during the teleconference will be selected on a first-come, first-serve basis. Individuals will be asked to limit their oral presentation to three minutes.

Note that each of the ten sessions will be geared to particular entities and organizations (such as small businesses and small government jurisdictions), and business segments (such as construction, transportation, and mining).  So it is importatant that you attend the session that most matches your particular interests in the rulemaking.

In addition, the Agencies are also planning an in-person meeting with small entities, to be held on Monday, October 23, 2017.  Check the Announcement for attendance information.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

For our readers with California facilities and interests, Patrick D. Joyce has prepared a Management Alert on California’s new Industrial Stormwater Permit (2014 General Permit), which will apply on and after July 1, 2015. Industrial General Permit, 2014-0057-DWQ.

The California State Water Resources Control Board’s newly adopted industrial stormwater permit regime includes a broader array of industrial facilities not previously covered, increases sampling and monitoring requirements, and implements new Best Management Practices.  Due to the complexity and breadth of the new 2014 General Permit, affected facilities should consider consulting with environmental counsel and a stormwater consultant for further guidance.

Checkout the full Management Alert for complete details.

By Andrew H. Perellis, Jeryl L. Olson, and Craig B. Simonsen

EPA Administrator, Gina McCarthy, and the Assistant Secretary of the Army (Civil Works), Jo Ellen Darcy, just signed a proposed rule to “clarify” protections under the Clean Water Act for “streams and wetlands that form the foundation of the nation’s water resources.”

We had previously blogged about the Agency’s draft of the proposed rule that was distributed last November, 2013. The draft was supported, in-part, by an EPA Science Advisory Board’s draft scientific report, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (EPA/600/R-11/098B), which it had released for public comment. We had also blogged about the draft scientific report.

According to the EPA, the draft scientific report “represents the state-of-the-science on the connectivity and isolation of waters in the United States.” It makes these conclusions: 

  • Streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters.
  • Wetlands and open-waters in floodplains of streams and rivers and in riparian areas are integrated with streams and rivers.

The Agency indicated that the proposed rule will define the scope of waters protected under the Clean Water Act in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview, 474 U.S. 121 (1985), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), and Rapanos v. United States (Rapanos), 547 U.S. 715 (2006). We had previously reviewed Rapanos in a Client Management Alert. EPA believed that the “rule will result in more effective and efficient Clean Water Act permit evaluations with increased certainty and less litigation.”

In an op-ed piece, Administrator McCarty explains that: “over the last decade, the Clean Water Act has been bogged down by confusion. [C]omplex court decisions narrowed legal protections and muddled everyone’s understanding of what waters are — or are not — covered under the law. Protections have been especially confusing for those smaller, vital interconnected streams and wetlands.” She asserted that “our proposed rule will not add to or expand the scope of waters historically protected under the Clean Water Act.”

According to EPA the proposal will clarify the types of waters covered under the Clean Water Act. Specifically, the proposed rule clarifies that under the Clean Water Act:

  • Most seasonal and rain-dependent streams are protected.
  • Wetlands near rivers and streams are protected.
  • Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant. However, to provide more certainty, the proposal requests comment on options protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.

It is notable that in a comment submitted on the draft rule by the U.S. Chamber of Commerce it is said that:

It is clear … that EPA cannot factually certify that the draft rule would not impose a major economic impact on a large number of small entities. Expanding the current definition of “waters of the U.S.” to include “ephemeral” streams, isolated wetlands, and non-connected waters will subject vast areas across the country to regulation under the Clean Water Act for the first time. Expanding CWA jurisdiction would subject property owners, businesses, and communities to stringent new permitting requirements and use restrictions. The process of obtaining permits and use approvals under the Clean Water Act can be very costly and time-consuming. Historically, obtaining a permit to develop in jurisdictional wetlands can take longer than 12 months and cost hundreds of thousands of dollars.

In a statement about the proposed rule the Chamber reiterates: “For decades, the EPA has been attempting to expand its jurisdiction over waters of the U.S., but the Supreme Court has held it in check through key rulings. This latest attempt from EPA to make virtually every river, stream, and creek in the U.S. subject to the authority of the Clean Water Act would put the agency effectively in charge of zoning the entire country. This proposed definition would more than double the miles of waterway EPA regulates, which would have serious economic repercussions. The U.S. Chamber will vigorously oppose this flawed proposal.”

The regulated community — industry, municipalities, developers, builders, and a host of others — should watch, monitor, and participate this rulemaking effort very closely. Despite EPA denials, the resulting rules may add innumerable “water bodies” to the list of “waters of the United States,” and make Clean Water Act permitting an even more onerous and costly proposition.

The proposed rule docket will be open for public comment for 90 days from publication in the Federal Register.