By Andrew H. PerellisPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA) and the Department of the Army (Corps) have recently proposed a “clear, understandable, and implementable definition of ‘waters of the United States’ [(WOTUS)] that clarifies federal authority under the Clean Water Act.”

Concerning the new draft proposed rule, Acting Administrator Andrew Wheeler tweeted out that “our redefinition of the Waters of the US proposal would replace the Obama 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners certainty so they can manage their natural resources & grow local economies.”  The EPA noted that unlike the Obama administration’s 2015 definition of WOTUS, the new proposal contains a “straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development.”

This proposal, the Agencies assert, is the second step in the two-step process to review and revise the definition of WOTUS consistent with President Trump’s February 2017 Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.

The proposed rule is intended to provide clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies—and where it does not.  The practical effect of the proposal is to remove from Federal authority “waters” that are not directly adjacent to a river, stream or lake that is traditionally understood as under the jurisdiction of the CWA.  The proposal rejects the “substantial nexus” approach that resulted from Justice Kennedy’s concurrence in Rapanos v. United States, 547 U.S. 715 (2006).  As a result, many wetlands or ephemeral streams, although hydrologically connected to a traditional CWA-regulated water, would no longer be regulated.

Under the proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated.  The proposal also details what are not WOTUS, such as “features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; storm water control features; and waste treatment systems.”

Here is an Agency graphical depiction of the rule provisions:

EPA Twitter image post, December 12, 2018.

The Agencies had received written pre-proposal recommendations and received more than 6,000 recommendations that were considered in developing the proposal.  Public comments on the proposal will be accepted for 60 days after publication in the Federal Register.  EPA and the Corps intend to also hold an informational webcast on January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.

Our prior blogs provide more detail regarding the definition of WOTUS.  See for instance 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 ActProposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New 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, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Continuing the fight over the Obama-era Waters of the United States (WOTUS) Rule, the Natural Resources Defense Council, Inc., the National Wildlife Federation, and a host of states, including New York and California have brought lawsuits against the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (USEPA) in response to their final rule to delay the applicability date for the WOTUS Rule.  States of New York et al. v. USEPA and Corps (State Litigation), No. 18-cv-1030 (S.D. NY February 6, 2018), and NRDC v USEPA and Corps (Association Litigation), No 18-cv-1048 (S.D. NY February 6, 2018).

As we noted in previous blogs, the WOTUS rulemaking has been fraught with controversy and has generated well over 1-million public comments. In the most recent chapter of this ongoing saga, the Agencies adopted an applicability rule to extend the applicability date of the 2015 WOTUS Rule to February 6, 2020. USEPA claimed that the extension “provides clarity and certainty about which definition of “waters of the United States” is applicable nationwide in response to judicial actions that could result in confusion.” The Plaintiffs refer to this extension as “the Suspension Rule.”

The State Litigation seeks “a declaration that the Suspension Rule is unlawful and an order vacating it” as well as a declaration that the Agencies’ action was arbitrary and capricious. The States argue, among other things, that the Clean Water Act does not give the Agencies authority to suspend a Rule when it has already become effective.

The Association Litigation seeks a ruling that “the suspension of the Clean Water Rule for two years is…‘arbitrary,’ ‘capricious,’ an ‘abuse of discretion,’ and ‘not in accordance with law’ under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).” Additionally, the Associations seek a ruling that “the suspension of the Clean Water Rule for two years was…promulgated in violation of the Due Process Clause of the U.S. Constitution, and was ‘without observance of procedure required by law’ and ‘contrary to constitutional right’ in violation of the Administrative Procedure Act. 5 U.S.C. § 706(2)(B), (D).”

We will keep you up to date as to the progression of the litigation and any important briefing or rulings that come out of it.

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, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (USEPA) finalized a rule moving the applicability date to the Obama-era Waters of the United States (WOTUS) rule to February 6, 2020, two years in the future. 83 Fed. Reg. 5200 (Feb. 6, 2018).

The WOTUS rulemaking has been frought with controversy and has generated well over 1-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 now-final applicability rule extends the applicability date of the Obama-era 2015 WOTUS Rule to February 6, 2020, two years beyond today’s publication of the final rule in the Federal Register. USEPA claims that this extension “provides clarity and certainty about which definition of “waters of the United States” is applicable nationwide in response to judicial actions that could result in confusion.”

USEPA also reiterated that the applicability 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, 2017, 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. USEPA and the Corps 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, 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.

By Andrew H. Perellis, Kay R. Bonza, and Craig B. Simonsen

EPA SignSeyfarth Synopsis: The EPA and Army Corps of Engineers have proposed to rescind the 2015 Clean Water Rule defining “Waters of the U.S.,” and recodify the pre-existing rule, then engage in a subsequent rulemaking to re-evaluate and revise the definition of WOTUS presumably intended to decrease in the number of water bodies subject to EPA permitting obligations.

The U.S. Environmental Protection Agency and the Army Corps of Engineers have published a proposed rule on the “Definition of “Waters of the United States” – Recodification of Pre-Existing Rules.”

We had previously blogged about the EPA’s monumental final rule, in June 2015, expanding the definition of “Waters of the United States” (WOTUS) under the Clean Water Act, thereby increasing the number of water bodies subject to protection by the EPA through permitting obligations. The final rule was based on EPA’s 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 (September 2013).

In commenting on the proposed rule to rescind the WOTUS rule, EPA Administrator Scott Pruitt said, “we are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses …. This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

The proposed rescission follows President Trump’s February 28, 2017, Executive Order on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”  The effect of the rescission would be to recodify the regulatory text that was in place prior to the 2015 Clean Water Rule and that is currently in place as a result of a U.S. Court of Appeals for the Sixth Circuit’s stay of the 2015 rule. Therefore, according to the EPA press release, this action, when final, “will not change current practice with respect to how the definition applies.”

EPA also notes that the agencies have begun deliberations and outreach on the second step of the rulemaking involving a reevaluation and revision of the definition of WOTUS in accordance with the Executive Order.

The regulated community — industry, municipalities, developers, builders, and a host of others — should watch and monitor this rulemaking effort closely.  While this initial step will recodify the pre-existing rule, the subsequent rulemaking to re-evaluate and revise the definition of WOTUS presumably is intended to reduce the number of regulated water bodies constituting “waters of the United States,” thereby decreasing permitting obligations, or subjecting fewer entities to permitting requirements as a result of a narrower definition of WOTUS.

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, 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.

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

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers would, under a draft of a proposed rule recently obtained by Bloomberg BNA, assert Clean Water Act jurisdiction over all natural and artificial tributary streams, lakes, ponds, and wetlands that affect the chemical, physical, and biological integrity of larger, downstream navigable waters.

The draft proposed rule is supported, in-part, on an EPA 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 the EPA’s Science Advisory Board recently released for public comment. We had previously blogged about the draft scientific report.

The Agency’s blog on the draft scientific report indicated that this draft of the new proposed rule was sent on September 17, 2013, to the Office of Management and Budget for interagency review. The Agency asserts that the draft proposed rule is “necessary to reduce costs and minimize delays in the permit process and protect waters that are vital to public health, the environment and economy.” “The proposed joint rule will provide greater consistency, certainty, and predictability nationwide by providing clarity for determining where the Clean Water Act applies and where it does not.”

The Agency indicates that the proposal would 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 Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States. EPA believes that the “rule will result in more effective and efficient CWA permit evaluations with increased certainty and less litigation.”

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 three main 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.
  • There is insufficient information to generalize about wetlands and open-waters located outside of riparian areas and floodplains and their connectivity to downstream waters.

The final version of the draft scientific report will serve as a basis for this joint EPA and U.S. Army Corps of Engineers rulemaking to clarify their jurisdiction in Clean Water Act permitting.

The regulated community — industry, municipalities, developers, builders, and a host of others — should watch and monitor this rulemaking effort very closely. 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.

By Andrew H. Perellis and Craig B. Simonsen

The U.S. Environmental Protection Agency’s Science Advisory Board has just released for public comment a draft scientific report, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.” EPA/600/R-11/098B.

Figure 1-1 from the Report: Overview of Watershed Elements

The draft report analyzes more than a thousand peer-reviewed pieces of scientific literature about how smaller, isolated water bodies are connected to larger ones. The EPA indicates that this report “represents the state-of-the-science on the connectivity and isolation of waters in the United States.”

According to EPA, the draft report makes three main 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.
  • There is insufficient information to generalize about wetlands and open-waters located outside of riparian areas and floodplains and their connectivity to downstream waters.

The Agency is seeking comments on the literature summarized in the report, and its conclusions. The Agency’s stated purpose is that the final version of this report will serve as a basis for a joint EPA and U.S. Army Corps of Engineers rulemaking to clarify their jurisdiction in Clean Water Act permitting.

According to the Agency’s blog, a draft of the new proposed rule was sent on September 17, 2013, to the Office of Management and Budget for interagency review. The Agency asserts that the draft proposed rule is “necessary to reduce costs and minimize delays in the permit process and protect waters that are vital to public health, the environment and economy.” “The proposed joint rule will provide greater consistency, certainty, and predictability nationwide by providing clarity for determining where the Clean Water Act applies and where it does not.”

The regulated community — industry, municipalities, developers, builders, and a host of others — should watch and monitor this rulemaking effort very closely. 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.