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 Brent I. Clark, James L. Curtis, Benjamin D. Briggs, Patrick D. Joyce, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: Due to the increased use of robotics and computer automation for many job functions that have historically been performed by employees raises, besides the traditional personnel and employment issues, a host of workplace safety issues.

The U.S. Occupational Safety and Health Administration’s (OSHA) has been working to address potential safety hazards posed by robotics in the workplace for many years. As early as 1987, in OSHA’s Guidelines for Robotics Safety, Directive No. STD 01-12-002, OSHA noted that “industrial robots can be used to perform hazardous tasks but in doing so they can create new hazards. With the burgeoning use of robots in industry, it is feared that without adequate guarding and personnel training, injury rates for employees working with robots may increase.”

Workplace Robotics Safety

Employers traditionally have called upon robots to perform unsafe, hazardous, highly repetitive, and “unpleasant” tasks, reducing potential hazards associated with those specific functions. Early robots, which mainly conducted a pre-programmed task and did not have any “intelligence” as many robots do now, created potential hazards not only under normal operating conditions, but also during “programming, adjustment, testing, cleaning, inspection, and repair periods.”

During workplace robot functions, the operator, programmer, or maintenance worker may temporarily walk within the robot’s “work envelope” (the area around the robot where performs its task) while power is available to moveable elements of the robot. This created potential machine guarding, lockout/tagout, and electrical safety hazards, among others. In addition, as industrial robots have advanced over the years, they have performed increasingly complex tasks with multiple tools and variable programmed motions, potentially exposing more employees to different hazards.

OSHA’s lockout/tagout regulations require employers to protect employees from unexpected energization of machinery by, among other things, dissipating all sources of energy when the machines are not in use and installing a lock. With robots, the primary source of protection from unexpected movement is a “programmable logic controller” or “PLC.” PLCs limit robots from moving when not performing their pre-programmed tasks and functions or if a certain condition is met – i.e. an interlocked door is open. While these PLC devices typically “fail to safe,” OSHA has been reluctant to accept them as equally effective means of employee protection along the lines of machine guarding or lockout/tagout.

Now, some thirty years after their widespread appearance in the workplace, robotics and computer automation have permeated nearly every industry, including manufacturing, warehousing, and even retail, potentially exposing additional workers to hazards. In Japan, some coffee shops now serve coffee utilizing robotic “baristas.”

OSHA’s Online Technical Manual Regarding Workplace Robotics

While OSHA has not promulgated regulations specifically covering use of robots in the workplace, OSHA has created an online technical manual to inform employers about the hazards associated with robotics and automated machinery, such as those which may result from malfunctions or errors in the programming or interfacing with peripheral equipment. Operational changes with the process being performed or the breakdown of other machinery or electronic sensors could also cause the robotics to react in an unwanted and hazardous manner. In its tool, OSHA identifies the following as important considerations for any employer intending to use robots in the workplace:

  1. Types of Accidents. Robotic incidents can be grouped into four categories:
    1. Impact or Collision Accidents. Unexpected movements, component malfunctions, or unpredicted program changes related to the robot’s arm or peripheral equipment can result in contact accidents.
    2. Crushing and Trapping Accidents. A worker’s limb or other body part can be trapped between a robot and other peripheral equipment, or the individual may be physically driven into and crushed by other peripheral equipment.
    3. Mechanical Part Accidents. The breakdown of the robot’s drive components, tooling or end-effector, peripheral equipment, or its power source is a mechanical accident. The release of parts, failure of gripper mechanism, or the failure of end-effector power tools (e.g., grinding wheels, buffing wheels, deburring tools, power screwdrivers, and nut runners) are a few types of mechanical failures.
    4. Other Accidents. Other accidents can result from working with robots. Equipment that supplies robot power and control represents potential electrical and pressurized fluid hazards. Ruptured hydraulic lines could create dangerous high-pressure cutting streams or whipping hose hazards. Environmental accidents from arc flash, metal spatter, dust, electromagnetic, or radio-frequency interference can also occur. In addition, equipment and power cables on the floor present tripping hazards.
  2. Sources of Hazards. The expected sources of potential robotics hazards include:
    1. Human Errors. Human errors in the programming, interfacing peripheral equipment, or connecting live input-output sensors to the robot or a peripheral device can cause dangerous, unpredicted movement or action by the robot. The incorrect activation of the “teach pendant” or control panel is a frequent human error. The greatest problem, however, is operators’ familiarity and complacency with the robot’s redundant motions so that an individual places himself in a hazardous position within the robot’s “work envelope” while programming the robot or performing maintenance on it.
    2. Control Errors. Intrinsic faults within the PLC control system of the robot, errors in software, electromagnetic interference, and radio frequency interference. In addition, these errors can occur due to faults in the hydraulic, pneumatic, or electrical sub-controls associated with the robot or robot system.
    3. Unauthorized Access. Entry into a robot’s safeguarded area is hazardous because the person involved may not be familiar with the safeguards in place or their activation status.
    4. Mechanical Failures. Operating programs may not account for cumulative mechanical failure, resulting in faulty or unexpected operation.
    5. Environmental Sources. Electromagnetic or radio-frequency interference (transient signals) could affect robotic operation and increase the potential for injury to any person working in the area.
    6. Power Systems. Pneumatic, hydraulic, or electrical power sources that have malfunctioning control or transmission elements in the robot power system can disrupt electrical signals to the control and/or power-supply lines. Fire risks are increased by electrical overloads or by use of flammable hydraulic oil. Electrical shock and release of stored energy from accumulating devices also can be hazardous to personnel.
    7. Improper Installation. The design, requirements, and layout of equipment, utilities, and facilities of a robot or robot system, if inadequately done, can lead to inherent hazards.

While, again, OSHA does not have regulations specific to robots in the workplace, employers would be wise to conduct job hazard analyses and evaluate any existing or potential robotic equipment installation, to abate any hazards posed by these machines.

Safety Regulation of Autonomous (Robotic) Vehicles

The ongoing robot revolution has ventured into the future of passenger and commercial vehicles. Some employers have embraced the possibilities of a potential transition to autonomous (technically, “robotic”) vehicles as an opportunity to limit driving-related hazards to their employees .

In a recent study, the U.S. Department of Commerce found that 15 million US workers (about one in every nine workers) drove vehicles as part of their jobs.  These jobs are concentrated in the transportation and warehousing industries. The study highlighted that the fatality rate (per 100,000 full-time equivalent workers) for motor vehicle operators from on-the-job roadway incidents involving motor vehicles is ten times the rate for all workers, and the numbers of roadway motor vehicle occupational injuries resulting in lost work time (per 100,000 full-time equivalent workers) is 8.7 times as large as that of all workers.

It should be noted that automated vehicles present their own hazards. OSHA has not yet weighed in on how employers should address hazards posed by autonomous cars and trucks at their facilities.

With regard to driving on public roads, the U.S. Department of Transportation and the National Highway Traffic Safety Administration (NHTSA) recently released new federal guidance for Automated Driving Systems (ADS), which should provide preliminary guidance with regard to some of the safety issues posed by autonomous vehicles. Employers should watch these developments closely, as new technologies change the marketplace and potentially affect employee safety.

Seyfarth’s attorneys have experience working with and advising employers on the hazards associated with robotics, the use of automated machinery, and autonomous vehicles. Please reach out to your Seyfarth attorney if you have any questions related to these issues.

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 Joshua M. HendersonIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis:  The California Division of Occupational Safety and Health (DOSH) recently held advisory meetings on the Agency’s draft rules for the Marijuana/Cannabis Industry and for the Heat Illness Prevention in Indoor Places of Employment.  It is seeking public comments.

Marijuana/Cannabis Industry Rulemaking

The advisory meeting on the DOSH Marijuana/Cannabis Industry Rulemaking was to “consider … whether specific requirements are needed to address exposure to second-hand marijuana smoke by employees at facilities where on-site consumption of marijuana is permitted under B&P Code section 26200(d), and whether specific requirements are needed to address the potential risks of combustion, inhalation, armed robberies, or repetitive strain injuries.” Public commenting is open. The advisory committee must present its finding and recommendations to the Standards Board by October 1, 2018, at which point the Board render a decision regarding whether to adopt the marijuana/cannabis standards.

Heat Illness Prevention in Indoor Places of Employment

The advisory meeting on the DOSH Heat Illness Prevention in Indoor Places of Employment was to “develop a proposed regulation for minimizing heat-related illness among workers in indoor places of employment.”  At the meeting, the public had an opportunity to provide input on a revised discussion draft developed in consideration of the comments received on a previous discussion draft. A side-by-side comparison table is provided along with options for an Amended Section 3395 (Option A) or Creating Standalone Indoor Standard (Option B).

The Cal/OSHA Advisory Committees are currently accepting comments on both of these topics.

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