By Jeryl L. OlsonPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Last week before his departure USEPA Administrator Pruitt notified the regulated community that he had directed the Agency to update regulations governing the Agency’s use of Section 404(c) veto power in permitting discharges of dredged or fill materials under Section 404 of the Clean Water Act.

The U.S. Environmental Protection Agency’s (USEPA) current regulations implementing Clean Water Act (CWA) section 404(c) allow the Agency to veto at any time during the permitting process a permit issued by the U.S. Army Corps of Engineers (USACE) under CWA section 404(a) that allows for the discharge of dredged or fill material at permitted sites.  USEPA has historically taken the position that it can preemptively veto a permit before, during or after a 404(a) application is filed or a permit is issued.

In a memorandum last week, USEPA Administrator E. Scott Pruitt directed the Office of Water to develop a proposed rulemaking that would end USEPA’s preemptory and retroactive 404(c) veto power. Administrator Pruitt said that it was his goal to refocus EPA “on its core mission of protecting public health and the environment in a way that is fair and consistent with due process.”  He continued that EPA “must ensure that EPA exercises its authority under the Clean Water Act in a careful, predictable, and prudent manner.”

Administrator Pruitt indicated that the “regulations were last revised nearly 40 years ago“ and “EPA’s regulations should reflect today’s permitting process and modern-day methods and protections, including the robust existing processes under the National Environmental Policy Act.”

Accordingly, the memo directs USEPA’s Office of Water to develop a proposed rulemaking that would consider the following changes:

  • Eliminating the USEPA authority to initiate the section 404(c) process before a USACE 404(a) permit application has been filed with the USACE or a state, otherwise known as the “preemptive veto.”
  • Eliminating the authority of USEPA to initiate the section 404(c) veto process after a USACE 404(a) permit has been issued by the USACE or a state, otherwise known as the “retroactive veto.”
  • Requiring a Regional Administrator to obtain approval from USEPA Headquarters before initiating the section 404(c) veto process over a USACE 404(a) permit.
  • Requiring a Regional Administrator to review and consider the findings of an Environmental Assessment or Environmental Impact Statement prepared by the USACE before preparing and publishing notice of a proposed determination.
  • Requiring USEPA to publish and seek public comment on a final USEPA determination before such a determination takes effect.

We have previously blogged on related wetlands topics, including Supreme Court to Decide if Army Corps Initial Jurisdictional Determination to Regulate Wetlands Under CWA is Ripe for Judicial Review, Sackett v. EPA: Supreme Court Decides Unanimously In Favor Of Landowners, and New Wetlands Definition.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s 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, Patrick D. Joyce, and Craig B. Simonsen

US Supreme Court Capitol Hill Daytime Washington DCSeyfarth Synopsis: The Supreme Court decided that Army Corps’ jurisdictional determinations are judicially reviewable. This decision leaves open the question of whether other types of administrative decisions are immediately judicially reviewable.

In a significant victory for owners of private property, the Supreme Court of the United States (SCOTUS) decided this week that an Army Corps of Engineers (Corps) jurisdictional determination (JD) is a final agency action judicially reviewable under the Administrative Procedure Act (APA).  U.S. Army Corps of Engineers v. Hawkes Co., Inc., et al., No. 15-290, 578 U.S. ____ (May 31, 2016).

The issue presented was whether a so-called “approved” jurisdictional determination — the government’s determination that a wetland is regulated under the Clean Water Act (CWA) thereby requiring a permit to dredge or fill — is immediately reviewable. The Hawkes decision builds on the holding of Sackett v. EPA, 132 S. Ct. 1367 (2012) (see our earlier blog on the Sackett decision) where SCOTUS concluded that an EPA compliance order issued under the CWA requiring that a developer cease its filling activity of an allegedly regulated wetland was judicially reviewable. SCOTUS rejected the Government’s contention that the landowner has to await EPA’s judicial enforcement of that order.

Following Sackett, the Circuit Courts of Appeal have split as to whether a landowner receiving a JD finding the wetland to be CWA-regulated is final and reviewable — with the Eighth Circuit holding yes, and the Fifth Circuit holding no.

In Hawkes, the plaintiffs sought to mine peat from wetland property. The Corps upset that plan when it issued an approved JD that the property constituted “waters of the United States” (WOTUS), requiring the plaintiffs to obtain a permit to discharge dredged or fill materials into these “navigable waters.” Approved JDs present a definitive statement that waters of the United States are, or are not, present. The Corps also issues “preliminary” JDs that only tell a landowner that waters of the United States “may” be present. Preliminary JDs were not at issue in this case. An approved JD is binding upon the Corps and EPA. For example, where the JD concludes that a CWA-regulated wetland is not involved, it provides the landowner with a “safe-harbor” for five years, under which it is free to develop its property without need to obtain a permit. For this reason, SCOTUS concluded that the JD affects the plaintiffs’ rights and obligations and has legal consequences, making it reviewable.

This SCOTUS determination could have heightened importance in the context of the EPA’s and the Corps’ recent release of the Final Clean Water Rule: Definition of “Waters of the United States.” We blogged about this new rule when it was published. The new WOTUS rule will substantially increase the number of potential wetlands, making a challenge to the Corps’ Jurisdictional Determinations more likely now that SCOTUS has decided that they are judicially reviewable.

The Hawkes decision also leaves open questions of whether other types of administrative decisions are immediately judicially reviewable. In a related Law360 Expert Analysis (Water Case Shows Justices Warm To Review Of Fed. Agencies), Andy Perellis notes that “there is potentially a universe of agency actions such as guidance documents or opinion letters that in the past have evaded judicial review that may be reviewable because those agency determinations have immediate consequences.”

Supreme CourtSeyfarth Partner Andrew H. Perellis is quoted in this Law360 expert analysis, High Court Water Case Could Put Target On Agencies’ Backs (March 29, 2016).

The pending Supreme Court case, U.S. Army Corps of Engineers v. Hawkes Co. Inc. et al., no. 15-290, involves what constitutes a final agency action reviewable under the Administrative Procedure Act. We had previously blogged about this appeal, and its relation to Sackett v. EPA, 132 S. Ct. 1367 (2012). See our earlier blog on the Sackett decision. The case pertains to whether a “jurisdictional determination” regarding a wetland regulated by section 404 of the Clean Water Act is immediately reviewable in court. It is a follow-up case to the Supreme Court’s 2012 Sackett decision holding at a compliance order issued under Section 404 is immediately reviewable.

The Law360 article notes that “landowners and the U.S. Army Corps of Engineers will square off Wednesday at the U.S. Supreme Court in a test of when exactly a party may challenge the Corps’ determination that it has jurisdiction over a wetland — a case that could open government agency decisions up to more challenges across the board.”

In the analysis, Perellis concludes that “one of the key considerations for the high court will be to what extent there are real, tangible consequences in terms of what the property owner can or cannot do with a property following the issuance of a jurisdictional determination.”

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

Supreme CourtThe Supreme Court of the United States (SCOTUS) agreed on Friday to review an important Clean Water Act (CWA) decision issued by the Eighth Circuit in Hawkes Co., Inc., et al. v. U.S. Army Corps of Engineers, No. 13-3067 (April 10, 2015).

The issue presented for SCOTUS is whether an Approved Jurisdictional Determination — the first step in the wetlands permitting process — is immediately reviewable. The Supreme Court showed similar interest in  Sackett v. EPA, 132 S. Ct. 1367 (2012). See our earlier blog on the Sackett decision.  At issue in Sackett was an EPA compliance order issued under the CWA requiring that the developer cease its filling activity of an allegedly regulated wetland. Later, rather than sooner, judicial review can leave the landowner open to considerable expenses.

In Sackett, SCOTUS found the compliance order to be reviewable once issued, so that the landowner did not have to await EPA’s judicial enforcement of that order. Following Sackett, the courts have split as to whether  an Approved Jurisdictional Determination is similarly reviewable — with the Eighth Circuit holding yes, and the Fifth Circuit holding no.

In Hawkes, the plaintiff sought to mine peat from wetland property. The U.S. Army Corps of Engineers (Corps) upset that business plan when it issued an Approved Jurisdictional Determination that the property constituted “waters of the United States” (WOTUS), and therefore the company was  required to obtain a permit to discharge dredged or fill materials into these “navigable waters.”

Review of the Approved Jurisdictional Determination was brought before the District Court. The District Court concluded that an Approved Jurisdictional Determination, although the consummation of the Corps’ decisionmaking process, was not a “final agency action” subject to judicial review within the meaning of the Administrative Procedure Act, 5 U.S.C. § 704. While the appeal of that decision was pending before the Eighth Circuit, a panel of the Fifth Circuit reached a similar conclusion. Belle Co., LLC v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014), cert. denied, 83 U.S.L.W. 3291 (U.S. Mar. 23, 2015) (No. 14-493).

The Eighth Circuit concluded that the District Court (as well as the Fifth Circuit in Belle) “misapplied the Supreme Court’s decision in Sackett v. EPA, 132 S. Ct. 1367 (2012),” and reversed the District Court opinion.

The SCOTUS determination could have heightened importance in the context of the EPA and the Corps recent release of its Final Clean Water Rule: Definition of “Waters of the United States.” We had blogged about the new rule when it was published. The new WOTUS rule will substantially increase the number of potential wetlands, making challenges to the Corps’ Approved Jurisdictional Determinations more likely if SCOTUS determines that such a determination is judicially reviewable.

By Patrick D. Joyce, Philip L. Comella, and Craig B. Simonsen

iStock_000021343324_MediumThe U.S. Environmental Protection Agency last week finalized its rule to “modernize” Clean Water Act (CWA) regulatory reporting requirements for municipalities, industries, and other facilities.

According to the Agency’s news release the final rule will require regulated entities and state and federal regulators to “use existing, available information technology to electronically report data required by the National Pollutant Discharge Elimination System (NPDES) program instead of filing written paper reports.” EPA suggests that once the rule is fully implemented, the 46 states and other U.S. territories that are authorized to administer the NPDES program will collectively save about $22.6 million a year as a result of switching from paper to electronic reporting.

As part of the final rule the EPA will make facility-specific information, like inspection and enforcement history, pollutant monitoring results, and other data required by NPDES permits, accessible to the public through EPA’s website. Cynthia Giles, the Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance, indicated that “electronic reporting will give the public full transparency into water pollution sources, save millions of dollars, and lead to better water quality in American communities.”

During the rulemaking process, the EPA had held over 50 webinars and meetings to discuss the proposed rule. NPDES Electronic Reporting Rule, 78 Fed. Reg. 46006 (July 30, 2013). In response to state feedback, the final rule will provide “more flexibility for implementation,” providing more time for the transition from paper to electronic reporting, and more flexibility in how states can grant electronic reporting waivers to facilities.

Most facilities subject to effluent monitoring reporting requirements will be required to start submitting data electronically one year following the effective date of the final rule. A second phase will incorporate electronic reporting for other Clean Water Act reports such as performance status reports for municipal urban stormwater programs, controls on industrial discharges to local sewage treatment plants, and sewer overflows. Also in response to comments and suggestions from states, EPA is providing states with more time to electronically collect, manage, and share this data – up to five years instead of two years as initially proposed.

As indicated in the Agency’s proposed rule, electronic reporting has already been implemented in some states, and early findings showed improved data quality and data availability with reduced costs.

For municipalities, industries, and other facilities, as the Agency noted in its release, this rule will give the public “full transparency” into water pollution sources. Now would be a good time to consider your facility and the reporting that you have been doing. Will electronic filing make a difference to you in terms of time spent reporting or accessibility of reports to the public? Does it matter if the filed information is readily and more easily accessible to the public? Thinking about these questions before the new rule is implemented may cause you to think about changes in the way “things have always been done.” Your Seyfarth Shaw attorney is always available to answer any pressing questions you may have regarding this new rule.

By Jeryl L. Olson, Andrew H. Perellis and Patrick D. Joyce

The EPA and Army Corps of Engineers recently released its Final Clean Water Rule: Definition of “Waters of the United States.”

We had previously blogged about the Agency’s draft of the proposed rule that was distributed in November, 2013 as well as a “clarification” of the proposed rule distributed in March, 2014.

EPA claims that the Final Rule does not create any new or different regulatory requirements and is only a “definitional rule” that clarifies the scope of the “waters of the United States” under the Clean Water Act in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview Homes, 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).  Many commentators and experienced environmental practitioners, however, believe that the rule expands federal jurisdiction.  Challenges to the rule are expected, and the courts will have another say in determining the extent to which federal jurisdiction can extend to “waters,” including wetlands and ephemeral streams that are isolated, or otherwise not directly adjacent to what is considered to be a traditional navigable water or tributary to a traditional navigable water.

The Final Rule identifies three basic categories of jurisdictional waters (“the Big Three”) for which the scope of federal jurisdiction largely is not in dispute. These include:

  • Traditional navigable waters
  • Interstate waters
  • The territorial seas

Additionally, tributaries to the above, and wetlands adjacent to either tributaries or to the Big Three are considered to be regulated waters of the United States.

In addition, the Final Rule identifies a category of waters subject to case-specific analysis to determine whether they are jurisdictional.  The following six types of waters are jurisdictional if the satisfy the “significant nexus” test and therefore “significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas in the region:”

  • Prairie potholes
  • Carolina and Delmarva bays
  • Pocosins
  • Western vernal pools in California
  • Texas coastal prairie wetlands
  • Waters within the 100-year flood plain and that are within 4,000 feet of the tide line or the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, impoundments, or covered tributary (“similarly situated waters”)

Finally, the Final Rule identifies the following waters that are specifically excluded from jurisdiction:

  • Waste treatment systems and wastewater recycling structures on dry land
  • Prior converted cropland
  • Ditches with ephemeral or intermittent flow that are not a relocated tributary or excavated in a tributary and ditches that do not flow into another water
  • Irrigated lands that revert to dry land
  • Artificial lakes such as stock watering ponds, irrigation ponds, settling basins, rice fields, log ponds, and cooling ponds and artificial reflecting pools or swimming pools on dry land
  • Depressions incidental to mining or construction that may become filled with water
  • Erosional features, including gullies, rills, and ephemeral features such as ephemeral streams that do not have a bed and banks and ordinary high water mark
  • Puddles
  • Groundwater
  • Stormwater control features constructed to convey, treat, or store stormwater on dry land

The final rule differs from the proposed rule in some respects, three of which are noted below.

First, the proposed rule defined “floodplain” and “riparian area” in very scientific terms.  The final rule abandons this approach.  Instead, EPA uses a 100-foot measure from the ordinary high water mark in lieu of the term “riparian area.” Also, instead of just using the term “floodplain,” EPA now defines adjacent waters as being a maximum of 1,500 feet from the jurisdictional water and within the FEMA 100-year floodplain.

Second, unlike the proposed rule, the scope of the case-by-case significant nexus analysis now has a geographic limit.  Under the final rule, to be potentially subject to regulation, the water must be within 4,000 feet of the ordinary high water mark of a tributary and within the FEMA 100-year floodplain.

Third, the final rule clarifies the scope of regulation over ditches.  As proposed, a ditch is somewhat more narrowly regulated, and is jurisdictional only where it is (1) an ephemeral or intermittent ditch excavated in a tributary or constructed in order to relocate a tributary or (2) an intermittent ditch that drains wetlands directly into another jurisdictional water.

The final rule is complex and the regulated community should seek legal advice in determining how the new rule may apply in particular situations.

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 Jeryl L. Olson and Craig B. Simonsen

The Illinois Environmental Protection Agency (Illinois EPA) had first introduced the “eDMR” (electronic Discharge Monitoring Report) system in April 2004.

The eDMR system was developed so that National Pollutant Discharge Elimination System (NPDES) permittees with a computer and an Internet connection could complete, sign, submit, edit, and re-submit eDMR forms online. When the eDMR system was introduced it was completely voluntary, but the Illinois EPA was “strongly encouraging” NPDES permittees to use the eDMR reporting method.

In December 2013 Illinois EPA notified the regulated community that it had begun transitioning facilities to another DMR reporting program – NetDMR. The NetDMR system, like the eDMR system, is a Web-based tool that allows NPDES permittees to electronically sign and submit their DMRs. Illinois EPA claims that “NetDMR is a substantial improvement over eDMR.”

NetDMR is a Web-based tool that allows NPDES permittees to electronically sign and submit their discharge monitoring reports (DMRs) to the U.S. Environmnetal Protection Agency’s Integrated Compliance Information System (ICIS-NPDES) through its Central Data Exchange (CDX) node on the Environmental Information Exchange Network. The Illinois EPA has chosen NetDMR over the current electronic reporting tool, eDMR, due to the direct link to the U.S. EPA’s ICIS-NPDES, and “because it is more user friendly.”

Illinois EPA “strongly encourages you to transition to NetDMR as soon as possible, however due to the eDMR systems unreliable status you must transition to NetDMR no later than March 31, 2014.” In addition, if you are unable to immediately begin reporting utilizing NetDMR, “a three month supply of hardcopy paper preprinted DMRs will be provided for your convenience.”

For Illinois NPDES facilities, the NetDMR system appears to be a useful tool for maintaining compliance with facility NPDES permits. Keep in mind though, that like other e-filed reports, it will be promptly and publically available online for competitors and environmental groups to access and analyze, and reports noting exceedances may result in rapid enforcement. If a facility is regularly reporting exceedances of permit limits you should consult with your environmental counsel. Make sure that the plant is in compliance with its permit, or make a good paper trail as to why it is not.

By Philip L. Comella and Craig B. Simonsen

The U.S. Environmental Protection Agency has, in response to stakeholder requests, extended the due date for comments on its proposed rule to require electronic reporting for National Pollutant Discharge Elimination System (NPDES) paper-based reports. 78 Fed. Reg. 64435 (Oct. 29, 2013). Comments are now due on the proposed rule on or before December 12, 2013.

See our previous blog for greater detail about the proposed NPDES Electronic Reporting Rule, 78 Fed. Reg. 46006 (July 30, 2013). Basically, it would require permittees and regulators to use existing, available information technology to electronically report information and data related to the NPDES permit program, in lieu of filing written reports.

The Agency, in proposing the rule, had indicated that electronic reporting as implemented in some states had significantly improved data quality and data availability while reducing costs. Also, requiring electronic reporting would be a way to achieve data collection in an efficient and cost-effective manner. The Agency suggested that better nationally-available information would help improve the NPDES program overall.

You should consider now whether and to the extent that complying with this proposal  would cause your operations and business interests undue trouble and costs. This may be especially true for state and municipal entities that may be expected to use or create the systems needed to comply with the electronic reporting requirements. Filing a comment now may cause the federal regulators to reconsider a proposal, or at least provide you with a record of raising the issue.