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, Mark A. Lies, IIAdam R. YoungDaniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has recently released its National Emphasis Program on Trenching and Excavation, CPL 02-00-161 (October 1, 2018), which requires OSHA to open inspections against any contractor involved in trenching or excavation work and report information back to the Area Office and national online system.

OSHA has long maintained construction standards related to trenching and excavation safety, including 1926.650 (Scope, application, and definitions applicable to this subpart), 1926.651 (Specific Excavation Requirements), and 1926.652 (Requirements for protective systems).  In 2017, the regulation governing cave in protection (1910.655(a)(1)) alone was cited against more than 500 employers.  On top of OSHA citations, trenching and excavation fatalities have been a source of criminal prosecution by federal and state authorities.  To effectuate enforcement of this hazard, OSHA has released a new National Emphasis Program, replacing OSHA’s earlier Special Emphasis: Trenching and Excavation, CPL 02-00-069 (September 19, 1985).

In its news release on the Directive, Deputy Assistant Secretary of Labor for OSHA Loren Sweatt said “removing workers from and helping workers identify trenching hazards is critical….  OSHA will concentrate the full force of enforcement and compliance assistance resources to help ensure that employers are addressing these serious hazards.”  The NEP indicates that according to Census of Fatal Occupational Injuries (CFOI) data, there were 130 fatalities recorded in trenching and excavation operations between 2011 and 2016.  Private construction industry accounted for eighty percent, or 104, of those fatalities.  OSHA noted that it has a series of compliance assistance resources to help keep workers safe from trenching and excavation hazards.  The trenching and excavation webpage provides information on trenching hazards and solutions.

The 2018 NEP mandates that the Area Offices, beginning on October 1, 2018 roll out the Program with a “three-month period of education and prevention outreach.” During that period, OSHA will continue to respond to complaints, referrals, hospitalizations, and fatalities.

“Enforcement activities will begin after the outreach period and remain in effect until canceled.”  The NEP mandates intense new scrutiny of trenching and excavation operations.  The Program requires compliance officers (CSHOs) to initiate an inspection any time they observe a trench or excavation, whether observed during an inspection or merely in the course of their workday travel.  Accordingly, employing its Multi-Employer Worksite Doctrine, OSHA will be required to record and open an inspection against each employer who may have OSHA liability over trenching and excavation operations, including general contractors, subcontractors, and independent contractors.  Compliance officers must also promptly notify their Area Office of the trenching operation, state of the excavation, and any contractors involved.  They also must take photographs to document the worksite.

All enforcement activities by compliance officers must be recorded in OSHA’s online information system (OIS), creating a searchable database of trenching and excavation information.

Accordingly, construction contractors conducting trenching and excavation operations will face a greatly increased chance of an OSHA inspection and regulatory scrutiny, especially those operations that are located on major thoroughfares and high-profile locations or in areas likely to be travelled by OSHA inspectors.  Employers should consult with safety professionals and outside counsel to ensure compliance with the relevant OSHA Standards.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) 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, Patrick D. Joyce, and Craig B. Simonsen

In anticipation of its proposed rule to reduce carbon emissions of existing electric power plants, expected to be released Monday, June 2, EPA just released its report Climate Change Indicators in the United States, 2014, Third Edition (Report), showing some stunning data about climate change and industry’s responsibilities.

The Report details the science behind climate change and is a tool to educate the public about the causes and effects of climate change and what can potentially be done to reduce the effects of global warming.

We had blogged previously about President Obama’s “Plan to Cut Carbon Pollution and Address Climate Change” – the Climate Action Plan. In making his case for the Plan, in June, 2013, the President said “while no single step can reverse the effects of climate change, we have a moral obligation to future generations to leave them a planet that is not polluted and damaged. Through steady, responsible action to cut carbon pollution, we can protect our children’s health and begin to slow the effects of climate change so that we leave behind a cleaner, more stable environment.” P. 4.

The EPA Report represents the next step in the President’s Climate Action Plan. The Report pulls together “observed data on key measures” of our environment, also known as “indicators.” These indicators include: U.S. and global temperature and precipitation, ocean heat and ocean acidity, sea level, and the length of the growing season, among others. With thirty indicators suggesting “long-term trends,” the Report asserts climate change is already affecting our society and says the “indicators present compelling evidence that climate change is happening now in the United States and around the world.”

Janet McCabe, Acting Assistant Administrator for EPA’s Office of Air and Radiation, suggested that these indicators “make it clear that climate change is a serious problem and is happening now here in the U.S. and around the world.” While all of the indicators relate to the causes or effects of climate change, they also show that humans can have different levels of influence on different indicators.

The Report is consistent with the recently released National Climate Assessment in suggesting this data “presents clear evidence that the impacts of climate change are already occurring across the United States.”

Some important indicators in the Report that show a trend toward a changing climate include:

  • Temperature: Average temperatures have risen across the contiguous 48 states since 1901, with an increased rate of warming over the past 30 years. Seven of the top 10 warmest years on record have occurred since 1998. Every part of the Southwest experienced higher average temperatures between 2000 and 2013 than the long-term average dating back to 1895. Some areas were nearly 2°F warmer than average.
  • Violent storms: Tropical storm activity in the Atlantic Ocean, the Caribbean, and the Gulf of Mexico has increased during the past 20 years.
  • Rising sea level: Along the U.S. coastline, sea level has risen the most along the Mid-Atlantic coast and parts of the Gulf Coast, where some stations registered increases of more than 8 inches between 1960 and 2013.
  • Ice loss: Glaciers have been melting at an accelerated rate over the past decade. The resulting loss of ice has contributed to the observed rise in sea level.
  • Increased frequency and size of wildfires: Since 1983, the United States has had an average of 72,000 recorded wildfires per year. Of the 10 years with the largest acreage burned, nine have occurred since 2000, with many of the largest increases occurring in western states.
  • Drought: Water levels in the Great Lakes have declined steadily over the last few decades.
  • Heat-related deaths: Over the past three decades, nearly 8,000 Americans were reported to have died as a direct result of heat-related illnesses such as heat stroke. The annual death rate is higher when accounting for other deaths in which heat was reported as a contributing factor.

The Report purports to represent the state of the science as collected and digested by the EPA. The analysis goes a long way toward supporting and moving forward the President’s Climate Action Plan and his insistence that now is the time to act.

Assessing the Impact of Proposed New Carbon Regulations in the United States

Also in preparation Monday’s proposed power plant rules release, The U.S. Chamber of Commerce’s (Chamber) Institute for 21st Century Energy (Energy Institute) commissioned IHS Energy and IHS Economics to examine and quantify the expected impacts of the proposed power plant rules on the electricity sector and the economy as a whole, based on policy scenarios provided by the Energy Institute.

The Energy Institute’s analysis focuses on the economic impacts of EPA’s proposed rules on CO2 emissions from fossil fuel-fired electricity generating plants under the Clean Air Act. According to the Chamber’s analysis, the rules threaten to suppress average annual U.S. Gross Domestic Product by $51 billion and will lead to an average of 224,000 fewer U.S. jobs every year through 2030, relative to baseline economic forecasts. The proposed power plant rules are a central part of the President’s Climate Action Plan.

When discussing changes that can be made to address climate change, Acting Assistant Administrator McCabe says “everything we do to reduce greenhouse gas emissions and prepare for the changes that are already underway will help us safeguard our children’s future.”  Maybe it is time for Smokey the Bear to change his tune and tell the public “Only You Can Prevent Climate Change.”

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.