2017 USACOE Nationwide Permits

March 16, 2017 1 PM EST

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EPA to Review Oil and Gas Waste Regulations

Swamp Stomp

Volume 17, Issue 8

As a result of a lawsuit from several environmental groups that was brought forward in May of 2016, the Environmental Protection Agency (EPA) has agreed to look into its regulations regarding how companies should dispose of oil and gas waste.

“Safeguards to protect our scarce water resources in the San Juan Basin, home to 40,000 wells, have been ignored for far too long,” said Dan Olson, executive director of San Juan Citizens Alliance. “Updating rules for oil and gas waste, deemed inadequate 30 years ago, is critical for this region.”

In May 2016, a coalition of environmental groups came together and filed a lawsuit against the EPA.  They claim that the agency has failed to meet its own expectations set in the 1980s to review oil and gas regulations, as well as guidelines for states, every three years.

“Since that time, nearly nine successive three-year deadlines have passed with no further review,” according to a notice of intent filed in August 2015. “(Current regulations) do not specifically address issues relevant to the modern oil and gas industry.”

A settlement was reached between the EPA and environmental groups on December 20, 2016.  Per the agreement, the EPA will review its regulations on oil and gas waste, and if the agency deems it “necessary,” make revisions to the guidelines.

The deadline for the EPA to determine whether or not changes are warranted for “wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy” is March 15, 2019.

Per the agreement and the court document, the EPA must make a formal announcement no matter what their decision is, and then they must provide a decision of notice to the environmental groups who brought forth the lawsuit within seven days of their announcement.

“The EPA itself deemed current regulations inadequate nearly 30 years ago,” said Erika Brown, with the San Juan Citizens Alliance. “The consent decree is a big step forward for holding the EPA accountable to regulate oil and gas waste in ways that protect human and environmental health.”

Part of the settlement includes a clause regarding then President elect and now President Donald Trump.  It discusses the possibility that President Trump will make good on his promise to defund the EPA.  “(Environmental groups) and EPA recognize that the possibility exists that a lapse in appropriations by Congress resulting in government shutdown could delay EPA’s performance of obligations contained in this Consent Decree,” the court document says.

“In the event of a government shutdown affecting EPA that occurs within 120 days prior to a deadline … deadline shall be extended automatically one day for each day of the shutdown.”

Other plaintiffs in the lawsuit, filed in the U.S. District Court for the District of Columbia, include the Environmental Integrity Project, Natural Resources Defense Council, Earthworks, Responsible Drilling Alliance, West Virginia Surface Owners’ Rights Organization, and the Center for Health, Environment and Justice.

Do you think the EPA will make any changes to the regulations after their review?

Source: Romeo, Jonathan. “EPA Agrees to Review Regulations on Oil and Gas Waste.” Durangoherald.com. Durango Herald, 12 Jan. 2017. Web. 08 Feb. 2017.

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Will the Tailoring Rule Stay?

Swamp Stomp

Volume 17, Issue 7

Though the Tailoring Rule was not finalized until May 13, 2010, the reason the Environmental Protection Agency (EPA) created the rule dates back to President George W. Bush’s administration.  Under Bush’s term, the Supreme Court ruled that if the EPA designated emissions as a “hazardous air pollutant,” then the EPA was allowed to regulate the pollutant under the Clean Air Act.  The Clean Air Act states that if more than 10 tons of one hazardous air pollutant or 25 tons of a combination of hazardous air pollutants is or has the potential to be admitted by one source, than that source needs to have a permit from the EPA.

The measurement used for the Clean Air Act was tons not percentages, which is 1,000 times larger than tons.  This becomes a problem if a gas like carbon dioxide (CO2) is classified as a hazardous air pollutant because it is measured in percent not tons.  Under the Clean Air Act, if CO2 is classified as a hazardous air pollutant, then millions of sources including schools and churches would need to acquire permits.  The EPA is not equipped to handle that many requests for permits.  The EPA was not overloaded with permit requests under Bush’s administration because they did not classify CO2 as a hazardous air pollutant, so their only permit requests came from big industries.

That was not the case for the Obama administration.  The EPA under the Obama administration classified CO2 as a hazardous air pollutant, so they needed to come up with a solution to shrink the number of requests for permits.  Thus the controversial Tailoring Rule was created.  The Tailoring Rule increased the threshold for sources requiring permits for CO2 and other greenhouses gases to 100-250 tons per year, a hundred times increase to what is required by the Clean Air Act.  Additional the Tailoring Rule states that if a source was admitting greenhouse gases and other hazardous air pollutants than they would need a permit if their emissions exceeded 75,000 tons per year.  Sources would also need a permit if their greenhouse gas emissions exceeded 100,000 tons per year regardless of the amount of other hazardous air pollutants they emitted.

While this solved the EPA’s problem regarding the number of permit requests they would receive, the new was very controversial.  Regulatory agency are not supposed to be able to change laws, they are just supposed to enforce them.  The EPA is a regulatory agency and the Clean Air Act is a law.  By creating the Tailoring Rule, the EPA is changing the law so that they would not be overrun by the number of permit request they would get.  Legal analysts agree that the Tailoring Rule oversteps the EPA’s bounds but the Tailoring Rule is still in effect today.

With a new administration in the White House, the question becomes will the new administration keep or do away with the Tailoring Rule?  If they do away with the Tailoring Rule, will the EPA change the classification of CO2 and other greenhouses gases as hazardous air pollutants and if not, how will the EPA deal with the number of permit requests they will receive?  At the moment, we will just have to wait and see if the new administration will even address the Tailoring Rule or just let it be.

“Clean Air Act Permitting for Greenhouse Gases.” EPA. Environmental Protection Agency, 29 Nov. 2016. Web. 06 Feb. 2017.

“EPA’s “Tailoring” Rule.” Center for Climate and Energy Solutions. Center for Climate and Energy Solutions, n.d. Web. 06 Feb. 2017.

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New EPA Program with $1 Billion Available for Water Infrastructure

Swamp Stomp

Volume 17, Issue 6

The U.S. Environmental Protection Agency (EPA) stated that about $1 billion in loans are now available to be used towards water infrastructure projects under the new Water Infrastructure Finance and Innovation Act (WIFIA) program.

The type of loans the EPA’s WIFIA program will provide are long-term, low-cost credit assistance and will come in the form of direct loans and loan guarantees to creditworthy water projects.  In addition to the State Revolving Funds and bond market, WIFIA is another way to receive funding on large infrastructure projects that cost at least $20 million.  The WIFIA program is open to state, local, and tribal governments; private entities; partnerships; and State Revolving Fund programs.  It has been estimated by EPA that funds appropriated to the WIFIA program can be leveraged at a ratio greater than 50 to one, this means the programs budget of $17 million could allow the EPA to make approximately $1 billion in loans and stimulate about $2 billion in total infrastructure investment.

“The launch of the Water Infrastructure Finance and Innovation Act program marks a huge step forward for modernizing our nation’s aging water infrastructure,” said EPA Administrator Gina McCarthy. “WIFIA gives us a new opportunity to provide billions of dollars in low-interest loans to communities to build large infrastructure projects, significantly accelerating investments that benefit our nation’s public health and water security for generations to come.”

The Environmental Protection Agency is only allowed to loan out the Water Infrastructure Finance and Innovation Act money on projects that improve water infrastructure.  Some examples of projects that are able to receive loans from WIFIA are:

  • drinking water treatment and distribution projects
  • wastewater conveyance and treatment projects
  • enhanced energy efficiency projects at drinking water and wastewater facilities
  • desalination, aquifer recharge, alternative water supply, and water recycling projects
  • drought prevention, reduction, or mitigation projects

To determine whether projects fall under Water Infrastructure Finance and Innovation Act funding, the Environmental Protection Agency will be considering the extent to which the project is nationally or regionally significant, helps maintain or protect public health or the environment, protects against extreme weather, and serves regions with significant water resource challenges.  Selections will be made by the EPA on a competitive basis.

It has been estimated by the Environmental Protection Agency that the United States needs about $660 billion in investments that go towards drinking water, wastewater, and storm water infrastructure over the next 20 years.

To find out more information about the Water Infrastructure Finance and Innovation Act program visit www.epa.gov/wifia.

Do you think the EPA should be putting their resources towards water infrastructure?  If not, what should the EPA be putting their time, money, and talents towards?  Do you think the EPA’s estimates about the amount needed to be invested towards drinking water, wastewater, and storm water infrastructure in the next 20 years is correct?  If not, why do you think the amount is too high or too low?

Source: “EPA Launches New Program With $1 Billion in Loans Available for Water Infrastructure Projects.” EPA. Environmental Protection Agency, 10 Jan. 2017. Web. 20 Jan. 2017.

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Corps Revises and Renews Permits

Swamp Stomp

Volume 17, Issue 5

On January 6th, The U.S. Army Corps of Engineers (Corps) announced revised and renewed nationwide permits.  These permits allow holders to work in streams, wetlands and other waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.  These renew and revised nationwide permits will go into effect on March 19, 2017 thus rendering the old permits expired on March 18, 2017.

The 2017 nationwide permits can be found on January 6th’s Federal Register at https://www.federalregister.gov/documents/2017/01/06/2016-31355/issuance-and-reissuance-of-nationwide-permits, and the Army Corps of Engineers website at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx.

“Our goal in developing and authorizing nationwide permits every five years is to update them, and provide clarity and certainty for the regulated public while protecting the aquatic environment. Our nationwide permits are an important tool in encouraging project proponents to avoid and minimize impacts to wetlands, streams, and other aquatic resources,” said Maj. Gen. Ed Jackson, USACE Deputy Commanding General for Civil and Emergency Operations.

“The updated permits streamline the requirements of the Clean Water Act, and are informed by extensive feedback from the public and other key stakeholders. USACE is reissuing 50 permits and adding two new ones. These permits provide expedited review of projects that have minimal impact on the aquatic environment. Categories of activities that may be covered under the NWPs include linear transportation projects, bank stabilization activities, residential development, commercial and industrial developments, aids to navigation and certain maintenance activities” (Army…).

A significant portion of the nationwide permits announced on January 6th do not have any major changes since 2012, which is last time the nationwide permits were authorized in accordance with the law.

The Corps division commanders may add, after public review and consultation, regional conditions to nationwide permits.  This would be done to protect local aquatic ecosystems such as fens or bottomland hardwoods, or to minimize adverse effects on fish or shellfish spawning, wildlife nesting or other ecologically critical areas.

Some of the revised and new nationwide permits include:

  • Corps reissued 50 existing permits and added two new ones.
  • Nationwide permit 48 – The NWP 48 for Existing Commercial Shellfish Aquaculture Activities is revised to provide greater flexibility in its use. For example, NWP 48 now incorporates provisions that authorize activities that are consistent with other federal, state, tribal and local regulatory authorities. Incorporating these already authorized activities will reduce the number of activities that require review by individual USACE districts.
  • Nationwide Permit 53 – This new NWP covers the removal of low-head dams. The removal of these dams will restore rivers and streams, and will improve public safety by removing dams that can pose hazards to swimmers and to users of small recreational craft.
  • Nationwide Permit 54 – This new NWP covers the construction and maintenance of living shorelines, a technique to protect coastal property from erosion while providing some aquatic habitat and water quality benefits.

Do you agree with the revisions made by the Corps?

Source: “Army Corps of Engineers Revises and Renews Nationwide Permits.” U.S. Army Corps of Engineers. U.S. Army Corps of Engineers, 06 Jan. 2017. Web. 24 Jan. 2017.

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Maryland gets $537,000 from EPA to Protect Wetlands

Swamp Stomp

Volume 17, Issue 4

On December 8, 2016, the U.S. Environmental Protection Agency (EPA) awarded the Maryland Department of the Environment (MDE) $537,000 to use towards a project creating a web-based system for submitting wetland permit applications, photographs, and plans for restoration projects electronically.

“Wetlands play a significant role in protecting our nation’s water supply,” said EPA Regional Administrator Shawn M. Garvin. “By taking action to protect and restore these valuable resources, MDE is protecting sources of drinking water, preventing flooding, and making us more resilient to climate change.”

“Wetlands are workhorses for protecting the Chesapeake Bay and increasing the quality of our lives throughout the state,” said Maryland Secretary of the Environment Ben Grumbles. “Web-based permitting for wetlands will improve customer service and deliver environmental results, such as cleaner water, healthier habitat, and more resilient communities.”

“The Clean Water Act recognizes the dangers of upstream pollution sources. As water flows downstream it can carry pollutants with it. Wetlands are instrumental in eliminating or treating pollution, and can have a huge impact on receiving waters located downstream” (McKinney).

Over the course of the year 2016, the EPA’s mid-Atlantic region announced the granting of $2.8 million to be used towards Wetland Program Development Grants.  Some of the other areas to receive these EPA grants were the Delaware Department of Natural Resources and Environmental Control, Virginia Institute of Marine Science, Virginia Department of Environmental Quality and the Pennsylvania Department of Environmental Protection.

The purpose of Wetland Program Development Grants are to use them to build and refine comprehensive wetland programs, with priority given to funding projects that address: developing a comprehensive monitoring and assessment program; improving the effectiveness of compensatory mitigation; and refining the protection of vulnerable wetlands and aquatic resources.

To learn more information about Wetland Program Development Grants go to http://water.epa.gov/grants_funding/wetlands/grantguidelines/index.cfm.

Source: McKinney, Jesse. ” EPA Awards $537,000 to Maryland to Protect Wetlands.” Maryland Department of the Environment. Maryland Department of the Environment, 08 Dec. 2016. Web. 09 Jan. 2017.

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WOTUS Ruling Goes to the Supreme Court

Swamp Stomp

Volume 17, Issue 3

On Friday January 13, 2017, the Supreme Court announced that it will decide the proper channel to challenge the Obama administration’s new Waters of the United States” or WOTUS.  The Pacific Legal Foundation (PLF) believes that WOTUS “…threatens millions of property owners with unjustified federal oversight by vastly expanding the reach of the Clean Water Act in violation of federal law.”

Justices granted an industry petition asking the court to reconsider the 6th U17.S. Circuit Court of Appeals’ decision to hear legal challenges over Waters of the United States rule.

“More than 30 states and many industry and farm groups have challenged the joint U.S. EPA and Army Corps of Engineers rule redefining what waterways and wetlands receive automatic protection under the Clean Water Act” (Reilly).

The Supreme Court accepted the case of National Association of Manufacturers v. U.S. Department of Defense.  In the Sixth U.S. Circuit Court of Appeals, they ruled using a restrictive approach to judicial relief, which allows only federal courts of appeals to hear WOTUS challenges.  This means that angry landowners and others regulated by WOTUS cannot take legal action through federal trial courts, instead, their lawsuits would all go to the first appellate court to consider a challenge.

“In February, the Ohio based 6th Circuit ruled 2­1 that it had jurisdiction to hear the challenges. The 6th Circuit also issued a nationwide stay of the rule pending the resolution of the litigation” (Reilly).

This jurisdictional ruling was appealed to the Supreme Court by the National Association of Manufacturers.  They were later joined by the Pacific Legal Foundation, who joined as a direct litigant, on behalf of a number of landowners, farmers, and ranchers throughout the country.  The outcome of the Supreme Court’s ruling is very important because it could affect how and where plaintiffs may challenge questionable rulemaking under the Clean Water Act in future cases, and perhaps other laws as well.

The agreement by the Supreme Court to hear this case and review the Sixth Circuit’s ruling is not what the Obama administration was hoping to hear.  The administration has been fighting to keep the fights out of district courts that they feel may be more sympathetic towards those challenging the rule.

The fate of the Clean Water Act is even more up in the air due to the fact that it is expected that President-elect Donald Trump will work to get rid of the act once in office.

Not only is the Pacific Legal Foundation a part of this Supreme Court case, they are also challenging the WOTUS rule in the Sixth Circuit.

“The Supreme Court’s announcement is encouraging news for millions of landowners nationwide who have been uncertain where to file suits challenging federal regulations that define the scope of the Clean Water Act,” said PLF Principal Attorney M. Reed Hopper, who wrote PLF’s brief asking the court to hear the case.  “The Sixth Circuit read the Clean Water Act far too narrowly when it limited jurisdiction over WOTUS challenges to federal appellate courts. We expect the Supreme Court to overturn the Sixth Circuit decision.”

To learn more about this case and the Pacific Legal Foundation visit www.pacificlegal.org.

Sources: “PLF Applauds High Court Accepting WOTUS Jurisdictional Case.” Pacific Legal Foundation. Pacific Legal Foundation, 13 Jan. 2017. Web. 13 Jan. 2017.

Reilly, Amanda. “Justices Take up WOTUS Jurisdiction Dispute.” Greenwire. Greenwire, 13 Jan. 2017. Web. 13 Jan. 2017.