Tag: Waters of the US

Waters of the State

The Swamp Stomp

Volume 15, Issue 42

On Friday, October 9, 2015 the United States Court of Appeals for the Sixth Circuit issued a stay of the US Environmental Protection Agency’s (EPA) and the US Army Corps of Engineers’ (Corps) new rule defining the scope of federal jurisdiction under the Clean Water Act (The Clean Water Rule). Until we hear otherwise, the Clean Water Rule is no longer in effect across the entire nation. The nationwide stay may be short-lived, and is contingent upon how the Sixth Circuit answers the key question regarding its own jurisdiction. There is a briefing on the jurisdictional issue is scheduled for completion on November 4, and the court indicated that its decision could be issued “in a matter of weeks.”

There are two sets of state lawsuits that have arisen as a result of the August, 28, 2015 Clean Water Rule. The first was alliance of 18 states (Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin) that filed motions with the Court seeking (1) a stay of the rule during the pendency of the court’s proceedings and (2) a ruling from the Sixth Circuit that it lacked jurisdiction to hear their appeals (enabling pursuit of their cases before the district courts). On July 28, 2015, the U.S. Judicial Panel on Multidistrict Litigation consolidated all Court of Appeals cases in the Sixth Circuit.

On August 27, 2015, the U.S. District Court for North Dakota granted such a motion filed by a second set of 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, North Dakota, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico). This was one day before the new Clean Water rules was set to go into effect. On September 4, 2015, the court clarified that the rule was enjoined only in the 13 plaintiff states, not nationwide. The EPA and the Corps promptly informed the public that enforcement of the new rule in all but the aforementioned 13 states would commence effective August 28, 2015. Enforcement would also pertain the 18 states in the other case.

The Sixth Circuit Court in a 2-1 decision issued a stay of the new Clean Water Rule on October 9, 2015. Two judges in the majority found that the petitioners had demonstrated a “substantial possibility of success on the merits of their claims,” specifically mentioning that it was “far from clear” that the new rule’s distance limitations were harmonious with the Supreme Court’s 2006 decision in Rapanos. The court also indicated that the process by which the distance limitations were adopted was “facially suspect” because the proposed rule did not include distance limitations, calling into question whether the final rule was a logical outgrowth of the proposal (as required under the Administrative Procedure Act). Finally, the court found that the government had not “persuasively rebutted” the petitioners’ argument that the rule’s bright-line distance limitations were devoid of specific scientific support.

In an interesting twist, the lone dissenting judge did not reach the merits of the petitioners’ motion, believing it was “not prudent for [the] court to act before it determines that it has subject-matter jurisdiction.” The majority of 2 countered that it had “no doubt” of the court’s authority to make orders preserving the status quo pending consideration of the outstanding jurisdictional question.

2015WoUSbooks

At the heart of this matter is the concept of states’ rights. The issue is that under the Clean Water Act the state makes the water quality decisions in regards to impacts to both waters of the US and waters that the state has legislated as jurisdictional by the state. As a not so minor point of fact, the Clean Water Rule has nothing to do with improving water quality. It simply designates what is and what is not regulated by the federal government. There is not one syllable in the rule that discusses how the implementation and enforcement of the rule will benefit water quality. We the regulated public are left to assume that if the federal government regulates the waterbody, it will by default become cleaner. It does not take much research to document that this is rarely the case. The recent disaster in Colorado comes to mind.

It is for this reason that under section 401 of the Clean Water Act the states are responsible for water quality decisions. The authors of the original Act recognized this for simple reason that water quality is best managed on a local level. It is simply not possible for a federal entity to have the sensitively to the local needs. This is underscored by another aspect of the Clean Water Act’s goal of transferring jurisdictional determination and permitting roles to the state. This is laid out in detail under section 404(g). It was never the intention of the Act’s authors for the federal government to perpetually run the Clean Water Act programs. Rather it was their intent to transfer this role to the states.

The EPA and Corps are on Constitutional shaky ground. At issue is the role of the federal government. In every wetland related Supreme Court case the Court has ruled based upon the Commerce Clause of the Constitution. The federal government can only regulate waters of the US in so far as the impacts to them effect interstate or foreign commerce. Unfortunately, the concept of significant nexus as defined by Justice Kennedy in the Rapanos case has been widely misinterpreted. A significant nexus to downstream waters has to effect interstate or foreign commerce in order to make a water body federally jurisdictional. Making the clean water “dirty” is not the same thing. The Commerce Clause must be satisfied to enable federal jurisdiction.

The states are not limited by the Commerce Clause. If the voting public in a state decides to pass legislation though their state representatives to protect a certain water body type, they are empowered to do this. However, this must take the form of legislation and not rule making. When the Supreme Court ruled in the SWANCC case that isolated wetlands (not commerce connected) are not federally jurisdictional, many state environmental departments tried to enforce rules to protect these types of wetlands. If there was not enabling state legislation, these rules fell apart.

The bottom line is the question as to whether the federal government can mandate regulation over land that would otherwise be regulated by the state without satisfying the Commerce Clause. There is also the small matter of the Administrative Procedures Act (APA) question as to the manner in which the rules have been vetted thought the public review process. It was sort of a bait and switch operation. However, this may delay the implementation of the Clean Water Rules but it most likely will not derail it. That matter is left to the state cases.

EPA and Army Corps of Engineers Withdraw Interpretive Waters of the U.S. Rule

Swamp Stomp

Volume 15, Issue 7

On January 29th, 2015, the EPA and Army Corps of Engineers announced a memorandum of understanding to withdraw the Interpretive Waters of the U.S. Rule. The “U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(1)(A)” originally outlined which conservation activities provide farmers an exemption from Clean Water Act permitting.

In the “Cromnibus” funding legislation that was passed in December 2014, Congress requested that the EPA and Army Corps of Engineers officially withdraw the IR due to “over burdensome” regulations on farming and ranching. Congress concluded that the rule not only created uncertainty instead of clarity, but also threatened fines of up to $37,500 per day.

Some members of Congress spoke in opposition to the rule before the legislation was passed requesting that the rule be withdrawn. Last October, Republican members of the Senate Ag Committee advised that the IR would move the NRCS into an enforcement role instead of creating a trusted source for conservation assistance.

The senators claimed, “This unique relationship is built on voluntary conservation programs and a mutual commitment to protecting natural resources and keeping land in agriculture. Bringing USDA into the Clean Water Act permitting process would profoundly shift the nature of this successful approach by dismantling a longstanding partnership between the Federal government and agriculture community.”

The rule offered 56 “normal farming and ranching” exemptions under Natural Resources Conservation Service regulations. However, most farm groups opposed the rule. The opponents to the rule argued that using these practices as CWA exemptions would alter farmer-NRCS interaction and dispirit environment best practices.

Robert Bonnie, the Under Secretary for the Natural Resources and Environment at the USDA, however, claimed that any practices implemented by the rule would be voluntary, and are designed to assist farmers avoid the time and cost of permitting.

Bonnie’s claim was refuted by the Senior Director of Regulatory Relations at the American Farm Bureau Federation, Don Parrish. He said, “I heard Mr. Bonnie say that the only way to be in compliance with the Clean Water Act is if you do these 56 practices the way NRCS standards say you have to do them—and they are very prescriptive, they use a lot of ‘shalls’—if a farmer builds a fence that does not comply with NRCS’ standards, the cloud then is that he’s violated the Clean Water Act.”

On February 2, 2015, Jamie Jonker, vice president for sustainability and scientific affairs for the National Milk Producers Federation, stated, “Our concern with the initial proposal from last year is that it could have altered the longstanding and productive relationship between farmers and the USDA’s Natural Resources Conservation Service, in a way that would have made it harder for farmers to implement water conservation measures.”

The official IR withdrawal notice was put into effect on January 29, 2015. The Waters of the U.S. proposal, however, remains in consideration by the EPA and the Army Corps of Engineers. The final comment period on the full “Waters of the U.S.” proposal closed November 14, 2014.

The memorandum withdrawing the Interpretive Rule can be found here: http://www2.epa.gov/uswaters/memorandum-withdrawing-interpretive-rule

Wetland Delineation Backlog

Swamp Stomp

Volume 14, Issue 32

On July 30, 2014 roughly 350 farmers from across eastern South Dakota attended a public forum with Natural Resource Conservation Service (NRCS) officials to discuss issues related to wetland delineations. The forum was spooned by South Dakota Farm Bureau, South Dakota Soybean Association (SDSA), South Dakota Corn Growers, and the South Dakota Farmers Union. As of July 1, 2014 the NRCS has reported that there are over 5,130 wetland determination requests in the Prairie Pothole region of the US waiting to be reviewed. South Dakota leads the backlog with over 2,993 requests.

NRCS estimates that it takes one to two years to process a wetland determination request given this backlog. It is the hope of both NRCS and the farmers to find a way to bring this time frame down to one year or less. Once a farmer does receive the wetland delineation, he or she has only 30 days to take action if an appeal is desired. This was a point of concern given that 30 days is a relatively short length of time. This is especially a problem if the appeal occurs during a farmer’s peak planting or harvest season.

“The number of people attending this forum speaks to the importance of finding a solution to the backlog and confusion over how wetland delineations are handled,” said Wayne Smith, Executive Director of the South Dakota Farm Bureau, which represents 14,000 farm, ranch, and rural families across the state. “These farmers are sincere in their desire to work with the NRCS, but they also want to be able to get information in a timely way and to know that that information is consistent and science-based.”

Much of the backlog is related to the current NRCS policy that all wetland delineations submitted by a consultant on the farmer’s behalf must be field inspected by NRCS. Even if this is a spot check the time to travel to the site and spend just a few minutes on-site really adds up when you look at the number so these inspections that must be done. If you allotted just 4 hours per site, which would include travel to and from the farm it would take over 6 years for one inspector to clear the current t backlog in South Dakota alone. There are three individuals listed as NRCS wetland specialists in South Dakota. So, if these three folks eat and sleep in the wetlands and only do inspections, they could easily knock this out in 2 years. They cannot go back to the office and must visit at least two sites per day.

I have run into some pretty intense work schedules in my nearly 30 years in the wetland delineation business. However this beats all. I do not see how anyone could ever keep up this regime without burning out.

These wetland delineations are being done for compliance with a variety of USDA agricultural programs. The USDA program is not a regulatory compliance program. The wetland delineations are done to help NRCS evaluate eligibility for a number of USDA subsidy programs. It is the current policy of the USDA to avoid wetland impacts to the maximum extent possible. A farmer who impacts a wetland runs the risk of losing farm subsidies and depending upon the date of impact could be forced to return prior subsidy monies.

If a farmer has impacted a wetland there is also the possibility of Clean Water Act (CWA) violations being discovered by the Corps and EPA. This too has severe labor concerns as there are far fewer regulators able to look at potential violation sites.

There have been a couple of suggestions to solve the review problem. One suggestion is to employ remote sensing technologies to confirm the presence of wetlands. Currently NRCS does do this to a limited extent. At issue is that many farmers have reported that when NRCS uses offsite methods more areas are determined to be wetlands then the on-site methods would reveal. The main issue is the presence or abscess of hydric soils. Many of the prairie potholes lack any hydric soil indicators and consequently are not wetlands.

In many cases even if the prairie pothole is a wetland it may be deemed isolated and not subject to wetland regulation under the Clean Water Act. However, USDA policy usually precludes impacts to wetlands whether or not they are waters of the US. Under current CWA rules isolated wetlands are not waters of the US. Under the proposed new CWA rules they would be jurisdictional. The new rules make it quite clear that all prairie potholes are waters of the US regardless of the presence of hydric soils.

The solution to the backlog seems to be found in the new CWA rules. If there is no dispute that prairie potholes are waters of the US, then there should be no reason for a backlog. Categorically these areas would be waters of the US and there would be no need for a wetland delineation. It would be fairly easy to identify the prairie potholes remotely as they do tend to stand out on an air photo. There would be no need for a soils investigation so there is no real reason to ever leave the office.

Perhaps this is a solution. Prairie potholes are a unique landform and offer a variety of ecological benefits. However, there is a significant economic impact to the farmers in this region if they have to develop a total avoidance practice. It may not even be possible for this to be achieved. Unfortunately, the new CWA rules do not address these economic impacts at all. The Whitehouse Office of Management and Budget (OMB) report on these new rules is focused entirely on the cost to manage compliance and never addresses the cost to the public. In my humble opinion there needs to be a balance between environmental stewardship and the economic impacts of that stewardship. In this case perhaps the non-wetland prairie potholes should be exempt from the CWA rules. However, this will bring the backlog back on line.

What do you think?

2014 EPA Water Rule Changes

The Swamp Stomp

Volume 14, Issue 10

As of the end of 2013, the US EPA has announced 134 new and modified agency rule changes.    It is a health list when compared to the 53 new rules in 2012.  They have been quite busy.  The rules are separated into major areas that include: air, chemical safety, solid waste and water.  The vast majority of these new rules are focused on greenhouse gas emissions, client change and the like.  However, water issues are quite significant.  There are 14 new water rules under consideration and include the definition of “Waters of the United States” Under the Clean Water Act.

To help you sort though all of this I have included the 14 water rule changes along with a brief summary of each one.

epa

Pre-rule Stage

RID:  2040-AF43

Title:  NPDES Regulations to Address Water Quality Impacts from Forest Road Discharges

Summary:  The EPA is exploring the use flexible non-permitting approaches under the Clean Water Act to regulate certain discharges of stormwater from forest roads, including logging roads, in order to address water quality impacts from those discharges. The EPA recognizes that effective best management practices (BMPs) exist that protect receiving waters and minimize impacts. The EPA is considering approaches that leverage effective BMP programs.

RID:  2040-AF46

Title:  Section 610 Review of National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines Standards for Concentrated Animal Feeding Operations

Summary:  The EPA promulgated revised regulations for Concentrated Animal Feeding Operations (CAFOs) on February 12, 2003 (68 FR 7175). The “2003 CAFO Rule” expanded the number of operations covered by the CAFO regulations and included requirements to address the land application of manure from CAFOs. The 2003 CAFO Rule required all CAFOs to seek NPDES permit coverage.

Proposed Rule Stage

RID:  2040-AD39

Title:  Uniform National Discharge Standards for Vessels of the Armed Forces – Phase II

Summary:  CWA section 312(n) directs EPA and DoD to establish national discharge standards for discharges incidental to the normal operation of a vessel of the Armed Forces. The proposed standards will apply to approximately 6,000 vessels of the Armed Forces and are intended to reduce the adverse environmental impacts associated with the discharges, stimulate the development of improved pollution control devices, and advance the development of environmentally sound ships by the military.

RID:  2040-AF03

Title:  Development of Best Management Practices for Recreational Boats under Section 312(o) of the Clean Water Act

Summary:  The Clean Boating Act amends section 402 of the Clean Water Act (CWA) to exclude recreational vessels from National Pollutant Discharge Elimination System permitting requirements. In addition, it adds a new CWA section 312(o) directing EPA to develop regulations that identify the discharges incidental to the normal operation of recreational vessels (other than a discharge of sewage) for which it is reasonable and practicable to develop management practices to mitigate adverse impacts on waters of the United States.

RID:  22040-AF16

Title:  Water Quality Standards Regulatory Clarifications

Summary:  EPA proposed changes to the water quality standards (WQS) regulation to improve its effectiveness in helping restore and maintain the Nation’s Waters. The core of the current WQS regulation has been in place since 1983.  These revisions will allow EPA, States, and authorized tribes to better achieve program goals by providing clearer more streamlined requirements to facilitate enhanced water resource protection.

RID:  2040-AF25

Title:  National Pollutant Discharge Elimination System (NPDES) Application and Program Updates Rule

Summary:  EPA plans to propose regulations that would update specific elements of the existing National Pollutant Discharge Elimination System (NPDES) in order to better harmonize regulations and application forms, improve permit documentation and transparency, and provide clarifications to the existing regulations. In this effort EPA plans to address application, permitting, monitoring, and reporting requirements that have become obsolete or outdated due to programmatic, technical or other changes that have occurred over the past 35 years.

RID:  2040-AF30

Title:  Definition of “Waters of the United States” Under the Clean Water Act

Summary:  After U.S. Supreme Court decisions in SWANCC and Rapanos, the scope of “waters of the US” protected under all CWA programs has been an issue of considerable debate and uncertainty. The Act has a single definition for “waters of the United States.” As a result, these decisions affect the geographic scope of all CWA programs. SWANCC and Rapanos did not invalidate the current regulatory definition of “waters of the United States.” However, the decisions established important considerations for how those regulations should be interpreted, and experience implementing the regulations has identified several areas that could benefit from additional clarification through rulemaking. U.S. EPA and the U.S. Army Corps of Engineers are developing a proposed rule for determining whether a water is protected by the Clean Water Act. This rule would make clear which waterbodies are protected under the Clean Water Act.

RID:  2040-AF48

Title:  Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act; Analysis and Sampling Procedures

Summary:  This regulatory action would amend “Guidelines Establishing Test Procedures for the Analysis of Pollutants” at 40 CFR part 136 to approve test procedures (analytical methods) for use by testing laboratories for water monitoring. These test procedures are used to implement the National Pollutant Discharge Elimination System (NPDES) program unless an alternate procedure is approved by a Regional Administrator. The regulation would also revise, clarify, and correct errors and ambiguities in existing methods and the water monitoring regulations.

Final Rule Stage

RID:  2040-AC84

Title:  National Pollutant Discharge Elimination System (NPDES): Use of Sufficiently Sensitive Test Methods for Permit Applications and Reporting

Summary:  EPA is launching an effort to update specific elements of the existing NPDES regulations in order to provide clarifications related to the NPDES permit application and NPDES permit monitoring analytical detection level requirements.

RID:  2040-AE95

Title:  Criteria and Standards for Cooling Water Intake Structures

Summary:  Section 316(b) of the Clean Water Act (CWA) requires EPA to ensure that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available (BTA) for minimizing adverse environmental impacts. Under a consent decree with environmental organizations, EPA divided the 316(b) rulemaking into three phases. All new facilities except offshore oil and gas exploration facilities were addressed in Phase I in December 2001. In July, 2004, EPA promulgated Phase II which covered large existing electric generating plants. In July 2007, EPA suspended the Phase II rule following the Second Circuit decision.  In light of the Supreme Court 2009 decision and its recognition that EPA has broad discretion in its 316(b) regulations, EPA initiated consultation with the Fish and Wildlife Service and the National Marine Fisheries Service under Section 7 of the Endangered Species Act. EPA and the Services began informal consultation in 2012, but concluded in 2013 that formal consultation was necessary. In order to accommodate the regulatory 135-day time frame for formal consultation, plaintiffs agreed to a modification to the settlement agreement, extending final rule deadline to November 4, 2013.

RID:  2040-AF14

Title:  Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category

Summary:  EPA establishes national technology-based regulations, called effluent limitations guidelines and standards, to reduce discharges of pollutants from industries to waters of the U.S. These requirements are incorporated into National Pollutant Discharge Elimination System (NPDES) discharge permits issued by EPA and States and through the national pretreatment program.

RID:  2040-AF21

Title:  Water Quality Standards for the State of Florida’s Estuaries and Coastal Waters

Summary:  EPA is under a Consent Decree deadline to sign a notice of final rulemaking for numeric nutrient water quality criteria (which are elements of water quality standards) for the State of Florida’s estuaries and coastal waters by September 30, 2013. Pursuant to a judicial order, EPA’s obligation to sign a notice of final rulemaking for numeric nutrient water quality criteria for flowing waters in south Florida (including canals), tidally influence segments, and the downstream protection values for flowing waters into estuaries by September 30, 2013 has been stayed until 30 days after the court rules on EPA’s motion to modify the Consent Decree to relieve EPA of its obligation to finalize criteria for those waters.

RID:  2040-AF39

Title:  Water Quality Standards for the State of Florida’s Streams and Downstream Protection of Lakes: Remanded Provisions

Summary:  This final rule addresses an order by the U.S. District Court for the Northern District of Florida from February 18, 2012, which remanded to the EPA two portions of its numeric water quality standards for nutrients in Florida that were promulgated and published on December 6, 2010. This rule promulgates criteria for the remanded provisions and provides additional explanation: the flowing waters criteria derived using the reference condition approach for Florida streams and for the derivation of the downstream protective values (DPVs) for unimpaired lakes. Per the terms of the Consent Decree, EPA signed for publication in the Federal Register proposed criteria on November 30, 2012.

RID:  2040-AF44

Title:  Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category

Summary:  This action will address revisions to the effluent guidelines and standards for the construction and development (C & D) point source category 40 CFR 450. The C&D rule was issued on December 1, 2009 and became effective on February 1, 2010. This action would revise several of the non-numeric portions of the rule in response to litigation.