Water Quality Law Update

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I. REGULATORY UPDATE

A. Federal Regulatory Reform

1. Executive Memorandum of January 23, 2017 on Hiring Freeze, 82 FR 8493 (January 25, 2017), ordered a freeze on the hiring of federal civilian employees across the board in the executive branch.

2. Executive Order 13766 of January 24, 2017, on Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects,82 FR 8657 (January 30, 2017), established a policy to streamline and expedite, in a manner consistent with law, environmental reviews and approvals for all infrastructure projects, especially projects that are a high priority for the Nation, such as improving the U.S. electric grid and telecommunications systems and repairing and upgrading critical port facilities, airports, pipelines, bridges, and highways.

3. Executive Memorandum of January 24, 2017, on Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing, 82 FR 8667 (January 30, 2017), directed executive departments and agencies to support the expansion of manufacturing in the United States through expedited reviews of and approvals for proposals to construct or expand manufacturing facilities and through reductions in regulatory burdens affecting domestic manufacturing.

4. Executive Order 13771 of January 30, 2017, on Reducing Regulation and Controlling Regulatory Costs – “Two-fer Rule,” 82 FR 9339 (February 3, 2017) directs that “unless prohibited by law,” whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed. It further provides that for fiscal year 2017, the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget. Any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.  Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the Administrative Procedure Act and other applicable law.

5. Executive Order 13777 of February 24, 2017 on Enforcing the Regulatory Reform Agenda, 82 FR 12285(March 1, 2017), established a federal policy “to alleviate unnecessary regulatory burdens” on the American people and directed each federal agency[1] (including EPA) to establish a Regulatory Reform Task Force (Task Force) to evaluate existing regulations and “make recommendations to the agency head regarding their repeal, replacement, or modification.” The order directed each Task Force to identify regulations that:

(i) eliminate jobs, or inhibit job creation;

(ii) are outdated, unnecessary, or ineffective;

(iii) impose costs that exceed benefits;

(iv) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

(v) are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriates Act, 2001 (44 U.S.C. 3516 note), or the guidance issued pursuant to that provision in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard of reproducibility; or

(vi) derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.”

6. Executive Order 13778 of February 28, 2017, on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule,82 FR 12497 (March 3, 2017). See discussion below regarding status of the rule.

 

7. EPA’s Notice of Evaluation of Existing Regulations, 82 Fed. Reg. 17793 (April 13, 2017), sought public input on regulations that may be appropriate for repeal, replacement, or modification and provided a comment period that ended May 15, 2017.

8. Executive Order 13781 of March 13, 2017, on Comprehensive Plan for Reorganizing the Executive Branch, 82 FR 13959 (March 16, 2017), directed the Director of the Office of Management and Budget to propose a plan to reorganize governmental functions and eliminate unnecessary agencies, components of agencies, and agency programs and directed the head of each agency to submit to the Director of OMB by September 9, 2017, a proposed plan to reorganize the agency, if appropriate, in order to improve the efficiency, effectiveness, and accountability of that agency. The Director shall publish a notice in the Federal Register inviting the public to suggest improvements in the organization and functioning of the executive branch

9. Executive Order 13783 of March 28, 2017, on Promoting Energy Independence and Economic Growth, 82 FR 16093 (March 31, 2017), directed all executive departments and agencies to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. The EO defines he term “burden” means to unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources term.

10. Executive Order 13807 of August 15, 2017, on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure, 82 FR 40463 (August 24, 2017), established a policy to ensure that the federal environmental review and permitting process for infrastructure projects (including, e.g., water resources, sewer infrastructure, and drinking water infrastructure projects) is coordinated, predictable, and transparent and that timely decisions are made with the goal of completing all federal environmental reviews and authorization decisions for major infrastructure projects within 2 years

11. Council on Environmental Quality’s Initial List of Actions To Enhance and Modernize the Federal Environmental Review and Authorization Process, 82 FR 43226 (September 14, 2017), issued pursuant to EO 13807 of August 15, 2017 (“Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects”), lists actions to be taken to modernize the federal environmental review and authorization process, including, among others:

  1. Developing a framework for the implementation of One Federal Decision.
  2. Refer requests for state projects to be designated as high priority under EO 13766 of January 24, 2017 (“Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects”).
  3. Revise, modify or supplement existing guidance under NEPA regarding:
    1. Establishing, applying and revising Categorical Exclusions
    2. Preparing Environmental Assessments and Environmental Impact Statements
    3. Use of Mitigation, Monitoring, Mitigated Findings of No Significant Impact
    4. Environmental Collaboration and Conflict Resolution.
  4. Review and as needed, update and clarify procedural provisions of CEQ Regulations.
  5. Issue additional guidance to simplify and accelerate NEPA process for infrastructure projects, addressing issues, including but not limited to:
    1. Public involvement
    2. Deference to lead federal agency
    3. Appropriate cumulative impacts analysis methodologies
    4. Sources of information that may be relied upon
    5. Reliance on prior studies
    6. Reliance on state, local and tribal impacts analyses.
  6. Convene interagency working group to identify impediments to efficient and effective processing of environmental reviews and authorizations and to identify agencies that require an action plan to address identified impediments.

B. Status of Clean Water Rule: Definition of “Waters of the United States.” 

 

1. 2015 Clean Water Rule. The Clean Water Rule, which revised the regulatory definition of “waters of the United States,” was published June 29, 2015 (80 Fed. Reg. 37,054) to become effective August 28, 2015.

2. Consolidation of Circuit Court Appeals in 6th Circuit. Petitions seeking judicial review and stay of the rule were immediately filed in several Circuit Courts and District Courts. On July 28, 2015, the Judicial Panel on Multidistrict Litigation Panel consolidated[2] in the Sixth Circuit all of the petitions filed in the federal Circuit Courts challenging the Clean Water Rule under CWA §509(b) (33 U.S.C. 1369(b)).

3. 6th Circuit Stay of Clean Water Rule. On October 9, 2015, the Sixth Circuit issued a nationwide stay of the Clean Water Rule,[3] and on February 22, 2016, issued a decision[4] holding that it has exclusive original jurisdiction under CWA §509(b) to decide the merits of the consolidated petitions challenging the Clean Water Rule. Actions challenging the Clean Water Rule in the district courts continued to play out in light of the Sixth Circuit rulings. For example, the Eleventh Circuit[5] held in abeyance an appeal from a decision of the District Court for the Southern District of Georgia[6] pending the Sixth Circuit’s ultimate decision on the validity of the Clean Water Rule.

4. EPA/Corps Joint Memorandum on Stay of Clean Water Rule.  In response to the Sixth Circuit’s stay of the Clean Water Rule, the EPA and Corps issued a Joint Memorandum[7]  on November 16, 2015, stating, inter alia:

Since the Sixth Circuit stay [of the Clean Water Rule] was issued, the Army Corps of Engineers and the EPA resumed use nationwide of the agencies’ prior regulations defining the term ‘waters of the United States.’ During the pendency of the stay, we will continue to apply these prior regulations together with relevant case law, applicable policy, and the best available science and technical data in determining which waters are protected by the CWA.”

5. Supreme Court Grants Review. On January 16, 2017, the U.S. Supreme Court granted a petition for certiorari to review the 6th Circuit’s decision on the question of whether the courts of appeals have original jurisdiction to review challenges to the 2015 rule under CWA §509(b).[8] The Sixth Circuit thereafter granted petitioners’ motion to hold in abeyance the briefing schedule in the litigation challenging the 2015 rule pending a Supreme Court decision on the question of the court of appeals’ jurisdiction.

 

6. Executive Order to Review Clean Water Rule. On February 28, 2017, the President issued Executive Order No. 13778 entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States,” directing the EPA and Corps to review and rescind or revise the Clean Water Rule. 82 FR 12497 (March 3, 2017). Section 1 of the Order states, “[i]t is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” Section 2 directs the agencies to review the 2015 rule for consistency with the policy outlined in section 1 and to issue a proposed rule rescinding or revising the 2015 rule as appropriate and consistent with law. Section 3 directs the agencies to consider interpreting the term “navigable waters” in a manner consistent with Justice Scalia’s plurality opinion in Rapanos.

 

7. Agencies’ Announcement of Intent to Revise Clean Water Rule. On March 6, 2017, the EPA and Corps published a Proposed Rule (82 Fed. Reg. 12532) announcing their intention, based on  Executive Order 13778, to “consider interpreting the term ‘navigable waters,’ as defined in the CWA in a manner consistent with the opinion of Justice Scalia in Rapanos.” They explained that they had “inherent authority to reconsider past decisions and to revise, replace or repeal a decision to the extent permitted by law and supported by a reasoned explanation.” They further explained that a “revised decision need not be based upon a change of facts or circumstances, but could be based upon “on a reevaluation of which policy would be better in light of the facts,” and that such action is “well within an agency’s discretion,” and a “change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency’s reappraisal of the costs and benefits of its programs and regulations.”

8. Proposed Rule Rescinding Clean Water Rule and Re-codifying Pre-existing Rules – the “Recodification Rule.” On July 27, 2017, EPA and the Corps published a Proposed Rule (82 Fed. Reg. 34899) to rescind the definition of “waters of the United States” set forth in the Clean Water Rule and to re-codify in its place the regulatory definition of “waters of the United States” that existed prior to the Clean Water Rule.  EPA extended the comment period on the Recodification Rule until September 27, 2017.  82 Fed. Reg. 39712. The agencies characterized the recodification as “the first step in a comprehensive, two-step process intended to review and revise the definition of “waters of the United States” consistent with the Executive Order 13778. With the recodification, the agencies intend to “administer the regulations as they are currently being implemented consistent with Supreme Court decisions and longstanding practice as informed by applicable agency guidance documents.” The second step will be a separate notice and comment rulemaking that will consider developing a new definition of “waters of the United States” taking into consideration the principles that Justice Scalia outlined in the Rapanos plurality opinion.

The pre-existing regulatory definition of “waters of the United States” is set forth in the 2014 edition of the C.F.R. at 40 CFR § 230.3(s) of EPA’s regulations and 33 CFR § 328.3(a) of the Corps’ regulations, and covers the following categories of waters:

  • Traditional navigable waters: waters currently used, used in the past, or susceptible to use in interstate or foreign commerce, and waters subject to the ebb and flow of the tide;
  • Interstate waters and interstate wetlands;
  • Territorial seas;
  • Impoundments of waters of the United States;
  • Tributaries of all such waters; [The term tributaries was not defined.]
  • Other waters, the use, degradation or destruction of which could affect interstate or foreign commerce; and,
  • Wetlands adjacent to all such waters (other than wetlands).

The definition expressly excludes prior converted cropland and waste water treatment systems and incorporates regulatory definitions of the key terms “adjacent,” “wetlands,” “ordinary high water mark,” and “high tide line.”

9. Background on “Waters of the United States.” By defining “navigable waters” in the CWA to mean “waters of the United States,”[9] Congress created uncertainty as to how far it intended to extend jurisdiction under the CWA beyond navigable-in-fact, interstate waters that met the test laid down in the Supreme Court’s 1871 decision in The Daniel Ball[10]for determining “navigable waters” of the United States.  Many federal courts interpreting the geographic reach of CWA jurisdiction were unconstrained by traditional concepts of navigability and took a broad Commerce Clause approach to the geographic reach of the Act.  The Tenth Circuit took a broad view, holding in a 1979 decision that the CWA was “designed to regulate to the fullest extent possible sources emitting pollution into rivers, streams and lakes” and that “Congress did not “use the term ‘navigable waters’ in the traditional sense” but, instead, “intended to extend the coverage of the [Act] as far as permissible under the commerce clause.”[11]

 

The agencies expanded their regulatory interpretations of the scope “waters of the United States” and the reach of geographic jurisdiction under the CWA to non-navigable waters, such as adjacent wetlands, and, under the so-called Migratory Bird Rule[12] or “duck’s butt test,” extended their interpretation to include virtually any water or wetland, regardless of its connection to or proximity to navigable-in-fact waters, if the water or wetland was used or provided habitat for federally regulated migratory waterfowl.

Riverside Bayview – Adjacent Wetlands.  In its 1985 decision in United States v. Riverside Bayview Homes, Inc.,[13] the Supreme Court concluded that Congress intended to regulate waters beyond those traditionally considered navigable and upheld the Corps’ assertion of jurisdiction under section 404 of the Clean Water Act over wetlands adjacent to navigable waters of the United States.

SWANCC – Isolated Waters and the Migratory Bird Rule.  In its 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”),[14] a more conservative Supreme Court limited the agencies’ authority to regulate isolated, non-navigable-in-fact, wholly intrastate waters, by holding that the CWA did not authorize the Corps to extend jurisdiction to such waters solely on the basis the waters were used as habitat by federally regulated migratory waterfowl. Although SWANCC did not absolutely reject consideration of migratory bird use as a jurisdictional factor to be considered among other factors, it ended the agencies’ use of the Migratory Bird Rule as a sole basis for establishing jurisdiction of a water or wetland.

Rapanos – Non-navigable Tributaries and Adjacent Wetlands: Continuous Surface Connection Test and Significant Nexus Test.  In its 2006 decision in the consolidated cases of Rapanos v. United States and Carabell v. United States,[15] a divided Supreme Court addressed the Corps’ jurisdiction over non-navigable tributaries and their adjacent wetlands.  The court looked specifically at the regulatory status of wetlands that were either hydrologically connected or adjacent to ditches or man-made drains that flowed into non-navigable tributaries of eventually navigable systems.  The court rendered a 5-4 plurality decision with five separate opinions, reversing the Sixth Circuit for failing to apply the proper jurisdictional standard and remanding the cases, but providing no consensus on the proper standard to be used by the lower court for determining whether the wetlands in question were jurisdictional.

Justice Scalia wrote the opinion for the plurality in which Justices Roberts, Alito and Thomas joined.  Justice Roberts wrote a concurring opinion.  Justice Kennedy concurred in the judgment to reverse, but wrote a separate concurring opinion.  Justice Stevens wrote a dissenting opinion in which Justices Souter, Ginsburg and Breyer joined, and Justice Breyer wrote a separate dissenting opinion.

(1) Continuous Surface Connection Test.  Justice Scalia opined that non-tidal wetlands are subject to jurisdiction under the CWA only if: 1) the adjacent water is a relatively permanent body of water (such as a river, ocean, lake or stream), and 2) the wetland has a continuous surface connection with that water.”[16]

(2) Significant Nexus Test.  Justice Kennedy, concurring only in the judgment to reverse, wrote a separate opinion rejecting Scalia’s approach.  He articulated what is referred to as the “significant nexus” test, whereby wetlands are jurisdictional under the CWA if they “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”[17]

(3) Dissent.  The four dissenting justices saw the proper analysis as a “straightforward” application of deference under Chevron U.S.A .Inc. v. NRDC[18] to the Corps’ reasonable interpretation of the statutory term “waters of the United States” as including wetlands adjacent to tributaries of traditionally navigable waters on the basis they “preserve the quality of our Nation’s waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow.”[19]

Conclusions.  The Riverside Bayview, SWANCC, and Rapanos decisions all recognized that the term “navigable waters” used in the CWA (and defined as “waters of the United States”) is broader than the traditional understanding of that term as articulated in The Daniel Ball and includes waters beyond those that meet a strict test of interstate commercial navigability.  The decisions, however, draw no bright lines on the geographic limits of jurisdiction under the CWA. In their concurring opinions in Rapanos, Justice Scalia expressly declined to decide the “precise extent to which the qualifiers ‘navigable’ and ‘of the United States’ restrict the coverage of the Act,”[20] while Justice Roberts chastised the agencies for their failure to follow through and promulgate clarifying regulations after the court’s decision in SWANCC:

Given the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the Clean Water Act, the Corps and the EPA would have enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority.

The proposed rulemaking went nowhere. Rather than refining its view of its authority in light of our decision in SWANCC, and providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power.[21]

C. Other Federal Regulatory Developments.

1. Pending Proposal to Revise NPDES Program Regulations. EPA has not yet finalized its Proposed Rule (81 FR 31343) published May 18, 2016, to revise and update specific elements of the existing National Pollutant Discharge Elimination System (NPDES) regulations in 40 CFR Parts 122-125. The current Unified Regulatory Agenda projects issuance a final rule in December of 2018. According to EPA, the proposal makes targeted revisions to address outdated application, permitting, monitoring and reporting requirements in order to eliminate inconsistencies between regulations and application forms, improve permit documentation and transparency, and clarify existing regulations. The proposed changes include a controversial proposal to treat state program-issued NPDES permits that have been administratively extended beyond their 5-year permit terms pending renewal as proposed permits which would be subject to federal review and possible veto under 40 CFR 123.44. Many state-issued NPDES permits have been administratively extended pending permit renewal; many for more than two years. Environmental groups have pressed EPA to incentivize states to complete permit renewals more promptly rather than delaying renewal and indefinitely extending the expired permit.

2. Corps RGL No. 16-1 on Jurisdictional Determinations. On November 1, 2016, the Corps issued RGL No. 16-1 Jurisdictional Determinations, implementing the decision of the U.S. Supreme Court in Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016), which held that an approved jurisdictional determination (JD) by the Corps is final agency action judicially reviewable under the federal Administrative Procedures Act (5 U.S.C. § 702).

 

 

3. Credit Assistance for Water Infrastructure Projects. On December 19, 2016, EPA published an Interim Final Rule (81 Fed. Reg. 91822) announcing a new program under the Water Infrastructure Finance and Innovation Act of 2014 providing for EPA to provide secured (direct) loans and loan guarantees to eligible water infrastructure projects.

4. Revisions to the Unregulated Contaminant Monitor Rule (UCMR 4) under SDWA. On December 20, 2016, EPA issued a Final Rule (81 Fed. Reg. 92666) under the Safe Drinking Water Act (SDWA) requiring public water systems to collect occurrence data for contaminants that may be present in drinking water but are not yet subject to EPA’s drinking water standards set under the SDWA. The rule identifies eleven analytical methods to support water system monitoring for a total of 30 chemical contaminants, consisting of nine cyanotoxins and one cyanotoxin group; two metals; eight pesticides plus one pesticide manufacturing byproduct); three brominated haloacetic acid disinfection byproduct groups; three alcohols; and three semivolatile organic chemicals.

5. Addition of a Subsurface Intrusion Component to the CERCLA Hazard Ranking System. On January 9, 2017, the EPA issued a Final Rule (82 Fed. Reg. 2760) under the Comprehensive Environmental Response, Compensation and Liability Act adding a subsurface intrusion (SsI) component to the Hazard Ranking System (HRS) in 40 C.F.R. Part 300, which EPA uses to evaluate sites for placement on the National Priorities List (NPL).

6. Results of EPA’s 6-Year Review of Existing Drinking Water Standards and Request for Public Comment and/or Information on Related Issues. Proposed Rule (82 Fed. Reg. 3518 (Jan. 11, 2017).

7. Revision of Consolidated Rules of Practice. On January 9, 2017, EPA published a Final Rule (82 FR 2230) revising the Consolidated Rules of Practice in 40 C.F.R. Parts 22 and 124 governing the administrative assessment of civil penalties, issuance of compliance or corrective action orders, the revocation/termination or suspension of permits, and procedures for decision-making.

8. Civil Monetary Penalty Inflation Adjustment Rule. On January 12, 2017, EPA published a Final Rule (82 Fed. Reg. 3633) adjusting the level of statutory civil monetary penalty amounts under the statutes EPA administers, pursuant to the mandate of the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

9. Draft Report: “Proposed Modeling Approaches for a Health Based Benchmark for Lead in Drinking Water.” On January 19, EPA published a Notice (82 Fed. Reg. 12591) inviting the public to comment on the draft report and to nominate scientific experts to be considered as peer reviewers for the contract-managed peer review of the report.

10. Notice of Availability of Revision to Protective Action Guide (PAG) Manual for Drinking Water after a Radiological Incident. 82 Fed. Reg. 6498 (Jan. 19, 2017)

11. Re-Proposal of Health and Environmental Protection Standards for Uranium In-Situ Recovery (ISR) Operations. On January 19, 2017, EPA published a Proposed Rule (82 Fed. Reg. 7400) to add new standards to 40 CFR Part 192 under the Uranium Mill Tailings Radiation Control Act applicable to ISR operations. The proposal modifies a proposed rule (80 Fed. Reg. 4155) published January 26, 2015.  The proposed rule would strengthen the existing regulations for uranium recovery by adopting new standards addressing groundwater hazards specific to ISR facilities. As with the original proposal, the primary focus of this proposal is groundwater protection, restoration and long-term stability. The most significant changes from the original proposal include: removing the default 30-year long-term monitoring provision and shifting to a Resource Conservation and Recovery Act (RCRA) Subtitle C corrective action framework as a model rather than a RCRA Subtitle C landfill framework; adding specific criteria and procedures for approving termination of long-term stability monitoring; deleting gross alpha particle activity from proposed Table 1 to subpart F of 40 CFR part 192, and allowing more flexibility for the NRC or Agreement States to determine on a site-specific basis the constituents for which concentration based standards are set.

12. Denial of Petition to Prohibit Addition of Fluoridation Chemicals to Drinking Water. On February 27, 2017, EPA published a Notice (82 Fed. Reg. 11878) of its decision to deny a petition received under section 21 of the Toxic Substances Control Act (TSCA) from the Fluoride Action Network, Food & Water Watch, Organic Consumers Association, the American Academy of Environmental Medicine, the International Academy of Oral Medicine and Toxicology, and other petitioners requesting that EPA exercise its authority under TSCA section 6 to “prohibit the purposeful addition of fluoridation chemicals to U.S. water supplies.”

13. Issuance and Reissuance of Nationwide Permits Effective March 18, 2017. On January 6, 2017, the Corps published a Final Rule (82 FR 1860),[22] reissuing 50 existing nationwide permits (NWPs), as well as the general conditions and definitions, with some modifications and issued two new NWPs and one new general condition, effective March 18, 2017. The previous existing 50 NWPs, which were published February 21, 2012 (77 FR 10184), expired on March 18, 2017.

 

14.Effluent Limitations Guidelines and Standards for the Dental Category. On June 14, 2017, the EPA issued a Final Rule (82 FR 27154), which took effect July 14, 2017, promulgating technology-based pretreatment standards to be codified in 40 CFR 441for discharges of mercury from dental offices into publicly owned treatment works. The rule requires dental offices that place or remove amalgam to operate and maintain an amalgam separator that meets certain standards and prohibits discharge of scrap amalgam and use of certain kinds of line cleaners. New dental offices must comply after the effective date. Existing dental offices must comply by July 14, 2020. Existing amalgam separators may be operated for their lifetime or ten years, whichever comes first. When a separator needs replacement, or the ten-year period has ended, and the separator does not meet the standard of the final rule, a dental office must replace it with one that meets the requirements of the final rule.

15. Proposed Rule to Rescind BLM’s 2015 Hydraulic Fracturing Rule. On July 25, 2017, in response to Executive Order No. 13783 and Secretarial Order No. 3349,[23] the BLM published a Proposed Rule (82 Fed. Reg. 34464) to rescind the agency’s 2015 Final Rule “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands” (80 Fed. Reg. 16128 (March 26, 2015). The comment period on the Proposed Rule ended September 25, 2017. The BLM’s 2015 Final Rule was intended to regulate the use of hydraulic fracturing on federal and Indian lands administered by the BLM by ensuring that wells are properly constructed to protect water supplies, that drilling fluids which flow back to the surface from hydraulic fracturing are properly managed, and that chemicals used in hydraulic fracturing are disclosed to the public. In the Proposed Rule, BLM states it now “believes that the 2015 Final Rule unnecessarily burdens industry with compliance costs and information requirements that are duplicative of regulatory programs of many states and some tribes. As a result, we are proposing to rescind, in its entirety, the 2015 final rule.”

In late December of 2016, the Obama Administration released to the public a Final Report entitled: “Hydraulic Fracturing for Oil and Gas: Impacts From the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States,” 81 Fed. Reg. 95135 (Dec. 27, 2016). The Report remains available at: https://www.epa.gov/hfstudy.

16. Alternative Testing Methods for Use in Measuring the Levels of Contaminants in Drinking Water and Determining Compliance with National Primary Drinking Water Regulations. EPA Final Rule, 82 Fed. Reg. 34861 (July 27, 2017).

17. Draft Updated Aquatic Life Ambient Water Quality Criteria for Aluminum in Freshwater. On July 28, 2017, EPA published a Notice (82 Fed. Reg. 35198) announcing the availability of a draft updated guidance providing a scientific assessment of ecological effects of aluminum in freshwater. EPA is in the process of updating its 1988 national recommended criteria for protecting aquatic life from harmful effects of aluminum toxicity in freshwater and has announced the availability of a draft updated guidance document. The comment period on the draft guidance document was extended to October 26, 2017. 82 Fed. Reg. 44784(Sept. 26, 2017).  Once finalized, the guidance document will provide recommendations for states and authorized tribes to establish water quality standards.

18.Draft Report: Proposed Approaches to Inform the Derivation of a Maximum Contaminant Level Goal (MCLG) for Perchlorate in Drinking Water. On September 15, 2017, EPA published notices (82 FR 43354 and 43361) announcing the availability of the MCLG Approaches Report and soliciting comments, to be sent to EPA’s contractor, Versar, Inc., on an interim list of peer reviewers and draft charge questions.

19. Idaho Seeks Delegation of NPDES Permitting Authority. On August 11, 2017, EPA published a notice (82 Fed. Reg. 37583) that the Idaho Department of Environmental Quality (IDEQ) is seeking EPA’s approval to administer the Idaho Pollutant Discharge Elimination System (IPDES) program regulating discharges of pollutants into waters of the United States under its jurisdiction. If the EPA approves the IPDES program, IDEQ’s administration of the program would be phased in over a four-year period, subject to continuing EPA oversight and enforcement authority, and replace the federal NPDES program now administered by the EPA. The EPA will retain permitting authority over all facilities that are located within a tribal reservation and/or facilities that discharge to tribal waters.

20. Postponement of Certain Compliance Dates for the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category. In a Final Rule (82 FR 43494) published September 18, 2017, EPA postponed certain compliance dates under its November 3, 2015, Final Rule (80 Fed. Reg. 67838) which amended the effluent limitations guidelines and standards in 40 CFR part 423 for various wastewater streams from the steam electric power generating point source category under Sections 301, 304, 306, 307, 308, 402, and 501 of the CWA. EPA postponed the earliest compliance dates for the new, more stringent, best available technology economically achievable (“BAT”) effluent limitations and pretreatment standards for flue gas desulfurization (“FGD”) wastewater and bottom ash transport water in the 2015 Rule for a period of two years.  EPA also announced its intent to conduct rulemaking to potentially revise certain BAT effluent limitations and pretreatment standards for existing point sources in the source category.

21. Preparation of Programmatic Environmental Assessment (PEA) for Financing Water and Wastewater Infrastructure Projects Pursuant to the Water Infrastructure Finance and Innovation Act. On September 20, 2017, EPA announced intent to prepare a PEA. 82 FR 43964.

D. Utah Regulatory Developments.

 

1. Erica Gaddis Appointed New Director of the Utah Division of Water Quality. Effective June 26, 2017, Utah DEQ Executive Director Alan Matheson appointed Erica Gaddis as the Director of the Division of Water Quality, replacing Walt Baker who retired in May of 2017. Erika came to DWQ in 2014 and served as Assistant Director of Water Quality overseeing the planning and assessment branch.

 

2. Utah Water Quality Independent Scientific Review Rule. The Utah Board of Water Quality promulgated a regulation codified at Utah Admin. Code R317-1-10, implementing Utah’s Peer Review Legislation – S.B. 110 Water Quality Amendments – enacted by the Utah Legislature and signed by the Governor in 2016.  The legislation amended the Utah Water Quality Act (UCA 19-5-101, et seq.), by adding a new provision codified at 19-5-105.3 entitled “Independent peer review of proposal.” The statute allows a party who has or is seeking a permit under the Utah Water Quality Act to use an independent peer review process described in the statute to challenge a science-based initiative proposed by the Division of Water Quality on or after January 1, 2016.  The party must show that the Division’s proposal would change rules or other regulatory guidance and would impact the challenger financially. Although the peer review process is available for challenging a wide variety of regulatory proposals, the statute has a particular focus on proposals of technology based nutrient effluent limits.

 

III. CASE LAW UPDATE

1. Supreme Court Grants Review of 6th Circuit Decision that Circuit Courts have Original Jurisdiction to Review Challenges to Clean Water Rule.  On January 16, 2017, the U.S. Supreme Court granted a petition for certiorari[24] to review the 6th Circuit’s decision[25] on the question of whether the courts of appeals have original jurisdiction to review challenges to the 2015 Clean Water Rule under CWA §509(b).  There is serious disagreement whether the Clean Water Rule and similar definitional or interpretative rules are properly subject to direct judicial review in the Circuit Courts under §509(b), or, in the absence of any alternative right of judicial review under the CWA, are, instead, only subject to judicial review in the District Courts on a facial challenge of the rule under the judicial review provisions of the Administrative Procedures Act (“APA,” 5 U.S.C. § 702) or in an as-applied challenge of the rule in future enforcement actions.  Judicial review of a CWA rule in a District Court under the APA would not be constrained by the 120-day review period applicable under §509(b), and would be subject to the general federal six-year limitation period in 28 U.S.C. § 2401(a).[26] Resolution of this important jurisdictional question will have implications for determining the proper forum and timing for judicial review of CWA regulations.

CWA §509(b) provides that judicial review of certain enumerated actions of the EPA must be sought, if at all, in the appropriate Circuit Court of Appeals within 120 days after the date of the EPA action for which review is sought. Section 509(b) authorizes judicial review of the following enumerated EPA actions:

(A) in promulgating any standard of performance under section 1316 of

this title,

(B) in making any determination pursuant to section 1316(b)(1)(C) of this

title,

(C) in promulgating any effluent standard, prohibition, or pretreatment

standard under section 1317 of this title,

(D) in making any determination as to a State permit program submitted

under section 1342(b) of this title,

(E) in approving or promulgating any effluent limitation or other

limitation under section 1311, 1312, 1316, or 1345 of this title,

(F) in issuing or denying any permit under section 1342 of this title, and

(G) in promulgating any individual control strategy under section 1304(l)

of this title . . . .

The Clean Water Rule, which provided a regulatory definition of the statutory jurisdictional term “waters of the United States,” does not fit neatly into any of the enumerated categories of §509(b).  Those who are eager to obtain a prompt and more definitive judicial resolution of the Clean Water Rule’s validity in a Circuit Court argue that the rule falls under category (E) as action “in issuing or promulgating any effluent limitation or other limitation” and under category (F) as action “in issuing or denying any permit.” Challengers argue that the adoption and promulgation of the Clean Water Rule is simply action in promulgating a definitional rule and not action in promulgating an effluent limitation or issuing a permit decision and, therefore, neither the statutory language nor the legislative history of the CWA evidences congressional intent to authorize direct review of such action in the circuit courts.

2. EPA Statement Not to Follow Circuit Decision in Other Circuits Not Reviewable by Circuit Court under CWA. Center for Regulatory Reasonableness v. EPA, 849 F.3d 453 (D.C. Cir. 2017) held that the Court of Appeals lacked jurisdiction to review EPA’s statement that it did not intend to follow a decision of the 8th Circuit outside of that Circuit. In Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013), the 8th Circuit struck down two EPA policy letters regarding publicly owned water treatment facilities.  The letters had been sent by EPA in response to an inquiry from a U.S. Senator and explained EPA’s interpretations of mixing zones and blending in regard to the bypass rule in 40 CFR 122.41(m). The 8th Circuit held the letters constituted illegal legislative rules issued without adherence to the rulemaking requirements of the Administrative Procedures Act. Thereafter, EPA issued statements it would not acquiesce in or follow the 8th Circuit’s decision outside of that circuit. Industry groups then brought suit in the D.C. Circuit challenging EPA’s statements. The D.C. Circuit held the statements merely articulated how EPA would interpret the 8th Circuit’s decision and did constitute a “promulgation” of an effluent or other limit on discharge of pollutants sufficient to grant the Circuit jurisdiction to directly review EPA’s action under CWA § 509(b), 33 U.S.C.A. § 1369(b)(1)(E).

3. EPA Objection to State-Issued Draft Water Discharge Permits Not Reviewable by Circuit Court under CWA. Southern California Alliance of Publicly Owned Treatment Works v.  EPA, 853 F.3d 1076 (9th Cir. 2017) held the Circuit court lacked subject matter jurisdiction to review an EPA objection letter to a state-issued draft discharge permits, because the objection letter was not reviewable by circuit courts under CWA § 509, either as an EPA action “approving or promulgating any effluent limitation” (33 U.S.C. § 1369(b)(1)(E)) or as an EPA action “issuing or denying any permit” (33 U.S.C. § 1369(b)(1)(F)).

 

4. Supreme Court Declines to Review 8th Circuit Decision Holding a Prairie Pothole on Farmland Qualified as a Wetland Under the Swampbuster Provisions of the Food Security Act. Foster v. Vilsack, 820 F.3d 3330 (8th Cir. 2016), cert. denied, No. 16-186 (S. Ct. Jan 9, 2017). The Eighth Circuit held that substantial evidence supported a determination by the U.S. Department of Agriculture that a portion of farmland in South Dakota had the requisite wetland hydrology and prevalence of hydrophytic vegetation under normal circumstances to qualify as a wetland under the Swampbuster provisions of the Food Security Act (16 U.S.C. 3801(a)), which render wetlands converted to crop land ineligible for farm program payments.  At issue was the Department’s reliance on a comparison wetland site located about 40 miles away.

5. Second Circuit Upholds EPA’s NPDES Water Transfer Rule. In Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 846 F.3d 492 (2nd Cir. 2017), the court upheld EPA’s Water Transfers Rule as a reasonable interpretation of the CWA.  The Water Transfers Rule promulgated by EPA in 2008 (73 Fed. Reg. 33,697 (June 13, 2008)) and codified at 40 CFR 122.3(i) excluding from NPDES permitting:

Discharges from a water transfer. Water transfer means an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. This exclusion does not apply to pollutants introduced by the water transfer activity itself to the water being transferred.

6. County Ordinance Prohibiting Disposal of Oil and Gas Production Waste Water Preempted by State and Federal Law. EQT Production Company v. Wender, — F.3d —-, 2017 WL 3722448 (4th Cir. August 30, 2017) held that a County ordinance in West Virginia prohibiting the storage, disposal, or use of oil and natural gas waste in the County was preempted by state and federal laws comprehensively regulating oil and gas production and wastewater disposal in West Virginia.

7. Deficient BLM EIS for Southern Nevada Water Authority Water Pipeline ROW. Center for Biological Diversity v. U.S. Bureau of Land Management, 2017 WL 3667700 (D. Nev. August 23, 2017) held that the BLM’s EIS for the first phase of constructing a water-redistribution pipeline to carry millions of gallons of water from rural areas of eastern-central Nevada to the Las Vegas area though largely adequate under NEPA was deficient in failing to explain how modeled habitat loss would be mitigated.

8. BNSF and Sierra Club Settle CWA Citizen Suit for Discharge of Coal Falling from Rolling Rail Cars. In Sierra Club, et al. v. BNSF Railway Company, No. C13-0967-JCC (W.D. Wash.), environmental groups pursued a CWA citizen suit against the railroad for allegedly discharging coal and other pollutants from its railcars into waterbodies without a CWA NPDES permit as the railcars roll through the State of Washington.  The lawsuit raised the question of whether coal and coal dust and other materials falling or blowing from moving railcars into waters of the United States constitute a discharge of a pollutant under the CWA, i.e., the “addition of any pollutant to navigable waters from any point source,” for which a CWA permit would be required from a state in which the discharge occurs.

 

The Court denied the parties’ cross motions for summary judgment,[27]and after six days of trial, the parties reached a settlement in principle. On May 2, 2017, the Court entered the proposed consent decree[28] requiring the defendant to (1) perform a study of the viability of coal car covers; (2) remove and monitor the coal and petcoke at six separate sites; and (3) pay $1 million to The Rose Foundation for Communities and the Environment and allowing the plaintiffs to seek their attorney’s fees and costs. Plaintiffs ultimately requested $3,549,095.62 in attorney fees and $298,331.14 in costs, totaling $3,847,426.76. The court awarded the fees with some deductions and all of the costs.[29]

 

9. Peat Bogs in Hawkes Litigation Held Not to be Jurisdictional Wetlands. In Hawkes Co. v. U.S. Army Corps of Eng’rs, No. 0:13-cv-00107, 2017 WL 359170 (D. Minn. Jan. 24, 2017), the court on remand from the 8th Circuit Court of Appeals following the decision of the U.S. Supreme Court in Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016, held the Corps lacked CWA jurisdiction over a peat mining operation seeking to expand its mining operations in Minnesota to adjacent peat bogs, finding that the Corps had abused its discretion in its specific application of the “significant nexus” test to determine that it had jurisdiction over the wetlands in question under section 404 of the Clean Water Act (CWA), 33 U.S.C. § 1344.

 

10. Issuance of NPDES Permit Authorizing Discharges Did not Render CWA Citizen Suit Moot. In Natural Resources Defense Council v. County of Los Angeles, 840 F.3d 1098 (9th Cir. 2016), the court held that issuance of a new NPDES permit to a flood control district did not render moot a CWA citizen suit seeking injunctive relief against the district for discharging polluted stormwater runoff in violation of the CWA. The court found that violations under the prior permit would only be permitted under the new permit if the district qualified for a safe harbor program based on implementation of a watershed management program, which the district had not yet implemented.

11. State-issued NPDES Permit Did Not Shield Coal Company From Liability for Discharges that Violated State Narrative Water Quality Standard. In Ohio Valley Envtl Coal. v. Fola Coal Company, LLC, 845 F.3d 133 (4th Cir. 2017), the court held that a coal company was in violation of its state-issued NPDES permit because (1) an applicable West Virginia regulation required that discharges covered by an NPDES permit must not cause a violation of a water quality standard; (2) that the state’s narrative water quality standards prohibited discharges that were harmful to or had significant adverse impact on aquatic ecosystems; and (3) that the elevated conductivity of the discharge, although disclosed in the permit application, had such a harmful and adverse impact.

 

4849-7569-0316, v.  1


[1] Subsequent directives confirmed the EO does not apply to independent regulatory agencies as defined under 44 U.S.C. 3502(10) (e.g., FERC, NRC, SEC, etc.). See

[2] Multi-Circuit Petition No. 135 (July 28, 2015). Twelve petitions were filed in eight Circuits.

[4] In re EPA & Dep’t of Def. Final Rule, 817 F.3d 261 (6th Cir. 2016), rehearing en banc denied (April 21, 2016), cert. granted sub nom., National Ass’n of Mfr’s. v. Dept of Defense, 137 S. Ct. 811 (Mem. January 13, 2017).

[5] Georgia ex. Rel. Olens v. McCarthy, 833 F.3d 1317 (11th Cir. 2016).

[6] State v. McCarthy, No. CV 215–79, 2015 WL 5092568 (D.C.S.D. Ga. Aug 27, 2015) (denying injunction for lack of jurisdiction to review the rule).

[7] Memorandum from Gina McCarthy Administrator, U.S. Environmental Protection Agency, and Jo-Ellen Darcy, Assistant Secretary for Civil Works, U.S. Department of the Army, to EPA Deputy Administrator for Water, EPA Regional Administrators (Regions I-X), USACE Chief of Engineers, USACE Division and District Engineers, Re “Administration of Clean Water Programs in Light of the Stay of the Clean Water Rule; Improving Transparency and Strengthening Coordination” (November 16, 2015).

[8] National Ass’n of Mfr’s. v. Dept of Defense, 137 S. Ct. 811 (Mem. January 13, 2017).

[9] 33 U.S.C.A. § 1362(7). The Oil Pollution Act, 33 U.S.C.A. § 2701-2762, uses the same jurisdictional term and definition. See Rice v. Harken, 250 F.3d 264, 267 (5th Cir. 2001)

[10] 77 U.S. 557, 563-64 (1870). The court held that a steamship operating on a wholly intrastate river tributary to Lake Michigan solely for the purpose of transporting goods between two river ports within the state of Michigan was subject to federal licensing under a navigational statute regulating “navigable waters of the United States.” The court established the following test:

[Rivers] are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of travel on water….And they constitute navigable waters of the United States, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted.

[11] United States v. Earth Sciences, Inc., 599 F.2d 368, 373-375 (10th Cir. 1979) (upholding Clean Water Act jurisdiction over a non-navigable tributary).  See also Utah v. Marsh, 740 F.2d 799, 803-804 (1984) (holding that Utah Lake, a navigable-in-fact, but wholly intrastate body of water, was subject to the Corps’ permitting jurisdiction under § 404 because the lake had numerous connections to interstate commerce, including use by migratory birds and, therefore, the discharge of dredged or fill material into the lake by the plaintiff or others could have a substantial economic effect on interstate commerce);  Quivira Mining Co. v. EPA, 765 F.2d 126, 129 (10th Cir. 1985), cert. denied, 474 U.S. 1055 (1986) (holding that the discharge of pollutants from uranium mining facilities into normally dry arroyos was subject to the EPA’s jurisdiction under § 402 of the Clean Water Act because the flow generated in the arroyos by heavy rainfall could eventually reach other navigable waters);  United States v. Hubenka, 438 F.3d 1026 (10th Cir. 2006) (upholding the Corps’ authority, after SWANCC, to regulate non-navigable tributaries of navigable river systems).

[12] See 51 Fed Reg. 41217 (1986).

[13] 106 S. Ct. 455 (1985).

[14] 121 S. Ct. 675 (2001).

[15] Rapanos v. United States, 126 S. Ct. 2208 (2006).

[16] Id. at 2227.

[17]Id. at 2248.

[18] 104 S. Ct. 2778 (1984).

[19] 126 S. Ct. at 2252. Justice Stevens addressed the lack of consensus on a jurisdictional test:

In these cases, however, while both the plurality and Justice Kennedy agree that there must be a remand for further proceedings, their respective opinions define different tests to be applied on remand. Given that all four Justices who have joined this opinion would uphold the Corps’ jurisdiction in both of these cases—and in all other cases in which either the plurality’s or Justice Kennedy’s test is satisfied—on remand each of the judgments should be reinstated if either of those tests is met. [Emphasis added.]

126 S. Ct. at 2265 (Stevens, J., dissenting) (footnotes omitted).

[20] Id. at 2220.

[21] Id. at 2235-36.

[22] The Final Rule was corrected at 82 FR 28777 (June 26, 2017) and 82 FR 30997 (July 5, 2017).

[23] On March 28, 2017, President Trump issued Executive Order 13783, entitled, “Promoting Energy Independence and Economic Growth” (82 FR 16093 (Mar. 31, 2017)), directing the Secretary of the Interior to review four specific rules, including the 2015 final rule, for consistency with the order’s objective “to promote clean and safe development of our Nation’s vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth and prevent job creation” and, as appropriate, take action to lawfully suspend, revise, or rescind those rules that are inconsistent with the policy set forth in Executive Order 13783. On March 29, 2017, Secretary of the Interior Ryan K. Zinke issued Secretarial Order No. 3349 entitled, “American Energy Independence,” which, among other things, directed the BLM to proceed expeditiously in proposing to rescind the 2015 final rule.

[24] National Ass’n of Mfr’s. v. Dept of Defense, 137 S. Ct. 811 (Mem. January 13, 2017).

[25] In re EPA & Dep’t of Def. Final Rule, 817 F.3d 261 (6th Cir. 2016), rehearing en banc denied (April 21, 2016).

[26] Nagahi v. I.N.S., 219 F.3d 1166, 1171 (10th Cir. 2000) (“In the absence of a specific statutory limitations period, a civil action against the United States under the APA is subject to the six year limitations period found in 28 U.S.C. § 2401(a).”) Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988) (six-year general statute of limitations applies to actions under the Administrative Procedures Act).

[27] Slip Op. 2016 WL 6217108 (Oct. 25, 2016).

[28] Available at: https://www.unitedstatescourts.org/federal/wawd/193334/374-0.html.

[29] See 2017 WL 3141899.

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