Tag: EPA

EPA and the Department of the Army issue Amended Final Rule Defining WOTUS

By Rick Savage – Carolina Wetlands Association

On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and the Department of the Army announced a final rule that amends the January 2023 definition of “waters of the United States” (WOTUS). The amendments conform the January 2023 definition to the U.S. Supreme Court’s decision in Sackett and will take effect immediately upon publishing in the Federal Register (likely to happen within two weeks). To read the pre-publication version of the revised final rule, go to Pre-publication Version of the Final Rule – Amendments to the Revised Definition of Waters of the United States (epa.gov). 

While exact details are yet to be digested, the gist of the ruling is becoming clear.  First, the significant nexus rule has been eliminated; so isolated wetlands are not jurisdictional wetlands, meaning they are not protected under the Clean Water Act.  Second, the new rule requires visual evidence of a continuous surface flow between a wetland and navigable water.  This part of the rule can get complicated as to what constitutes visual evidence of continuous surface flow.  I am sure that this will cause a lot of confusion and some developers will say there is no continuous surface flow and impact the wetland with a permit. 

Suffice it to say, this puts wetlands in North and South Carolina in jeopardy. The NC Department of Environmental Quality has estimated about 2.5 million acres of wetland have lost protection in North Carolina and I am sure a similar number in South Carolina.  The NC legislature could have continued to protect these wetlands; however, the recently passed Farm Bill eliminated state protection of isolated wetlands.   

We all need to brace ourselves for a lot of wetland loss and they are the very resource we need to protect our communities from flooding.  I think it is reasonable to expect more communities to get flooded, to have less clean water, and to have reduced climate resilience as well as miss the many other benefits that our wetlands provide. 

So go out an explore a wetland (before it gets developed?).

August 2023 Definition of Waters of the United States

On August 29, 2023 the US EPA and the US Army Corps of Engineers released a pre-publication version of the conforming amendment to the 2023 definition a Waters of the US. I cannot recall ever having seen a “conforming amendment” in all my years working with this issue. In fact, I am not sure it has ever been done before in any circumstance. I expect the next round of challenges to this rule will focus on this.

The final version of this rule is the weakest version of the Waters of the US we have ever had. The amount of wetlands no longer covered by Clean Water Act protections is the lowest it has ever been including the Navigable Waters Protection Rule era. It is also important to note that the Supreme Court Decision that prompted this new rule was a unanimous (9-0) one. All nine justices were in agreement despite popular media decrying it was the right side of the bench that dominated the Decision.

This is a final rule and becomes effective on the date it is published in the Federal Register. There is no public comment period. I am still unclear as to why the agencies are in such a hurry to not regulate wetlands.

Much of the new rule discusses why it is proper to issue a conforming amendment without a public comment period. The rule itself is fairly brief, in that it provides the edits to the existing Biden rule. The rule itself does not merge the two rules together into a single document. They leave that up to you. However, we have done this for you and the total new conforming rule follows. We will also be hosting a webinar on this new rule on September 28, 2023. Hope to see you there!

Title 33 —Navigation and Navigable Waters

Chapter II —Corps of Engineers, Department of the Army, Department of Defense

Part 328 —Definition of Waters of the United States

Authority: 33 U.S.C. 1251 et seq.

Source: 51 FR 41250, Nov. 13, 1986, unless otherwise noted.

§ 328.3 Definitions.

For the purpose of this regulation these terms are defined as follows:

(a) Waters of the United States means:

(1) Waters which are:

(i)  Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(ii) The territorial seas; or

(iii) Interstate waters,

(2)  Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;

(3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of water;

(4) Wetlands adjacent to the following waters:

(i) Waters identified in paragraph (a)(1) of this section; or

(ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to those waters.

(5) Intrastate lakes and ponds not identified in paragraphs (a)(1) through (4) of this section that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section.

(b)  The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(2) through (5) of this section:

(1)  Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act;

(2)  Prior converted cropland designated by the Secretary of Agriculture. The exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA;

(3)  Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water;

(4) Artificially irrigated areas that would revert to dry land if the irrigation ceased;

(5)  Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;

(6)  Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;

(7)  Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States; and

(8)  Swales and erosional features (e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.

(c) In this section, the following definitions apply:

(1)  Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

(2)  Adjacent means having a continuous surface connection.

(3)  High tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.

(4)  Ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.

(5)  Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.

New Update: Sackett v. EPA 2023

On May 25, 2023 the Supreme Court of the US (SCOTUS) issued its unanimous decision on the Sackett v. EPA case. The Courts 9-0 opinion was focused on whether the USEPA could claim Water of the US (WOTUS) jurisdiction on the Sackett’s land using the 2006, Kennedy Significant Nexus (SN) test. The Kennedy SN test arose from a precarious SCOTUS case where the Court was not able to arrive at a majority decision. The fractured 4-1-1 plurality resulted in a US Army Corps of Engineers (USACE) SN guidance that has been in use since 2007.

The Sackett SCOTUS ruling limits the extent of federal jurisdiction to navigable waters and wetlands that are directly connected to these same waters. The wetlands should be “indistinguishable” from the navigable waters. The majority (5) of the Justices supported this reason for restricting EPA.

However, while all nine Justices agreed on the extent of jurisdiction, four of the Justices disagreed with the rational as to why the significant nexus test was inappropriate. These Justices were concerned with the Court being at the center of national environmental policy. This, in their opinion, should be left to Congress.

WOTUS has a long history of debate. At issue is the extent of federal jurisdiction over inland waters that extend beyond riverbanks of navigable waters. The Clean Water Act does not define what a WOTUS is, and it has been the practice of over 40 years to leave that definition to the USEPA and the USACE. This has taken the form of nearly a dozen different WOTUS definitions and guidance that changes with each Presidential Administration. This year the Biden Administration has released a WOTUS rule that uses both the SN test as well as the physical connection test. The latter is now rejected.

The USACE has conveniently issued a new Ordinary High Water Mark (OHWM) manual this year. This manual’s purpose is to define the extent of OHWM in the absence of wetlands. It is in an interim phase which means that it should be used to support an OHWM delineation in addition to the 2005 OHWM definition. Going forward it is easy to see that the OHWM establishment and the extent of wetlands are now legally connected. The wetlands extent must be “indistinguishable” from the OHWM indicators. Perhaps in writing the new manual the USACE had some hint of what the SCOTUS was likely to do. The USACE also lost their WOTUS battle in the 2001 SWACC case with almost the same legal nexus issue as Sackett.

The Justices have called out Congress again asking for a national environmental policy and a clear definition of what the extent of federal jurisdiction should be. This was asked for in 2006 and thus far Congress has been silent on the issue.

Farmers are one of the largest groups to push for WOTUS reform. While the Sackett decision may appear to be a win for the farmers, it really is not. Wetlands are specifically protected by the US Department of Agriculture (USDA) by means of farm subsidy contracts. Simply put, when a farmer agrees to receive federal farm subsidies, the farmer has also agreed to not impact wetlands. This provision of the farm subsidy contract has been in force since the Swamp Buster provisions were revoked in 1990. The USDA does not distinguish between jurisdictional and non-jurisdictional wetlands. USDA wetlands are defined by the Food Security Act Manual which includes and expands on the USACE definition of wetlands. The only relief the farms may receive from the Sackett Decision is that they may not be prosecuted by EPA for isolated wetland impacts. However, they will have to refund their farm subsidies which can run into the millions if they impact a USDA wetland.

One last point regarding some of the rhetoric that is already churning in the media. None of the WOTUS definitions have anything to do with making the water cleaner. It is simply a defines the extent of federal jurisdiction. The assumption is that if the water is regulated it will be cleaner. History seems to work against this precept. The USACE is tasked with developing a permit program to fill in WOTUS. This does not make anything cleaner. The USEPA’s role seems to be unclear. Environmental protection is their mandate, but the tools to nationalize this are limited. Most if not all of the wetland protections come from state laws and rules. It was always the intent of Congress to leave the water quality issues to the state. Perhaps we should look to our local elected officials for leadership in the Waters of the State debate.

Going forward it is unclear if the EPA and USACE will issue new regulations. Regulations are usually issued as an interpretation of a Congressional Act. The SCOTUS ruling seems fairly clear and may not necessitate the need for further regulations. Even if it does, it would be close to a year before a regulation could be authorized due to the nature of the process.

Several Justices were concerned that the federal government’s rules should not require experts to interpret. Their decision should be clear enough that anyone should be able to implement it. However, the process of identifying a wetland is still a technical one that does require an expert. Furthermore, it could be argued that if the Justice’s concerns were realized then we would also have no need for accountants, CPAs, or even attorneys. To that end, our jobs as wetland professionals are safe.

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Half Of The U.S. No Longer Subject To The New WOTUS Rule

On April 12, 2023, Daniel L. Hovland, a federal judge in North Dakota, temporarily blocked the implementation of the latest “Waters of the United States” (WOTUS) rule. This action affects 24 states and is on the heels of a previous ruling by Jeffrey Vincent Brown, another federal judge for the southern district of Texas, that now excludes Texas and Idaho from the new WOTUS rule. At issue is the codification of the significant nexus test. According to two judges, the new 2023 rule that the balance of harms weighs towards the States. It benefits the public to “ensure that federal agencies do not extend their power beyond the express delegation from Congress.”

Where is WOTUS not in use?

  • West Virginia
  • North Dakota
  • Georgia
  • Iowa
  • Alabama
  • Alaska
  • Arkansas
  • Florida
  • Indiana
  • Kansas
  • Louisiana
  • Mississippi
  • Missouri
  • Montana
  • Nebraska
  • New Hampshire
  • Ohio
  • Oklahoma
  • South Carolina
  • South Dakota
  • Tennessee
  • Utah
  • Virginia
  • Wyoming
  • Texas
  • Idaho

Implications for these states

The impact of the outcome of the Sackett case by the Supreme Court (SCOTUS) is the driver for these two decisions. At issue there is a need to have a new rule before the SCOTUS ruling. A revised rule will clarify whether the Rapanos version of the “significant nexus” test is an appropriate exercise of the EPA’s jurisdiction under the Clean Water Act.

Neither the federal government nor the States know what the controlling test is, and Supreme Court precedent to date has been of scant assistance.  Hopefully, the Supreme Court decision in Sackett will provide some clarity.  The outcome of the Sackett  case may have significant implications for the EPA’s authority to determine jurisdictional waters under the Clean Water Act.  It may also determine the EPA’s ability to enforce the 2023 WOTUS Rule.  Until then, every state will continue to swim in waters of uncertainty, ambiguity, and chaos.

Daniel L. Hovland, District Judge United States District Court

Which definition are they using?

Working in these states is a bit unclear as to which definition should be used. Presumably, the last standing definition was the WOTUS recodification rule of 2019. This rule preceded the infamous 2020 Navigable Waters Rule, which was remanded and vacated in 2021.

It will be difficult to obtain permits and authorizations if federal agencies can’t use the 2023 WOTUS rule in half of the U.S. There is no clarity as to what constitutes a jurisdictional water body, making permitting almost impossible.

We expect a decision on the Sackett case from SCOTUS by the end of the term in June. Even if the Court provides a decision, there is no doubt that the next set of court cases against EPA and the Corps will be to challenge that the 2023 rule is inconsistent with the SCOTUS decision, whatever it may be.

Sources

Fischler, J. (2023). Federal judge temporarily blocks new Biden WOTUS rule in two dozen states. Ohio Capital Journal. Retrieved from: https://ohiocapitaljournal.com/2023/04/18/federal-judge-temporarily-blocks-new-biden-wotus-rule-in-two-dozen-states/

2023 Waters of the United States

This week, the new Waters of the U.S. (WOTUS) rule was enacted. On December 30, 2022, the agencies announced the final “revised definition of ‘waters of the United States” rule. The rule was published in the Federal Register on January 18, 2023, and became effective on March 20, 2023.

The agencies developed this rule with consideration to the relevant provisions of the Clean Water Act and the statute as a whole, relevant Supreme Court case law, and the agencies’ technical expertise after more than 45 years of implementing the longstanding pre-2015 “waters of the United States” framework. This rule also considers the best available science and extensive public comment to establish a definition of “waters of the United States” that supports public health, environmental protection, agricultural activity, and economic growth.

There are numerous lawsuits and challenges to this rule. These come from both sides of the aisle and include several lobbying groups, environmental organizations, states, and tribes. In addition, we are still waiting to hear from the U.S. Supreme Court on the now-infamous Sackett case. This case directly challenges the new WOTUS rule.
The following is the new WOTUS rule. There are several pages associated with the rule, but this is the meat of it.

Part 328 Definition of Waters of the United States- Regulatory Text

  1. The authority citation for part 328 continues to read as follows:
    • Authority: 33 U.S.C. 1251 et seq.

Definitions

  1. Revise § 328.3 to read as follows:
    • For the purpose of this regulation these terms are defined as follows:
      • a) Waters of the United States means:
        • 1) Waters which are:
          • (i) Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
          • (ii) The territorial seas; or
          • (iii) Interstate waters, including interstate wetlands;
        • (2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;
        • (3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section:
          • (i) That are relatively permanent, standing or continuously flowing bodies of water; or
          • (ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;
        • (4) Wetlands adjacent to the following waters:
          • (i) Waters identified in paragraph (a)(1) of this section; or
          • (ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3)(i) of this section and with a continuous surface connection to those waters; or
          • (iii) Waters identified in paragraph (a)(2) or (3) of this section when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;
        • (5) Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) of this section:
          • (i) That are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3)(i) of this section; or
          • (ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section.
    • (b) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(2) through (5) of this section:
      • (1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act;
      • (2) Prior converted cropland designated by the Secretary of Agriculture. The exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA;
      • (3) Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water;
      • (4) Artificially irrigated areas that would revert to dry land if the irrigation ceased;
      • (5) Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;
      • (6) Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;
      • (7) Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States; and
      • (8) Swales and erosional features ( e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.
    • (c) In this section, the following definitions apply:
      • (1) Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.
      • (2) Adjacent means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are “adjacent wetlands.”
      • (3) High tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.
      • (4) Ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
      • (5) Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.
      • (6) Significantly affect means a material influence on the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section. To determine whether waters, either alone or in combination with similarly situated waters in the region, have a material influence on the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section, the functions identified in paragraph (c)(6)(i) of this section will be assessed and the factors identified in paragraph (c)(6)(ii) of this section will be considered:
        • (i) Functions to be assessed:
          • (A) Contribution of flow;
          • (B) Trapping, transformation, filtering, and transport of materials (including nutrients, sediment, and other pollutants);
          • (C) Retention and attenuation of floodwaters and runoff;
          • (D) Modulation of temperature in waters identified in paragraph (a)(1) of this section; or
          • (E) Provision of habitat and food resources for aquatic species located in waters identified in paragraph (a)(1) of this section;
        • (ii) Factors to be considered:
          • (A) The distance from a water identified in paragraph (a)(1) of this section;
          • (B) Hydrologic factors, such as the frequency, duration, magnitude, timing, and rate of hydrologic connections, including shallow subsurface flow;
          • (C) The size, density, or number of waters that have been determined to be similarly situated;
          • (D) Landscape position and geomorphology; and
          • (E) Climatological variables such as temperature, rainfall, and snowpack.

What’s next for WOTUS after judge drops Trump’s 2020 NWPR rule?

Back in 2020, the Navigable Waters Protection Rule (NWPR) promulgated by the Trump administration significantly reduced the coverage of the water bodies in the United States. For many environmental organizations, agricultural and specialty crop stakeholders, this decision was inadequate, and Trump found himself the target of criticism. In contrast, developers and industry stakeholders welcomed this decision with open arms.

Nevertheless, as the political set is changing, the decisions issued by the Administration undergo changes as well. Quickly after taking the service, President Biden took steps toward repealing the Trump-rule. After reviewing the actions taken by Trump Administration, the key term in the Clean Water Act (CWA) is changing for another time. The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), on June 9, 2021, made a joint announcement that they intend to examine and make alterations to the WOTUS rule. Biden Administration explained that these alternations are driven by the inconsistency and certain obstacles to the new scientific and environmental policy aspirations. Additionally, Corps and EPA had sizeable concerns about the NWPR and established an unavoidable need for changes. They intended to replace the NWPR through the rulemaking process.  

Almost three months later, On August 30, 2021, the U.S. District Court for the District of Arizona entered an order in Pasqua Yaqui Tribe v. EPA, so now things have moved in the planned direction, and the Biden administration can take a short break. The federal court ruling made a decision to put an end to the Trump-era Clean Water Act rule. It is not specified whether the Arizona district court’s order would apply locally or nationwide.       

As Judge Rosemary MĂĄrquez of the U.S. District Court for the District of Arizona ruled, the decision to withdraw the federal protection for streams and wetlands across the country was defective and too flawed to keep in place. The decision made by the federal court effectively puts an end to the Trump era and is a fundamental change that affects the entire nation. Consequently, the Navigable Waters Protection Rule is not currently in effect.

While the Navigable Waters Protection Rule is one of the most controversial decisions of the previous Administration, according to many, the new regulatory go in favor of both developers and farmers. At the same time, the EPA is spared from punishment by ruling out the Trump-rule, as the agency is preparing a replacement for the NWPR. 

In an email, the former EPA Office of Water attorney, Mark Ryan, said that: “The immediate effect is a nationwide vacature of the 2020 rule. There will be an appeal. Assuming the judge’s order is not stayed on appeal, then EPA will not have to go to the trouble of repealing the 2020 rule, and can move straight to drafting the new rule (which is almost certainly underway already).”

When it comes to the ruling and determining which “waters of the United States” are qualified to undergo federal protection under the Clean Water Act, the EPA and the Army Corps of Engineers consider implementing the 1986 regulation, which George W. Bush interpreted in the Agencies’ 2008 guidance. Legal experts explain that there is quite a big difference between restoring the Clean Water Rule and reverting to the pre-2015 status quo.  

This change makes some space and relieves EPA of unnecessary obligations. Therefore, instead of revoking the previous regulation, the EPA can focus its efforts and resources to anew the definition of “water of the U.S..” Ryan stated: “I think this relieves a bit of the pressure. Now they have one, not two big rulemakings to deal with.”

The most recent update about the EPA’s decision is that the agency currently discusses and evaluates the ruling. Timothy Carroll, the EPA spokesperson, stated that there aren’t any further comments on the final decision.  All things considered, the recent changes leave many open questions. The one most commonly asked is whether there will be a return to the 2015 Obama rule?! Do the industry stakeholders intend to appeal the vacatur order to support the NWPR? Will the Ninth Circuit limit the extent of the vacatur to Arizona? How do these decisions impact the current regulatory landscape?

Regulatory Integrity Protection Act of 2015

The Swamp Stomp

Volume 15, Issue 20

On April 30, 2015 the US House of Representatives voted (241-181) to pass H.R. 1732 – Regulatory Integrity Protection Act of 2015.  This bill is now scheduled to move onto the Senate for a vote.  If they have the votes in the Senate it will move onto the President who as indicated that it will be vetoed.  To be frank this bill is entirely political and largely too little too late.  However there are some key points in this Bill that are worth discussing.

At the heart of the bill is the call for the complete cessation of rulemaking with regards to the definition of “waters of the US.” The Bill is broken down into three parts and is merely 12 pages long.  This is quite a relief as the Corps and EPA page count on the new “waters of the US” rule exceeds over 1,000 pages of text amongst a number of supporting documents.

2015-05-18_15-46-39

Section 1 is the title, “Regulatory Integrity Protection Act of 2015.”  It is a bill to, “To preserve existing rights and responsibilities with respect to waters of the United States, and for other purposes.”

Section 2 calls for the withdrawal of the existing prosed rule.  “Not later than 30 days after the date of enactment of this Act, the Secretary of the Army and the Administrator of the Environmental Protection Agency shall withdraw the proposed rule described in the notice of proposed rule published in the Federal Register entitled ‘‘Definition of ‘Waters of the United States’ Under the Clean Water Act’’ (79 Fed. Reg. 22188 (April 21, 2014)) and any final rule based on such proposed rule (including RIN 2040–AF30).”

The few news agencies that have even bothered to pick up this story seem to end at this section.  You can check out the cutting edge news from places like Greenhouse Management, Springfield News Leader, Real Estate Rama, and the Daily Signal.  This does not make the front page of the NY Times by any stretch.  However, the next section in the bill is extremely interesting and a bit disturbing and largely undiscussed.

Section 3 calls for the development of a new proposed rule by the EPA and the US Army Corps of Engineers.  It specifically requires that the Agencies consider public comments, review and economic analysis of the rules and incorporate the “scientific” analysis done by the EPA “Science” Advisory Board.

I use big quotes when describing this report as scientific.  No scientific study was conducted.  The report is merely a mediocre cut and paste job of selected papers written by others.

The Bill does add two new dimensions to the process that thus far have not happened.  It designates the States and local officials as stakeholders and requires that their input be considered.  Many States already have afforded “waters of the State” protection to non-Federal jurisdictional waters.  This new provision in the Bill alleviates that awkward aspect of the Clean Water Act that provides for the State to establish jurisdiction over waters (Section 404 (g) of the CWA).  The states would relinquish their role in establishing jurisdiction to the federal government by enjoining themselves in the new process as stakeholders.  This would be as opposed to the current situation wherein they  self govern.  So much for state’s rights.

The second and most significant point in the entire Bill is that the Agencies must consider the rulings of the Supreme Court when crafting the new rules.  To be even more frank, I cannot believe that such a provision would have to be added to a Bill.  If the government adopts rules that are inconsistent with the Supreme Court’s rulings it is by definition unconstitutional.  The Supreme Court has ruled that the US government does not have universal reach in what it claims to be “waters of the US.”  The 2001 SWANCC decision is at the heart of the EPA/Corps “waters of the US” rule.

In 2001, The Supreme Court confirmed that there are some waters that are beyond the reach of federal jurisdiction.  In the preamble of the proposed EPA/Corps rule, the Agencies state that it was always the position of Congress that all wetlands are jurisdictional.  However, in 2001 the Supreme Court ruled that this is not the case.  Is it appropriate for the Agencies to speak for Congress and defy the Supreme Court?

In the 2012 Sackett case, Supreme Court Justice Alito called out Congress to show some leadership and develop a reasonably clear rule defining “waters of the US.”   This latest Bill is a far cry from that.  It basically goes back to the same two Agencies and asks them to start the entire process again using the same data set and expecting a different result.  You may recall what Albert Einstein said about the definition of insanity.

“Insanity: doing the same thing over and over again and expecting different results.”

At the heart of this entire mess is a clear lack of leadership.  Our elected representatives need to step up and stop hiding behind the Agencies to solve this problem.  It is the job on Congress to establish the limit of Federal jurisdiction and not the Agencies.  The Executive branch administers the laws as passed by the Legislative branch.  In all fairness to the Executive branch, these “waters” rules are not clear and it is understandable why they would seek clarity.  However, designating a private landowner’s property as being “of the US” is perhaps something left to the democratic process rather than mandated by a Federal Agency.

The need for clear rules about what is subject to federal jurisdiction is needed.  Our current rules are confusing and seem to keep heading to court.  However, in my humble opinion these rules should come from the consent of the governed rather than being mandated by the government for our own good.  It was just a few years ago when our government suggested that pouring oil on a wetland was a good idea for the control of mosquitoes.    See if you can find a copy of the “Winged Scourge” which was a government produced public information movie.   It was the governed that stood against this practice and had it repealed.  In the end it is the wisdom of the people rather than the whims of politics that shape our laws.  Politics is about pleasing the masses to maintain power.  Wisdom is the recognition of truth.

Have a great week!

– Marc

 

EPA Admit “Waters of the U.S.” Could Have Been Handled Better

Swamp Stomp

Volume 15, Issue 15

During the National Farmers Union convention in Wichita on March 16, 2015, U.S. Environmental Protection Agency Administrator Gina McCarthy expressed regret about how the EPA handled the controversial “Waters of the U.S.” rules.

Following U.S. Department of Agriculture Secretary Tom Vilsack, McCarthy spent the majority of her 30-minute speech claiming that she wished her agency had done a better job of explaining how EPA defined which bodies of water were regulated under the Clean Water Act.

McCarthy asserted, “I’m really concerned that we weren’t crystal clear out of the gate, not just about what we intended to do but about what we intended not to do, because it left all kinds of room for people to wonder not just what the words said but what we are trying to accomplish.”

Despite her regret over how the effects of rule were communicated, however, McCarthy is adamant that the EPA’s end goal will be met and the final rule be issued.  She said that the rule is currently on its way to the Office of Management and Budget and is expected to be issued this spring.

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After recent U.S. Supreme Court rulings, EPA is currently rewriting the rule, but McCarthy remains adamant that the need for the rule is clear. However, she did attempt to clarify what the rule would and would not intend to do. She provided the following assurances:

  • In response to numerous criticisms, McCarthy assured the public that EPA would not regulate puddles, land, or Fourth of July fireworks.
  • Addressing the worry that regulating “tributaries” could mean just about anything, McCarthy stated that EPA has established clearer definitions.
  • The rule does not include erosional features.
  • McCarthy claimed that roadside and irrigational ditches are not included, but ditches that are natural and constructed streams that can carry pollution downstream and act like tributaries are included.
  • Waters initially labeled as “other waters”—a term McCarthy conceded was too ill-defined—are in the process of being more narrowly stated by officials using their “best judgment.” However, the results of clarifying vague terms with even vaguer qualifications will most likely do little to quell concerns.

The main message of McCarthy’s speech was that farming and ranching should remain unaffected by the rule. “The exclusions and exemptions for agriculture . . . this rule we will not touch,” she said.

During Vilsack’s address, farm productivity was a major talking point. Farmers today are 12 times more productive then they were in 1950. Subsequently, Americans only spend 10 percent of their income on food, 15 to 20 percent less than many of the other countries in the world.

Vilsack also raised many concerns, including how to best introduce the next generation of farmer to the profession, labeling country origin of beef and pork in supermarkets, and how to best develop tools and support conservation and local agriculture, such as farmers markets.

“This isn’t just about farming. This isn’t just about agriculture. This is about rural life and maintaining the value system alive and well in the rural communities.”

While Vilsack is not forwardly addressing the “Waters of the U.S.” rule, he is assisting McCarthy paint an image of what the rule intends to do. The ambiguity of McCarthy’s speech did little to rid farmers and ranchers of their concerns, and her acknowledgment that the rule was not communicated as well as it could have been is somewhat diminished by “clarifying” points with terms that themselves are ambiguous.

 

“Waters of the U.S.” Public Hearing Held

Swamp Stomp

Volume 15, Issue 13

On March 17, 2015, Republican Glen Thompson, Chairman of the House Agriculture Committee’s Conservation and Forestry Subcommittee, held a public hearing in order to examine the definition of the proposed “Waters of the United States” rule and its impact on rural America.

Legislated in 1972, the Clean Water Act (CWA) initiated a federal-state government partnership that was intended to more appropriately regulate and manage the nation’s water by means of various pollution and control programs. The CWA asserts that it is the “policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of State to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the [EPA] Administrator in the exercise of his authority under this Act.”

During the hearing, several members of the House Committee on Agriculture claimed that by proposing the “Waters of the U.S.” rule, the Administration has acted on its own, without any input from either states or stakeholders, in order to widen the federal jurisdiction granted under the CWA, which, subsequently, threatens the livelihood of farmers, ranchers, and rural America.

Chairman Thompson said, “Despite strong bipartisan opposition from Congress and the public, the Obama Administration has acted to expand its federal authority. The EPA’s proposed rule could have serious consequences for our nation and prove to be a severe detriment to our economy, with a particularly strong impact in rural counties. Hasty movement from the EPA will only invite costly litigation, burden states and counties with compliance costs, and create obstacles to building and replacing our national infrastructure.”

Thompson continued, “Rather than strengthening the law, this rule creates more confusion. These actions highlight a disturbing pattern of an Administration that is out of touch with farmers, ranchers, and rural land owners. The testimony received today further outlines the need for the EPA to either pull the rule and move for further consultation with states, countries, and stakeholders, or re-purpose the rule and allow a new round of public comment. There is too much on the line to continue down the current path.”

Republican Kenneth Michael Conway, Chairman of the House Agriculture Committee, also spoke at the hearing. He asserted, “I strongly support legislation to block the “Waters of the United States” rule and hope we can put legislation to this effect on the president’s desk, whether as a stand-alone bill, as part of a larger measure, or both. The better route, of course is for EPA and the Corps to pull this regulation, work with state and local stakeholders to develop new and proper set of recommendations, and submit these recommendations to Congress for consideration and approval.”

The witness list at the hearing was comprised of two panels. The first panel included the Honorable Jeff M. Witte, the Honorable Robert ‘Pete’ Smeltz, Mr. Joseph S. Fox, and the Honorable Martha Clark Mettler. The second panel consisted of Ms. Ellen Steen, Mr. Jonathan Gledhill, Mr. Russ Biggica, Mr. Sledge Taylor, and Mr. Steve Foglesong.

The Administration will issue a final regulation this spring without any additional time for public review and comment, despite receiving over one million comments prior to the public comment deadline last autumn. EPA officials claim that changes will be made to the regulation to reflect comments, but without granting themselves and additional time to review the proposal before it would go into effect, there is increasing concern over what actions EPA may take.

EPA Sets Aside $1 million for Wetland Restoration and Protection

Swamp Stomp

Volume 15, Issue 9

In order to strengthen the ability of both states and tribes to better protect and restore wetlands, the U.S. Environmental Protection Agency will distribute $1 million in grants. The National Wetland Program Development Grants aim to provide interstate agencies, intertribal consortia, and non-profit organizations with funding so that they may both cultivate and refine already existing state, tribal, and local wetland programs.

Ken Kopocis, the Deputy Assistant Administrator for Water at EPA, stated, “Wetlands are part of the foundation of our nation’s water resources and are vital to the health of waterways and communities that are downstream. Wetlands feed downstream waters, trap floodwaters, recharge groundwater supplies, remove pollution, and provide fish and wildlife habitats. Wetlands are also economic drivers because of their key role in fishing, hunting, agriculture, and recreation.”

The EPA announced six proposals that are being awarded. All of the proposed projects must demonstrate how they will promote healthy communities and ecosystems, and must be linked to environmental results. The selected proposals are as follows:

  • Leveraging Hazard Mitigation Buyouts (acquisition of flood prone areas) to Protect and Restore Wetlands and Improve Watershed Health – This project will see the Environmental Law Institute and the University of North Carolina investigate and map hazard mitigation buyouts in three states in order to analyze any possible wetland habitat and flood mitigation benefits of acquired properties. The two institutions will then make recommendations that they think will assist wetland programs across the country enhance collaboration with hazard mitigation planners and emergency managers. They will also leverage hazard mitigation buyouts in order to restore, maintain, and connect acquired properties so that wetland and wildlife habitats are provided, and community resilience is improved.

 

  • Improving In–Lieu Fee Mitigation Practice Through Training – For this program, the Environmental Law Institute will design and host a conference and a series of webinars committed to focusing on the needs of state, tribal, and local governments that are seeking approval for, administering, or overseeing In-Lieu Fee compensatory wetland mitigation programs.

 

  • Creation of an Online Academy to Advance the Use of Living Shorelines – Restore America’s Estuaries and its partners will construct and operate a “Living Shoreline Academy” devoted to promoting the use of natural protection methods so that the degradation of fringing shorelines and fish habitats that surround our nation’s estuaries may be reduced.

 

  • Development of a Stewardship Calculator for Wetland Mitigation Banking – The Nature Conservancy and its partners will assemble a small group of national experts in order to establish a Wetland Stewardship Calculator, accompanying handbook, and web-based application. Such resources can be used by states, tribes, local governments, and land trusts to successfully enable long-term stewardship of wetland protection sites.

 

  • Creating New Access to High Quality Wetland Training for State and Tribal Wetland Program Field Professionals – The Association of State Wetland Managers and its partners will apply themselves to presenting state, tribal, and wetland professionals with training opportunities and resources. Doing such will increase the ability of these professionals to implement wetland programs. ASWM will gather a Working Group to identify both national and regional wetland training needs, as well as assisting in the development of the other products of this project.

 

  • Raising the Bar on Wetland Restoration Success Nationwide – This program will see the Association of State Wetlands Managers work on several interrelated projects. These projects include developing a national strategy for improving wetland restoration success, pursing strategies to improve permit applications, and a review of voluntary restoration projects. ASWM will also attempt to create a series of written and web-based resources on the best management approaches for wetland restoration.

 

For more information on the grants or these projects, please visit: http://water.epa.gov/type/wetlands/initiative_index.cfm