September 19, 2013

EPA, Corps Send Proposed Rule to OMB To Clarify Clean Water Act Jurisdiction

From: Bloomberg/BNA

By Amena H. Saiyid

A proposed rule sent to the White House for interagency review Sept. 17 aims to clarify which waters and wetlands are protected under the Clean Water Act.

The rule from the Environmental Protection Agency and the Army Corps of Engineers would provide greater clarity about which waters are subject to Clean Water Act jurisdiction and greater certainty about which activities require Clean Water Act permits, senior EPA officials wrote in a blog post.

For instance, the rulemaking would indicate when dredge-and-fill activities as well as discharges of pollutants would be subject to Clean Water Act protections.

“The proposed joint rule will provide greater consistency, certainty, and predictability nationwide by providing clarity for determining where the Clean Water Act applies and where it does not,” Nancy Stoner, EPA acting assistant administrator for water, and Lek Kadeli, EPA acting assistant administrator for research and development, said in the blog.

At the Environmental Council of the States’ annual conference, also Sept. 17, Stoner said the proposed rule was an effort to clarify jurisdictional issues as a result of recent U.S. Supreme Court decisions.

Also at the conference, Stoner told participants during the ECOS Water and Ecosystems Committee meeting that the EPA Science Advisory Board was releasing for public comment a study on the connectivity of smaller streams and wetlands to larger, downstream waters. This study, upon being finalized, would provide the scientific basis for the proposed rule on Clean Water Act jurisdiction, she said.

The EPA had asked the advisory board earlier this year to conduct a peer review of the connectivity study. The board recently selected a panel that will conduct the review.

The EPA officials said the rulemaking on jurisdiction was necessary to reduce costs and minimize delays in the permitting process and protect waters that are vital to public health, the environment and economy.

Exemptions Intact

Both Kadeli and Stoner, however, clarified that the rule would not propose changes to existing permitting exemptions and exclusions, including those that apply to the agricultural sector.

Specifically, EPA said the rule would exempt agricultural stormwater runoff, normal silvicultural activities, and irrigation ditches, among other waters from National Pollutant Discharge Elimination System permitting requirements under Section 402 of the Clean Water Act. Also excluded from jurisdiction would be waste treatment ponds and wetlands that were filled prior to December 1985 for use as croplands.

According to the EPA blog, the proposed rule sent to OMB would clarify that artificial ornamental ponds, artificially irrigated areas, areas artificially flooded for rice growing, pits excavated for land fill, among others would be excluded from Clean Water Act jurisdiction.

Also present at the ECOS meeting was Alexandra Dunn, general counsel and executive director of the Association of Clean Water Administrators, who told Bloomberg BNA after Stoner’s announcement that EPA was planning to withdraw the joint EPA-corps guidance that has been under review at the OMB since February 2011.

In late December 2012, the two agencies said they would propose a rule to clarify “considerable debate and uncertainty” over attempts to interpret two U.S. Supreme Court decisions on what constitutes waters of the United States (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 51 ERC 1838 (2001); Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (2006)).

Linking Downstream Impacts

EPA’s draft report synthesizes peer-reviewed scientific literature pertaining to biological, chemical, and hydrologic connectivity of waters, and the effects that small streams and wetlands have on larger downstream waters such as rivers, lakes, estuaries, and oceans.

The draft report concluded that streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters. Moreover, wetlands in floodplains of streams and rivers and riparian areas are integrated with streams and rivers, and strongly influence downstream waters by affecting the flow of water, trapping and reducing nonpoint source pollution, and exchanging biological species. However, the report found there was insufficient information to generalize about wetlands and open waters located outside of riparian areas and floodplains and their connectivity to downstream waters.

Since 2012, the EPA connectivity study has been causing concern among congressional Republicans, home developers, and farming groups. The groups and the lawmakers see the study as providing the scientific basis for establishing a significant nexus between ephemeral, perennial, and intermittent waters and wetlands and larger navigable waters.

‘Proposal Will Be Controversial.’

Don Parrish, senior director for regulatory relations with the American Farm Bureau Federation, said the federation wanted the guidance withdrawn and a “serious rulemaking proposal” put forward. Still, Parrish said, “I am sure the proposal will be controversial because it will propose to regulate features that [have] little or no similarities to streams. If they broaden jurisdiction, it will erect barriers to economic growth, and the last thing our economy needs is more regulations.”

On EPA’s decision to withdraw its guidance, Sen. David Vitter (R-La.), the ranking Republican on the Senate Environment and Public Works Committee, said, “EPA’s announcement today doesn’t solve anything, but merely takes another road to potentially expand its own jurisdiction through the Clean Water Act.”

Environmental groups, including the Sierra Club, American Rivers, Natural Resources Defense Council, and Earthjustice lauded the rulemaking action as well as the draft report’s release. They said in separate statements that the scientific findings underscore the importance of linking protection of small streams and wetlands to clean water, fish and wildlife, and flood control.

Jon Devine, NRDC senior water attorney, said he was pleased that the EPA was moving forward with the rulemaking. “Separately,” Devine, said, “we are disappointed that the administration has failed to implement the guidelines that would have improved protections for these vulnerable waters but that stalled at the White House more than a year ago. We need these safeguards now.”


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