Update: U.S. EPA and U.S. Army Corp Announce Final Clean Water Rule Today

By Sharon O. Jacobs

Today, the U.S. Environmental Protection Agency and the U. S. Army Corp of Engineers announced the final rule revising the definition of the Clean Water Act (“CWA”) regulatory term “waters of the United States.” The draft rule was previously discussed on March 27, 2014. The final rule includes eight categories of jurisdictional waters, maintains existing exemptions for certain categories of activities and waters, and adds additional exclusions for categories of waters not covered under the Act. This rule is projected to result in an increase in CWA jurisdiction and provide some clarification regarding which waters are covered by the CWA.

For the first time “tributary” and “tributaries,” “neighboring,” and “significant nexus” are defined in the new rule. The rule maintains existing exclusions for certain categories of waters and adds additional categorical exclusions that were previously applied by regulators. The rule recognizes jurisdiction for three basic categories: waters that are jurisdictional in all instances, waters that are excluded from jurisdiction, and a category of waters subject to a case-specific analysis to determine whether the water is jurisdictional.

Previous definitions of “waters of the United States” regulated all tributaries without qualification. The final rule defines “tributaries” as waters that are characterized by the presence of physical indicators of flow – bed and banks and ordinary high water mark – and that contribute flow directly or indirectly to a traditional navigable water, an interstate water, or the territorial seas. The rule states “adjacent waters” are “waters of the United States” and identifies three circumstances where waters will be “neighboring” and therefore “waters of the United States.” The rule also identifies certain waters that can be “waters of the United States,” where a case-specific determination finds a significant nexus between the water and traditional navigable waters, interstate waters, or the territorial seas.

The rule excludes certain waters, certain water features, groundwater, certain types of ditches, stormwater control features created in dry land and certain wastewater recycling structures created in dry land.

For more information, click here.

Final Rule for Cooling Water Intake Structures-Existing Electric Generating Plants and Factories

By Sharon O. Jacobs

On May 19, 2014, the U.S. EPA released the final regulation to the Clean Water Act that follows through on a settlement agreement where they agreed to issue regulations aimed at reducing injury and death to fish and aquatic life caused by cooling water systems at large power plants and factories. Section 316(b) of the Clean Water Act requires National Pollutant Discharge Elimination System (NPDES) permits for facilities with cooling water intake structures to ensure that the location, design, construction and capacity of the structures reflect the best technology available to minimize harmful impacts to the environment. The rule applies to facilities that use cooling water intake structures and have or require an NPDES permit.

Many industrial sectors are affected (see the definitions in 40 CFR 125.81, 125.91 and 125.131). The new rule covers roughly 1,065 existing facilities that are designed to withdraw at least 2 million gallons per day of cooling water. EPA estimates that 521 of these facilities are factories, and the other 544 are power plants.

  • • Existing facilities that withdraw at least 25 percent of their water from an adjacent waterbody exclusively for cooling purposes and have a design intake flow of greater than 2 million gallons per day are required to reduce fish impingement under the final rule. The owner or operator of the facility will be able to choose one of seven options for meeting best technology available requirements for reducing impingement.

  • • Facilities that withdraw large amounts of water--at least 125 million gallons per day--are required to conduct studies to help their permitting authority determine whether and what site-specific controls, if any, would be required. This process will include public input.

  • • New units that add electrical generation capacity at an existing facility are required to add technology that achieves one of two alternatives under the national best technology available standards for entrainment for new units at existing facilities. The two alternatives are explained in the regulation.

For more detailed information regarding the new Section 316(b) Clean Water Act rule, visit the Federal Register website.

New Federal Rule Proposes to Expand Jurisdiction of the Federal Clean Water Act

By Sharon O. Jacobs

On March 25, 2014, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly proposed a new rule defining the scope of waters protected under the Clean Water Act (CWA). The rule would expand EPA’s jurisdiction to waters that were previously not subject to EPA’s jurisdiction as “waters of the United States.” The new rule, if it becomes final, may allow the EPA or the Tennessee Department of Environment and Conservation to expand its jurisdiction to small bodies of water on private property. Under the joint proposed rule, all natural and artificial tributaries and wetlands that are adjacent to or near larger downstream waters would also be subject to the federal CWA. The EPA and the Corps purportedly proposed the new rule in an effort to clarify the CWA program. However, the end result appears to be an expansion of the scope of “waters of the United States” protected under the CWA. Specifically, the proposed rule provides that under the CWA:

    • • Most seasonal and rain-dependent streams are protected.
    • • Wetlands, ponds and other waters near rivers and streams are protected.
    • • Other types of waters may have more uncertain connections with downstream water, and protection will be evaluated through a case-specific analysis of whether the connection is or is not significant.

The proposed rule defines “waters of the United States” as “traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters or the territorial seas; and adjacent waters, including adjacent wetlands.” In addition, the agencies propose that “other waters” (those not fitting in any of the above categories) could be determined to be “waters of the United States” through a case-specific showing that, either alone or in combination with similarly situated “other waters” in the region, they have a “significant nexus” to a traditional navigable water, interstate water or the territorial seas. However, at this time, the “significant nexus” has not been defined. The agencies seek public comments on alternate approaches to determine which waters are jurisdictional as “other waters.”

The proposed rule allows the EPA and the Corps to seek comment on a case-by-case basis on whether the aggregate effect of geographically isolated wetlands and other waters that “significantly” affect the physical, biological and chemical integrity of federally protected downstream waters are jurisdictional pursuant to the CWA. An interpretive rule was also included which clarifies that 53 specific conservation practices identified by the Agriculture Department's Natural Resources Conservation Service to protect or improve water quality won't be subject to dredge-and-fill permits under Section 404 of the CWA.

The agencies seek public comments on the proposed rule. Public comments will be accepted for 90 days after the date of the publication in the Federal Register. Because the rule alludes to other bodies of water, which could be regulated, it is important for the public to review the proposed rule carefully and provide comments. The rule is a game changer for small bodies of water if it becomes final.

The public should submit feedback by identifying Docket ID No. EPA–HQ–OW–2011–0880 using one of the following methods:

    • • Mail: Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460, Attention: Docket ID No. EPA–HQ–OW–2011–0880.