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EPA and Army Corp of Engineers Pass Rule Clarifying “Waters of the U.S.” Authority

On May 27, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (collectively, the agencies) jointly announced the final rule defining “waters of the U.S.” protected by the Clean Water Act (CWA). The agencies’ stated goal is to ensure that waters protected by the Act are “more precisely defined, more predictable, easier for businesses and industry to understand, and consistent with the law and science.” The agencies’ CWA jurisdictional determinations affect many water regulatory programs, including the National Pollutant Discharge Elimination System permit program, the Section 404 wetlands permit program for discharges of dredged and fill material, and the Section 311 oil and hazardous substances program.

EPA received more than one million comments on its April 21, 2014, proposed rule. The proposed definition also received significant media attention and was the subject of numerous congressional hearings. Both the House of Representatives and the Senate are considering legislation that could overturn EPA’s final rule.

According to the agencies, the final rule provides greater clarity regarding which waters are subject to federal jurisdiction. In response to critics, they assert that federal jurisdiction under the final rule is narrower than the existing regulation, no existing exclusions are removed, and no new permitting requirements are mandated as a result of this final rule. Opponents of the rule have asserted that the agencies are using the new rule to broaden their authority to regulate waters that have been exempted or should be subject only to state regulation, creating more ambiguity and infringing on state and local authority.

The agencies assert that the final rule preserves the existing exclusion for wastewater treatment systems designed to meet the requirements of the Clean Water Act. They state that only a “ministerial change” was made to this exclusion, to eliminate a cross reference to a rule that no longer exists. The agencies also deleted a comma from the proposed rule language, after commenters expressed concern that it could be interpreted to exclude wastewater treatment systems that predate the Clean Water Act. The agencies also indicate that the final rule expands the existing wastewater treatment exclusion, by specifically excluding wastewater recycling structures created in dry land. Although wastewater treatment systems continue to be excluded from the definition of the waters of the U. S., the agencies also preserved in the final rule its “continuing practice” of requiring a section 404 permit for wastewater treatment systems actually built in waters of the U. S. and NPDES permit requirements for discharges into jurisdictional waters.

The final rule also specifically adds an exclusion for “stormwater control features constructed to convey, treat or store stormwater and cooling ponds that are created in dry land,” consistent with what the agencies called its “current practice” of excluding such features from the definition of waters of the U.S. They explained in the rule’s preamble that the new exclusion for stormwater control features is meant to include “green infrastructure” projects for which the agencies want to “avoid disincentives to this environmentally friendly trend in stormwater management.” Based on the language in the rule the exclusion for stormwater control features should apply to both privately operated and municipal separate storm sewer systems.

The types of waters most likely impacted by this rule are those waters upstream from or adjacent to traditionally navigable waters, interstate waters, territorial seas, or other covered waters, including water features located in 100-year floodplains or within 1,500 feet from the ordinary high water mark of traditionally navigable water, interstate water, territorial sea or other covered water.

Two Supreme Court decisions have indicated that jurisdiction under the Clean Water Act is based on a water’s significant nexus to more traditional navigable waters . In light of those cases - Solid Waste Agency of Northern Cook County v. U.S. Army Corp of Engineers, and Rapanos v. United States - the agencies have stated that they have decided to establish a more science-based method for determining whether adjacent waters and tributaries have a significant nexus to the traditional navigable waters.

Given the visibility of this rulemaking action, and the number of parties and interest groups that commented on the rule, litigation is likely. The rule will become effective sixty days after publication in the Federal Register, which is expected in the next few weeks.

© 2019 BARNES & THORNBURG LLP

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Fredric Andes Environmental Attorney
Partner

Fredric P. Andes is a partner in the Chicago and Washington, D.C., offices of Barnes & Thornburg and the leader of the firm's water team. Fred is involved in counseling and litigation on issues arising under various federal and state environmental laws, with a special emphasis on Clean Water Act matters.

Fred is involved in clean water issues on the national and state levels. He was selected by the EPA to serve on the Federal Advisory Committee on the Total Maximum Daily Load (TMDL) Program. He is serving as coordinator for the Federal Water Quality Coalition, which is a group...

312-214-8310
Joel Bowers Environmental Attorney
Partner

Environmental lawyer Joel Bowers is dedicated to finding creative solutions to even the most difficult enforcement proceedings and complex deals. Joel is experienced in transforming technical analysis into practical legal counsel that takes into account big-picture client objectives.

Joel focuses his practice on environmental compliance and enforcement, including air quality and chemical regulation. He advises on remediation, corrective action and voluntary cleanups, as well as cost recovery defense.

In addition, Joel advises on environmental diligence for commercial and real estate brownfields transactions, as well as navigates his clients through the wetlands permitting process. Joel also represents industrial, institutional and individual clients in judicial and administrative environmental enforcement proceedings at the federal, state and local levels.

Joel feels a sense of personal stake in matters in which he is involved, and offers skill in analyzing sophisticated environmental issues and explaining prospective courses of action to clients in a way that is easily understood and actionable.

Joel’s clients are diverse and range from transportation and manufacturing entities to those in the energy and technology sectors. Regardless of the client or matter at hand, Joel focuses on understanding what each client needs to succeed and then develops solutions around those distinct objectives.

He is a frequent presenter on environmental topics for legal and professional audiences.

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Timothy Haley, Barnes Thornburg Law Firm, Indianapolis, Environmental Law Attorney,
Partner

Timothy A. Haley is a partner in the Environmental Department in Barnes & Thornburg LLP’s Indianapolis, Indiana office.

Mr. Haley focuses his practice on regulatory issues arising from environmental laws. These issues include planning and diligence in business and real estate transactions, permitting, administrative rulemaking proceedings, administrative enforcement defense and other administrative or civil litigation. Mr. Haley also advises clients during acquisitions of potentially environmentally impaired properties, and on compliance...

317-231-6493
Jeffrey Longsworth, Barnes Thornburg Law Frim, Washington DC, Environmental Law Attorney
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Jeffrey S. Longsworth is a partner in the Washington, D.C. office of Barnes & Thornburg LLP and the D.C. administrator of the Environmental Department, which was recently recognized as Tier 1 for national environmental litigation in the annual "Best Law Firms" ranking by U.S. News and Best Lawyers. He is involved in counseling and litigating issues that arise under federal environmental laws and regulations, with an emphasis on Clean Water Act matters, especially issues involving permitting, stormwater, effluent limitations guidelines, enforcement, inspections and spill...

202-408-6918
Erika K. Powers, Barnes Thornburg law firm, Chicago, Environmental and Litigation Law Attorney
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Erika K. Powers is a partner in the Chicago office of Barnes & Thornburg LLP. She is a member of the Environmental Department and concentrates her practice in the area of water quality. Ms. Powers advises municipalities, utility districts, trade organizations, and other regulated parties across the country on a wide variety of Clean Water Act issues, including wet weather management and wastewater treatment. She also assists clients in matters involving water quality standards, the listing and delisting of impaired water bodies, TMDL development and implementation, effluent limitations...

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