Rock Products

FEB 2019

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72 • ROCK products • February 2019 www.rockproducts.com LAW is an associate at Husch Blackwell LLP. He has experience with permitting, reporting, inspecting, and working with the EPA. Fanning helps clients under- stand how to comply with environmental regulations and statutes. He can be reached at Daniel.Fanning@huschblackwell.com. The Clean Water Act (CWA) grants the U.S. Environmental Protection Agency (EPA) or the U.S. Army Corps of Engi- neers (USACE) jurisdiction over the discharge of pollutants to navigable waters, which is expressly prohibited without authorization under a federal permitting program. "Naviga- ble waters" are defined in section 1362 as the "waters of the United States" (WOTUS). Determining if a discharge is occurring into the WOTUS is crit- ical to determining whether a permit is going to be required. Regulations promulgated to further define WOTUS, combined with court decisions, have caused a great deal of uncertainty in determining whether a permit is required, which causes greater potential for compliance issues at any mine, process- ing facility, or other site discharging a waste stream. The Background After two Supreme Court decisions, the EPA and USACE pro- mulgated a new regulation under President Obama in 2015, which was designated the "Clean Water Rule: Definition of 'Waters of the United States''' (CWR). (80 FR 37054, June 29, 2015). Under this rule, WOTUS included waters with a signif- icant nexus to traditional navigable waters. It subjected certain categories of waters to jurisdiction, including tributaries with certain features (such as a bank and a high water mark), "adjacent waters" that are within a certain distance of jurisdictional waters, and certain "iso- lated waters" of ecological importance (such as prairie potholes). Many opposed the rule, believing it went too far, and as a result, many states filed suit against its enforcement. Eventually injunctions against its enforcement were issued for 28 states, causing the pre-2015 rule to be in effect in those states. In 2017, the Trump administration initiated rule makings aimed at repealing or revising the CWR, "the suspension rule." This rule was aimed at changing the effective date of the CWR, which would return all states the pre-2015 defi- nition of WOTUS. The suspension rule was finalized in February 2018, and an additional lawsuit was filed to enjoin enforcement of the suspension rule. A nationwide injunction against the suspen- sion rule was issued in South Carolina Coastal Conservation League v. Pruitt on Aug. 16, 2018. This decision put the CWR back into effect in the 22 states without specific injunctions against it, and put back into place the injunctions against the What Are 'Waters of the United States'? The Trump Administration Just Proposed a New Definition. Will It Fly? By Daniel Fanning CWR in the other 28 states. Current Events On Dec. 11, 2018, the EPA and USACE proposed a new regu- lation defining the WOTUS. This regulation clarifies federal authority under the CWA. The administration considers this the second step in the two-step process to "review and revise the definition" in order to "to increase CWA program predict- ability and consistency." It has not officially been published in the Federal Register, but comments will most likely be due 60 days from publication. The 253-page current proposal can be found on EPA's web- site. Some highlights that the rule proposes to do are: A. Eliminate the case-by-case determination of the sig- nificant nexus standard, and replace it with a more in-depth definition of what the WOTUS includes. B. Limit the definitions of tributaries, lakes, ponds and nonadjacent wetlands, to those that have at least peren- nial and intermittent flow, and exclude ones with only ephemeral flows. C. Establish that impoundments will not change the juris- dictional status of tributaries. D. Define "adjacent wetlands" as those with a direct sur- face connection, and require inundation or perennial or intermittent flow between the wetland and juris- dictional water. E. Remove the permitting requirement to dreg or fill ephemeral streams, man-made ditches, or wetlands not covered under the definition of WOTUS. EPA and USACE had a webinar scheduled for Jan. 10, 2019, and were supposed to conduct a public hearing on Jan. 23, 2019. However, both of these were postponed due to the gov- ernment shutdown. EPA's website itself still has remnants of the 2017 rulemaking, including details about the comment period for the suspension rule that ended in November 2017. On this same page it announces the new regulation and pro- vides links to various fact sheets over the new rule.

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