ACOE Issues Memo Clarifying Sec. 404 Assumption
The U.S. Army today released a memorandum taking initial steps to empower States and tribes in assuming Section 404 permit authority under the Clean Water Act (CWA). In taking on this authority, States and tribes can accelerate job-creating economic development and infrastructure, all while continuing to protect the environment. Letters are also being sent to all fifty State Governors and the tribal leaders for all the Federally recognized tribes encouraging them to assume this traditional Federal permitting ability. The guidance memorandum issued by the Assistant Secretary of the Army for Civil Works is consistent with the Assumable Waters Subcommittee’s majority view regarding the scope of retained waters under Section 404(g). The memorandum will ensure that the scope of waters that must be retained by USACE under Section 404(g) of the CWA is properly limited to waters that are jurisdictional under Section 10 of the Rivers and Harbors Act of 1899, excluding waters that have only had historical navigation use, and including wetlands adjacent to Section 10 waters from the high-water mark of the water landward to an administrative boundary agreed upon by the state or tribe and USACE.
By clarifying what waters States and tribes may assume, the guidance addresses a key barrier to State and tribal assumption. When States and tribes assume the Section 404 permit program, they protect the waters to the same level as the federal government and often increase efficiencies and remove redundancies in permitting processes. Many States have determined that State and tribal implementation of the Section 404 permit program saves substantial money as they are able to incorporate the review process into their existing programs. This action supports infrastructure investment as removal of redundancies in State/tribal and federal reviews will help provide for more timely completion of permit review requirements. This action does not affect the scope of “waters of the United States” under the CWA. The memorandum and more information is available at: https://www.army.mil/asacw/.
6th Circuit Holds Oral Argument on Two Hydrologic Connection Cases
The 6th Circuit recently held oral arguments on two cases dealing with direct hydrologic connection of groundwater to surface water. Both cases test the novel question of whether the Clean Water Act limits groundwater pollution that eventually reaches protected surface waters, but the two argument sessions featured questions on facility-specific factors that could lead to narrower decisions. The recordings of the arguments in Tennessee Clean Water Network v. TVA and Kentucky Waterways Alliance v. Kentucky Utilities Company are linked here.
WGA Communicates Concerns over Section 401 Reform
Ten leading policy associations of state officials are urging Congressional leadership to reject legislative and administrative efforts to diminish states’ authority to manage water quality within their boundaries under Section 401 of the federal Clean Water Act (CWA). The August 9 letter was sent to House Speaker Rep. Paul Ryan and Minority Leader Rep. Nancy Pelosi, as well as Senate Majority Leader Sen. Mitch McConnell and Minority Leader Sen. Charles Schumer. States have primary legal authority over allocation, administration and protection of their water resources, which enables proper environmental management. As the letter sent by the associations on August 9 reminds: “To implement the CWA, Congress purposefully designated states as co-regulators under a system of cooperative federalism that recognizes state authority.” A vital component of this cooperation is state authority to certify and condition federal permits of discharges into waters of the United States under CWA Section 401. The issue also has been addressed by the U.S. Supreme Court, which concluded: “State certifications under [Section] 401 are essential in the scheme to preserve state authority to address the broad range of pollution.” (S.D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006), citing 116 Cong. Rec. 8984, 1970.) Signatories include: Western Governors’ Association; National Association of Counties – Western Interstate Region; Council of State Governments; Council of State Governments – West; Western States Water Council; Association of Clean Water Administrators; Association of State Wetland Managers; Western Interstate Energy Board; Conference of Western Attorneys General; Association of Fish and Wildlife Agencies. CWA 401 – Coaltion Letter (FINAL) – 20180809.
EPA Reverses Position On Maine Water Quality Standards
EPA recently changed its position in litigation over its 2015 rejection of some of Maine’s water quality standards. The case, Maine v. Wheeler, involves a debate on how to set water quality standards that protect tribal uses of waters, including “sustenance” or “subsistence” fishing and questions whether the Agency’s effort to reconcile the provisions of the Maine Indian Claims Settlement Act, which gives Maine the authority to set water quality standards on tribal lands, with the requirements of the CWA violates the Administrative Procedure Act.
EPA is now asking the U.S. District Court for the District of Maine to remand the issue to the Agency for reconsideration rather than defend its decision. In their recent motion to the court, EPA stated, “Maine have recently been involved in settlement discussions that would have obviated the need to litigate the merits if they had been successful. Those settlement discussions have now concluded without a negotiated resolution of this case.” Further, the Agency “has decided to change, and not to defend” its 2015 decisions about Maine’s water quality standards.
In 2015, EPA made several decisions including interpreting and approving Maine’s fishing designated use in its WQS to mean sustenance fishing in the waters in the Maine tribes’ reservations and trust lands, approving provisions in the Maine Implementing Act as a sustenance fishing designated use under the CWA in the inland waters of the Penobscot Indian Nation’s and Passamaquoddy Tribe’s reservations, and disapproving Maine’s human health criteria in its WQS as not sufficiently protective of the sustenance fishing designated uses in Indian waters.
The Penobscot Nation, a defendant-intervenor in the case, is objecting to EPA’s change, saying the Agency is attempting to avoid its trust obligation to protect tribal waters and its “fiduciary responsibility to protect the Nation’s reservation sustenance fishing resources” and has offered no valid reason to be relieved from its obligation to file a merits brief.
ECHO Home Page Updates
EPA recently announced redesign changes to the Enforcement and Compliance History Online home page. EPA was prompted to update the page by user concerns regarding site navigation, interviews of a number of site users, and comments from participants that attended an EPA usability workshop. The results are intended to be a simplified and more streamlined home page that will help you get more quickly to the content you care about. Additionally, EPA has updated the appearance of the Facility Search results and the Detailed Facility Report. Lastly, EPA has now published the Biosolids Annual Report for those 42 states where EPA implements the biosolids program. For more information on ECHO, please contact EPA.
No Wrap Next Week – 08/13
ACWA will be in Portland for the 2018 Annual Meeting, so there will be no Wrap next week.
ACWA Comment Letter – Strengthening Transparency in Regulatory Science
On Thursday, August 9, ACWA submitted its comment letter on EPA’s Proposed Rulemaking – Strengthening Transparency in Regulatory Science. In the letter ACWA expressed support for scientific transparency in regulatory development but called to questions the vagueness of the rule and lack of specific regulatory language. ACWA asked that EPA host coregulatory discussions that provide more details regarding the intent, scope, and implementation processes associated with this proposal. The letter also requested that EPA formally issue a supplemental notice of proposed rulemaking that includes actual regulatory language and provide sufficient detail for an analysis of whether this new approach will achieve the results intended. Finally, ACWA raised several important questions we believe need to be answered before a rule is finalized. The comment period for this proposed rule are due by August 16, 2018. A copy of ACWA’s letter can be found here.
2018 National CAFO Roundtable
Deadline to book lodging is August 29, 2018! Be sure to book a room at the Riverside Hotel.
The 2018 National CAFO Roundtable will be held in Boise, Idaho from Tuesday, September 25 to Thursday, September 27, 2018. A copy of the draft agenda for this meeting can be found on the 2018 National CAFO Roundtable events page. If you are with a state or interstate and have attended ACWA meetings in the past, we recommend you login to Member365, go to the Events Calendar, and register from there. If you do not remember your login credentials, please contact Member Services. If you are with EPA or another organization, or you have never attended an ACWA event in the past, then please use the public registration link, found here. Registration for the meeting is free, registration for the field trip is $25.00 and is limited to 45 seats. If you intend to go on the field trip, we highly recommend you register ASAP and select the “Field Trip Workshop” option. Please direct all meeting registration questions to Katie Foreman.
November Nutrients Permitting Workshop
The next 2018 Nutrients Permitting Workshop will be held November 6 to November 8, 2018 in Gulfport, Mississippi at the Courtyard Marriott Gulfport Beachfront, 1600 East Beach Blvd., Gulfport, Mississippi. Secure your lodging now using the group code G-3657 to receive the group rate when making either online reservations or reservations over the phone. You can call the hotel direct at 228-864-4310. To register and for more information, go here.
The draft agenda is available here. It is subject to change.
For more information on the meeting, please contact Mark Patrick McGuire.