Tag: EPA

EPA ANNOUNCES FINAL CLEAN WATER ACT SECTION 401 WATER QUALITY CERTIFICATION IMPROVEMENT RULE

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In another “Waters of the United States” development, the EPA published its final 2023 Clean Water Act Section 401 Quarter Quality Certification Improvement Rule on September 27, 2023. (88 Fed. Reg. 66558.) The final 2023 Rule revises and replaces the 2020 Rule’s regulatory requirements for water quality certification that were adopted by the prior federal administration. The updates seek to realign the scope of Section 401 certification with established practices, while also restoring the roles of states, territories, and authorized Tribes as certifying agencies.

Background on Section 401 Permitting

Section 401 of the Clean Water Act (CWA) requires applicants for any federal license or permit that may result in discharge from a point source into “waters of the United States” to obtain a water quality certification or waiver from the certifying authority (i.e., states, territories, and Tribes with treatment in a similar manner as a state [TAS]). To initiate the process, the applicant must submit a “request for certification,” and the certifying authority must act upon that request within a “reasonable period of time” (which shall not exceed one year).

If the certifying authority determines the proposed activity will comply with statutory limitations and requirements (i.e., effluent limits; monitoring and reporting; etc.), it may grant or waive certification, after which the federal agency can issue the corresponding federal license/permit. If the certifying authority denies certification, no license may be issued. Alternatively, the certifying authority may waive certification simply by “failing or refusing to act on a request for certification within a reasonable period of time.”

The 2020 Rule

On April 15, 2019, then-President Trump issued Executive Order 13868, entitled “Promoting Energy Infrastructure and Economic Growth,” which directed the EPA to propose new regulations governing Section 401 permitting consistent with the order’s policy of “promot[ing] private investment in the Nation’s energy infrastructure.” Pursuant to this directive, EPA promulgated a final rule on July 13, 2020.

The 2020 Rule clarified that federal agencies unilaterally set the “reasonable period of time” for the certifying authority to act on a certification request, clarified that certification was required for any federally licensed activity that discharges into WOTUS, and reaffirmed that certifying authorities may explicitly waive 401 certification. The 2020 Rule also introduced several new features, including one that allowed federal agencies to review certifying agencies’ certification decisions for compliance and, if found non-compliant, deem the non-complying certifications as waived. The 2020 Rule also prohibited certifying agencies from requesting applicants to withdraw and resubmit a certification request. Finally, the 2020 Rule rejected the traditional scope of review as one that considered “the activity as a whole,” in favor of a narrower and more limited “discharge-only” approach.

The 2020 Rule was challenged in three federal district courts by various states, tribes, and NGOs, where, at varying times, it was remanded, reinstated, and ultimately vacated for further proceedings. (E.g., In re Clean Water Act Rulemaking (N.D. Cal. 2021) 568 F. Supp. 3d 1013 (reversed and remanded by (9th Cir. 2023) 60 F.4th 583.)

2023 Rulemaking Process

On January 20, 2021, President Biden signed Executive Order 13990, entitled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” (86 Fed. Reg. 7037.) The order directed the EPA to review and, as appropriate, revise or replace any or all portions of the 2020 Clean Water Action (CWA) Section 401 Certification Rule that had been adopted by the Trump administration.

On May 27, 2021, the EPA announced its intent to revise the 2020 Rule and update the regulatory requirements for water quality certification under Section 401. The EPA later circulated the proposed rule on June 2, 2022, which updated existing regulations to be more consistent with the statutory text of the CWA and to clarify elements of the Section 401 certification process, particularly as it applied to state, federal, and Tribal authority. Thereafter, the EPA conducted pre-proposal engagement and provided a 60-day public comment period.

After receiving public comments and incorporating stakeholder feedback, the EPA published the final Section 401 Rule on September 27, 2023. The rule will become effective on November 27, 2023, and apply to all Section 401 permit applications from then on.

The 2023 Rule Update

The updated 2023 Rule aims to enhance certification review and provide more regulatory certainty that better reflects the CWA’s cooperative federalism framework. The 2023 Rule makes key updates to five major areas of the certification process, including: pre-filing meeting requests; requests for certification; the length of “reasonable period of time”; scope of review; and certification decisions. The Rule also clarifies provisions related to: federal agency review; neighboring jurisdictions; certification modifications; and Tribal TAS status.

Pre-Filing Meeting Requests (Section 121.4)
The 2023 Rule reaffirms that project proponents must request a pre-filing meeting from the certifying agency at least 30 days before it requests certification. (Section 121.4).

As part of the update, the 2023 Rule now provides certifying authorities with the ability to waive or shorten the pre-filing meeting request requirement either on a case-by-case basis (i.e., individual) or on a categorical basis (i.e., for certain types of projects, permits, etc.). The Rule also provides a recommended list of pre-filing meeting request contents to ensure any issues are timely addressed and the certification process moves efficiently.

Requests for Certification (Section 121.5)
The 2023 Rule updates the submission requirements for requests for certification. (Section 121.5). Now, requests for certification must be in writing, signed, date, and include defined minimum contents. For example, if the certification request is for an individual license/permit, it must include a copy of the federal license/permit application and any readily available water-quality materials that informed the application. Alternatively, if the certification request is for a general license/permit, then it must include a copy of the draft federal license/permit and any available water quality-related materials that informed the draft permit.

Moreover, if the EPA is acting as the certifying authority, the Rule sets forth seven additional components that the project proponent must submit. To this end, the Rule now allows state and Tribal certifying authorities to define their own contents or forms for submitting requests for certification, in lieu of relying on EPA’s default list. But if they choose not to do so, the seven elements contained in the Rule’s default list must be included in the request.

Finally, the 2023 Rule now requires certifying authorities to send written confirmation of the date it received a request for certification to the project proponent and the corresponding federal agency.

Reasonable Period of Time (Section 121.6)
Section 121.6 requires certifying agencies to review certification requests and act on those requests within a “reasonable period of time.” (Section 121.6.)  For the first time, the 2023 Rule now provides certifying authorities a role in determining, with the federal agency, the length of the “reasonable period of time” for the certifying authority to review a certification request. Certifying authorities may collaborate with federal licensing or permitting agencies to jointly establish reasonable periods of time before receiving a request. For example, time periods may be established on a case-by-case basis, or on a categorical basis (i.e., through a memorandum of agreement between the federal and certifying agencies).

If the certifying and federal agencies do not reach an agreement, the “reasonable period of time” will default to six months from the time the certifying authority receives a compliant certification request.

In the event the certifying authority needs more time to comply with its public notice procedures or if there is a force majeure event, the agency may, subject to proper notice, automatically extend the review period, provided that the extension does not exceed the statutory maximum of one year.

Scope of Review (Section 121.3)
The 2023 Rule realigns certification processes with previously-established practices that preceded the 2020 Rule. In particular, the Rule modifies the regulatory text to better clarify the extent of the activity subject to certification and the water quality limitations inherent to Section 401.

Under the 2020 Rule, certifying authorities could only consider potential water quality impacts from a proposed project’s point source “discharges.” The 2023 Rule replaces this “discharge-only” approach and returns the scope of review to the “whole activity” that will be subject to the federal permit. Specifically, the Rule provides that, when a certifying authority reviews a certification request, the authority shall evaluate whether the activity complies with all water quality requirements.

However, the Rule clarifies that this evaluation is limited only to those water-quality-related impacts from the activity subject to the federal permit, including the activity’s construction and operation (i.e., impacts that adversely affect the chemical, physical, and biological integrity of WOTUS). Therefore, indirect project impacts with no connection to water quality should not be considered.

To this end, the 2023 Rule also clarifies that the certifying authority’s review is limited to considering impacts to WOTUS, except where a state or authorized Tribe has jurisdiction over those waters. In other words, the certifying authority’s analysis of any given activity is limited to adverse water-quality impacts that may prevent compliance with applicable state or Tribal water quality requirements.

Finally, in granting the certification, the certifying authority must include any requisite conditions that will ensure the activity complies with all applicable water quality requirements (e.g., Sections 301, 302, 303, 306, and 307, and/or any applicable state or Tribal statutes and regulations governing water quality). As such, any conditions that are imposed to address impacts should not be treated as part of the “activity” under consideration.

Certification Decisions (Section 121.7)
The 2023 Rule also establishes that a certifying agency may “act on a request for certification” in one of four ways: (1) by granting certification; (2) by granting certification with conditions; (3) denying certification; or (4) expressly waiving certification. The Rule also requires all final certification decisions be in writing and defines recommended minimum contents for each type of decision.

For example, the Rule recommends that each decision identify the type of decision being made, the applicable federal license/permit, acknowledgement that the certifying agency complied with public noticing procedures. For certifications granted with conditions, the Rule recommends the authority provide a statement explaining why each condition is necessary to assure the activity will comply with water quality requirements. Alternatively, for denials, the Rule recommends the authority explain why it is unable to certify compliance with water quality requirements.

Federal Agency Review (Sections 121.8–121.9)
The 2023 Rule shifts away from the 2020 Rule by limiting the role of federal agency review. Now, federal agencies are limited to verifying: (1) whether the certifying authority issued a certification decision; (2) the authority confirmed it complied with public noticing procedures; and (3) the authority acted on the request within a reasonable period of time.

Neighboring Jurisdictions (Sections 121.12–121.15)
The 2023 Rule adds more detail to the discussion of neighboring jurisdictions and how they can participate in the permitting process when the EPA has determined that a proposed project in another jurisdiction may affect their water quality. The regulatory text now clarifies: the roles of actors involved; when the neighboring jurisdiction process begins; and identifying minimum contents of notifying the EPA.

Certification Modifications (Section 121.10)
The 2023 Rule authorizes certifying authorities and federal agencies to modify a grant of certification, but only if the modifications are to portions that are agreed upon by both entities. The Rule clarifies that the certifying authority cannot unilaterally modify a certification decision, nor can it change the nature of the final decision through the modification process (i.e., grant, deny, waive).

Tribes Applying for Treatment in a Similar Manner as a State (Section 121.11)
For the first time, the 2023 Rule includes provisions for Tribes to obtain TAS status for purposes of Section 401 certification or to obtain TAS status to act as a neighboring jurisdiction. This will not allow tribes to have more involvement in the certification process without also having to apply for TAS for water quality standards under Section 303(c).

Conclusion

The Final 2023 Rule will go into effect on November 27, 2023 and apply to all prospective certification decisions. All other certifications currently pending review or submitted before then will be governed by the 2020 Rule or corresponding certification scheme.

For more information, the EPA has provided an overview of the final rule, along with a summary of key updates and a comparison of the 2023 Rule vs. the 2020 Rule. The Agency is also finalizing conforming amendments to the water quality certification regulations for EPA-issued NPDES permits. (Docket ID No. EPA-HQ-OW-2022-0128; -0391).

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Brian Plant, Of Counsel Attorney at RMM, advises private and public agency clients regarding a broad range of permitting actions under Federal and State water quality, endangered species, and other natural resources laws and regulations. He can be reached at: [email protected].

Bridget McDonald, Associate Attorney at RMM, advises private and public agency clients regarding a broad range of permitting actions under Federal and State water quality laws, as well as CEQA, the Coastal Act, and matters related to planning, zoning, and housing. She can be reached at: [email protected].

EPA PUBLISHES REVISED DEFINITION OF “WATERS OF THE UNITED STATES” IN RESPONSE TO SCOTUS’ SACKETT DECISION.

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On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) issued a final rule to amend the agencies’ earlier “Revised Definition of ‘Waters of the United States,’” published on January 18, 2023. (88 Fed. Reg. 3004.) The latest rule revises the definition of “waters of the United States” (WOTUS) to conform to the Supreme Court’s May 25, 2023 opinion in Sackett v. Environmental Protection Agency (2023) 598 U.S. 651.

The highly anticipated Sackett decision resolved long-standing debate over the scope and definition of WOTUS under the Clean Water Act (CWA). The Court’s opinion considerably narrows the regulatory reach of the EPA and the Army by invalidating the agencies’ application of the “significant nexus” test and promulgating a limited interpretation of jurisdictional “waters” and “adjacent wetlands” that are covered by the CWA.

While the EPA and Army’s January 2023 WOTUS Rule was not directly before the Supreme Court, the Sackett decision made clear that certain aspects of the that Rule were invalid, in turn creating further uncertainty for CWA implementation. The August 2023 Rule (also referred to as “the Conforming Rule”) thus responds to Sackett by amending only those components of the rule’s regulatory text that are now invalid under the Supreme Court’s interpretation of the CWA—namely, removing the “significant nexus” standard and amending the definition of “adjacent” waters. By expeditiously issuing these amendments, the agencies assert the final rule provides much-needed clarity and a clear path forward that is not only consistent with the Supreme Court’s ruling, but allows the Army Corps to resume issuing jurisdictional determinations (which have been put on hold in some Corps’ Districts).

A summary of the August 2023 Rule’s key amendments and its timeline for implementation are summarized below:

Key Regulatory Amendments

To align with the Sackett holding, the August 2023 Rule takes a surgical approach to make targeted revisions to selected portions of the January 2023 Rule that are implicated by the decision:

Removal of “Significant Nexus” Standard
The Sackett decision found that the agencies’ application of the “significant nexus” test to identify federally protected tributaries and other waters was inconsistent with the text and structure of the CWA. The August 2023 Rule thus removes all references to the standard.

As a result, tributaries, adjacent wetlands, and intrastate lakes and ponds that “significantly affect the chemical, physical, or biological integrity of [traditional navigable] waters” are no longer jurisdictional under the CWA. Along these lines, the Conforming Rule also eliminates the definition of “significantly affect,” which listed various factors and conditions that the agencies used to ascertain whether certain waters would have a material influence on the chemical, physical, or biological integrity of traditional navigable waters. These standards, according to the Court, were too nebulous for reasonable and understandable implementation and were inconsistent with the structure of the Clean Water Act.

Amended Definition of “Adjacent” Waters
To conform to Sackett, the August 2023 Rule also amends the WOTUS definition so that water can no longer be found “jurisdictional” based on the January 2023 Rule’s definition of “adjacent.” As such, wetlands are not “adjacent,” and thus, not jurisdictional under the CWA, solely because they are “bordering, contiguous, or neighboring…[or] separated from other ‘waters of the United States’ by man-made dikes or barriers, natural river berms, beach dunes, and the like.”

Instead, “adjacent” tributaries, wetlands, and intrastate lakes/ponds are only jurisdictional if they are “relatively permanent, standing, or continuously flowing bodies of water,” or have a continuous surface connection to navigable waters.

No More “Interstate Wetlands,” But Little Clarity on “Relatively Permanent” Wetlands
With the elimination of the “significant nexus” standard, tributaries, wetlands, and intrastate lakes/ponds that are “adjacent” to federal navigable waters are only jurisdictional if they are “relatively permanent, standing, or continuously flowing bodies of water.” The August 2023 Rule also eliminates “interstate wetlands” from the definition of “interstate waters” that are subject to the CWA.

Notably, however, the August 2023 Rule provides little clarity into the factors that create “relatively permanent” waters. The Rule’s supplemental preamble explains that, under Rapanos, those waters do “not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances such as drought,” or “seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.”

And, under Sackett, “waters”  encompass “only those relatively permanent, standing, or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” Wetlands are  WOTUS “when they have a continuous surface connection to bodies that are ‘waters of the United States’in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.’” Nevertheless, under the Conforming Rule, it remains unclear the length of “relative permanency” a water must experience in order to qualify as jurisdictional under the CWA.

Finally, the August 2023 Rule removes “interstate wetlands” to conform to the Sackett decision’s determination that wetlands are not jurisdictional simply because they are interstate. Instead, under the Supreme Court’s interpretation of the CWA, the term “waters” refers to such ‘open waters’ such as rivers, lakes, and other waters that flow across or form a part of State boundaries.

Regulatory Interpretation & Agency Guidance
Unlike prior versions of the WOTUS rule, the August 2023 Rule’s proposed amendments note that the agencies will continue to interpret the remainder of the definition of WOTUS in a manner that is consistent with the Sackett decision. But the agencies reiterate that it is both reasonable and appropriate for the agencies to promulgate this rule as quickly as feasible, without notice and comment, in response to the Supreme Court’s significant holding.

In turn, the agencies concede that they will address any potential issues arising from implementation of the August 2023 Rule through appropriate avenues, such as approved jurisdictional determinations and CWA permits, issuing future guidance, subsequent notice and comment rulemaking, preparing agency forms and training materials, and holding stakeholder meetings to ensure the public has an opportunity to provide input on other issues they would like the agencies to address.

Thus, in practice, the agencies will develop guidance and take stakeholder input regarding the August 2023 Rule’s proposed amendments after it is published in the Federal Register and becomes effective, and not rely on pre-publication comment.

Severability Clause
As with the agencies’ January 2023 Rule, the August 2023 Rule similarly provides a severability clause that attempts to preserve as many portions as feasible in the event future litigation attempts to stay or invalidate the Rule. The August 2023 Rule reiterates that the WOTUS rule was crafted so that each portion or element is disjunctive and capable of operating independently. Therefore, if any provision is deemed legally invalid, that partial invalidation will not render the remainder of the Rule as also invalid. To this end, if applying any portion of the Conforming Rule is determined to be invalid, the agencies intend that the complete WOTUS rule, as revised, will remain applicable to all other circumstances. In other words, if any of the exclusions from WOTUS were deemed invalid, invalidating one exclusion would not necessarily have any practical impact on any other part of the definition of WOTUS.

Implementation Timeline

No Notice and Public Comment Process
Because the proposed amendments are change only those parts of the January 2023 rule that are invalid under Sackett, the EPA and the Army have decided to issue the August 2023 Rule without notice or an opportunity for public comment. Citing section 553(b)(B) of the Administrative Procedure Act (APA), the agencies have found there is good cause that providing noticing or receiving public comments on the final rule would be impracticable and unnecessary.

According to the agencies, the conforming amendments “do not involve the exercise of the agencies’ discretion,” therefore a “notice and comment process would neither provide new information to the public nor inform any agency decisionmaking regarding the aspects of the regulations defining ‘waters of the United States’ that are invalid as inconsistent with the [CWA] under Sackett.”

Immediate Publication & Effect
The August 2023 Rule will become immediately effective upon publication in the Federal Register. The agencies have found similar good cause under APA section 553(d)(3) to make the August 2023 Rule immediately effective because it will not impose any burdens on the regulated community. Instead, the agencies contend that the amendments merely conform the January 2023 Rule to Sacket by amending those provisions deemed invalid under the Supreme Court’s interpretation of the CWA.

The agencies reiterate that making the rule immediately effective will provide more clarity and certainty to the regulated community; whereas a delayed effective date would prolong confusion and potentially result in project delays for prospective permittees that seek a jurisdictional determination for their project’s proposed discharges. Finally, the immediate effect of the Conforming Rule will also provide clarity to States and Tribes that administer CWA permitting programs, as well as members of the general public who seek to understand which waters are subject to the CWA’s requirements.

Next Steps

The amended August 2023 Rule is expected to be published in the Federal Register by Friday, September 1, 2023. Once published, the rule will go into immediate effect and the Army Corps’ pause on issuing jurisdictional determinations (due to the pending Sackett decision) will be lifted.

Due to an existing injunction against the January 2023 Rule, the agencies will implement the August 2023 Rule in the 23 states where the January 2023 Rule is not enjoined. In the remaining 27 states where the January 2023 is enjoined, the agencies will continue interpreting WOTUS consistent with the pre-2015 regulatory regime and the Sackett framework until further notice.

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Brian Plant, Of Counsel attorney at RMM, advises private and public agency clients regarding a broad range of permitting actions under Federal and State water quality, endangered species, and other natural resources laws and regulations. He can be reached at: [email protected].

U.S. SUPREME COURT LIMITS FEDERAL PERMITTING JURISDICTION UNDER THE CLEAN WATER ACT, HOLDING THAT ONLY WETLANDS WITH A SURFACE CONNECTION TO INTERSTATE NAVIGABLE WATERS CONSTITUTE “WATERS OF THE UNITED STATES.”

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SUMMARY AND UPDATE

In a highly-anticipated decision published on May 25, 2023, the United Stated Supreme Court in Sackett v. Environmental Protection Agency (2023) 598 U.S. __, 143 S.Ct. 1322 (No. 21-454), resolved the long-standing debate over the definition and scope of “waters of the United States” under the Clean Water Act. The unanimous opinion authored by Justice Alito significantly narrows the jurisdictional reach of the EPA and Army Corps by adopting the Court’s earlier plurality opinion in Rapanos v. U.S. to hold that only those wetlands with geographical features that are “indistinguishable” from traditional navigable waters due to a continuous surface connection are subject to federal regulation under the Clean Water Act. The Court applied this new standard to conclude that the EPA lacked regulatory and permitting authority over wetlands located adjacent to land owned by petitioners Michael and Chantell Sackett because those wetlands were distinguishable from covered waters.

Factual & Procedural Background

In 2004, Petitioners Michael and Chantell Sackett (the Sacketts) began backfilling land on their property near Priest Lake, Idaho, across the street from a tributary that feeds a non-navigable creek. While the parcel does not share a “continuous surface connection” with the tributary, the land could, at times, be hydrologically connected to the tributary and, by extension, Priest Lake.

After an enforcement action brought by EPA and after nearly a decade of litigation, the District Court entered summary judgment in favor of the EPA, holding that the Sacketts’ land was subject to CWA protections. The Ninth Circuit affirmed, holding that the CWA covers adjacent wetlands with a significant nexus to traditional navigable waters and that the Sacketts’ lot satisfied that standard.

The Supreme Court’s Opinion

The U.S. Supreme Court granted certiorari to decide the proper test for determining whether the wetlands on the Sacketts’ property constituted “waters of the United States” under the CWA.

The Court’s Holding – Defining “Waters of the United States”

Against the backdrop of a much litigated CWA history regarding jurisdiction, and relying heavily on earlier Supreme Court decisions (i.e., Rapanos), the 9-0 majority in Sackett held that the CWA’s use of the term “waters” in “waters of the United States” refers only to “those relatively permanent, standing, or continuously flowing bodies of water ‘forming geographical features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” As such, adjacent wetlands only constitute statutory “waters of the United States” if they are “indistinguishable” from those bodies of water due to a continuous surface connection.

The Court agreed with the plurality in Rapanos that wetlands subject to the CWA include those that are “indistinguishable” from bodies of water that traditionally constitute “waters of the United States.” This only occurs when wetlands have “a continuous surface connection” to bodies of WOTUS, such that there is “no clear demarcation between ‘waters’ and ‘wetlands.’” Accordingly, to assert jurisdiction over an adjacent wetland under the CWA, a party must establish that: (1) “the adjacent body of water constitutes [WOTUS] (i.e., a relatively permanent body of water connected to traditional interstate navigable waters)”; and (2) “the wetland has a continuous surface connection with … a relatively permanent body of water connected to traditional interstate navigable waters,” such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

In articulating this bright-line rule, the Court declined to defer to the EPA’s 2023 “wetlands” rule, which provides that “adjacent wetlands are covered by the CWA if they possess a significant nexus to traditional navigable waters, [and] that wetlands are ‘adjacent’ when they are ‘neighboring’ to covered waters.” The Court, in part, relied heavily on the thought that the assertion of jurisdiction should be clear so that those regulated can determine if their actions trigger the need for federal permitting and whether proposed “fill” activities can be subject to federal criminal enforcement.  In so doing, the Court relied on dictionary definitions and reasoned that the EPA’s earlier regulatory interpretations were inconsistent with the text of the CWA because the Act contained no “exceedingly clear language” indicating Congress’ intent.

Despite the Court’s focus on the need for clear language, the opinion provides that “[the Court] also acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.”  Here the Court raises a question with respect to what amounts to a “continuous” surface connection during drought, for instance.  Indeed, how “dry” is “dry” and how long does a feature need to be “dry” before it is no longer a “temporary” interruption of flow.

Recent Updates

Both EPA and the Corps have gone on record in saying that they anticipate issuing a federal rule addressing the Court’s opinion in September 2023. In addition, various Corps Districts are modifying procedures in anticipation of this proposed rule and/or guidance. For instance, the Sacramento District has suspended processing Approved Jurisdictional Determinations (AJDs) and will verify only Preliminary Jurisdictional Determinations (PJDs).

Numerous NGOs, policy groups and agencies are attempting to determine the impact of the ruling on their programs. For instance, the National Association of Homebuilders (NAHB) has conducted talks with aquatic resource consultants and scientists in an effort to determine the likely effect of future regulation and permitting. That input generally recognizes that “one size” will likely “not fit all” given the wide variety of regional wetland hydrology. In particular, regions with “ephemeral” Mediterranean climates like California will be affected differently than those with consistently wetter climates.

Brian Plant, of counsel attorney at RMM, advises private and public agency clients regarding a broad range of permitting actions arising under Federal and State water quality, endangered species, and other natural resources laws and regulations. He can be reached at [email protected].

Supreme Court of the U.S. Holds that Draft Biological Opinions that are Pre-decisional and Deliberative Are Protected from Disclosure Under FOIA By the Deliberative Process Privilege

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On March 4, 2021, the Supreme Court of the United States in United States Fish and Wildlife Service v. Sierra Club, Inc. (2021) 141 S.Ct. 777, in an opinion written by newly appointed Justice Barrett and joined by Justices Roberts, Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, reversed in part the Ninth Circuit Court of Appeals’ decision in holding that the deliberative process privilege protects Draft Biological Opinions (B.O.s) from disclosure under the Freedom of Information Act (FOIA) if the Draft B.O.s are pre-decisional and deliberative, even if they represent an agency’s last views on a proposed action.

BACKGROUND

In 2011, the U.S. Environmental Protection Agency (EPA) proposed a rule on the design and operation of cooling water intake structures intended for use in industrial facilities, to make use of technology to minimize adverse environmental impacts. (See 79 Fe. Reg. 22174 (2001).) Even still, these cooling structures would kill a certain amount of fish and other aquatic species, some of which might be federally protected (threatened or endangered). Accordingly, under Section 7 of the Endangered Species Act (ESA), the EPA consulted with the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), both of which began preparation of Draft B.O.s in order to make their jeopardy determinations, i.e., whether or not the EPA’s proposal would jeopardize the continued existence of a protected species. Informal consultation with these agencies began in 2012 and formal consultation began in 2013. Multiple documents were exchanged between agencies during this time.

In November 2013, the EPA revised its proposed rule in response to consultation, and USFWS/NMFS tentatively agreed to provide the EPA with their Draft B.O.s by December 6th and Final documents by December 20th. Both Draft B.O.s concluded that the proposed rule likely would jeopardize protected species. Neither agency formally approved their Draft B.O. or presented them to the EPA by the deadline and, instead, both agencies concluded that more work needed to be done. As well, the EPA was still internally debating its rule, therefore all parties agreed to extend the period of consultation.

By March 2014, the EPA had revised its proposed rule again from the 2013 version, in a manner that allowed USFWS/NMFS to issue a joint no-jeopardy determination, after which the EPA issued its final rule that same day. Sierra Club made FOIA requests to USFWS/NMFS regarding their consultation on this rule, and both agencies invoked the deliberative process privilege for the Draft B.O.s of EPA’s 2013 proposed rule. Sierra Club sued in the Northern District of California, and won on this issue. The Ninth Circuit affirmed the trial court’s decision on this issue. The Supreme Court grant certiorari.

ANALYSIS

FOIA mandates the disclosure of documents held by federal agencies upon request unless one of nine exemptions apply. One such exemption is the deliberative process privilege, which protects documents from FOIA requests if they reflect an agency’s preliminary thinking about an issue, as opposed to its final opinion. The deliberative process privilege exists to encourage agency candor so as to improve decisionmaking and avoid the “chilling effect” that can occur when an agency believes its internal discussion may be made public. Pre-decisional, deliberative documents are exempt from disclosure under this privilege, whereas documents indicating final agency opinion must be disclosed. This does not mean, however, that the last document prepared by the agency is necessarily a final document.  As Justice Barrett put it, sometimes a document does not present a final opinion upon which an agency has settled and is only considered final at all because nothing else follows it, because the proposed action upon which it is based “dies on the vine.” Further, whether or not the agency producing the document treats it as final is a primary determining factor.

Here, the Sierra Club contended that the 2013 Draft B.O.s, with their jeopardy determinations, must be considered final under prior precedent because they forced the EPA to change its rule in response. According to Justice Barrett, however,  the precedent cited by Sierra Club was inapposite and the Draft B.O.s prepared in response to the EPA’s 2013 proposed rule were simply draft documents that “died on the vine” when the EPA changed its rule in 2014, and did not represent final agency opinions. She reasoned that, because the 2013 Draft B.O.s were not made available to the EPA, they were still “subject to change.” Even if they had been made available to the EPA, existing regulations would still allow them to be revised. Justice Barrett further found that the gap in time between due dates for the 2013 Draft B.O.s and their Final counterparts indicated their deliberative nature, for why would there be a two-week gap between draft and final unless revisions were anticipated? Mostly though, the court relied on the fact that neither the USFWS nor NMFS had finalized their 2013 Draft B.O.s—they were unapproved by agency decisionmakers and not forwarded to the EPA—as evidence showing that the agencies did not view them as final and thereby proving their lack of finality. These documents then were not really Draft B.O.s but instead were “drafts of draft[s].” They may have contained the last words on the 2013 proposed rule but were not intended to be final.

DISSENT

Justice Breyer penned a dissent, joined by Justice Sotomayor, in which he questioned the majority’s position that the documents were “drafts of drafts,” and asserted that Draft B.O.s do not normally “enjoy” the deliberative process privilege. The dissent preferred a more in-depth factual analysis to determine finality of the documents, and would have liked the question remanded to allow the Ninth Circuit to determine exactly how much more work needed to be done on the draft documents to establish whether they were closer to draft or final documents. Justice Breyer also noted the long agency history of disclosing Draft B.O.s to the public.

– Casey Shorrock

EPA Releases Navigable Waters Protection Rule that Redefines Waters of the U.S.

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On January 23, 2020, the U.S. Environmental Protection Agency (EPA) released its Navigable Waters Protection Rule to replace the 2015 Clean Water Rule, promulgated by the Obama administration and repealed by the current administration in 2019. The new rule purports to clarify federal regulation of waters within the U.S. by differentiating “waters of the U.S.,” which are subject to federal jurisdiction under the Clean Water Act, and non-jurisdictional waters. It identifies four categories of protected waters—the territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds, and impoundments; and wetlands that are adjacent to jurisdictional waters. The new rule also identifies waters not subject to federal control, including groundwater; ephemeral features; ditches; prior converted cropland; farm and stock watering ponds; waste treatment systems; and rainfall collection features.

The new rule is moored to late Justice Antonin Scalia’s plurality opinion in the landmark Supreme Court case Rapanos v. United States, 547 U.S. 715 (2006), that offers a more restrictive view of jurisdictional waters. Justice Anthony Kennedy’s concurrence in the same case offers a more expansive view and spawned what became known and implemented as the “significant nexus” test—which placed all waters that bear a significant nexus to traditional navigable waterways within federal jurisdiction. For nearly a decade, Kennedy’s significant nexus test, imprecise as it may be, supplemented the 1986 U.S. Army Corps of Engineers (USACE) definition of jurisdiction waters in a majority of regions—later serving as the basis for the 2015 Rule.

Implications of the new Trump administration rule vary state by state but mark a clear reduction in federal protection for waters that were formerly classified as jurisdictional, notably wetlands and ephemeral waterways. California is especially affected because of its unique climate and abundance of wetlands and seasonal streams. A primary stated goal of the current administration with the Navigable Waters Protection Rule was to increase state responsibility for managing their waters, which is the exact outcome in California where the State Water Board will soon regulate what are referred to as “Waters of the State.” This new regulatory program becomes effective on May 28, 2020, and closely tracks the 2015 rule in terms of protection and coverage.

The Navigable Waters Protection Rule arrives on the heels of nearly 620,000 public comments on its proposal, fewer than the over one million received on the 2015 rule’s proposal.  The rule will take effect 60 days after publication in the Federal Register, although a publication date has yet to be released. Until such time, the 1986 USACE definition prevails, along with any adopted Supreme Court clarifications. For Ninth Circuit territory, this means a return, if only temporary, to Kennedy’s “significant nexus” test.

Casey Shorrock

EPA Releases Final Wetland Connectivity Report Clarifying “Significant Nexus”

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The US EPA recently released the final draft of its report on the Connectivity of Streams and Wetlands to Downstream Waters. The purpose of the report is to summarize current scientific understanding about the connectivity and mechanisms by which streams and wetlands affect the physical, chemical, and biological integrity of downstream waters. The focus of the review is on surface and shallow subsurface connections of small or temporary streams, nontidal wetlands, and certain open waters. The report stresses that it neither considers nor sets forth legal standards for Clean Water Act (CWA) jurisdiction, nor does it establish EPA policy.

In 2006, the US Supreme Court decided Rapanos v. United States, where it held that a geographically isolated body of water can be regulated under the CWA only if it has a “significant nexus” to “navigable waters” of the United States. The meaning of “significant nexus” was never clarified. The report on connectivity is meant, in part, to provide insight on this question.

According to the report, scientific evidence “unequivocally” demonstrates that streams, individually or cumulatively, exert a strong influence on the integrity of downstream waters. EPA found that wetlands and open waters in riparian areas and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality. These functions include: the temporary storage and deposition of channel-forming sediment and woody debris; recharge of groundwater sustaining river baseflows; storage of floodwater; retention and transformation of nutrients, metals, and pesticides; and export of organisms or reproductive propogating materials to downstream waters. In addition to providing effective buffers to protect downstream waters from point source and nonpoint source pollution, wetlands and open waters form integral components of river food webs, providing nursery habitat for breeding fish and amphibians, colonization opportunities for stream invertebrates, and maturation habitat for stream insects.

The report recognizes that watersheds are integrated at multiple spatial and temporal scales by flows of surface water and groundwater, transport, transformation of physical and chemical materials, and movements of organisms. Connectivity of streams and wetlands to downstream waters occurs along a continuum that can be described in terms of frequency, duration, magnitude, timing, and rate of change of biotic fluxes to downstream waters. Variations in the degree of connectivity influence the range of functions that streams and wetlands provide. Thus, the incremental effects of individual streams and wetlands are cumulative across entire watersheds and must be evaluated in the context of other streams and wetlands.

National Marine Fisheries Service Reverses Finding that CWA Streamlined Permitting Program Could Create Jeopardy Under ESA

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In a newly issued Biological Opinion, the National Marine Fisheries Service (NMFS) has reversed its 2012 finding that the Clean Water Act’s (CWA) streamlined nationwide permitting program could result in jeopardy under the Endangered Species Act (ESA). Nationwide permits govern actions that have limited environmental impacts, and streamlining is intended to expedite the permitting process for those actions. In contrast, activities the Army Corps of Engineers (Corps) determines may discharge dredged or fill material into waters of the United States, but do not qualify for coverage under a nationwide permit, must be authorized under individual 404 permits.

NMFS emphasized that though streamlining of nationwide permits is now considered acceptable under the ESA, new measures promulgated by the Corps will ensure species are protected. These measures include amending notification requirements, holding semi-annual staff meetings, and improving tracking of the permits’ authorized activities. The Corps also plans to issue guidance specifying that regulated entities must report injuries or death of certain marine species listed under the ESA.

The Corps’ new rules will require pre-construction notifications for activities in jurisdictional waters where impervious surface materials will be used and where the waters are inhabited by listed species or are designated critical habitat under the species law. The Corps also plans to modify a nationwide permit covering utility lines and authorization of some oil and gas infrastructure. The oil and gas industry is concerned that the Biological Opinion might result in limitations on the permit, creating an impasse on new energy infrastructure.

US EPA Delays Rollout of New Clean Power Rules

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On January 7, the EPA announced that it is delaying release of proposed power plant rules. The rules are intended to lower the power sector’s greenhouse gas emissions 30 percent by 2030. EPA states the delay is meant to give states time to develop compliance plans.

The rules for new power plants were originally slated to be released this week, but their release is now postponed to align with the later release of rules governing existing and modified plants. EPA explained that finalizing the rules for all three types of plants concurrently will allow it to consider overlapping issues in a coordinated fashion. Finalization of the rules is set for mid-summer.

One consequence of the delay is that Congress cannot attempt to override the rules under the Congressional Review Act until later this year. Another outcome of releasing all three rules together is that this strategy could make it harder to bring effective legal challenges against rules; EPA could claim that the new rules constitute a single action, and thus must be challenged in a single brief. EPA, however, denies that legal strategy is motivating the delay.

It is unclear whether there could be further delays down the road, but EPA has at least one important reason for getting the rules finalized on schedule: it would be one of the Obama Administration’s last actions.

EPA Sets Emission Reduction Goals for Power Plants

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After hundreds of stakeholder meetings during the past year, the U.S. Environmental Protection Agency has issued emissions guidelines for states to follow as they develop plans to address greenhouse gas emissions from existing power plants. On June 2, 2014, EPA released a proposed rule that would require fossil fuel-fired electric generating units to reduce their 2005-level carbon dioxide emissions 30% by 2030. The rule falls under Section 111(d) of the Clean Air Act.

Each state would have its own rate-based CO2 emissions standard. Interim checkpoints for the ultimate emissions reduction goal would begin in 2020. Aside from improved fossil fuel efficiency, the rule encourages emissions reductions in the energy sector by taking advantage of renewable energy sources and reducing electricity demand across the grid.

The comment period will run for 120 days. States must submit implementation plans by June 30, 2016.

The proposed rule is available here.

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