In mid-September, the U.S. Environmental Protection Agency and the Army Corps of Engineers jointly submitted a proposed rule to the White House Office of Management and Budget intended to clarify which waters and wetlands are protected under the Clean Water Act. The EPA announcement of the action along with supporting information can be found on the Agency's website. The proposed rule represents these agencies' latest effort to clarify the scope of federal jurisdiction under the CWA and thereby resolve long standing uncertainty about which water bodies and activities are regulated by the law. The proposal, if adopted, would likely have its most significant impact on small streams and certain wetlands that would be determined to be hydrologically connected to and to have impacts on larger downstream waters. The draft rule is based on peer-reviewed science reflected in a draft report titled Connectivity of Streams and Wetlands to Downstream Waters. This document is a synthesis of scientific evidence on the connectivity of streams and wetlands assembled by EPA's Office of Research and Development and can be viewed here. While the proposed rule is not yet available for public comment, the draft study is. Comments will be accepted until November 6, 2013, and a three- day public meeting will be held December 16 through 18, in Washington, D.C. At least some observers believe that the proposed rule will not simply clarify CWA jurisdiction, but expand it. For example, see this from the Association of Water Agencies, and this from the Washington Post. The Agencies' action ultimately results from the U.S. Supreme Court decision Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208 (2006). That plurality decision left some uncertainty with respect to the Court's view of the scope of the CWA jurisdiction. The Court made clear that CWA jurisdiction includes, at least, traditional navigable waters, wetlands adjacent to those waters, non-navigable tributaries to traditional navigable waters where the tributary has at least continuous seasonal flow, and wetlands abutting such tributaries. However, this left open the question of jurisdiction regarding other waterbodies and the scope of that jurisdiction where applicable. Initially, EPA and Corps provided informal guidance on the scope of jurisdiction at least with respect to certain types of waters including non-navigable tributaries that are not relatively permanent; wetlands adjacent to such tributaries; and wetlands adjacent to but not directly abutting relatively permanent non-navigable tributaries. The proposed rule is intended to replace this informal guidance, and it may expand the scope of jurisdiction in the process. For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.
Posts from October 2013.
Following new state legislation granting the Florida Department of Environmental Protection ("FDEP") the authority to establish one statewide rule for the environmental resource permitting ("ERP") program, FDEP in early October finalized the new rule -Chapter 62-330. Previously, Florida's five water management districts implemented different versions of rules addressing impacts to wetlands and surface waters. An ERP permit is required for certain activities that cause water pollution or affect wetlands and other surface waters. The new rule is now applied statewide ...
Posted in: Florida
The board of the Georgia Department of Natural Resources will consider changes to rules for permit requirements for swine feeding operations. The most significant change proposed is to increase the threshold for triggering the requirement to obtain a permit from Georgia EPD under the Georgia Water Quality Control Act. Currently, a swine feeding operation is exempt from permitting if it manages less than 75,000 mature swine or 30,000 immature swine (less than 55 pounds). The proposed rule would increase the permit threshold to 12,500 mature or 50,000 immature swine. The proposed ...
Posted in: Georgia
On October 2, 2013, BP won a reprieve in its ongoing effort to tighten standards and slow claims payments by Claims Administrator Patrick Juneau. BP had asked the court to direct Mr. Juneau to halt payments that did meet stricter standards. At stake for the oil company may be billions of dollars in additional settlement claim payments. The Fifth Circuit agreed in part with BP. In a 2-1 decision, the appellate court reversed the lower court and directed United States District Court Judge Carl Barbier to enter an injunction halting certain payments pending the court's review of the issues ...
Posted in: Fifth Circuit
Tennessee Gov. Bill Haslam has proclaimed Oct. 13 through October 19 Earth Science Week. In order to encourage studies of earth sciences, the Tennessee Department of Environment and Conservation's Tennessee Geological Survey, in partnership with the American Geosciences Institute, is distributing special toolkits to science teachers across the state. The kits include map resources and materials from the National Park Service, NASA, Soil Science Society of America, U.S. Fish and Wildlife Service and the Bureau of Land Management. The 2013 Earth Science Week theme is "Mapping ...