The Tide Turns

Recent Developments In Federal Regulation Of Discharges To WOTUS.

By Carlota Hopinks-Baul

The tide has been turning in the federal regulation of discharges to waters of the U.S. (WOTUS) in the past few months, with the potential for more changes in the near future as the Biden administration revisits rulemaking and guidance issued during the Trump administration. Below is a brief round-up on some of these actions and a few minutiae that are easy to miss but may prove useful to the regulated community.

Nationwide Permits
On Jan. 13, 2021, the U.S. Army Corps of Engineers (Corps) reissued and modified 12 existing nationwide permits (NWPs) and issued four new NWPs pursuant to Executive Order No. 13783 of March 28, 2017 (Promoting Energy Independence and Economic Growth), which directed federal agencies to review existing regulations that potentially burden development or use of domestically produced energy resources. NWP 44, which covers mining activities, was modified to eliminate the 300 linear ft. limit for impacts to stream beds (note: the ½ acre limit on loss of WOTUS remains applicable). In addition, the requirement for stream mitigation was reduced in General Condition 23 from the 1/10-acre threshold proposed in September 2020 to 3/100-acre in the final rule in response to public comments.

More helpful, perhaps, is the Corps’ acknowledgement in the federal register notice (86 Fed. Reg. 2744) that the goal of “no overall net loss” for wetlands, which was articulated in a 1990 U.S. Environmental Protection Agency (EPA)-Corps memorandum of agreement on mitigation for Clean Water Act Section 404 permits, applies to individual 404 permits rather than NWPs.

The Corps also recognized that it “should not be imposing duplicative compensatory mitigation requirements when the resource concerns are already being addressed by another federal, tribal, state, or local agency” but qualified that by noting that “[s]ince aquatic resources can vary substantially across the country, different corps districts may establish compensatory mitigation requirements.” Id. at 2827. While not within the body of the NWPs themselves, these acknowledgments may prove useful in discussions with district engineers regarding how much, if any, compensatory mitigation is required for a given project covered under any NWP.

The modified NWPs are effective on March 15, 2021, and will expire in five years. The NWPs they replace (issued in 2017) will now expire on March 14, 2021. Permittees with coverage under these 2017 NWPs should determine whether their activities remain eligible for coverage under the 2021 NWPs and, if not, whether they may benefit from the NWPs’ grandfathering provisions, which include a 12-month window for completing the work so long as the authorization is not revised/revoked and the work was started or “under contract to commence in reliance upon an NWP prior to the date on which the NWP expires.” Id. at 2747.

Stormwater Permits
On Jan.15, 2021, the EPA issued its latest multi-sector general permit (MSGP) for coverage of stormwater discharges associated with industrial activities in Massachusetts, New Hampshire, New Mexico and Idaho (until general stormwater permit authority is transferred to the state on July 1, 2021).

The previous MSGP expired in June 2020, but was administratively continued for permittees that filed Notices of Intent (NOI) to be covered before its expiration. The NOI filing deadline for the 2021 MSGP depends on the date that construction has or will begin and the permittee’s MSGP-coverage status. For projects with coverage under the administratively continued 2015 MSGP, NOIs must be filed by May 30 to avoid a lapse in permit coverage. The same deadline applies to permittees whose activities were begun in reliance on EPA’s June 3, 2020, “No Action Assurance for the NPDES Stormwater Multi-Sector General Permit for Industrial Activities” (NAA). Those without coverage under the 2015 MSGP or NAA must submit their NOIs 30 days prior to discharging or immediately if the activities have already commenced.

The 2021 MSGP contains significant changes but are tempered when compared to the 2020 proposal. For example, although quarterly indicator monitoring for pH, TSS, and Chemical Oxygen Demand (COD) will be required for Sector J3 (clay, ceramic, and refractory materials; and chemical and fertilizer mineral mining) facilities, Sector J1 (construction sand and gravel; and industrial sand) and J2 (dimension stone; crushed and broken stone, including rip rap; and miscellaneous nonmetallic minerals, except fuels) facilities are not subject to such monitoring and the proposed benchmark monitoring limits (e.g., 100 mg/L for TSS and 120 mg/L for COD) were not adopted.

Also, some of the harsher conditions associated with the 3-Tier “Additional Implementation Measures” for responding to benchmark exceedances were modified – including the elimination of a requirement that operators implement all feasible stormwater control measures in proposed Appendix Q, which was cut.

Groundwater Discharges
Finally, on Dec.10, 2020, EPA issued a draft memorandum providing guidance on the regulation of discharges to WOTUS through groundwater under the Supreme Court’s decision in County of Maui v. Hawaii, Wildlife Fund, 140 S.Ct. 1462 (2020) (holding that such discharges may be regulated if “functional[ly] equivalent” to point source discharges).

The guidance document “reiterates the basic principles that govern whether a facility owner or operator may need an NPDES permit” but provides a significant qualification to the functional equivalency analysis – i.e., whether a system or facility is designed and performs to discharge pollutants from a point source through groundwater and into a water of the U.S. or to abate or store, treat, or contain pollutants (e.g., septic systems, infiltration or evaporation systems, groundwater recharge facilities), with the former being subject to NPDES permitting and the latter not.

More to Come
All that said, what the Trump administration has given, the Biden administration may yet take away. President Biden’s “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” requires all federal agencies to review and take steps to address rulemaking and other actions during the Trump administration that conflict with these “important national objectives.” In the coming days, weeks, and months, we may see the Corps and EPA endeavor to revise the recent rulemaking and guidance documents described above.

Coty Hopinks-Baul is senior counsel at Husch Blackwell LLP. She concentrates her practice in the area of environmental law and advises clients on permitting and enforcement defense, environmental, safety and health compliance, and environmental liabilities in commercial transactions. She can be reached at [email protected].

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