1. Clean Water Act Regulatory Session
WESTCAS Federal Issues Workshop – February 23, 2017

2. CWA Proposed Rules NPDES Application & Programs Update Rule
Published in Federal Register May 18, 2016
Expected to be non-controversial
Harmonize regulations and application forms
Improve permit documentation and transparency
Clarify existing regulations
Incorporate new program areas, i.e., 316(b)
Note: EPA has not performed any State outreach
Final Rule TBD
WESTCAS Federal Issues Workshop – February 23, 2017

3. CWA Final Rules CWA §402 Pesticide General Permit
Issued Nov 1, 2016
CWA §404 Nationwide Permits
Issued Jan 6, 2017 (Effective Mar. 19, 2017)
CWA §402 Construction General Permit
Issued on Jan 19, 2017 (Effective Feb. 16, 2017)
Does not contain substantial changes to 2012 CGP
WESTCAS Federal Issues Workshop – February 23, 2017

4. CWA Litigation - Settled
Multi-Sector General Permit
Waterkeeper Alliance, Inc. v. EPA
Numerous eNGOs petitioned for review of 2015 MSGP
Promulgate ELGs for industrial storm water discharges
Numeric limitations
Meet WQS at point of discharge
EPA approved BMPs, mandatory sector-by-sector compliance
FWQC & FSWC intervened on EPA’s behalf
August 2016 Settlement Agreement
Does not change 2015 MGSP in any way
Requires agency to conduct several “studies”
WESTCAS Federal Issues Workshop – February 23, 2017

5. CWA Litigation - Settled
Water Transfer Rule
2nd Circuit Catskill Chapter of Trout Unlimited v. EPA
Decision issued on January 18, 2017
Reversed the District Court for the Southern District of New York and held that EPA’s Water Transfer Rule (WTR), codified at 40 C.F.R. §122.3(i), represented a reasonable interpretation of the CWA
WTR excludes discharges from a water transfer from NPDES permitting requirements
Defines a water transfer as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal or commercial use
WESTCAS Federal Issues Workshop – February 23, 2017

6. CWA Litigation - Ongoing
Clean Water Rule
Consolidated in the U.S. Court of Appeals for the Sixth Circuit – Stayed!
Nat’l Ass’n of Manufacturers v. Dept. of Defense, et al.
Supreme Court to consider whether the U.S. Courts of Appeals or the District Courts have jurisdiction to hear challenges to the WOTUS rule under CWA §509
Briefing schedule Feb – April
Oral arguments early summer
Decision mid-2017?
WESTCAS Federal Issues Workshop – February 23, 2017

7. Other CWA Actions Final EPA-USGS Report on Flow
March 2016 Draft Report
Protecting aquatic life from effects of hydrologic alteration
Flow-based water quality criteria
Development of flow-targets
Implementation of flow-targets through “CWA Tools”
Inappropriate and inaccurate legal analysis of case law
Protecting Aquatic Life from Effects of Hydrologic Alteration “Final Report” Dec 21, 2016
Deleted case law chapter & case studies
WESTCAS Federal Issues Workshop – February 23, 2017

8. What to Expect in 2017
WESTCAS Federal Issues Workshop – February 23, 2017

9. Scott Pruitt’s Back-to-Basics Agenda for EPA
“Agencies exist to administer the law, Congress passes statutes, and those statutes are very clear on the job EPA has to do. We’re going to do that job”
Expected to withdraw WOTUS rule
Improving water infrastructure a top priority
End the practice of “sue and settle”
Stop issuing guidance and return to “rulemaking by the book”
Rebalance power between Washington & the states
“Congress understood that a one-size-fits-all model doesn't work for environmental regulation, and that state departments of environmental quality have an enormous role to play”
(Source: Wall Street Journal. Feb 17, 2017)
WESTCAS Federal Issues Workshop – February 23, 2017

10. WESTCAS CWA Priorities for 2017
WESTCAS Federal Issues Workshop – February 23, 2017

11. WESTCAS Draft Policy Statement
Clean Water Rule
Exclude canals
Exclude isolated ephemeral water features
Physical indicators of a bed and banks and ordinary high water mark should not be used
Physical tributary breaks sever jurisdictional status
Frequency and strength tributary stream connections needs to be quantified
Groundwater connectivity does not establish jurisdiction
Relocated tributaries should not be subject to jurisdiction
The use of a 100 year flood plains and/or any arbitrary linear unit of measurement to establish jurisdiction should not be used
404(f)(1)(c) maintenance activities do not need project-specific approvals
Use of Negotiated Rulemaking
WESTCAS Federal Issues Workshop – February 23, 2017