Proposed Rule Redefining Wetlands under the Federal Clean Water Act

 On Tuesday December 11, 2018,  the Environmental Protection Agency released the long awaited (promised by President Trump) proposed rule that would reduce the types of areas covered by the wetlands programs under the federal Clean Water Act.

( Pre-publication version of the Federal Register notice, the supporting analyses and fact sheets are available at: https://www.epa.gov/wotus-rule)

The proposed rule from the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers reduces the types of waterways that are covered as compared to the 2015 Obama era rule that was the subject of controversy because of the scope of the reach of jurisdiction. The more restrictive interpretation included in the proposed rule is based on a 2006 opinion by Supreme Court Justice Scalia, in Rapanos v. United States 547 U.S. 715 (2006). who opined that the federal Clean Water Act only applied to relatively permanent waters; while the other areas, should be regulated by states.
Of particular interest is the section that discussed crop land:

   Prior converted cropland.

§  This longstanding exclusion for certain agricultural areas would be continued under the proposal, and the agencies are clarifying that this exclusion would cease to apply when cropland is abandoned (i.e., not used for, or in support of, agricultural purposes in the preceding five years) and has reverted to wetlands.

The proposed rule creates six exclusive categories of areas that fall under federal jurisdiction. This text if from the EPA Fact Sheet:

        o   Traditional navigable waters (TNWs)

§  Under the proposal, traditional navigable waters would be large rivers and lakes, tidal waters, and the territorial seas—such as the Atlantic Ocean, the Mississippi River, the Great Lakes, and tidally influenced waterbodies, including wetlands, along coastlines—used in interstate or foreign commerce. 

o   Tributaries

§  In the agencies’ proposal, tributaries would be rivers and streams that flow to traditional navigable waters—such as Rock Creek, which feeds to the Potomac River in Washington, D.C.

§  Under the proposal, these naturally occurring surface water channels must flow more often than just when it rains—that is, tributaries as proposed must be perennial or intermittent. Ephemeral features would not be tributaries under the proposal.

§  Tributaries can connect to traditional navigable waters directly, through other “waters of the United States,” or through other non-jurisdictional surface waters so long as those waters convey perennial or intermittent flow downstream.

o   Certain ditches

§  A ditch under the proposed rule would be an “artificial channel used to convey water.”

§  Under the proposal, ditches would be jurisdictional where they are traditional navigable waters, such as the Erie Canal, or subject to the ebb and flow of the tide.

§  Ditches may also be jurisdictional where they satisfy conditions of the tributary definition as proposed and either 1) were constructed in a tributary or 2) were built in adjacent wetlands.

o   Certain lakes and ponds

§  Lakes and ponds would be jurisdictional where they are traditional navigable waters, such as the Great Salt Lake in Utah or Lake Champlain along the Vermont-New York border.

§  Lakes and ponds would be jurisdictional where they contribute perennial or intermittent flow to a traditional navigable water either directly, through other “waters of the United States,” or through other non-jurisdictional surface waters so long as those waters convey perennial or intermittent flow downstream, such as Lake Pepin in Minnesota or Lake Travis in Texas.

§  Lakes and ponds would be jurisdictional where they are flooded by a “water of the United States” in a typical year, such as many oxbow lakes.

o   Impoundments

§  Under the proposal, impoundments of “waters of the United States” would be jurisdictional.

o   Adjacent wetlands

§  Under the proposal, wetlands that physically touch other jurisdictional waters would be “adjacent wetlands,” such as Horicon Marsh in Wisconsin.

§  Wetlands with a surface water connection in a typical year that results from 1) inundation from a “water of the United States” to the wetland or 2) perennial or intermittent flow between the wetland and a “water of the United States” would be “adjacent.”

§  Wetlands that are near a jurisdictional water but don’t physically touch that water because they are separated, for example by a berm, levee, or upland, would be adjacent only where they have a surface water connection described in the previous bullet through or over the barrier, including wetlands flooded by jurisdictional waters in a typical year.

·         The proposal also clearly outlines what would not be “waters of the United States,” including:

o   Waters that would not be included in the proposed categories of “waters of the United States” listed above—this would provide clarity that if a water or feature is not identified as jurisdictional in the proposal, it would not be a jurisdictional water under the Clean Water Act.

o   Ephemeral features that contain water only during or in response to rainfall.

o   Groundwater.

o   Ditches that do not meet the proposed conditions necessary to be considered jurisdictional, including most farm and roadside ditches.

o   Prior converted cropland.

§  This longstanding exclusion for certain agricultural areas would be continued under the proposal, and the agencies are clarifying that this exclusion would cease to apply when cropland is abandoned (i.e., not used for, or in support of, agricultural purposes in the preceding five years) and has reverted to wetlands.

o   Stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off.

o   Wastewater recycling structures such as detention, retention and infiltration basins and ponds, and groundwater recharge basins would be excluded where they are constructed in upland.

o   Waste treatment systems.

§  Waste treatment systems have been excluded from the definition of “waters of the United States” since 1979 and would continue to be excluded under this proposal; however, waste treatment systems are being defined for the first time in this proposed rule.

§  A waste treatment system would include all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater or stormwater prior to discharge (or eliminating any such discharge).  

This article is based on preliminary reporting- we will update this report further on this as we  review the related documents that were released. There is a sixty day comment period for the proposed rule.

EPA Issues Findings of Failure to Timely Submit Valley PM 2.5 Plan

The U.S. Environmental Protection Agency issued a Notice of Findings in the Federal Register (62720 Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018)  on Thursday that the PM 2.5 Attainment Plan for the Central Valley is overdue and that if it not completed and incorporated into the State Implementation Plan within 18 months-sanctions will be imposed that could impact Federal Highway Funds, Offsets and eventually could require a Federal Implementation Program (“FIP”).

This Notice was issued despite the fact that the San Joaquin Valley Air Pollution Control District working alongside the California Air Resources Control Board has approved its PM 2.5 Plan, and it is pending before CARB for approval.

CARB is scheduled to vote on the plan in January. Until then, the EPA said, "the state shall be treated as not having made the submission… "We note, however, that CARB's submission represents a significant step in the state's and district's multiyear effort to address the act's attainment planning requirements," the EPA said.

The section in the Federal Register regarding sanctions and a portion of the relevant Clean Air Act Section is set out below:

II. Consequences of Findings of Failure

To Submit Complete SIPs

Under section 110(k)(1)(C) of the Act, here the EPA determines that a SIP submission (or part thereof) does not meet the EPA’s minimum  completeness criteria established in 40 CFR part 51, appendix V, the state shall be treated as not

having made the submission (or part  thereof). Sections 179(a) and 110(c) of

the CAA establish specific consequences for failure to submit complete SIP submissions or SIP

elements required under part D of title I of the Act, including the eventual imposition of

mandatory sanctions in the affected area.

In accordance with the EPA’s sanctions sequencing rule in 40 CFR 52.31, the offset sanction identified in CAA section 179(b)(2) would apply in the San Joaquin Valley area 18 months after the effective date of these findings, if the EPA has not affirmatively determined by that date that the State has submitted a complete SIP addressing the deficiency that is the basis for these findings. If, within 6 months after the offset sanction applies, the EPA still has not affirmatively determined that the State has submitted a complete SIP addressing the deficiency that is the basis for the findings, the highway funding sanction identified in CAA section 179(b)(1) would also apply in the San Joaquin Valley. Under 40 CFR 52.31(d)(5), neither sanction would apply if the EPA determines within 18 months after the effective date of these findings that the State has submitted a complete SIP submission addressing the deficiency that is the basis for these findings.

Additionally, a finding of failure to submit a complete SIP submission triggers an obligation under CAA  section 110(c) for the EPA to promulgate a FIP no later than 2 years after the finding, unless the state has submitted, and the EPA has approved, the required SIP submittal. Thus, the EPA would be required to promulgate a PM2.5 FIP for the San Joaquin Valley, in relevant part, if California does not submit and the EPA does not approve all of the necessary SIP submissions within 2 years after the effective date of these findings.

Clean Air Act 179(b)(2)

(b) Sanctions

The sanctions available to the Administrator as provided in subsection (a) of this section are as follows:

(1) Highway sanctions

(A) The Administrator may impose a prohibition, applicable to a nonattainment area, on the approval by the Secretary of Transportation of any projects or the awarding by the Secretary of any grants, under title 23 other than projects or grants for safety where the Secretary determines, based on accident or other appropriate data submitted by the State, that the principal purpose of the project is an improvement in safety to resolve a demonstrated safety problem and likely will result in a significant reduction in, or avoidance of, accidents. Such prohibition shall become effective upon the selection by the Administrator of this sanction.

(B) In addition to safety, projects or grants that may be approved by the Secretary, notwithstanding the prohibition in subparagraph (A), are the following—

(i) capital programs for public transit;

(ii) construction or restriction of certain roads or lanes solely for the use of passenger buses or high occupancy vehicles;

(iii) planning for requirements for employers to reduce employee work-trip-related vehicle emissions;

(iv) highway ramp metering, traffic signalization, and related programs that improve traffic flow and achieve a net emission reduction;

(v) fringe and transportation corridor parking facilities serving multiple occupancy vehicle programs or transit operations;

(vi) programs to limit or restrict vehicle use in downtown areas or other areas of emission concentration particularly during periods of peak use, through road use charges, tolls, parking surcharges, or other pricing mechanisms, vehicle restricted zones or periods, or vehicle registration programs;

(vii) programs for breakdown and accident scene management, nonrecurring congestion, and vehicle information systems, to reduce congestion and emissions; and

(viii) such other transportation-related programs as the Administrator, in consultation with the Secretary of Transportation, finds would improve air quality and would not encourage single occupancy vehicle capacity.

In considering such measures, the State should seek to ensure adequate access to downtown, other commercial, and residential areas, and avoid increasing or relocating emissions and congestion rather than reducing them.

(2) Offsets

In applying the emissions offset requirements of section 7503 of this title to new or modified sources or emissions units for which a permit is required under this part, the ratio of emission reductions to increased emissions shall be at least 2 to 1.

OEHHA has Proposed Amendments to Warning Regulations to Clarify the Definitions of Registered Agent and Actual Knowledge

The Office of Environmental Health Hazard Assessment (OEHHA) adopted amendments to the Clear and Reasonable Prop 65 regulations on November 20, 2017 to clarify certain provisions.

The changes relate to two mains topics:  

The first is to clarify the definition of a Registered Agent for the purposes of providing notice of the Prop 65 requirements. These changes were required as manufacturers and distributors needed clarification as to the definition of  a Registered Agent  for the purposes of allowing the transmittal of notice requirements to downstream transferees that is now permitted to transfer responsibility for warnings under the 2016 regulations.

 The changes add language to the relevant provisions of the regulations that an authorized agent is the authorized agent for the business to which they are selling or transferring the product.

This clarifies that the upstream entities need only to give the notice to their immediate downstream customers, which has been a question for entities attempting to comply with the 2016 regulations:

(b)  The manufacturer, producer, packager, importer, supplier, or distributor of a product

may comply with this article either by providing a warning on the product label or labeling that satisfies Section 25249.6 of the Act, or by providing a written notice directly to the authorized agent for the business to which they are selling or transferring the product or to the authorized agent for a retail seller who is subject to Section 25249.6 of the Act, which:

(1)  States that the product may result in an exposure to one or more listed chemicals;

(2)  Includes the exact name or description of the product or specific identifying information for the product such as a Universal Product Code or other identifying designation;

(3)  Includes all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the internet, that satisfies Section 25249.6 of the Act; and

(4)  Has been sent to the authorized agent for the business to which they are selling or transferring the product who is subject to Section 25249.6 of the Act or to the authorized agent for the retail seller, and the manufacturer, producer, packager, importer, supplier, or distributor has obtained confirmation electronically or in writing of receipt of the notice.

(c)  If the manufacturer, producer, packager, importer, supplier, or distributor of a product is complying with this section by providing a written notice directly to the authorized agent for the business to which they are selling or transferring the product who is subject to Section 25249.6 of the Act or to the authorized agent for the retail seller:

(1)  Confirmation of receipt of the notice must be received electronically or in writing, and must be renewed, and receipt of the renewed notice confirmed electronically or in writing by the authorized agent for the business to which they are selling or transferring the product who is subject to Section 25249.6 of the Act or the authorized agent for the retail seller's authorized agent no later than February 28, 2019, then annually thereafter during the period in which the product is sold in California by the retail seller.

(2)Where a business has not designated an authorized agent, the manufacturer, producer, packager, importer, supplier, or distributor may serve the notice on the legal agent for service of process for the business.

(b) The manufacturer, producer, packager, importer, supplier, or distributor of a product

may comply with this article either by providing a warning on the product label or labeling that satisfies Section 25249.6 of the Act, or by providing a written notice directly to the authorized agent for the business to which they are selling or transferring the product or to the authorized agent for a retail seller who is subject to Section 25249.6 of the Act....

 The second change relates to what "actual knowledge" means with respect to duties of the retailers under the Prop 65,  2016 Amendments to the Clear and Reasonable Warnings. 

(f) For purposes of subsection (e)(5), “actual knowledge” means specific knowledge of the consumer product exposure with sufficient specificity for the retail seller to readily identify the product that requires a warning, and that is received by the authorized agent or a person whose knowledge can be imputed to the retail seller from any reliable source. If the source of this knowledge is a notice served pursuant to Section 25249.7(d)(1) of the Act, the retail seller shall not be deemed to have actual knowledge of any consumer product exposure that is alleged in the notice until five business days after the retail seller receives a notice that provides a description of the product with sufficient specificity for the retail seller to readily identify the product in accordance with

Article 9, section 25903(b)(2)(D).

The actual knowledge provision is in turn significant because it relates to the instances when a retailer becomes responsible for the warning.

(e) The retail seller is responsible for providing the warning required by Section 25249.6 of the Act for a consumer product exposure only when one or more of the following circumstances exist:

(5) The retail seller has actual knowledge of the potential consumer product exposure requiring the warning, and there is no manufacturer, producer, packager, importer, supplier, or distributor of the product who: (A) Is a “person in the course of doing business” under Section 25249.11(b) of the Act, and (B) Has designated an agent for service of process in California, or has a place of business in California.

OEHHA will receive comments by 5:00 p.m. on December 31, 2018. All comments will be posted on the OEHHA website at the close of the public comment period.