House Bill Would Block EPA From Vetoing Dredge And Fill Permits Issued By Army Corps Of Engineers, and Other Recent CWA Developments
House Bill Would Block EPA From Vetoing Dredge And Fill Permits Issued By Army Corps Of Engineers: On March 3, 2015, West Virginia’s entire House of Representatives delegation re-introduced a bill that is intended “to stop the federal Environmental Protection Agency’s unprecedented overreach,” according to the bill’s sponsor, David McKinley (R-WV). The bill (H.R. 1203) would amend the U.S. Environmental Protection Agency’s (EPA) authority to revoke permits issued under the Clean Water Act (CWA) Section 404. The bill was introduced in response to EPA’s revocation of the Spruce Mine permit in January 2011. The permit was issued by the U.S. Army Corps of Engineers (Corps) in January 2007, following a ten-year environmental review. The review included a 1,600-page environmental impact statement in which EPA participated and agreed to all terms and conditions in the authorized permit. The legislation would prohibit EPA from retroactively vetoing valid permits issued by Corps, which is the federal agency traditionally tasked with reviewing such projects. McKinley introduced similar legislation in the previous two Congresses.
EPA Proposes CWA Methods Update Rule For Analysis Of Effluent:On February 19, 2015, EPA proposed changes to pollutant analysis methods that are used by industries and municipalities to analyze the chemical, physical, and biological components of wastewater and other environmental samples that are required by regulations under the CWA. 80 Fed. Reg. 8956. EPA reportedly designed the proposed changes to increase flexibility for the regulated community, improve data quality, and update CWA methods to keep current with technology advances and analytical methods science. EPA periodically updates and revises the CWA analytical methods, the most recent updates being completed in 2012. The new set of proposed changes described in this notice includes revisions to current EPA methods and new and/or revised methods published by voluntary consensus standard bodies, such as ASTM International and the Standard Methods Committee. EPA also proposes to approve certain methods reviewed under the alternate test procedures program and clarify the procedures for EPA approval of nationwide and limited use alternate test procedures. Further, EPA proposes amendments to the procedure for determination of the method detection limit to address laboratory contamination and to better account for intra-laboratory variability. Comments on this proposed rule must be received on or before April 20, 2015.
House Bill Would Ban EPA From Issuing CWA Permits For Pesticide Applications: Representative Bob Gibbs (R-OH) on February 12, 2015, introduced legislation that would ban EPA from requiring CWA permits for the spraying of pesticides at or near bodies of water. The Reducing Regulatory Burdens Act of 2015 (H.R. 897) specifically prohibits EPA from issuing National Pollutant Discharge Elimination System (NPDES) permits for any pesticides that already are authorized for sale, distribution, or use under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The bill would amend both the CWA and FIFRA. Gibbs chairs the House Infrastructure Subcommittee on Water Resources and Environment and helped to ensure passage of an identical version of the legislation in the House in July 2014. Given the Republican majority in the House, the bill’s passage by that body seems likely.
EPA And Army Corps Withdraw CWA Interpretive Rule: In a succinct memorandum issued on January 29, 2015, EPA and the Corps formally withdrew the so-called CWA “Interpretive Rule,” which was issued by EPA in April 2014. The rule sought to clarify those farming practices that are exempt from the requirement to obtain CWA permits. Lawmakers believed the rule created confusion, in that it identified 56 “normal” farming operations, implying that any farming operation not on that list was not “normal” and thus required a CWA permit. Consequently, Congress included language in the FY 2015 omnibus spending bill that prohibited EPA and the Corps from taking further action on the regulation. President Obama signed the Consolidated and Further Continuing Appropriations Act of 2015 (CFCAA) into law on December 16, 2014; Section 112 of the CFCAA states that EPA and the Corps must withdraw the interpretive rule. The January 29, 2015, memorandum, signed by EPA Deputy Assistant Administrator for Water Ken Kopocis and U.S. Department of the Army Assistant Secretary for Civil Works Jo-Ellen Darcy, states that the interpretive rule is withdrawn “[e]ffective immediately” in line with the FY15 law’s mandate.” A related memorandum of understanding that the two agencies signed March 24 with the Department of Agriculture on how to implement the rule is also withdrawn, according to the memorandum.
House Bill Would Block “Waters Of The U.S.” Regulation: A bipartisan bill introduced in the House on January 28, 2015, would block EPA and the Corps from promulgating the final “Waters of the United States” rule under the CWA. The Waters of the United States Regulatory Overreach Protection Act of 2015 (H.R. 594) was introduced by Representative Paul Gosar (R-AZ) and quickly amassed 106 co-sponsors, including several Democrats. The bill would bar the Administration from issuing or implementing the proposed rule or an earlier contested EPA-Corps guidance on CWA jurisdiction. The legislation would also ban the use of the proposed rule or earlier guidance language in any future policy and instead would require EPA and the Corps to launch a formal consultation with state and local governments to develop a new proposed rule. The bill is largely moot, however, as EPA and the Corps recently withdrew the proposed Waters of the U.S. rule in accordance with the FY continuing appropriations bill.
Senate Bills Seek To Limit EPA’s CWA Authority: Senator David Vitter (R-LA) has introduced two bills seeking to limit EPA’s authority to veto permits under the CWA. On January 22, 2015, Vitter and Joseph Manchin (D-WV) introduced the Regulatory Fairness Act of 2015 (S. 54). The bill would amend Section 404(c) of the CWA to dilute EPA’s authority to reject so-called dredge-and-fill permits issued by the Corps for mining operations. The bill would specifically limit EPA’s authority to reject permits when the Corps publishes a notice identifying a project for which a dredge-and-fill permit would be issued. S. 54 would authorize EPA to object to such a permit, after a notice-and-comment period, on grounds that “the discharge of dredged or fill material into such defined area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” The bill would essentially prohibit EPA from retroactively denying permits issued by the Corps and is a direct reaction to EPA’s denial of a dredge-and-fill permit issued to the Mingo Mine in West Virginia. In that case, the Corps issued a permit to the coal mine in 2007, but EPA subsequently vetoed the permit in 2011. Vitter also introduced a bill (S. 234) on January 22, 2015, that would confirm the scope of EPA’s authority to deny or restrict the use of defined areas as disposal sites.