Here we go again. Possibly the most frustrating and boring occupation on the face of the earth is being a regulation writer for the U.S. Environmental Protection Agency (EPA). These poor suckers can spend an entire career writing and rewriting the same regulation. I don’t know what sad soul is stuck with yet again rewriting the regulation for the definition of the Waters of the United States but if I were them I’d start looking for another job, because this won’t be the last time. This regulation is way beyond controversial. For a synopsis of the history of the regulation check out my 2018 post here.
On June 9, 2021 the EPA and the Department of the Army (under which resides the Army Corps of Engineers (ACOE or Corp) that administer the Clean Water Act 404(d) permit program) once again announced their intention to revise the definition of the Waters of the United States (WOTUS.) In 2020, the Trump administration revised a 2015 Obama era WOTUS regulation, so the Biden Administration has decided that it needs to revise the regulation too, because just too many projects impacting ephemeral streams and ditches are moving forward. Ephemeral streams being those that only flow briefly during and after localized rainfall. Ditches are simply man-made structures carrying runoff. Ephemeral streams and upland ditches were exempted from regulation in the 2020 version of the rule. The EPA was sued in 2021 by the Pueblos of Laguna and Jemez in New Mexico because just about every contributing stream to their water supply is ephemeral. It is very dry in their part of New Mexico and they have valid concerns about projects off reservation that might be impacting their water supply. The pueblos want ephemeral streams to be redesignated as WOTUS for protection of the waters they use for domestic and agricultural purposes. There’s a bunch of other lawsuits too from an assortment of state governments, including New Mexico, and from the Conservation Law Foundation and other environmental groups. This is all standard procedure now after a regulation is issued. There were lawsuits after the 2015 regulations were issued as well.
This is really all about the Clean Water Act 404 (d) program. The EPA is responsible for revising regulations under the CWA but the ACOE is charged with administering section 404 (d) of the CWA and issuing permits for any construction or dredging in areas that are considered WOTUS. The ACOE supported the EPA’s intention to revise WOTUS by assessing how the 2020 regulations have impacted their permitting program. They filed a Memorandum for the Record on June 8, 2021 with 165 pages of supporting documentation of their analysis.
Here’s a little bit of background for you so you can understand their analysis. Before a member of the public submits a permit application, they can seek a determination of whether their project is actually within a WOTUS and receive what is called a jurisdictional determination. There are two types of determinations: 1) approved jurisdictional determinations and 2) preliminary jurisdictional determinations.
An approved jurisdictional determination is an actual official document giving the ACOE’s view of whether WOTUS exist within a project area. A preliminary jurisdictional determination allows an applicant to waive the jurisdictional decision-making process of the ACOE and go right to the permit decision. In the case of a preliminary jurisdictional determination, the ACOE is not making any determination of whether a WOTUS exists in a project area and they issue a general or individual permit based on the permit application. In other words, the project proponent is assuming there’s WOTUS within their project area when seeking a preliminary jurisdictional determination. It’s not at all necessary for a project proponent to request a jurisdictional determination in cases where the project isn’t regulated under the CWA or is exempt and indeed the ACOE issues many general permits that have no jurisdictional determination. I know this may sound like your typical government bureaucratic bullshit, but it’s how the Corp does things and they keep track of it. So as part of their analysis of how the 2020 regulations were impacting their permitting process, the ACOE checked how many approved jurisdictional determinations they’d made versus preliminary jurisdictional determinations then compared them to the numbers issued under the Obama regulations and the pre-Obama regulations.
Here’s what the ACOE found:
1) Under the 2020 regulations 71 percent of approved jurisdictional determinations found there were no WOTUS within the project area. Under the 2015 regulations 46 percent of these types of determinations found no WOTUS within a project area. Most of the waters being assessed and not meeting WOTUS criteria were ephemeral streams or wetlands excluded under the new adjacency requirements in the 2020 regulations. Ditches were a smaller percentage of water resources not determined to be WOTUS.
2) Since the 2020 regulations became effective the number of approved jurisdictional determination requests has gone up by 116 %, meaning that permit applicants are no longer assuming that WOTUS exists within their project area.
3) Based solely on examination of approved jurisdicational determinations, the number of permits required to be issued has greatly decreased compared to the numbers issued prior to 2020. There were 338% more permits issued under the Obama regulations and 412% more under the pre-Obama regulations.
As you can see the 2020 regulations have had some big impacts and they are obviously not ones that the new Administration is comfortable with maintaining. I will be following, as I’ve done in the past, the writing of the new regulations, so look for future updates in this blog.