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Columnists
Regulatory
Developments
Michael
C. Ford Attorney Polsinelli
Shughart, PC
"Waters"
guidance issued: AZPDES validity confirmed
Aug/Sept
2007
Amidst
much anticipation, EPA and the Corps finally issued their guidance
memorandum interpreting the scope of their Clean Water Act jurisdiction
in light of the Rapanos case. In fact, the agencies issued a
flurry of interesting documents in early June in addition to the
aforementioned guidance memo, including a Regulatory Guidance Letter
addressing their new practices for documenting jurisdictional
determinations; "highlights" of their guidance; a
"question and answer" document; a new jurisdictional
determination form; plus an instruction guidebook to accompany the new
form.1 As the agencies acknowledged, the Rapanos decision
"has implications for all CWA programs, such as § 402 National
Pollutant Discharge Elimination System (NDPES) permits, § 311 oil spill
prevention and cleanup, and § 303 water quality standards."2
The collective guidance is chock full of interesting interpretations,
footnotes, photographs, and flow charts previewing the brave new world
that lies ahead for the regulators and the regulated community alike.
A
(very) few things are clear from the guidance: 1) the agencies have
committed to better coordinating their jurisdictional determinations to
ensure consistency; and 2) the agencies will better document their
jurisdictional determinations. Beyond these largely procedural issues,
unfortunately, the guidance offers little in the way of substantive
criteria the regulated community had hoped for to assist them in
determining whether or not they may be dealing with a jurisdictional
water.
Under
the guidance, most potentially jurisdictional waters in Arizona will
require a "significant nexus" analysis to determine their
jurisdictional status. This basic inquiry is whether the water at issue
has a significant nexus with a "traditionally navigable water"
("TNGs" - waters that are, have been, or could be used in
interstate commerce). While the agencies offer some criteria to consider
in conducting this analysis, e.g., flow data, proximity to TNGs,
habitat services, etc., the agencies offer no objective criteria or
bright lines to discern what all the subjective criteria mean. In other
words, significance will be in the eye of the beholder.
Of
particular interest to Arizona, the guidance does purport to exempt
"swales" and "erosional features (e.g. gullies,
small washes characterized by low volume, infrequent, or short duration
flow)" from jurisdiction and attempts to distinguish such features
from ephemeral waters, but does so only ambiguously, suggesting that
even these potential waters as well will ultimately be subject to the
significant nexus analysis. The agencies are accepting comments on the
guidance for the next six months if you would like to offer your two
cents. Also, the democrats in Congress have once again introduced their
annual legislation to amend the Clean Water Act to broaden jurisdiction
to its pre-Rapanos and SWANCC status (essentially limitless). It is
unclear (1) whether there are enough votes to pass such a bill; and (2)
whether such an amendment would pass Constitutional scrutiny. If passed,
such legislation would obviously impact the recent guidance and the
agency’s positions.
In
other big news, the Supreme Court confirmed the validity of Arizona’s
AZPDES Clean Water Act permitting program in a decision issued June
25th, 2007.3 In yet another close split (5-4) the Court
overturned the 9th Circuit Court of Appeals decision to vacate the
AZPDES program on Endangered Species Act concerns, finding that the 9th
Circuit erred on essentially every point in its analysis. Most
importantly, the Court confirmed that the ESA consultation requirement
does not apply to non-discretionary decisions mandated under other
environmental statutes, such as NPDES program delegation under the Clean
Water Act.
Now
that the status of the AZPDES program is clarified, ADEQ may well turn
its attention in running the program to such burning issues as the
aforementioned jurisdictional conundrum, the ever popular issues of
budgeting and permit fees, and some unfinished business, including a
stormwater permit for industrial activities.
Other
issues on my regulatory radar screen include ADEQ’s ongoing rulemaking
efforts dealing with Arizona’s surface water quality standards and
drinking water. The "Triennial Review" rulemaking involves new
and revised surface water quality standards and regulations, as well as
procedures for implementing a number of the water quality standards.
More information is available at http://www.azdeq.gov/environ/water/standards/index.html.
The drinking water rulemaking involves Arizona’s incorporation by
reference of federal Safe Drinking Water Act regulations, as well as new
and revised ADEQ regulations for drinking water providers. For more
information, check out http://www.azdeq.gov/environ/water/dw/rules.html.
Footnotes:
1
All of the guidance documents are available at http://www.usace.army.mil/cw/cecwo/reg/cwa_guide/cwa_guide.htm.
2
Questions and Answers for Rapanos and Carabell Decision
dated June 5, 2007.
3
National Association of Homebuilders vs. Defenders of Wildlife, 511 US
____ (2007).
2008/1234
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