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Paulina WilliamsJanuary 10, 2019

Federal Regulatory Update

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“The Only Thing That Is Constant Is Change”

― Heraclitus

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2017 – 2018

• Over two years, federal agencies issued – 176 deregulatory actions

• 57 of which are significant deregulatory actions and

– 14 significant regulatory actions- Fall 2018 Regulatory Plan,

- Office of Information and Regulatory Affairs- Office of Management and Budget

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Federal Regulatory Update

What’s on the Administration’s Agenda

Where WOTUS Stands and the Pending Proposal404 Delegation and 401 Issues

Pending Rule Proposals

Regulatory Reform Laundry List

Waters of the United States and Clean Water Act 404 Issues

Endangered Species

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Issued … Proposed … Pending …

Endangered Species Listing for TX Hornshell Mussel

Withdrawal of Mitigation Policies

Rural Development Environmental Regulation for Rural Infrastructure Projects

Effective March 12, 201811 other Texas fresh water mussels remain under considerationCites impairment of water quality, loss of flowing water, climate change, etc. 83 Federal Register 5720

Withdrawal of the: ESA Compensatory Mitigation Policy published Dec. 17, 2016 and Mitigation Policy published Nov. 21, 2016

Service specifically states that the ESA neither requires a net conservation gain nor a no net loss outcome for mitigation.83 Federal Register 36469

USDA Direct Final Rule Eff. Jan. 7, 2019

Allow limited flexibility to obligate federal funds for infrastructure projects prior to completion of the environmental review while ensuring full compliance with NEPA procedures prior to project construction and disbursement of any RD funding83 Federal Register 59269

DOI Policy of Deference to State Wildlife Management

Water Supply Rule Other Pending Rules

Memorandum provides that DOI is committed to deferring to States on fish and wildlife management, except as otherwise required by Federal law.Implementation plan within DOI expected ~Feb 2019

Corps policies governing use of Corps reservoirs for domestic, municipal, and industrial water supply Proposed December 2016Comment closed Nov 2017Action Expected Aug 2019

NPDES Program Update Rule Phase I and New NPDES Forms final action ~Winter/Spring 2019Phase II on longer timeline

Hazardous Substance Spill PreventionPropose no new rules instead of SPCC-like rules

Consent Decree requires final action by Aug. 16, 2019

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… On the Horizon

Lead & Copper Rule Emerging Contaminants

Modification of Nationwide Permits

White Paper 2016 on existing rule implementationProposal Expected ~ Feb 2019

Designation of Per-and Polyfluoroalkyl Substances as Hazardous SubstancesEvaluating need for a MCLDeveloping PFAS Management PlanDeveloping groundwater cleanup recommendations

Proposed Rule expected ~ June 2019

9 NWPs favoring energy sector including NWP 3 (Maintenance) and NWP 12 (Utilities)

NEPA Reform Peak Flows Management

Clean Water Act Groundwater-Based Liability

CEQ Advanced Notice of Proposed Rulemaking - 83 Fed. Reg. 28951 (June 20, 2018)CEQ Proposal Expected ~ Feb 2019USDA NEPA Reform Proposal ~ March 2019

Proposed Rule expected ~ July 2019POTWs with separate sanitary sewer systems Ensuring consistent national permitting approach that allows efficient POTW operation managing and treating peak flows under wet weather conditions while protecting the public from potential adverse health effects of inadequately treated wastewater

CWA liability based on discharge to WOTUS through groundwaterDOJ Amicus Brief encouraging Supreme Court Review filed 1/3/19Unidentified agency action expected ~Spring 2019

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Waters of the United States

Texas A&M Agrilife Extension

Why are we talking about this?

Why are we STILL talking about this?

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Why Does this Rule Matter?

• CWA 404 Permitting– Any foot print expansion, ever?– Any new, replaced, or significant maintenance of

infrastructure?– Do you have any schedules for the above?

• NPDES– Point source discharges– 316(b) applicability for cooling water intakes

• SPCC

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Applicability as of January 1, 20192015 WOTUS and 1986/1988 WOTUS

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2015 Waters of the U.S. Definition

• Categorically In – Broad definitions of tributaries and adjacent waters

• Categorically Out– Express exclusion for waste treatment systems, certain

upland ditches & ponds, etc.• Some remaining case-by-case• Fundamental basis →"Significant nexus“• Agencies stressed judgments in rule

were based on:– "The science"

• Connectivity Report– The law– Their experience and expertise

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2018 Proposed Waters of the U.S. Definition

• Categorically In– Six categories– Definition of tributary and adjacency limited

• Categorically Out– Exclusions even if otherwise would be in– Catchall that if not categorically in then categorically out,

including clarifications for specific features• Fundamental basis → CWA Statutory Text• Agencies stress judgments in rule are based on:

– The law & policy derived from the text of the CWA– Informed by the science reflected in the Connectivity

Report to the extent allowed under the text of the CWA

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Primary Waters and Impoundments

1986/1988 Rules 2015 WOTUS Rule 2018 Proposed WOTUS Rule

Primary Waters

Traditionally navigable waters

Territorial Seas

Interstate waters

Traditionally navigable waters

Territorial Seas

Interstate waters

Traditionally navigable waters

• Including the Territorial Seas

Interstate waters

Impoundments

Impoundments of otherwise jurisdictional waters

Impoundments of otherwise jurisdictional waters

Impoundments of otherwise jurisdictional waters

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Tributaries and Ditches

1986/1988 Rules 2015 WOTUS Rule 2018 Proposed WOTUS RuleTributaries

Undefined Ordinary highwater mark and bedand banks

Ephemeral streams to extent volume,frequency, and duration of flowestablish bed and banks and ordinaryhighwater mark

Natural, man-altered, or man-made

Contributes flow either directly orthrough another water to a TNW

Perennial or Intermittent Flow in a“typical year”

No ephemeral streams, meaningthose that flow only in response toprecipitation

Natural, man-altered

Contributes flow either directly orthrough another water to a TNW

DitchesIncluded ditches with flow toPrimary Waters, except those:

excavated wholly in and drainingonly uplands and

that do not carry a relativelypermanent flow of water

Included ditches with flow toPrimary Waters, except those with:

ephemeral flow that were not built in& did not relocate a tributary or

intermittent flow and not built in anddid not relocate a tributary and didnot drain wetlands

Only ditches that

meet the definition of “tributary”and are

constructed in tributary or

constructed in a wetland

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Lakes and Ponds

1986/1988 Rules 2015 WOTUS Rule 2018 Proposed WOTUS Rule

Lakes and Ponds

Itself a TNW

Extent of Commerce Clause but

Not an isolated water; may requiresignificant nexus to TNW

Itself a TNW

“Adjacent” to otherwisejurisdictional waters or

Analyzed case-by-case forsignificant nexus if within 4000 feetof tributary

Itself a TNW

Contributes perennial or intermittentflow to TNW in a “typical year”through a feature—whetherjurisdictional or not—that itselfcontributes perennial or intermittentflow or

Receives flood waters in a typicalyear via overtopping from anotherwise jurisdictional water

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Adjacency

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2018 Exclusions

1) Waters that are not specifically identified as jurisdictional

2) Groundwater

3) Ephemeral surface features

4) Ditches that are not specifically identified as jurisdictional

5) Prior converted cropland

6) Artificially irrigated areas

7) Artificial lakes and ponds constructed in upland

8) Water-filled depressions created in upland incidental to mining or construction

9) Stormwater control features excavated or constructed in upland

10) Wastewater recycling structures constructed in upland and

11) Waste treatment systems – Newly Defined

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Path Forward

• Opportunity to comment on the proposal– EPA says 60 days from publication in the Federal Register

• Recognize will not be a settled definition until completion of judicial review– That also assumes no intervening regulatory action

• Consider proactive management of risk– Approved JDs good for five years– Evaluating projects conservatively depending on backdrop and timing

• Consider if you want to support Texas seeking 404 delegation– Corps issued guidance on what it will treat as non-assumable waters

• Retains Section 10 waters and adjacent wetlands• Clears major hurdle for states seeking delegation

• State 401 Certifications increasingly weaponized

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Proposed Revisions to ESA Regulations

• In July 2018, the Services released three proposed rules that, if finalized, would revise portions of the regulations implementing Sections 4 and 7 of the ESA

• Comment period closed September 24, 2018

• Now at OMB – Final Step

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Three Proposed ESA Rules

1. Procedures and criteria used for listing or removing species from the T&E lists and designating critical habitat (Section 4)

2. Interagency consultation processes to make them more efficient and consistent (Section 7)

3. Species newly listed as threatened will require specific rule to trigger endangered species protections [no longer a blanket, automatic 4(d) Rule) (Section 4(d) and Section 9)]

83 Federal Register 35174 et seq. (July 25, 2018)

• 36 distinct proposals– Many codifications of existing practice

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A Sampling of the Proposed Changes

• Critical Habitat– Designation of unoccupied critical

habitat• Related development - Supreme

Court just ruled 8-0 that must be “habitat” to be critical habitat remanding case where unoccupied land was designated critical habitat

– When not prudent to designate critical habitat

• Removes prohibition on referencing economic impacts in the listing decision, though retains prohibition on considering economic impacts

• Defines “foreseeable future” which is the timeline used in evaluating listing decisions

• Clarifies criteria for delisting species

• Address alternative consultation mechanisms

• Revise the definitions of “destruction or adverse modification” & “effects of the action”

• Address certainty of mitigation proposed by action agencies

• Otherwise improve the consultation process

AUSTIN

BEIJING

BRUSSELS

DALLAS

DUBAI

HONG KONG

HOUSTON

LONDON

MOSCOW

NEW YORK

PALO ALTO

RIYADH

SAN FRANCISCO

WASHINGTON

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