Clean Water Act Regulatory Session

1. Clean Water Act Regulatory Session WESTCAS Federal Issues Workshop – February 23, 2017

2. CWA Proposed Rules • NPDES Application & Programs Update Rule • Published in Federal Register May 18, 2016 • Expected to be non-controversial • Harmonize regulations and application forms • Improve permit documentation and transparency • Clarify existing regulations • Incorporate new program areas, i.e., 316(b) • Note: EPA has not performed any State outreach • Final Rule TBD WESTCAS Federal Issues Workshop – February 23, 2017

3. CWA Final Rules • CWA §402 Pesticide General Permit • Issued Nov 1, 2016 • CWA §404 Nationwide Permits • Issued Jan 6, 2017 (Effective Mar. 19, 2017) • CWA §402 Construction General Permit • Issued on Jan 19, 2017 (Effective Feb. 16, 2017) • Does not contain substantial changes to 2012 CGP WESTCAS Federal Issues Workshop – February 23, 2017

4. CWA Litigation - Settled • Multi-Sector General Permit • Waterkeeper Alliance, Inc. v. EPA • Numerous eNGOs petitioned for review of 2015 MSGP • Promulgate ELGs for industrial storm water discharges • Numeric limitations • Meet WQS at point of discharge • EPA approved BMPs, mandatory sector-by-sector compliance • FWQC & FSWC intervened on EPA’s behalf • August 2016 Settlement Agreement • Does not change 2015 MGSP in any way • Requires agency to conduct several “studies” WESTCAS Federal Issues Workshop – February 23, 2017

5. CWA Litigation - Settled • Water Transfer Rule • 2nd Circuit Catskill Chapter of Trout Unlimited v. EPA • Decision issued on January 18, 2017 • Reversed the District Court for the Southern District of New York and held that EPA’s Water Transfer Rule (WTR), codified at 40 C.F.R. §122.3(i), represented a reasonable interpretation of the CWA • WTR excludes discharges from a water transfer from NPDES permitting requirements • Defines a water transfer as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal or commercial use WESTCAS Federal Issues Workshop – February 23, 2017

6. CWA Litigation - Ongoing • Clean Water Rule • Consolidated in the U.S. Court of Appeals for the Sixth Circuit – Stayed! • Nat’l Ass’n of Manufacturers v. Dept. of Defense, et al. • Supreme Court to consider whether the U.S. Courts of Appeals or the District Courts have jurisdiction to hear challenges to the WOTUS rule under CWA §509 • Briefing schedule Feb – April • Oral arguments early summer • Decision mid-2017? WESTCAS Federal Issues Workshop – February 23, 2017

7. Other CWA Actions • Final EPA-USGS Report on Flow • March 2016 Draft Report • Protecting aquatic life from effects of hydrologic alteration • Flow-based water quality criteria • Development of flow-targets • Implementation of flow-targets through “CWA Tools” • Inappropriate and inaccurate legal analysis of case law • Protecting Aquatic Life from Effects of Hydrologic Alteration “Final Report” Dec 21, 2016 • Deleted case law chapter & case studies WESTCAS Federal Issues Workshop – February 23, 2017

8. What to Expect in 2017 WESTCAS Federal Issues Workshop – February 23, 2017

9. Scott Pruitt’s Back-to-Basics Agenda for EPA • “Agencies exist to administer the law, Congress passes statutes, and those statutes are very clear on the job EPA has to do. We’re going to do that job” • Expected to withdraw WOTUS rule • Improving water infrastructure a top priority • End the practice of “sue and settle” • Stop issuing guidance and return to “rulemaking by the book” • Rebalance power between Washington & the states • “Congress understood that a one-size-fits-all model doesn't work for environmental regulation, and that state departments of environmental quality have an enormous role to play” (Source: Wall Street Journal. Feb 17, 2017) WESTCAS Federal Issues Workshop – February 23, 2017

10. WESTCAS CWA Priorities for 2017 WESTCAS Federal Issues Workshop – February 23, 2017

11. WESTCAS Draft Policy Statement Clean Water Rule Exclude canals Exclude isolated ephemeral water features Physical indicators of a bed and banks and ordinary high water mark should not be used Physical tributary breaks sever jurisdictional status Frequency and strength tributary stream connections needs to be quantified Groundwater connectivity does not establish jurisdiction Relocated tributaries should not be subject to jurisdiction The use of a 100 year flood plains and/or any arbitrary linear unit of measurement to establish jurisdiction should not be used 404(f)(1)(c) maintenance activities do not need project-specific approvals Use of Negotiated Rulemaking WESTCAS Federal Issues Workshop – February 23, 2017