By Miles Krieger
On March 21, the United States House of Representatives passed House Resolution 7023 modifying requirements under the federal Clean Water Act, including requirements concerning water quality criteria, the National Pollutant Discharge Elimination System (NPDES) program, the permit program for discharging dredged or fill material into waters of the United States, and the meaning of waters of the United States. It also limits the issuance of permits under the act.
Factual and Procedural Background
Congress enacted the federal Clean Water Act (CWA) “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA protects “navigable waters” which the statue itself defines as the “waters of the United States,” (WOTUS). The Supreme Court of the United States, in Rapanos v. United States, decided that a “significant nexus” test applied to determine whether a water was a WOTUS, which allowed for a broad interpretation of the meaning of WOTUS. However, in the 2023 decision Sackett v. EPA, the Supreme Court instead held that the CWA “extends only to those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, so that they are indistinguishable from those waters.” This substantially narrowed wetlands that can be defined as WOTUS.
The new Sackett rule, commonly called the “adjacency test” requires two things. First, the party asserting jurisdiction over the wetlands, in this case the Corps, has to establish that adjacent body of water to wetlands is itself a WOTUS. Second, the party asserting jurisdiction over the wetlands has to show that the wetland has a continuous surface connection with the established WOTUS, making it potentially difficult to determine where the water ends and the wetland begins.
The CWA “categorically prohibits any discharge of a pollutant from a point source without a permit.” Comm. to Save Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 309 (9th Cir. 1993). “[D]ischarge of a pollutant” is defined as the “addition of any pollutant to navigable waters from any point source . . . .” 33 U.S.C. § 1362(12). The CWA defines “pollutant” broadly to include “dredged spoil,” “solid waste,” “rock,” “sand,” and “industrial . . . waste discharged into water.” 5 U.S.C. § 1362(6). The CWA does not define what constitutes the “addition” of a pollutant.
Before discharging any pollutant, a person must obtain a permit from either the U.S. Environmental Protection Agency (EPA) or the Army Corps of Engineers (Corps). The NPDES permitting program (also referred to as Section 402 permitting) authorizes the EPA to issue permits “for the discharge of any pollutant, or combination of pollutants,” on the condition that the discharge will otherwise comply with the CWA. 33 U.S.C. § 1342(a)(1). Section 404 of the CWA authorizes the Corps to issue permits “for the discharge of dredged or fill material . . . .” 33 U.S.C. § 1344(a) (referred to as Section 404 permits). When a discharge requires a Section 404 permit, it does not require a Section 402 permit. The CWA does not define “discharge of dredged material” or “dredged material.” See 33 U.S.C. §§ 1342, 1362. To establish a violation of the CWA’s NPDES requirements, “a plaintiff must prove that defendant[] (1) discharged, i.e., added (2) a pollutant (3) to navigable waters (4) from (5) a point source.”
House Resolution 7023
HR 7023, called the “Creating Confidence in Clean Water Permitting Act,” (Act), was passed in the House by a vote of 213-205. The Act would generally modify the CWA in a number of ways.
First, the Act would direct EPA to develop any new or revised water quality criteria for states through a rule. This also includes directing the EPA and the Corps to begin a process to issue guidance on the implementation of the 2023 final rule titled Revised Definition of “Waters of the United States”; Conforming and stipulates the guidance must comply with the decision of the Supreme Court in Sackett.
Second, the Act would allow EPA to issue general permits under the program. Further, the Act would modify the NPDES program to include statutory authority for provisions that shield NPDES permit holders from liability under certain circumstances. Specifically, under the Act, compliance with the conditions of a NPDES permit would be considered compliance with respect to a discharge of any pollutant for which an effluent limitation is included in the permit; and any pollutant for which an effluent limitation is not included in the permit that is (1) specifically identified as controlled or monitored through indicator parameters in the: permit, the fact sheet for the permit, or the administrative record relating to the permit; (2) specifically identified during the permit application process as present in discharges to which the permit will apply; or (3) whether or not specifically identified in the permit or during the permit application process present in any waste streams or processes of the point source to which the permit applies, which waste streams or processes are specifically identified during the permit application process, or otherwise within the scope of any operations of the point source to which the permit applies, which scope of operations is specifically identified during the permit application process.
Third, to reduce permitting uncertainty, the Act would limit the EPA’s veto authority to restrict, prohibit, deny, or withdraw the specification by the Corps of a site for the discharge of dredged or fill material into waters of the United States to the time period beginning on the date on which an applicant submits all information to complete the application and the issuance of the permit.
Fourth, the Act modifies requirements for general permits to discharge dredge or fill material that are issued on a nationwide, regional, or state basis for particular categories of activities, including by extending the maximum term for a general permit from a period of five years to ten years. It also exempts the Corps from certain consultation and environmental review requirements when reissuing nationwide general permits, including consultations under the federal Endangered Species Act and the National Environmental Policy Act. Judicial challenges to individual or general permits must be filed within 60 days of the issuance of the permit, and a challenging party must have exhausted administrative remedies by participating in the public comment period and administrative proceedings in sufficient detail to put the Secretary of State on notice of the issues to be litigated.
Finally, the Act prohibits permits from being issued under Title IV of the Clean Water Act for any discharges from a point source that is owned or operated by certain foreign counties of concern and any subsidiaries of entities that are subject to the jurisdiction of such countries.
Conclusion and Implications
It remains to be seen whether the Senate will pass the Act, if at all, either as-is or with amendments. However, the provisions of the Act reflect an effort to increase certainty in the permitting process affecting waters of the United States in light of the Sackett decision, as well as to streamline agency decision-making and entities who may receive permits. For more information, see: HR 7023 available at https://www.congress.gov/bill/118th-congress/house-bill/7023/text?s=1&r=1
