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Guidance on Wetlands, 'Blending' Policies Said to Be Held Up in White House Review
Separate policy documents regarding federal jurisdiction over wetlands and blending of partial and fully treated wastewater during heavy rains have been undergoing White House review for months, but it is uncertain when they will be released, agency officials told BNA May 3.
The blending guidance was submitted to the White House Office of Management and Budget in June 2006, and the draft wetlands guidance was sent to OMB in November, according to Environmental Protection Agency and U.S. Army Corps of Engineers officials.
The wetlands guidance outlines circumstances under which the corps can exercise authority under Section 404 of the Clean Water Act to require dredge-and-fill permits. The "peak weather flows" policy spells out when wastewater utilities can blend partially and fully treated wastewater.
EPA has overall responsibility for setting environmental standards under the Clean Water Act. Congress has charged the corps with issuing and enforcing permits for dredging and filling wetlands. Consequently, EPA and the corps jointly issue any changes to Section 404 obligations.
Response to Rapanos
The joint wetlands guidance was developed by EPA and the corps in response to the Supreme Court's Rapanos ruling in June 2006 (Rapanos v. United States, U.S., No. 04-1034, 62 ERC 1481 (2006); 118 DEN A-1, 06/20/06 ).
The guidance is intended to clarify the circumstances under which the corps can exercise federal jurisdiction over wetlands that are not linked to navigable rivers and their tributaries.
In Rapanos, the Supreme Court sidestepped the question of whether federal jurisdiction extends to wetlands separated from tributaries by man-made barriers or to wetlands next to smaller tributaries that flow into larger navigable streams, lakes, or rivers. Consequently, the onus fell on EPA and the corps to issue guidance or rulemaking. The agencies opted for guidance.
OMB received in June 2006 the draft of EPA's "peak weather flows policy" that was released in proposed form in December 2005 (243 DEN A-6, 12/20/05 ).
That policy would allow blending of fully treated and partially treated wastewater at sewage treatment plants when it rains heavily, but it would require public notification within 24 hours of the blending.
The proposed policy also would require that a treatment plant conduct an analysis demonstrating that blending was the only feasible option during periods of heavy rains.
The document was based on a proposal by the National Association of Clean Water Agencies, which represents wastewater treatment plants, and the Natural Resources Defense Council. The groups drafted the document after five months of negotiations.
David Hewitt, corps spokesman, told BNA May 3 that the wetlands guidance is "undergoing administration review" at OMB. Hewitt could not say when it would be released, though.
EPA spokesman Dale Kemery also said the wetlands guidance is going through an
"interagency review" and is supposed to come out "soon."
Kemery also told BNA May 4 that OMB is still reviewing the draft final peak
flows policy, adding that he did not know what was preventing OMB from granting
final approval.
In an e-mail to BNA May 4, OMB spokeswoman Andrea Wuebker said: "The administration is working to advance the [wetlands] guidance through the process."
She offered no comment on the peak weather flows policy, despite repeated requests.
Guidance Meant to Tackle Backlog
Since January, environmental advocates, wastewater utility officials, and home builders have been asking both agencies, as well as OMB, when the guidance documents will be issued.
"It's a mystery," Virginia Albrecht, an attorney with Hunton & Williams who has represented the National Association of Home Builders and the National Mining Association, told BNA May 3.
Albrecht said the corps has a jurisdictional backlog of 20,000 cases, all awaiting final guidance. "The corps needs the guidance to do their job and they are frustrated," she added.
Katherine Baer, director of American Rivers' healthy waters project, told BNA she cannot understand why the wetlands guidance is taking so long to be released.
She said legislation being drafted by Sen. Russ Feingold (D-Wis.) and Reps. James Oberstar (D-Minn.) and Vernon Ehlers (D-Mich.) would clear up confusion created by successive Supreme Court rulings in 2001 and 2006 and the government's failure to release guidance following each ruling (86 DEN A-11, 05/4/07 ).
In the 2001 SWANCC decision, the Supreme Court said the presence of migratory birds could not be used to claim federal jurisdiction over isolated, nonnavigable, intrastate bodies of water and instructed the corps to define the federal scope of wetlands regulations (Solid Waste Agency of Northern Cook County v. Corps of Engineers, 531 U.S. 159, 51 ERC 1833 (2001); 7 DEN AA-1, 1/10/01).
EPA and the corps issued draft guidance following SWANCC, but never finalized it.
In the Rapanos ruling, the Supreme Court berated EPA and the corps for failing to issue guidelines or rules that would have clarified federal jurisdiction.
Without Policy, Rise in Costs Predicted
Adam Krantz, NACWA's managing director for public and government affairs, attributed the delay in the peak weather flows policy to two factors.
The first is that OMB is concerned that blending under the circumstances outlined in the policy would impose a financial burden on municipalities that mostly own and operate wastewater treatment plants across the nation. The second factor is a White House directive issued in January that made changes to Executive Order 12866 on Regulatory Planning and Review to require agency reviews of regulatory guidance (12 DEN A-12, 01/19/07 ).
Krantz said the directive was partially responsible for the slow pace at which the interagency reviews are occurring.
"The OMB appears to be more concerned than the municipalities. It doesn't make sense," Krantz told BNA May 3. "It will cost more not to implement the policy."
Absent the blending guidance, wastewater utilities are subject to a patchwork of regulations, NACWA General Counsel Alexandra Dunn said. For instance, she said, some utilities are being asked to provide detailed analysis to demonstrate that no feasible alternatives were available to blending without any accompanying guidance from EPA explaining how to go about doing such an analysis.
Dunn spoke about the blending policy May 7 at the 2007 National Clean Water Policy Forum, which runs through May 9.
Dunn also referred to the directive on Executive Order 12866, saying that although OMB is not charged with reviewing guidance documents, the agency has been reviewing "everything--rules, guidance, memos--making it extremely difficult for agencies to do their work."
However, OMB's Wuebker said that was not the case. She told BNA that the executive order does not take effect until July and it does not affect either guidance.
But Krantz said he believes otherwise. "Even though it does not take effect until July, this policy has to affect their thinking," he said. "I would argue that if it doesn't affect their thinking, the appropriate way to act would be to approve the policy and let it be issued before [the executive order] takes effect."
By Amena H. Saiyid