Updated August 31, 2015
The recently published New Final Clean Water Rule was blocked by a North Dakota district court on August 27th. The temporary injunction was granted to the 13 states that filed the lawsuit of which Arizona was one. The EPA maintains the injunction applied only to the 13 states stating that it began enforcing the rule in all the other states on Friday (August 27th). The judge told attorneys that each side may file a brief by Tuesday September 1st 5 PM addressing the issue of whether the injunction applies nationally or only to those 13 states. The lawsuit is just 1 of 10 filed against the controversial rule which expands federal jurisdiction over small streams, tributaries and wetlands under the Clean Water Act. It is not clear the direction of the rule but for now the new rule cannot be applied in the states which filed the lawsuit.
Updated August 20, 2015
The Clean Water Rule: Definition of “Waters of the United States” was published in the Federal Register on June 29, 2015. The rule will become effective on August 28, 2015.
You can find a copy of the 299 page rule here.
Updated June 8, 2015
EPA released the Clean Water Rule on May 27, 2015. A Clean Water Act permit is only needed if a water is going to be polluted or destroyed. According to the press release:
The Clean Water Rule only protects the types of waters that have historically been covered under the Clean Water Act. It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows, or tile drains. It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field. The Clean Water Rule addresses the pollution and destruction of waterways – not land use or private property rights.
The Clean Water Rule will be effective 60 days after Pre-publication in the Federal Register.
You can find a copy of the 299 page rule at: http://www2.epa.gov/sites/production/files/2015-06/documents/preamble_rule_web_version.pdf
Updated March 26, 2015
The Federal Register for March 26, 2015 posted that FEMA has extended the public comment period for the Revised Guidelines for Implementing Executive Order 11988 i.e. FFRMS from April 6, 2015 to May 6, 2015. Here are two documents of interest: DRAFT-FFRMS-Implementating-Guidelines-1-29-2015r2 and Federal_Flood_Risk_Management_Standard.
Comments must be identified by docket ID FEMA-2015-0006 and
may be submitted by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of
Chief Counsel, Federal Emergency Management Agency, 8NE, 500 C Street
SW., Washington, DC 20472-3100.
Instructions: All submissions received must include the docket ID
FEMA-2015-0006. Comments received will be posted without alteration at
http://www.regulations.gov, including any personal information
provided.
Docket: For access to the docket to read comments received, go to
http://www.regulations.gov, and search for the Docket ID FEMA-2015-
0006.
Updated February 10, 2015
Executive Order 13690, which amends Executive Order 11988, was signed by President Obama on January 30, 2015 contains a new Federal Flood Risk Management Standard (FFRMS) which contains new considerations for agencies as they implement the 8-step process on projects involving any Federal action. These can include activity related to Federal lands and facilities, Federally funded construction, and Federal activities and programs affecting land use, including water, waste water, land use resources planning, regulating and licensing activities, and Federally regulated loans (Ex VA & FHA). More attention will be given for critical actions which are defined as any activity for which even a slight chance of flooding would be too great. The reason for the Executive Order is to address the growing costs in flood losses.
Executive Order 11988 uses the BFE as a standard for non-critical actions and considers the 500 yr floodplain for critical actions. In many cases these standards may not met current state or local standards. The new elements to Executive Order 13690 that relate to the floodplain and protection standard, which is defined both vertically and horizontally, providing 3 options: 1) Freeboard value approach which is the BFE plus 2’ freeboard for non-critical actions and plus 3’ for critical actions; 2) 500 yr elevation approach; or 3) climate informed science approach.
There are exemptions from the FFRMS in the interest of national security and where the agency action is an emergency action where only the area of land subjected to the BFE is the criteria. Another new element is that when alternatives are being considered, the agency shall use natural systems, ecosystem processes, and nature based approaches. This relates to Steps 3-7 in the 8 step process.
The Executive Order will not trigger the need to update local floodplain management ordinances and will not increase flood insurance rates.
More details will follow but be aware, the Executive Order and the Draft FFRMS were published in the Federal Register February 5th which kicks off a 60 day comment period on implementing guidelines. After comments are reviewed, the final FFRMS will be published. Then agencies have 30 days to submit their plan for implementing the updates to their rules and procedures. The Draft FFRMS can be found at http://www.fema.gov/media-library-data/1422653213069-9af488f43e1cf4a0a76ae870b2dcede9/DRAFT-FFRMS-Implementating-Guidelines-1-29-2015r2.pdf
Comments must be received by April 6, 2015. Comments must be identified by docket ID FEMA-2015-0006 and may be submitted by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of Chief Counsel, Federal Emergency Management Agency, 8NE, 500 C Street SW., Washington, DC 20472-3100.
Updated April 22, 2014
FEMA is soliciting comments on its Programmatic
Environmental Impact Statement (PEIS). FEMA held a scoping webinar on
April 22, 2014 led by Beth Norton the Project Manager for the process to give
an overview of the PEIS. More information on the PEIS, to read submitted
comments, or to register for the last 2 webinars to be held on May 13, 2014 and
May 20, 2014 can be found at https://www.fema.gov/programmatic-environmental-impact-statement.
Comments can be sent to NFIP-Programmatic-EIS@fema.dhs.gov
until May 30, 2014.
FEMA plans to review its regulations in areas of biological
resources, climate change, cultural resources, land use, public safety,
socioeconomic considerations, water resources, geophysical features, and
coastal resources. FEMA's comments to stakeholders have included:
increase elevation standards for new construction, provide floodplain management
for critical facilities, strengthen restrictions for floodway development,
integrate future conditions and residual risk in floodplain management,
discourage fill in floodplains, modifications to its regulations that account
for impacts of floodplain development on natural and beneficial functions of
floodplains including endangered & threatened species.
The steps for PEIS process are:
1. NOI
2. Scoping process [that is where process
is now]
3. Draft PEIS
4. Public Comments on the Draft PEIS
5. Final PEIS
6. Record of Decision.
The scoping period began on 5/16/12 and ended on 10/9/12
where 41 comments were received. Topics raised were: changes to maintain
"natural & beneficial functions of floodplain to include endangered
& threatened species.", climate change, zero rise in FP & FW's,
risk-based instead of subsidy-based premium structure, use criteria greater
than 1% storm, include FP setbacks, lateral erosion hazards, etc.
Updated March 2014
EPA & USACE
Clarify Protection for Nation’s Streams & Wetlands
EPA-HQ-2011-0880 (Release Date:
3/25/14)
Comment Period ends 90 days once
draft ruling appears in Federal Registry
Final Rule goes into effect 60 days
following publication in Federal Register
Click here for more information
Updated December 2013:
Proposed new rule expanding scope of CWA jurisdiction. Draft rule would regulate ditches as "tributaries" and all waters & wetlands within floodplains. Relies on EPA's draft report "Connectivity of Streams and Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence" which has not yet been peer-reviewed or completed, to support its definitions.
As of Nov 2013, report is being reviewed by Science Advisory Board expert panel and will receive public comments Dec 16-18, 2013 in Washington DC (written commented period ended 11/6/13).
Purpose of the report is to summarize current understanding about these connections, the factors that influence them, and the mechanisms by which connected waters singly or in aggregate, affect the function of downstream waters. Another purpose is to "make the process of identifying waters of the US less complicated and more efficient".
Key points of the rule are:
· provides broad definition of tributaries, allowing for regulation of anything with flow (including ditches), regardless of frequency or duration of flow;
· expressly claims jurisdiction over desert areas in the arid West that are wet only during infrequent rainfall events;
· defines ditches as jurisdictional tributaries, and other man-made conveyances, that drain or connect to other qualifying tributaries (e.g. agricultural, roadside, irrigation and stormwater ditches);
· establishes jurisdiction over wetlands or waters based on location within riparian or floodplain areas, but does not limit the concept of "floodplain" and instead leaves it to agencies' "best professional judgment to determine the flood interval (e.g. 2-, 10-, 100- or 1,000-year floodplain) to be considered; and
· establishes jurisdiction over "other waters" that are not considered tributaries or adjacent based on aggregation of those waters within a "single landscape unit," which is undefined.
What's not included:
o waste treatment systems;
o prior converted cropland;
o artificially irrigated areas;
o ditches excavated wholly in upland areas; and
o ditches that do not contribute flow to water identified as Waters of US.
The rule would apply to all CWA programs.
Board should make decision by March 2014 (estimate).
Link to Draft Rule http://info.hunton.com/collect/click.aspx?u=eo7N2qjjSvIN6878tNbq+ZH9s9x3sKwMCqG/pT5LaEgYjjFYK1Rxhf8p5B1aoBvf&rh=ff00137dfa914a592076a261d24c82550ce6c76f
Link to scientific study http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/Watershed%20Connectivity%20Report?OpenDocument