ENV-15-109 Implication to Refiners on the Expansion of the U.S. EPA’s Definition of “Waters of the U.S.”

Description:

In a heavily contested atmosphere, the U.S. EPA and Army Corps of Engineers (the agencies) issued a Final Rule on May 27, 2015, redefining the definition of “waters of the U.S.” (WOTUS) under the federal Clean Water Act (CWA). This new regulation could have a significant impact on US refiners. The redefinition will significantly expand the number of waters in the US that are considered “jurisdictional” and subject to Section 404 (wetlands) and 402 (NPDES) jurisdiction. The WOTUS protected under the CWA are subject to a number of increased regulatory requirements such as discharge limitations, permitting requirements and other enforcement measures, to say nothing of the increased exposure to risk of litigation. Refinery wastewater ponds and drainage ditches could easily become “waters of the U.S.,” subject to CWA oversight. In addition to the ponds and drainage ditches, the receiving waterbodies of refinery wastewater discharge streams could also become jurisdictional waters resulting in significant impacts to a facility’s wastewater permits and discharge limits. Far more reporting of spills and releases is the least of the potential issues. Note: Congress is preparing legislation to send the rule back to the agencies for revision, while many industry associations are considering or have already filed lawsuits. The new rule, which was proposed in March 2014, eighteen months ago, significantly expanded which small streams are jurisdictional upstream of a current Water of the U.S.. Agencies (USEPA and US Army Corps) now consider many new waterbodies that are adjacent to current Waters of the US to be presumptively “jurisdictional by rule.” The “adjacent waters” category includes any isolated water that is within 4,000’ of the ordinary high water mark of some other jurisdictional water, or located in the 100-year flood plain (in whole or part) of any jurisdictional water.