Waters of the United States Definition Addressed By Supreme Court

On January 22, 2018, the Supreme Court unanimously decided a procedural issue determining the court in which challenges to the meaning of the term “Waters of the United States” (WOTUS) may be brought. The choice of court is significant because it affects the resources needed to litigate the merits of challenges, sets the statute of limitations for filing lawsuits and helps determine whether actions can be challenged in subsequent civil or criminal proceedings.

Immediate Impact of Waters of US Decision

The decision requires that any challenge to the current meaning of WOTUS must be brought in the federal district court rather than in the federal court of appeals and allowed pending litigation in the district courts to continue. Lifting the stay puts the Obama-era WOTUS definition back into effect and forces any future litigation to occur throughout the United States wherever there is a challenge to the WOTUS definition, unless it is able to get a stay in the pending litigation.

Why is Waters of the US Definition Important?

WOTUS is a key term impacting the scope of Clean Water Act. The EPA and Corps of Engineers issued the definition in May 2015. The rule was widely criticized, with many, such as farmers, home builders, and developers, claiming that the rule impermissibly allowed EPA to regulate private land. Others felt the rule narrowed federal jurisdiction. In the Supreme Court, the current Administration argued that any challenges to the meaning of WOTUS must be brought in a court of appeals; this argument was rejected in the court decision. Under the Clean Water Act, the uncertainty as to the scope of the WOTUS rule affects whether a Federal discharge permit (NPDES permit) is required and the scope of permits needed to discharge wastewater and storm water. It also impacts whether real estate contains federally-regulated wetlands.

Changes To Minnesota Water Based Health Risk Limits

The Minnesota Department (MDH) is proposing amendments to the Health Risk Limits (HRLs) Rules and to adopt new and updated human health-based water guidance values into rule. The chemicals proposed for amendment include herbicides and other pesticides, polyaromatic hydrocarbons (PAH) and volatile organic compounds (VOC). Below is a listing of chemicals MDH is considering in its rule revision:

Chemical Name	Previously adopted values in HRL Rule?
Acenaphthene	Yes
Acetochlor	Yes
Acetochlor ESA	Yes
Acetochlor OXA	Yes
Alachlor	Yes
Chloroform	Yes
Clothianidin	No
Cyanazine	Yes
cis-1,2-Dichloroethene	Yes
2,4-Dichlorophenoxyacetic acid (2,4-D)	Yes
Dieldrin	Yes
Dinoseb	No
S-Ethyl-N,N-dipropylthiocarbamate (EPTC)	Yes
Fluoranthene	Yes
Perfluorobutyrate (PFBA)	Yes
Perfluorooctanoic Acid (PFOA) and Salts	Yes
Perfluorooctane Sulfonate (PFOS) and Salts	Yes
Pyrene	Yes
Tetrahydrofuran	No
Thiamethoxam	No
1,1,1-Trichloroethane	Yes
Vinyl Chloride	Yes

MDH will accept written comments on the proposed rules amendments through Wednesday, February 21, 2018.

Benzo[a]pyrene, BaP Water Health Risk Review

The Minnesota Department of Health-Health Risk Assessment Unit has started a full review of benzo[a]pyrene or BaP. BaP is a chemical formed from combustion, and is one of a larger class of chemicals known as polycyclic aromatic hydrocarbons (PAHs). Sources of BaP can include industrial processes, cigarette smoke, grilled or broiled foods, wood fires, motor vehicle emission, and many other activities that involve combustion of organic material. BaP is classified as carcinogenic to humans by the U.S. Environmental Protection Agency (EPA) and the International Agency for Research on Cancer (IARC). Minnesota Department of Health previously developed water guidance for BaP in 2012 and the current review will update that guidance if deemed necessary.

Revisions To Narrative Water Quality Standards Proposed By EPD

The Georgia Environmental Protection Division has proposed revisions to existing rules in the Rules for Water Quality Control at 391-3-6-.03(5)(b) and (c). These proposed changes are intended to clarify certain narrative water quality standards that could apply to all Waters of the State.

The current rules state, in relevant part:
 (b) All waters shall be free from oil, scum and floating debris associated with municipal or domestic sewage, industrial waste or other discharges in amounts sufficient to be unsightly or to interfere with legitimate water uses.
(c) All waters shall be free from material related to municipal, industrial or other discharges which produce turbidity, color, odor or other objectionable conditions which interfere with legitimate water uses.

The proposed revisions would modify these sections (as noted in red) as follows:
 (b) All waters shall be free from oil, scum and floating debris associated with municipal or domestic sewage, industrial waste or other discharges in amounts sufficient to be unsightly or to unreasonably interfere with the designated use of the water body.
(c) All waters shall be free from material related to municipal, industrial or other discharges which produce turbidity, color, odor or other objectionable conditions which unreasonably interfere with the designated use of the water body.

 Comments on the proposed revision are due by January 31, 2018.

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