Continued

ulated industries are actually complying with the program mandates. EPA received more than one million comments on its proposed rule. The proposed definition also was the subject of numerous congressional hearings and both the House of Representatives and the Senate are considering legislation that could overturn EPA’s final rule. The final rule does specifically add an exclusion for “stormwater control fea- tures constructed to convey, treat or store stormwater and cooling ponds that are created in dry land,” consistent with what the agencies called its “current practice” of excluding such features from the definition of waters of the U.S. They explained in the rule’s preamble that the new exclusion for stormwater control features is meant to include “green infrastructure” projects for which the agencies want to “avoid disincentives to this environmentally friendly trend in stormwater management.”

Given the visibility of this rulemaking action, and the number of parties and interest groups that commented on the rule, litigation is likely.

The types of waters most likely impact- ed by this rule are those waters upstream from or adjacent to traditionally navigable waters, interstate waters, territorial seas, or other covered waters, including water features located in 100-year floodplains or within 1,500 feet from the ordinary high water mark of traditionally navi- gable water, interstate water, territorial sea or other covered water. Two Supreme Court decisions have indicated that jurisdiction under the Clean Water Act is based on a water’s significant nexus to more traditional navigable waters . In light of those cases — Solid Waste Agency of Northern Cook County v. U.S. Army Corp of Engineers, and Rapanos v. United States

— the agencies have stated that they have decided to establish a more sci- ence-based method for determining whether adjacent waters and tributaries have a significant nexus to the tradition- al navigable waters.

Given the visibility of this rulemaking action, and the number of parties and interest groups that commented on the rule, litigation is likely. The rule will become effective sixty days after publi- cation in the Federal Register, which is expected in the next few weeks. ARA’s Government Affairs Committee is addressing this rule and ARA also is working with the Federal Stormwater Association to discuss a wider industry response.

58 Automotive Recycling | May-June 2015