December 7, 2023

Washington Wire: WOTUS Under Final Review



WOTUS Under Final Review
The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) have sent to the White House for review the final, interim definition of waters of the United States (WOTUS). The White House Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) received the final Revised Definition of "Waters of the United States" on September 12. The review process typically takes up to 90 days.
This “skeletal” rule is the first of two steps in the rulemaking process to update the definition of WOTUS under the Clean Water Act (CWA). First proposed last November, this first step seeks to establish a constant definition that will help provide "stable implementation" of the CWA while the Biden administration develops a durable definition of WOTUS, which is expected to be proposed in November 2023. 
The rule interprets WOTUS to mean the waters defined by a collection of Corps and EPA regulations referred to as the "1986 regulations," with amendments to reflect the agencies' interpretation of the statutory limits on the scope of WOTUS as dictated by Supreme Court decisions on CWA jurisdiction in the 2000s.
The rule would interpret WOTUS to include: traditional navigable waters, interstate waters, the territorial seas, and their adjacent wetlands; most impoundments of WOTUS; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and "other waters" that meet either the relatively permanent standard or the significant nexus standard.
The finalization of the rule comes as the Supreme Court will take up and rule on a case, Sackett v. EPA, in the next year to address federal jurisdiction under WOTUS. Oral arguments are set to be heard on October 3. 



EPA Redesignated Areas of Attainment for 2008 & 2015 Ozone NAAQS
On September 1, 2022, EPA announced updated attainment designations for areas within the United States regarding the 2008 and 2015 National Ambient Air Quality Standards (NAAQS) for ground-level ozone (O3). The NAAQS was set at 75 parts per billion (ppb) in 2008 and then further strengthened to 70 ppb in 2015. 
In 2012 for the 2008 standards and 2018 for the 2015 standards, the EPA designated all areas not in attainment from “Marginal” to “Extreme”. An area’s designation determines how long a state has to reach the standard:
  • Marginal – 3 years from the effective date of designation; 
  • Moderate – 6 years from the effective date of designation; 
  • Serious – 9 years from the effective date of designation; 
  • Severe – 15 years (or 17 years) from the effective date of designation; and 
  • Extreme – 20 years from the effective date of designation.
The designations just announced by the EPA update the attainment status for areas designated Marginal for the 2015 standards and those designated as Serious for the 2008 standards. 
Of the six nonattainment area classified as Serious for the 2008 ozone NAAQS, one area attained the 75ppb standard while five areas failed to attain the NAAQS and have now been redesignated as “Severe.” For 28 nonattainment areas classified as Marginal for the 2015 ozone NAAQS, five areas attained the 70ppb standard while 22 areas failed to attain the 2015 standard and have been redesignated as Moderate and for one area the attainment date has been extended for a year.
Several areas in the Midwest where One Voice members are operating, such as the Cleveland, OH area or the Chicago, IL-IN-WI, have been classified as Moderate under the 2015 NAAQS while areas classified as Severe under the 2008 standards include Dallas-Fort Worth, TX and New York-N. New Jersey-Long Island, NY-NJ-CT.
States with redesignated areas must submit amended State Implementation Plans (SIP) to EPA on how the area will reach the required standard. Nonattainment areas face more stringent Clean Air Act requirements, including stricter permitting requirements and implementing reasonably available control technology for major sources.
Of importance to One Voice members, an industrial facility within a nonattainment area often must apply for a New Source permit for any new or modified source of pollution emanating from the facility and verify this new source will not impede the area from reaching the NAAQS ground-level ozone.



USTR Seeks Comments on Foreign Trade Barriers
The Office of the U.S. Trade Representative is seeking comments on global foreign trade barriers for the 2023 National Trade Estimate (NTE) Report. Published annually since 1985, the NTE Report is a comprehensive review of foreign trade barriers affecting US exports of goods and services.
The Federal Register notice published by USTR on September 15, 2022, requests comments “identifying significant foreign barriers to, or distortions of, U.S. exports of goods and services, U.S. foreign direct investment, and U.S. electronic commerce for inclusion in the NTE Report." Specific areas of interest include labor, environment, and state-owned enterprises, including efforts that might harm U.S. companies and workers such as "subsidies and non-commercial advantages provided to and from SOEs; practices with respect to SOEs that discriminate against U.S. goods or services; or actions by SOEs that are inconsistent with commercial considerations in the purchase and sale of goods and services."
Comments are due by Friday, October 28, 2022. 



Overtime Regulation Release Projected for Fall
The Department of Labor (DOL) is set to release a proposed overtime exemption rule under the Fair Labor Standards Act (FLSA) this fall. Tentatively set to be issued in October, the Notice of Proposed Rulemaking (NPRM) will update how to implement the exemption of bona fide executive, administrative, and professional employees from the FLSA's minimum wage and overtime requirements.
Obama finalized an overtime exemption rule in 2016, more than doubling the threshold from $23,660 to $47,476 per year for Executive, Administrative, Professional & Clerical Employees (EAP) and for highly compensated workers from $100,000 to $134,000. One Voice was part of a business coalition lawsuit against the rule, which was ultimately blocked from implementation by the courts. The Trump administration then issued its own rule setting the threshold for EAP employees at $35,568 annually and $107,432 per year for highly compensated employees.
While it is unknown what changes to the current regulations may be coming in a NPRM, in addition to setting a higher base salary threshold, there is some thought that a proposed rule could also include the creation of an automatic annual or periodic increase to the salary level linked to an economic indicator allowing for the threshold to increase without formal rulemaking by DOL.