Register for 9th Annual Homeland Security Law Institute Today

Registration is now open for the Section of Administrative Law and Regulatory Practice's 9th Annual Homeland Security Law Institute on August 21 & 22, 2014 at the Walter E. Washington Convention Center in Washington, DC.  This signature program is tailored specifically for those who practice Homeland Security law.  Topics this year include What to Expect from the Department in 2014, Homeland Security Legislative & Regulatory Outlook, Striking the Balance: Privacy & Security, and many more.  Visit the Institute webpage for more information!

Section Co-Hosting NLRB Update Webinar July 19, 2014

The Section of Administrative Law and Regulatory Practice will co-host a webinar July 9, 2014 from 1:00-2:30 p.m. with the Center for Professional Development and Section of Labor and Employment entitled NLRB Update: The Impact of Noel Canning, Proposed Representation Rules and Other Developments.  Panelists include H. Victoria Hedian of Abato, Rubenstein and Abato, P.A., James Bucking of Foley Hoag LLP, and Richard Griffin, the NLRB's General Counsel.  Panelists will discuss a variety of hot topics, including the Board's ruling concerning bargaining units in Specialty Healthcare and the issue of whether private college football players are employees and able to unionize.  Register here.

VA Prepares An EIS For Proposed Improvements In BHHCS Service Area

by Shannon Allen

In light of the recent controversy at the Department of Veterans Affairs (“VA”), now is a good time to highlight some of the agency’s efforts to improve services to Veterans.  Notably, the VA is planning to create an integrated environmental impact statement (“EIS”) for proposed improvements to and reconfiguration of the VA Black Hills Health Care System (“VA BHHCS”) services in the Hot Springs and Rapid City, South Dakota, vicinities.  The VA’s proposal includes reconfiguring existing services and expanding points of access health care within the VA BHHCS service area in order to better serve the health care needs and distribution of Veterans over the next 20 to 30 years in parts of South Dakota, northwestern Nebraska, and eastern Wyoming.  The VA’s proposal will impact issues identified in 40 CFR 1508.8 (e.g. ecological, aesthetic, historic, cultural, economic, social, and health, whether direct, indirect, or cumulative). The VA seeks public comment on the importance of these environmental concerns, and ideas about other environmental impacts that should be evaluated.

The VA’s EIS will address the following potential issues: physical and biological resources, cultural and historic resources, cultural environment as perceived by Veterans, their families, Indian tribes and communities of the area, impacts on the cultural values ascribed to the Hot Springs and Fort Meade campuses by Veterans, local residents, Indian tribes and others, impact on historic properties, land use, impacts to ongoing or traditional cultural uses of such locations, socioeconomics, impacts on archaeological, historical, and scientific data, community services, transportation and parking, and cumulative effects.

Operating small, highly rural facilities located in communities with populations smaller in number than the number of Veterans who need care raises concerns about safety, quality of care, sustainability over time, recruitment and retention of staff, and cost of operations and maintenance and upgrades to the facility.  These facilities have difficulty complying with rules and laws governing handicapped access.  In addition, there is the increasing age and cost of operating, maintaining and improving buildings ranging from 40 to over 100 years old.

The purpose of the VA’s December 2011 proposal to improve and reconfigure the VA BHHCS services was to: enhance and maintain the quality and safety of care for Veterans in the 100,000 square-mile VA BHHCS service area; replace aging buildings for Veterans in Residential Rehabilitation and Treatment Programs (RRTP) and Community-Based Outpatient Clinics (CBOC); increase access to care closer to Veterans' homes; and reduce out-of-pocket expenses for Veterans' travel.

There are a number of factors that suggest the need for reconfiguring these services.  The Veteran population centers are currently not in the same location as VA facilities.  VA also struggles to recruit and retain qualified staff at the Hot Springs facility.  This makes it difficult to maintain high-quality, safe and accessible care.  There are also limits to the kind of care available to Veterans and long travel times for specialty care.  To complicate factors, operating costs are higher than the facility’s financial allocations.

The VA has identified the following seven potential action alternatives that will be analyzed in the EIS:

1. Alternative A would involve building/leasing a CBOC in Hot Springs and a Multi-Specialty Outpatient Clinic (MSOC) and 100-bed RRTP in Rapid City.
2. Alternative B would involve building/leasing a 100-bed RRTP in Hot Springs and a MSOC in Rapid City.
3. Alternative C would entail renovating Building 12 for a CBOC and the Domiciliary for a 100-bed RRTP at Hot Springs and building/leasing a MSOC at Rapid City.
4. Alternative D would involve building/leasing a CBOC and 24-bed RRTP at Hot Springs and a MSOC and 76-bed RRTP at Rapid City.
5. Alternative E would involve implementing a proposal put forward by the “Save the VA” committee, a Hot Springs public interest group, to repurpose VA Hot Springs as a multifaceted national demonstration project for Veterans care in a rural environment.
6. Alternative F would be an as yet unidentified alternative use that might be proposed during the EIS process.
7. Supplemental Alternative G would entail repurposing all or part of the Hot Springs campus through an enhanced-use lease or other agreement with another governmental agency or private entity in conjunction with Alternatives A through F.
8. In addition to the above seven action alternatives, the EIS also will evaluate the impacts associated with the No Action or “status quo” alternative (Alternative H) as a basis for comparison to the action alternatives.

Interested parties are invited to submit written comments (referencing: “VA BHHCS Notice of Intent to Prepare an Integrated EIS”) by June 16, 2014 by one of the following methods:

• Website: through www.Regulations.gov
• Email: vablackhillsfuture@va.gov OR
• Mail: to Staff Assistant to the Director, VA Black Hills Health Care System, 113 Comanche Rd., Fort Meade, SD 57741.

EPA Seeks Comment on Revised Definition of “Waters of the United States”

by Elisabeth Ulmer

The Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) seeks comment on a proposed rule regarding the scope of waters regulated by the Clean Water Act (CWA).  The rules are the result of two recent U.S. Supreme Court cases, U.S. v. Riverside Bayview, Rapanos v. United States (“Rapanos”) and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”), that narrowed the reading of CWA jurisdiction.  The EPA and the Corps would like to ensure that the definition of “waters of the United States” is “consistent with the CWA, as interpreted by the Supreme Court, and as supported by science.”

The Federal Water Pollution Control Act Amendments of 1972 established the CWA, which Congress passed in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”  The CWA covers “navigable waters,” defined in the Act as “waters of the United States, including the territorial seas.”  However, according to the legislative history and the case law, the “waters of the United States” do not comprise only navigable waters.

In the 2001 “SWANCC” case, the Court referred to the 1985 United States v. Riverside Bayview Homes case, in which the Court adopted the Corps' judgment that “adjacent wetlands are ‘inseparably bound up’ with the waters to which they are adjacent.”  The Court also approved adding adjacent wetlands to the regulatory definition of “waters of the United States.”

In the 2006 “Rapanos” case, all Justices agreed that “waters of the United States” include non-navigable waters that “are connected to traditional navigable waters,” and wetlands “with a continuous surface connection to such relatively permanent water bodies.”  However, in his concurring opinion, Justice Kennedy stated that “waters of the United States” include wetlands with a “significant nexus” to navigable waters.  If wetlands “significantly affect the chemical, physical, and biological integrity” of navigable waters, then they satisfy the significant nexus requirement.

The EPA and the Corps advocate applying this “significant nexus” standard for CWA jurisdiction over adjacent wetlands to other water bodies.  The proposed rule would remove the part of the regulatory provision that defines “waters of the United States” as “all other waters…”  These “other waters” would then be evaluated on a case-by-case basis to determine whether they have a significant nexus and the CWA should cover them.

Commentators on the proposed rule are invited to share improvements on how jurisdictional determinations are made, as well as on alternative options for determining which “other waters” would fall under the jurisdiction of the CWA.  The proposed rule also seeks information on the connectivity of waters that could reduce a need for the case-by-case significant nexus determinations.  Commentators may discuss any concerns about the proposed definition of “waters of the United States.”

Comments are due on July 21, 2014.  Interested parties are invited to submit comments by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov
• E-mail: ow-docket@epa.gov.  Include EPA-HQ-OW-2011-0880 in the subject line of the message.
• Mail: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OW-2011-0880.  Send the original and three copies of your comments.
• Hand Delivery/Courier: EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OW-2011-0880.

All comments should include Docket ID No. EPA-HQ-OW-2011-0880.