d. kenyon (“ken”) williams, jr. hall estill law firm, tulsa, oklahoma presented at: oml/omup...
TRANSCRIPT
EPA’s Proposed Rule onWaters of the United States
D. Kenyon (“Ken”) Williams, Jr.Hall Estill Law Firm, Tulsa, Oklahoma
Presented at:OML/OMUP Water & Environment Summit
February 20, 2015
Hall Estill Law Firm, Tulsa, Shareholder in the Environmental Practice Group
President, Tulsa County Bar Association Speaks frequently on energy and
environmental topics A Tulsa native, he received a B.S. degree
(Petroleum Engineering) and a J.D. degree from The University of Tulsa
Principal practice areas are Administrative, Environmental, Energy and Business Law and Litigation, and Municipal Law
Ken Williams
STATUS REPORT:
ARE WE GOING TO SEE A NEW WOTUS RULE?
“YES!”
USEPA and ACE withdraw the Interpretive
Rule Regarding the Applicability of CWA
Exemption from Permitting as to Agricultural
Conservation Practices
January 29, 2015
USEPA and ACEtestify before
Joint House-Senate Hearing. PROMISE to
narrow and rework WOTUS Proposed Rule.
February 4, 2015
USEPA goal is to finalize the proposed WOTUS rule is April
2015!
February 4, 2015
The Clean Water Act covers “navigable waters,” a CWA term defined as “the waters of the United States, including the territorial seas.”
But what are navigable waters?
What was the original concept?
United States v. Riverside Bayview Homes: Wetlands adjacent to navigable waters
Solid Waste Agency of Northern Cook County v. Army Corps of Engineers: Considered non-adjacent waters for the first time; Overturned Migratory Bird Rule; First use of “significant nexus.”
Historical Supreme Court Decisions
Rapanos v. United States: Wetlands adjacent to non-navigable waters
Plurality: Traditionally navigable waters, and their relatively permanent tributaries and adjacent wetlands
Kennedy Concurrence: Significant nexus is the focus – case-by-case determination
Three of the five opinions urged EPA and Corps to initiate rulemaking to alleviate confusion over Waters of the United States
Decisions (Continued)
2008 EPA Guidance: The apparent goal was to reduce confusion post-Rapanos.
2011 EPA Guidance: The apparent goal was to narrow the categories that require case-specific analysis. So controversial that it was never reduced to a rule and was withdrawn.
What happened when USEPA got involved?
April 21, 2014: EPA and Corps jointly released the proposed rule.
October 20, 2014: The original deadline for public comments wasextended to November 14, 2014.
Almost 1,000,000 public comments!
The Proposed WOTUS Rule
Per se jurisdictional:◦ Waters susceptible to interstate commerce,
known as navigable waters (no change)◦ All interstate waters, including interstate
wetlands (no change)◦ The territorial seas (no change)◦ Tributaries of the above waters (new
definition of “tributary”)◦ All waters, including wetlands, that are
adjacent to a water identified above (changes adjacent wetlands to adjacent waters)
The Proposed WOTUS Rule
Other Waters:◦ Removes Commerce Clause-based
jurisdictional provision.◦ Adds coverage for more isolated waters if
there is a significant nexus.
The Proposed WOTUS Rule
Changed Definition: Adjacent
The Proposed WOTUS Rule
Current Regulatory Language:
The term adjacent means bordering,
contiguous, or neighboring.
Wetlands separated from other waters of
the United States by man-made
dikes or barriers, natural river
berms, beach dunes and the like
are ‘‘adjacent wetlands.’’
Proposed Regulatory Language:
The term adjacent means bordering,
contiguous or neighboring.
Waters, including wetlands,
separated from other waters of
the United States by man-made
dikes or barriers, natural river berms, beach
dunes and the like are “adjacent
waters.”
New Definition: Tributary Water body physically characterized by a bed
and a bank and ordinary high water mark which contributes flow directly or through other water bodies to waters defined
Water does not lose its tributary status if there are man-made breaks as long as bed and bank can be identified up and downstream of the break
A wetland can be a tributary A tributary can be a natural, man-altered, or
man-made body of water, and includes rivers, streams, lake impoundments, canals, and ditches
The Proposed WOTUS Rule
New Definition: Neighboring
The term neighboring, for purposes of the term “adjacent” in this section, includes waters located within the riparian area or floodplain of a water identified in paragraphs (s)(1) through (5) of this section, or waters with a shallow subsurface hydrologic connection or confined surface hydrologic connection to such a jurisdictional water.
The Proposed WOTUS Rule
New Definition: Riparian Area
The term riparian area means an area bordering a water where surface or subsurface hydrology directly influences the ecological processes and plant and animal community structure in that area. Riparian areas are transitional areas between aquatic and terrestrial ecosystems that influence the exchange of energy and materials between those ecosystems.
The Proposed WOTUS Rule
New Definition: Floodplain
The term floodplain means an area bordering inland or coastal waters that was formed by sediment deposition from such water under present climatic conditions and is inundated during periods of moderate to high water flows.
The Proposed WOTUS Rule
New Definition: Significant Nexus
The term significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region (i.e., the watershed that drains to the nearest water identified in paragraphs (s)(1) through (3) of this section), significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (s)(1) through (3) of this section. For an effect to be significant, it must be more than speculative or insubstantial.
The Proposed WOTUS Rule
Significant Nexus (Cont.)
Other waters, including wetlands, are similarly situated when they perform similar functions and are located sufficiently close together or sufficiently close to a “water of the United States” so that they can be evaluated as a single landscape unit with regard to their effect on the chemical, physical, or biological integrity of a water identified in paragraphs (s)(1) through (3) of this section.
Exclusions:◦ Waste treatment systems, including treatment ponds or
lagoons, that are designed to meet CWA requirements (no change)
◦ Prior converted cropland (no change)◦ A list of features that have been excluded by long-standing
practice and guidance and would now be excluded by rule, such as artificially irrigated areas that would revert to upland should application of irrigation water to the area cease.
◦ Two types of ditches: Ditches excavated in uplands and that drain only upland and
have no more than ephemeral flow. Ditches that do not contribute flow, either directly or through
another water, to a traditional navigable water, interstate water, impoundment, or the territorial seas.
Other ditches, if they meet the rule’s definition of “tributary,” would continue to be “waters of the United States” (one of the most controversial parts of the rule).
The Proposed WOTUS Rule
Exclusions:◦ Proposed rule makes no change to and does
not affect existing statutory and regulatory exclusions, including: Normal farming, ranching, silviculture activities
such as plowing, seeding, and cultivation Permitting of agricultural stormwater discharges
and return flows from irrigated agriculture Water transfers that do not introduce pollutants
into a water body
The Proposed WOTUS Rule
◦ EPA and the Corps estimate that the proposed rule will increase the Agencies’ exercise of CWA jurisdiction by approximately 3% compared to current practices 98% of streams evaluated in 2009 – 2010,
compared to 100% under proposed rule 98.5% of wetlands evaluated during 2009 –
2010 were jurisdictional, compared to 100% under proposed rule
0% of “other waters” evaluated during the baseline period were jurisdictional, compared to 17% under the proposed rule
Federal Agency Justification
Costs:◦ Costs to regulated entities and governments
(federal, state, and local) are likely to increase as a result of the proposed rule.
◦ Section 404 program would see greatest impact.
◦ Projected costs associated with Section 404 program would affect landowners, development companies, state and local governments investing in infrastructure, and industries involved in resource extraction.
◦ The agencies estimate that incremental costs associated with the rule range from $162 million to $279 million per year.
Justification (Cont.)
Benefits:◦ Value of ecosystem services provided by
waters and wetlands protected as a result of CWA requirements.
◦ Government savings on enforcement expenses due to greater jurisdictional certainty.
◦ Business and government savings from reduced uncertainty.
◦ The agencies estimate that benefits of the proposed rule range from $318 million to $514 million per year.
Justification (Cont.)
Criticisms:◦ American Farm Bureau: “Ditch the Rule” –
claims that building a fence across a ditch, applying fertilizer, or pulling weeds could require a federal permit.
◦ Small Business Administration: Rule would have a direct and potentially costly impact on small businesses.
◦ H.R. 5078, the Waters of the United States Regulatory Overreach Protection Act
◦ Missouri Farm Bureau: That’s Enough
Reactions
EPA Connectivity Report◦ Provides scientific basis for “Other Waters”◦ SAB Peer Review (Draft Report)
Supported by science Should actually be more expansive (e.g.
exclusion of groundwater from CWA protection does “not have strong scientific justification”)
Recent Agency Update
Questions?
Thanks to Courtney Carter, Office of the General Counsel, Oklahoma Department of Environmental Quality, who allowed use of portions of her earlier presentation on this topic.
Ken Williams(918)-594-0519