waters of the united states (wotus) - map your sho 22-24, 2016 | nashville, tn | waters of the...

March 22-24, 2016 | Nashville, TN | www.worldofasphalt.com

Waters of the United States(WOTUS)ROBERT J. BEYKEMILESTONE CONTRACTORS, L.P.


Introduction

Background Old Definition New Rule Overview New Definition Issues Legal Status


Background Clean Water Act enacted in 1972

To restore, maintain the physical, chemical, and biological integrity of Nation’s waters

Navigable water definition from 1899 Rivers and harbors Act

Court Cases 2001 – Northern Cook County vs. US ACE

“Migratory Bird” definition attempted by USACE – infringed on State’s rights

2006 – Rapanos vs. US 4-1-4 Decision created further confusion

Only waters with a relatively permanent flow should be regulated

Waters with a “significant nexus” with a navigable water is included


Background

To remove confusion, US EPA and US ACE jointly: Signed new Waters of the

United States rule on May 27, 2015

New rule Published in Federal Register on June 29, 2015

New rule had effective date of August 28, 2015


Old Definition

1) All waters currently used, used in the past, or may be susceptible to use in interstate or foreign commerce and all waters subject to ebb and flow of tide.

2) All interstate waters


Old Definition, cont.

3) All other waters … the use , degradation, or destruction would [could] affect interstate or foreign commerce: Recreation Commercial fishing/shellfish Industrial purposes


Old Definition, cont.

4) All impoundments otherwise defined as WOTUS

5) Tributaries of waters identified in 1-4 above

6) Territorial seas 7) Wetlands adjacent to

waters 1-6 above


New Rule Overview

US EPA and US ACE: Received more than one million public comments “Response to Comments Document” is 7,765 pages in length Technical Support document is 423 pages Impacts all Clean Water Act programs including:

Wetlands Storm Water SPCC

Tried to establish water features over which they have jurisdiction 8 specific categories List of Exclusions Grandfathering


New Definition

No real changes 1) Traditional navigable waters

(TNW) 2) Interstate waters, including

wetlands 3) Territorial seas 4) Impoundments of

jurisdictional waters


New Definition, cont.

5) Tributaries – physical indicator of flow –bed/bank/ordinary high water mark (OHWM) that directly contributes to 1-3 above; both natural and man-made. Includes ditches that “look and act” like tributaries with: Perennial flow Intermittent flow Ephemeral flow



6) Adjacent Waters bordering, contiguous, or neighboring other WOTUS by dikes, berms, dunes, etc. Neighboring defined as within: A) 100 feet of OHWM in 1-5 B) 100 year floodplain of 1-5,

not more than 1500 feet from OHWM

C) 1500 feet of high tide line of 1-3

OHWM


Floodplain Diagram



7) EPA/ACE has jurisdiction on case-by-case analysis if shown to have “significant nexus”: Enumerated regional features:

Prairie Potholes Bays Pocosins Western vernal pools Coastal prairie wetlands

Waters in 100 year floodplain/4000 feet of WOTUS


Significant Nexus

“When any single function or combination of functions performed by the water, alone or together with similarly situated waters, contributes to the chemical, physical, or biological integrity” of the nearest 1-3 WOTUS


Exclusions

Storm water control features

Waste water treatment systems


Exclusions, cont.

Artificially irrigated areas that would revert to dry land if application of water ceased

Small ornamental waters created in dry lands

Ground water Water filled depressions

incidental to mining or construction

Waste water recycling structures

Artificial reflection pools or swimming pools created in dry land


Exclusions, cont.

Artificial, constructed lakes and ponds created in dry land: Farm and watering ponds Irrigation ponds Settling basins Cooling ponds Fields flooded for rice

crops


Exclusions, cont. PUDDLES


Grandfathering

Agencies do not intend to reopen existing jurisdictional determinations (JDs)

JDs associated with issued permits/authorizations are valid until the expiration date of the permit/authorization.

Does not cover pending JDs not associated with a completed permit application.


Legal Status

North Dakota federal court (August 2015) halted implementation of rule for the 13 States involved in that lawsuit.

Court of Appeals in Cincinnati (October 2015) issued a nation-wide temporary stay of implementation until the court rules otherwise. Needs to determine if 6th Circuit has authority over multi-district litigation

President Obama is trying to consolidate all the lawsuits into one so that it can quickly be heard by the Supreme Court. State AGs are arguing for multiple cases in multiple courts.


Status, cont.

Nonpartisan Government Accountability Office concluded in December 2015 that aspects of the social media and grassroots campaign utilized by EPA violated provisions of the laws designed against undue agency influence on rulemaking.

In January 2016, (US Senate voted in November 2015) the US House voted to halt EPA/ACE rulemaking redefining WOTUS and prevent the administration from issuing substantially similar language regulation (as part of an Executive Order). President vetoed (9th veto of his presidency). Senate failed to get necessary votes to override veto.


Conclusion

Example of Government Overreach? Legal Limbo Unknown Future Need to Keep an Eye on because it will impact all CWA

programs, if and when it becomes effective.


Questions?

waters of the united states (wotus) - map your sho 22-24, 2016 | nashville, tn | waters of the...

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