Western State Water Issues Proposed Definition of. Waters of the United States

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1 Western State Water Issues Proposed Definition of Waters of the United States Council of State Governments Anchorage, Alaska August 9, 2014 Tony Willardson Executive Director Western States Water Council

2 Western States Water Council Advisory body to 18 western Governors on water policy issues Provides states collective voice Fosters collaboration Formal affiliate of the Western Governors Association (WGA)

3 Western states have primary authority and responsibility for the appropriation, allocation, development, conservation and protection of water resources.

4 The Clean Water Act The Clean Water Act (CWA) is built upon the principle of cooperative federalism This framework has resulted in significant water quality improvements States have authority pursuant to their waters of the state jurisdiction to protect the quality of waters within their borders Such jurisdiction generally extends beyond the limits of federal jurisdiction under the Clean Water Act

5 Section 101(b) supports the states critical role in protecting water quality by stating: It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution; and Section 101(g) of the CWA further provides that the primary and exclusive authority of each state to allocate quantities of water within its jurisdiction shall not be superseded, abrogated, or otherwise impaired by this Act;

6 CWA Jurisdiction Timeline January 9, 2001: U.S. Supreme Court decides Solid Waste Agency of Northern Cook Cty. (SWANCC) v. Army Corps of Engineer January 15, 2003: EPA and the Corps issue joint guidance on SWANCC June 19, 2006: U.S. Supreme Court decides Rapnos v. United States, 547 U.S. 715 (2006) December 2, 2008: EPA and the Corps issue joint guidance on Rapanos April 27, 2011: EPA and the Corps propose guidance intended to replace the 2003 and 2008 guidance

7 July 29, 2011: WSWC comments expressing a preference for formal rulemaking and urging EPA/Corps to consult with the states early April 10, 2013: WSWC writes EPA/Corps urging them not to apply the proposed guidance in formal rulemaking, while reiterating requests for early state consultation. September 17, 2013: EPA and the Corps withdraw their proposed CWA guidance and submit a draft rule to OMB for interagency review. EPA releases draft Science Advisory Board connectivity report. October 3, 2013: Corps responds to WSWC letter, indicating that the rulemaking will provide sufficient notice to ensure that multiple perspectives are considered.

8 November 5, 2013: WSWC submits comments on EPA s connectivity report, noting that the overriding question is one of legal authority, not science, and it should not be used to improperly assert the CWA scope is unlimited. November 20, 2013 & December 23, 2013: WSWC writes EPA, the Corps, and OMB, reiterating concerns about the lack of consultation and urging compliance with Executive Order s state consultation criteria. February 10, 2014: EPA writes WSWC stating that it believes states were consulted in the earliest stages of the rulemaking and indicating that EPA and the Corps will meet with state and local government associations after the rule is published

9 March 10, 2014: WSWC writes EPA/Corps to: (1) ask them to consult with the states, individually and collectively, before publishing the rule; (2) ask EPA to finalize the connectivity report first; and (3) express consensus recommendations, including the need to quantify significance and certain exclusions, including groundwater and playa lakes and prairie potholes. March 25, 2014: EPA/Corps make the proposed rule available to the public. The WGA writes EPA and the Corps to express concerns that the rule was developed without state consultation and urges state engagement before taking further action. EPA/Corps also publish a final interpretive rule regarding agricultural exemptions, but indicates that they may make changes April 21, 2014: Proposed rule published in the Federal Register with a 90-day comment period.

10 In the West, water can be scarce and a variety of unique waterbodies exist, including but not limited to small ephemeral washes, effluent-dependent streams, prairie potholes, playa lakes, and numerous man-made reservoirs, waterways, and water conveyance structures. The considerable differences in hydrology, geology, and legal frameworks that exist among the western states mean that any effort to clarify CWA jurisdiction will invariably impact each state differently.

11 Federal efforts to clarify the extent of CWA jurisdiction following the U.S. Supreme Court s decisions in SWANCC and Rapanos have failed to include adequate state consultation in their development, despite repeated requests from the Council to do so. Any efforts to redefine or clarify CWA jurisdiction have, on their face, numerous federalism implications that have the potential to significantly impact states and alter the distribution of power and responsibilities.

12 State Consultation As co-regulators, states are separate and apart from the general public, and deserve a unique audience with the federal government in the development and implementation of any federal effort to clarify or redefine CWA jurisdiction. Information-sharing does not equate to meaningful consultation, and requires EPA and the Corps to develop and implement federal CWA jurisdiction efforts in authentic partnership with the states.

13 Conclusions Congress and the Administration should ensure federal effort to clarify/define CWA jurisdiction: acknowledge the inherent federalism implications Include robust and meaningful state participation and consultation Consider alternate ways of meeting federal objectives Give full force and effect to CWA Sections 101(b) and 101(g).

14 Recognize that Justice Kennedy s significant nexus test in Rapanos requires a connection between waters that is more than speculative or insubstantial to establish jurisdiction. Comply with the limits Congress and the U.S. Supreme Court have placed on CWA jurisdiction, while providing clear and recognizable limits to the extent of CWA jurisdiction. [There is no common understanding of the extent of jurisdiction prior SWANNC/Rapanos.]

15 Specifically exclude waters and features generally considered to be outside the scope of CWA jurisdiction, including: Groundwater Farm and stock ponds, irrigation & drainage ditches (and their maintenance) Man-made upland dugouts and ponds Dip ponds for emergency firefighting Prairie potholes and playa lakes

16 Finally Acknowledge that states have authority pursuant to their waters of the state jurisdiction to protect excluded waters, and that excluding waters from federal jurisdiction does not mean that they will be exempt from regulation and protection.

17 Tony Willardson Executive Director Western States Water Council

18 WOTUS Under the Proposed Rule 1. All waters that are currently, have been, or may in the future be susceptible to use in interstate or foreign commerce, including tidal waters; 2. All interstate waters, including interstate wetlands; 3. The territorial seas; 4. All impoundments of waters identified in relation to the above; 5. All tributaries of waters identified above; 6. All waters, including wetlands, adjacent to waters identified above; and 7. On a case-specific basis, other waters, including wetlands, that alone or in combination with other similarly situated waters in the region have a significant nexus to a water identified above 18

19 New Definition: Tributary Water body physically characterized by a bed and bank and ordinary high water mark which contributes flow directly or through other water bodies to waters in 1-4. A water does not lose its tributary status if there are manmade breaks (such as bridges, culverts, pipes, dams & ditches) so long as bed and bank can be identified upstream of the break. A wetland, pond, or lake can be a tributary, even if it lacks an OHWM and bed and bank, provided it contributes flow to 1-3. A tributary can be natural, man-altered, or man-made and includes rivers, streams, lakes, impoundments, canals, and ditches (unless excluded). 19

20 Affects All CWA Programs The Proposed Rule replaces the definition of navigable waters and waters of the United States in the regulations for all CWA programs, and in particular sections 311, 401, 402, and C.F.R Section C.F.R Oil Discharge Rule 40 C.F.R Spill Prevention, Control and Countermeasure Plan 40 C.F.R Designation of hazardous substances 40 C.F.R (i) Notice of discharge of hazardous substances 40 C.F.R NPDES permitting and Storm Water 40 C.F.R (s-t) Section C.F.R Section 404 exemptions 40 C.F.R National Contingency Plan for oil discharges 40 C.F.R Structure of plans to respond to oil discharges (Appendix E to Part 300, 1.5) 40 C.F.R Petroleum exclusion 40 C.F.R Effluent limitations 20

21 Increased Obligations to Set and Meet Water Quality Standards Currently Designated WOTUS in Kansas Additional WOTUS in Kansas If ephemeral streams are included as WOTUS as proposed, Kansas estimates an increase from 32,000 miles of streams to 134,000 miles of streams subject to water quality standards 21

22 Current Designations 22

23 Proposed Rule Designations 23

24 Water Quality Standards Compliance Park ditch that provides flood control but no other environmental or human benefits would be considered WOTUS under the proposed rule Cost to bring this ditch to current water quality standards would be $31,351,460 % Reduction Needed Lbs Reduction Needed Cost per Lb Cost for Reduction Total Nitrogen 27% 3,795 lbs $3,500/lb $13,282,500 Total Phosphorus 64% 1,547 lbs $11,680/lb $18,068,960 Total $31,351,460 24

25 Stormwater Management Impacts ^v! Could require complex Section 404 permits for the installation of baffles and weirs for removal of pollutants, required by stormwater permits.

26 Water Transfer and Delivery System Impacts Might require: NPDES permits for water transfers and flows diverted for water supply and/or Section 404 permits for maintenance activities Central Arizona Project Picacho pumping plant

27 Water Recharge and Water Reuse Systems Sun City Regional Water Reclamation Facility recharge ponds Alessandro Reclamation Facility recharge pond abuts San Jacinto River.

28 Green Infrastructure Green infrastructure reduces flooding and protects water quality using natural processes Not exempt under proposal Section 404 permits, other permits, monitoring could be required 28

29 Governments & Industry Are at risk for increased costs, criminal and civil penalties, as well as third party litigation, due to the confusion and uncertainty over what are WOTUS In December 2013, a gas drilling company paid a $10 million settlement for CWA violations, including a $3.2 million fine for damaging wetlands without permits Despite an agreement with EPA excluding ephemeral waters, Missouri was sued by a third party because it failed to designated uses and set water quality criteria for all waters, including ephemeral waters County of Monterey, CA, was found liable for not maintaining a failed levee, even though it was waiting for the Corps to approve a 404 CWA permit at the time 29

30 Deidre G. Duncan Hunton & Williams LLP 2200 Pennsylvania Avenue, NW Washington, DC (202)