WHAT ARE THE PROPOSED WATERS OF THE U.S. RULES?

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1 WHAT ARE THE PROPOSED WATERS OF THE U.S. RULES? Steve Coggins April 20, 2016

2 WHAT S THE BIG DEAL? U.S. CLEAN WATER ACT REACHES WHATEVER IT DEFINES AS THE WATERS OF THE U.S. ( WOTUS ) IF FEDS CAN REACH IT, THEY CAN REGULATE IT COURTS, JUSTICES SPLIT ON HOW FAR U.S. CONSTITUTION COMMERCE CLAUSE ALLOWS FEDS TO REACH

3 PROBLEM: NO ONE KNOWS WHERE THAT LINE IS STAKES ARE HIGH IT S COMPLICATED LOTS OF CONFLICTING AND CONFUSING VIEWPOINTS ON LAW, SCIENCE & POLICY QUAGMIRE IN CONGRESS, LEGISLATURES, AGENCIES AND COURTS

4 THE PROPOSED RULES SUPREME CT CHASTISED THE CORPS FOR NOT BEING SPECIFIC ENOUGH SO, CORPS AND EPA PUT TOGETHER A MORE PRECISE WOTUS DEFINITION THAT MIMICS WORDS AND PHRASES IN SUPREME COURT CASES BUT COURTS HAVE ENJOINED THEM OLD RULES IN PLACE IN MEANTIME

5 NO ONE REALLY KNOWS WHAT WATERS OF THE U.S. MEANS NO ONE KNOWS: WHAT THE PRIOR REGULATIONS DID MEAN, or WHAT THE PROPOSED/ADOPTED 2015 REGS DO MEAN, or WHAT THE BACK TO THE PRESENT OLD REGS DO MEAN TODAY, let alone WHAT THE FUTURE REGS WILL MEAN

6 THE STOPPED PROPOSED RULES STILL MATTER MUCH IS NOT DEFINED OR GUIDED IN THE OLD RULES THE STOPPED PROPOSED RULES GUIDE THE THINKING OF THE AGENCIES IN THE MEANTIME UNLESS AND UNTIL SUPREME COURT SHOOTS DOWN THE RULES, THEY NEED TO BE UNDERSTOOD -- BUT HOW?

7 HELP! IS ANYTHING CLEAR? YES EVERYONE AGREES: THERE ARE CORE PROTECTED WATERS WITHIN FEDERAL JURISDICTION THE NAVIGABLE OCEANS, SEAS, RIVERS, & STREAMS UPSTREAM WATERS FLOW INTO THEM

8 EVERYONE AGREES IF YOU DON T PROTECT THOSE UPSTREAM WATERS, YOU DON T PROTECT THE CORE GOTTA DRAW THE LINE SOMEWHERE

9 EVERYONE AGREES A HUGE DEBATE ON WHERE THE LINE SHOULD BE DRAWN YET, MANY THINGS ARE EXCLUDED FROM WOTUS, NO MATTER WHERE THE LINE IS DRAWN! SO, LET S LOOK AT THEM FIRST!

10 EXCLUDED FROM WOTUS DEFINITION STORMWATER CONTROL FEATURES, POOLS AND WATER-FILLED DEPRESSIONS CREATED IN DRY LAND WASTE TREATMENT SYSTEMS DESIGNED TO MEET CLEAN WATER ACT GROUNDWATER

11 EXCLUDED FROM WOTUS PRIOR CONVERTED CROPLAND AND 56 AGRICULTURAL CATEGORIES VARIOUS DITCHES THOSE NOT FLOWING (DIRECTLY OR THROUGH ANOTHER WATER) INTO THE CORE NAVIGABLE WATERS

12 MOST DITCHES EXCLUDED INTERMITTENT FLOW DITCHES THAT AREN T A RELOCATED TRIBUTARY, OR AREN T EXCAVATED IN A TRIBUTARY, OR DON T DRAIN WETLANDS EPHEMERAL FLOW DITCHES THAT AREN T A RELOCATED TRIBUTARY, OR AREN T EXCAVATED IN A TRIBUTARY

13 BUT WHAT IF THE WATERS DON T FIT IN AN EXCLUDED CATEGORY? THEN LOOK TO SEE IF IT FITS IN THE WOTUS DEFINITION IT S IMPORTANT TO DO THAT AT LEAST UNTIL SUPREME COURT RULES ON THE PROPOSED REGS EVEN THE AGENCIES SAY THE OLD RULES ARE ARGUABLY BROADER

14 BUT WHAT IF IT S NOT NAVIGABLE? DETERMINE IF THE WATER HAS A SIGNIFICANT NEXUS WITH THE NAVIGABLE WATER

15 HOW TO KNOW IF IT HAS A SIGNIFICANT NEXUS TAKE ADVANTAGE OF 2 TYPES PRESUMED TO HAVE SIGNIFICANT NEXUS TO NAVIGABLE WATERS 1. TRIBUTARY 2. ADJACENT IF NOT PRESUMED, LOOK AT 2 CASE-SPECIFIC TYPES

16 PRESUMED WOTUS : TRIBUTARY A natural, man-altered, or man-made water that contributes flow, either directly or through another water [to a navigable water] [and has] physical indicators of a bed and banks and an ordinary high water mark.

17 PRESUMED WOTUS ADJACENT WATER WHAT IS ADJACENT? A water bordering, contiguous, or neighboring a navigable water or tributary. This applies whether or not it s a wetland

18 WHAT DOES NEIGHBORING MEAN? 3 TYPES: 1. WITHIN 100 OF ORDINARY HIGH WATER OF A NAVIGABLE WATER OR TRIBUTARY 2. WITHIN 1500 OF THE SAME IF ITS WITHIN THE 100 YR FLOODPLAIN 3. WITHIN 1500 OF HIGH TIDE LINE OF A NAVIGABLE WATER

19 WHAT IF NOT A TRIBUTARY OR AN ADJACENT WATER? IF IT S A CERTAIN TYPE OF WATER, THEN APPLY A CASE-SPECIFIC ANALYSIS TO SEE IF IT HAS A SUBSTANTIAL NEXUS TO A NAVIGABLE WATER

20 3 WATER TYPES TO BE ANALYZED ON CASE-SPECIFIC BASIS 1. WATERS WITHIN 100 YEAR NFIP FLOODPLAIN OF A NAVIGABLE WATER 2. WATERS WITHIN 4000 OF HIGH TIDE LINE OR OHWM OF NAVIGABLE WATER OR TRIBUTARY

21 3 WATER TYPES TO BE ANALYZED ON CASE-SPECIFIC BASIS 3. Carolina Bays and Pocosin wetlands, i.e., areas inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions

22 3 WATER TYPES TO BE ANALYZED ON CASE-SPECIFIC BASIS Carolina bays are ponded, depressional wetlands that occur along the Atlantic coastal plain Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain

23 WHAT S A SIGNIFICANT NEXUS CASE-SPECIFIC ANALYSIS? THE PROCESS OF DETERMINING IF THE WATER, EITHER ALONE OR IN COMBINATION WITH OTHER SIMILARLY SITUATED WATERS IN THE REGION (WATERSHED), SIGNIFICANTLY AFFECTS THE CHEMICAL, PHYSICAL, OR BIOLOGICAL INTEGRITY OF A NAVIGABLE WATER

24 HOW TO TELL IF THE WATER SIGNIFICANTLY AFFECTS THE NAVIGABLE WATER BY DETERMINING IF THAT WATER HAS AT LEAST ONE OF 9 AQUATIC FUNCTIONS THAT SIGNIFICANTLY CONTRIBUTE TO THE CHEMICAL, PHYSICAL OR BIOLOGICAL INTEGRITY OF THE NEAREST NAVIGABLE WATER

25 9 SIGNIFICANT NEXUS AQUATIC FUNCTIONS 1. Sediment trapping, 2. Nutrient recycling, 3. Pollutant trapping, transformation, filtering, and transport, 4. Retention and attenuation of flood waters, 5. Runoff storage, 6. Contribution of flow, 7. Export of organic matter, 8. Export of food resources, and 9. Provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a navigable water

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29 Sources Federal Register, Vol. 80, No. 124 United States v. Riverside Bayview Homes, 474 U.S. 121, 134 (1985); Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006) Association of State Wetland Managers, Clean Water Rule Compared with Old Rule Defining Waters of the United States American Water Works Association, Understanding the Proposed Definition of Waters of the United States, National Association of Counties, County Action Needed, New Waters of the United States Definition Released,