NEW CLEAN WATER RULE ON WATERS OF THE UNITED STATES (WOTUS)

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Darrell Moody
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2016 NEW CLEAN WATER RULE: THE RULE, THE RESPONSE, THE RESOLUTION 1 2 3 4 The Clean Water Rule (33 CFR 328): A Bit of

1 NEW CLEAN WATER RULE ON WATERS OF THE UNITED STATES (WOTUS) The Rule, The Response, The ResoluLon John A. Connor, P.E., P.G., BCEE GSI Environmental Inc. net.com Copyright, GSI Environmental, Inc NEW CLEAN WATER RULE: THE RULE, THE RESPONSE, THE RESOLUTION The Clean Water Rule (33 CFR 328): A Bit of History WOTUS ClassificaLon Process Concerns for Industry and States Status of Legal Challenge Copyright, GSI Environmental, Inc

2 CLEAN WATER RULE (33 CFR PART 328): KEY QUESTION - JURISDICTION POTUS WOTUS KEY POINT: New rule, eff. Aug. 2015, updates definiton of Waters of the U.S., potentally expanding federal jurisdicton. Copyright, GSI Environmental, Inc CLEAN WATER RULE (33 CFR PART 328): KEY QUESTION - JURISDICTION POTUS WOTUS State Water WOTUS KEY POINT: New rule, eff. Aug. 2015, updates definiton of Waters of the U.S., potentally expanding federal jurisdicton. Copyright, GSI Environmental, Inc

WOTUS VS. TEXAS WATERS IN THE STATE (WATER CODE 26.

parlally In the state Texas Water Code KEY POINT: Tributaries Wetlands Impoundments of JurisdicLonal Waters John Venn,1880 Scope of waters

2016 5 CLEAN WATER RULE: A BRIEF HISTORY OF TIME 1972 1975 1985-2006 2014 2015 Congress amends Clean Water Act.

USACE issues new guidelines claiming jurisdiclon over navigable waters, their tributaries, and wetlands. U.S. Supreme Court rulings in U.S. v.

3 WOTUS VS. TEXAS WATERS IN THE STATE (WATER CODE ) WOTUS Territorial Seas Interstate Waters Groundwater All surface water bodies, natural or arlficial, navigable or not, wholly or parlally In the state Texas Water Code KEY POINT: Tributaries Wetlands Impoundments of JurisdicLonal Waters John Venn,1880 Scope of waters that are subject to Texas Water Code is far more expansive than WOTUS. Copyright, GSI Environmental, Inc CLEAN WATER RULE: A BRIEF HISTORY OF TIME Congress amends Clean Water Act. Goal is to eliminate pollulon in all navigable waters of the U.S. Navigable waters and waters of the U.S. definilons subject to judicial debate. USACE issues new guidelines claiming jurisdiclon over navigable waters, their tributaries, and wetlands. U.S. Supreme Court rulings in U.S. v. Riverside Bayview Homes, SWANCC v. USACE, Rapanos v. U.S. Proposed Clean Water Rule issued. 29 June 2015, Final Clean Water Rule issued. 29 August 2015, Clean Water Rule effeclve. 9 October 2015, 6th Circuit U.S. Court of Appeals issued Order of Stay. Copyright, GSI Environmental, Inc

SUPREME COURT: ONE RULING, TWO PERSPECTIVES USEPA and USACE States and Industry Rapanos v. U.S., 2006 Ruling clarifies the expanded jurisdicton of WOTUS.

2016 7 WOTUS DESIGNATION: WHAT S THE BIG DEAL?

and Regional General Permits (33 CFR Parts 323 and 330) Spill NoLficaLon and Response (40 CFR Parts 110, 117, and 302) Spill

Reportable QuanLty (40 CFR Parts 117 and 302) Stormwater Permit (40 CFR Part 122) Wastewater Discharge (NPDES) Permit (40 CFR

4 SUPREME COURT: ONE RULING, TWO PERSPECTIVES USEPA and USACE States and Industry Rapanos v. U.S., 2006 Ruling clarifies the expanded jurisdicton of WOTUS. Ruling restricts jurisdicton of WOTUS. U.S. Supreme Court Copyright, GSI Environmental, Inc WOTUS DESIGNATION: WHAT S THE BIG DEAL? Federal Rules PotenTally Triggered by WOTUS ClassificaTon CWA SecLon 401 CerLficaLon (33 CFR Part 320) Dredge & Fill NaLonwide and Regional General Permits (33 CFR Parts 323 and 330) Spill NoLficaLon and Response (40 CFR Parts 110, 117, and 302) Spill PrevenLon, Control, and Countermeasures (SPCC) Plan and Facility Response Plan (FRP) (40 CFR Part 112) NoLce of a Discharge of a Reportable QuanLty (40 CFR Parts 117 and 302) Stormwater Permit (40 CFR Part 122) Wastewater Discharge (NPDES) Permit (40 CFR Part 122) Impaired Waters and Total Maximum Daily Limits (TMDLs) (40 CFR Part 130) WOTUS designation can entail multiple permitting and reporting requirements for protection of US waters. Copyright, GSI Environmental, Inc

5 FEDERAL REGS VS TEXAS REGS: WHO S MORE MACHO? Feds Texas FEDERAL PROGRAM Discharge of Reportable QuanLty NoLce (40 CFR Parts 117 and 302) EQUIVALENT TEXAS PROGRAM Texas NoLficaLon of RQ Discharge (30 TAC 327.3) Stormwater Permits (40 CFR Part 122) Texas Stormwater Permit Program (30 TAC Ch 305 et al.) Wastewater Discharge (NPDES) Permit Program (40 CFR Part 122) Texas Pollutant Discharge (TPDES) Permit Program (30 TAC 305) Impaired Waters and TMDLs (40 CFR Part 130) Texas Impaired Waters and TMDL Program (30 TAC Ch 307) KEY POINT: If Texas water body is already subject to state rules but then becomes WOTUS, too, does it maeer? Copyright, GSI Environmental, Inc FEDERAL REGS VS TEXAS REGS: WHO S MORE MACHO? Feds Texas FEDERAL PROGRAM CWA 401 Water Quality CerLficaLon (33 CFR Part 320) EQUIVALENT TEXAS PROGRAM Texas Water Quality CerLficaLon (30 TAC Ch 279) Dredge and Fill Permits (33 CFR Parts 323, 330) Texas Wetlands Programs (various) Spill NoLficaLon and Response (40 CFR Parts 110, 117, and 302) Texas Spill NoLficaLon and Response (30 TAC Ch 327 et al.) SPCC Plan + Facility Response Plan (FRP) (40 CFR Part 112) Texas Spill PrevenLon and Response Programs (various) KEY POINT: Principal impact of Texas water body becoming WOTUS = Dredge & Fill Permits and SPCC Plans. Copyright, GSI Environmental, Inc

5/5/16 NEW RULE: WOTUS CLASSIFICATION PROCESS General DeﬁniTon A

foreign commerce, including navigation, recreation, commercial

Three Categories Marine Water River 1 Core Waters: TradiLonal

Ditch 2 WOTUS by Adjacency to Core Waters 3 WOTUS by Case- Speciﬁc

2016 11 WOTUS CATEGORY 1: CORE WATERS 5 Types of JurisdicTonal Waters

Territorial Seas (TS) Traditional Navigable Waters (TNS) (interstate

6 5/5/16 NEW RULE: WOTUS CLASSIFICATION PROCESS General DeﬁniTon A water body that has been, is, or could be used for interstate / foreign commerce, including navigation, recreation, commercial fishing / shellfish, or industrial uses. Three Categories Marine Water River 1 Core Waters: TradiLonal JurisdicLonal Waters, tributaries, or impoundments of those waters. Ditch 2 WOTUS by Adjacency to Core Waters 3 WOTUS by Case- Speciﬁc Analysis Copyright, GSI Environmental, Inc WOTUS CATEGORY 1: CORE WATERS 5 Types of JurisdicTonal Waters ( Core Waters ) Houston Ship Channel Interstate Waters (IW) Territorial Seas (TS) Traditional Navigable Waters (TNS) (interstate / foreign commerce) Impoundments of Jurisdictional Waters Tributaries Great Lakes Dammed Reservoir Inter- Coastal Waterway Copyright, GSI Environmental, Inc

rule if located adjacent to a Core water:

chemical, or biological integrity of TNW,

7 WOTUS CATEGORY 2: WATER BODIES ADJACENT TO CORE WATERS Water body is WOTUS by rule if located adjacent to a Core water: Within 100 feet of Core water Within the lesser of 100- year floodplain or 1500 feet of Core water Within the 1500 feet of certain Core waters (TNW, IW, TS, or GL). Not WOTUS by Adjacency Copyright, GSI Environmental, Inc WOTUS CATEGORY 3: CASE- SPECIFIC EVALUATION Other water bodies may be WOTUS based on significant nexus to certain Core waters: 5 special types of water bodies in watershed of certain Core waters (TNW, IW, TS). Within 100- year floodplain but more than 1500 feet from certain Core waters (TNW, IW, TS). No floodplain but less than 4000 feet from certain Core waters (TNW, IW, TS). Significant Nexus = Water body significantly affects the physical, chemical, or biological integrity of TNW, IW, or TS. Not WOTUS Copyright, GSI Environmental, Inc

WOTUS EXCLUSIONS: IF S, AND S, BUT S Water bodies excluded from WOTUS if constructed on dry land : Water-

a tributary Wastewater treatment/recycling systems Stormwater control features Groundwater Erosion

Wastewater Treatment Copyright, GSI Environmental, Inc. 2016 15 WOTUS RULE: WHAT S THE BEEF?

process Costly mitigation efforts No fair notice of regulatory obligations Includes wetlands at distance

stormwater exclusions Flood control ditches may be considered tributaries Illegal expansion of federal

8 WOTUS EXCLUSIONS: IF S, AND S, BUT S Water bodies excluded from WOTUS if constructed on dry land : Water- filled depressions (water pits or puddles) Erosional features that are not a tributary Ditches that are not a tributary Wastewater treatment/recycling systems Stormwater control features Groundwater Erosion ArLficial water features Prior converted cropland Converted Cropland Stormwater Swale ArTficial Pond Wastewater Treatment Copyright, GSI Environmental, Inc WOTUS RULE: WHAT S THE BEEF? Industry Agriculture City/ County Gov t State Gov t Classification of ditches Costly evaluation/ permitting process Costly mitigation efforts No fair notice of regulatory obligations Includes wetlands at distance from major stream Classification of ditches on dry vs wet land Unclear status of existing wastewater and stormwater exclusions Flood control ditches may be considered tributaries Illegal expansion of federal authority over state waters 4000-foot distance for case-specific study is arbitrary and unsupported Copyright, GSI Environmental, Inc

wetlands at distance from major stream Classification of ditches on dry vs wet land Unclear status of existing wastewater and stormwater exclusions Flood control ditches may be considered tributaries

9 WOTUS RULE: WHAT S THE BEEF? Industry Agriculture City/ County Gov t State Gov t Classification of ditches Costly evaluation/ permitting process Costly mitigation efforts No fair notice of regulatory obligations Includes wetlands at distance from major stream Classification of ditches on dry vs wet land Unclear status of existing wastewater and stormwater exclusions Flood control ditches may be considered tributaries Illegal expansion of federal authority over state waters 4000-foot distance for case-specific study is arbitrary and unsupported Copyright, GSI Environmental, Inc WOTUS CONCERNS: DITCHES Typical railway drainage system Stormwater Drainage Ditch DITCH IS NOT WOTUS IF: No constant flow; Not built in former stream bed; Doesn t flow into TNW, IW, TS; Is not a tributary; OR Is a stormwater feature. YEAH, BUT Unclear def n of tributary Costly evalualon If WOTUS, then requires USACE permit for repairs or modificalons. Copyright, GSI Environmental, Inc

10 5/5/16 WOTUS CONCERNS: ADJACENCY Salt Drying Basins, San Francisco Bay, CA Adjacent waters within 100 feet of Core waters are WOTUS by rule, even if separated by dikes. Copyright, GSI Environmental, Inc WOTUS CONCERNS: USACE NATIONWIDE PERMITS If dry stream classified as WOTUS, bridge could require USACE permit for modifications or repair. Dry, ephemeral stream Copyright, GSI Environmental, Inc

11 WOTUS: COURTROOM SLUGFEST 2015 June 29: Final WOTUS rule issued Aug 27: N.D. District Court grants motion by 13 states to block rule Aug 28: 18 more states file motion in 6th Circuit Court of Appeals Oct 9: 6th Circuit Court issues nationwide stay of WOTUS Rule. (1) 2016 Feb 22: 6th Circuit declares jurisdiction to hear consolidated cases. FOR NOW: Nationwide stay remains in effect. USEPA and USACE evaluating WOTUS on case-by-case basis. Copyright, GSI Environmental, Inc

The Clean Water Act. Clarifies protection under the Clean Water Act for streams and wetlands

The Clean Water Act. Clarifies protection under the Clean Water Act for streams and wetlands Waters of the U.S. Proposed Rule Clarifies protection under the Clean Water Act for streams and wetlands The Clean Water Act The Clean Water Act covers navigable waters, which the Act defines as waters