Proposed Clean Water Act Rule on Designating Waters of the U.S.

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1 EASTERN MUNICIPAL WATER DISTRICT Proposed Clean Water Act Rule on Designating Waters of the U.S. August 6, 2014 Jolene R. Walsh, Senior Director of Public and Governmental Affairs (951)

2 Overview Proposed changes to definition Exemptions Examples of impacts to EMWD Jurisdiction Suggested amendments to rule EPA s campaign and process Connectivity Report Economic Analysis Congressional efforts Hearing EMWD s engagement 2

3 Broad Expansion, Tributaries Broad new definitions will result in ambiguity Tributaries: The term means a water physically characterized by the presence of a bed and banks and ordinary high water mark, as defined at 33 CFR (e), which contributes flow either directly or through another water, to a water, to a water identified in paragraphs (a)(1) through (4). A water does not lose its tributary status if there are man-made breaks (such as bridges, culverts, pipes, dams) so long as ben and bank can be identified upstream of break. A tributary, including wetlands can be a natural, man altered, or man-made water and includes water such as rivers, streams, lakes, ponds, impoundments, canals, and ditches not excluded in paragraphs (b) (3) or (4). 3

Broad Expansion, Tributary Definition The rule, for the first time ever specifically defines ditches as jurisdictional tributaries under all CWA programs: Roadside ditches

4 Broad Expansion, Tributary Definition The rule, for the first time ever specifically defines ditches as jurisdictional tributaries under all CWA programs: Roadside ditches Irrigation ditches Stormwater ditches Other man-made conveyances that drain or connect also qualify as tributaries Enormous practical consequences that have yet to be evaluated. 4

5 Broad Expansion, New Definitions Adjacent: Bordering, contiguous, or neighboring water separated from other WOTUS by dikes, or barriers are adjacent waters Neighboring: Waters located within a riparian area or floodplain or waters with a shallow subsurface connection or confined surface hydrologic connection. Riparian area: Transitional areas between water and land where surface or subsurface hydrology influences the ecological process.. Floodplain: An area bordering inland or coastal areas that..is inundated during periods of moderate to high water flows. 5

6 Narrow Exclusions Ditch Exclusion: Ditches excavated wholly in uplands and that drain only uplands have less than perennial flow Groundwater, including groundwater drained through subsurface drainage systems But does not reconcile that exclusion with its inclusion of certain waters based on subsurface connection Waste treatment exemption: Wastewater treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act Water reuse facilities constructed for water supply or other purposes are not included in exemption 6

7 Water Conveyance Impacted Colorado River Aqueduct? State Water Project? 7

supply or other purposes do not fall under this exemption o ~10 sites, 2 billion gallons of

8 Jeopardizes Recycled Water Projects Proposed rule exempts wastewater treatment systems designed to meet the requirements of the Clean Water Act o Water reuse facilities constructed for water supply or other purposes do not fall under this exemption o ~10 sites, 2 billion gallons of recycled water storage, covering 500 acres Alessandro Ponds Adjacent to the San Jacinto River 8

9 Recycled Water Facilities, Cont. EMWD ALESSANDRO PONDS Potentially jurisdictional based on: Adjacency In floodplain Subsurface hydrologic connection EMWD SUN CITY REGIONAL WATER RECLAMATION FACILITY 9

10 Well Blowoff Ponds, Potable Water ~ 20 well blowoff sites Adjacent to jurisdictional waters, and/or located in floodplain Contain/percolate groundwater Potential for subsurface connection 10

Pipeline Projects Complicated Intermittent

11 Pipeline Projects Complicated Intermittent and ephemeral streams become jurisdictional Increases permitting complexity and difficulty for pipeline projects Feature not clearly excluded by the proposed rule Unnamed small ephemeral drainage, Homeland, CA 11

12 What Does it Mean to be Jurisdictional? Facilities are impacted by a multitude of regulatory requirements under the Clean Water Act Conduct use attainability study; evaluate recreation and habitat Triggers other federal laws such as National Environmental Policy Act, and the Endangered Species Act o Involve other studies and public comment periods Additional requirements = additional time and money o Increasing basic operations and maintenance costs Example: regular maintenance would require a 404 permit o EMWD alone >30 facilities, 1 to 2 times per year o Customers currently pay nearly $6/month for regulatory compliance o EMWD s most recent 404 permit, 10+ year process 12

13 Potential Suggested Amendments Exclude from the definition of waters of the U.S. : o Water conveyance facilities (aqueducts, canals, etc); o Water supply storage facilities; o Aquifer storage and recover facilities; o Stormwater management and capture facilities; and o Recycled water storage and conveyance facilities. Exclude erosional features from the definition of tributary o Where water flows temporarily in direct response to a rain event Avoid using floodplain or riparian area to define adjacency 13

EPA s Process Failed to engage local government and states early in

Mischaracterizing concerned stakeholders EPA continues to discuss

14 EPA leadership positions vacant EPA water office left rudderless

14 EPA s Process Failed to engage local government and states early in process Ditch the myth campaign Clarifying misconceptions webinar Mischaracterizing concerned stakeholders EPA continues to discuss what the rule doesn t do, failing to discuss what is does do 8 of 14 EPA leadership positions vacant EPA water office left rudderless by Senate inaction Stoner and Perciasepe left vacancies 14

Connectivity Study Connectivity Study Science Advisory Board (SAB) EPA released rule before SAB released study Study still not final Draft report indicated everything is connected, abandoned

15 Connectivity Study Connectivity Study Science Advisory Board (SAB) EPA released rule before SAB released study Study still not final Draft report indicated everything is connected, abandoned significant nexus Draft report doesn t demonstrate that subsurface flows provide a substantive connection to downstream waters Report suggests impact gradient of connectivity rule is black and white 15

Economic Analysis The EPA excluded costs, under represented jurisdictional areas and used flawed methods to arrive at much lower economic costs of the proposed rule.

16 Economic Analysis The EPA excluded costs, under represented jurisdictional areas and used flawed methods to arrive at much lower economic costs of the proposed rule. There is a serious lack of transparency in the report making it difficult to understand or replicate EPA s calculations, examine the agency s assumptions or understand discrepancies in results. David Sunding, UC Berkley & Brattle Group 1,300 acres, gross underestimation Not even a mention of recycled water Figures are from the bottom of economic downturn 16

17 Congressional Legislative Efforts to Stop/Delay WOTUS HR. 5171, House FY15 Interior/EPA Appropriations measure (Rep. Ken Calvert) Action: Contains provision which withholds funding from the EPA from moving forward with a final WOTUS rule Current Status: Reported out of the House Appropriations Committee on July 15 HR. 4923, House FY15 Energy and Water Appropriations measure (Rep. Mike Simpson) Action: Contains provision which withholds funding from the Army Corps from moving forward with a final WOTUS rule Current Status: Passed the House on July 10 S. 2496, Protecting Water and Property Rights Act (Sen. John Barrasso) Action: Prohibits the Administration from finalizing the WOTUS rule Current Status: Awaiting Committee Action HR. 5078, Waters of the United States Regulatory Overreach Protection Act of 2014 (Rep. Steve Southerland) Action: Prohibits the Administration from finalizing the WOTUS rule Current Status: Reported out of the House Transportation& Infrastructure Committee July 16 HR Agricultural Conservation Flexibility Act ( Rep Reid Ribble) Action: Maintains the agricultural exemptions in Section 404 by withdrawing EPA s interpretive rule, which lists 56 agricultural conservation practices defined by the Agriculture Department's Natural Resources Conservation Service. Current Status: Awaiting Committee Action *In addition to the legislation listed above, Sens. Barrasso and McConnell have prepared amendments that would stop or delay a final WOTUS rule to be offered to Senate Appropriations measures. 17

18 Congressional WOTUS Hearings in 2014 House Transportation and Infrastructure Committee Chairman: Rep. Bill Shuster (R-PA) Hearing Title: Potential Impacts of Proposed Changes to the Clean Water Act Jurisdictional Rule Date Held: June 11 House Agriculture Subcommittee on Conservation, Energy and Forestry Chairman: Rep. Glenn Thompson (R-PA) Hearing Title: A review of the Interpretive Rule regarding the applicability of Clean Water Act agricultural exemptions Date Held: June 19 House Science, Space and Technology Committee Chairman: Rep. Lamar Smith (R-TX) Hearing Title: Navigating the Clean Water Act: Is Water Wet? Date Held: July 9 House Small Business Committee Chairman: Rep. Sam Graves (R-MO) Hearing Title: Regulatory Overreach: Is EPA Meeting Its Small Business Obligations Date Held: July

EMWD s Engagement Association Engagement ACWA CASA WRCOG NWRA WUWC Commissioning an independent study of the proposed rule in the arid west To inform rule and connectivity study

19 EMWD s Engagement Association Engagement ACWA CASA WRCOG NWRA WUWC Commissioning an independent study of the proposed rule in the arid west To inform rule and connectivity study Actions: Submitted testimony EMWD s examples included in NWRA s oral testimony Submitting formal comments, due Oct 20 Meetings with EPA, Corps, OMB Meetings in September 19

20 Contact Information Jolene R. Walsh Senior Director of Public and Governmental Affairs (951)

NAR Fact Sheet Proposed Changes to Clean Water Act Regulations

NAR Fact Sheet Proposed Changes to Clean Water Act Regulations On April 21, 2014, the Environmental Protection Agency and Army Corps of Engineers proposed these changes to their interpretation of which waters are automatically subject to Clean Water Act regulations