Variable Water Laws: What are the Implications for States?
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1 Variable Water Laws: What are the Implications for States? F O C U S O N C L E A N W A T E R A C T P R O G R A M S J I M K E A T I N G U. S. E P A W A S H I N G T O N, D C
2 The Great Divides Water Quantity / Water Quality Land Use/ Water Resources East / West Water Systems / Ecosystems Federal / State Adapted from Adler and Straube, 25 Wm. & Mary Envtl. & Pol y Rev. 1 (2000)
3 The Clean Water Act: Cooperative Federalism Navigable Waters: Waters of the U.S., including Territorial Seas 303 Water Quality Standard & TMDLs 311 Oil Spill Prevention Plans 401 State Certifcation 402 Pollutant Discharge Permits 404 Dredge and Fill Permits TMDL is a Total Maximum Daily Load, a watershed scale plan to meet WQS
4 The Clean Water Act: Cooperative Federalism Navigable Waters: Waters of the U.S., including Territorial Seas 303 Water Quality Standard & TMDLs States Tribes EPA FWS 311 Oil Spill Prevention Plans EPA 401 State Certifcation States Tribes 402 Pollutant Discharge Permits States EPA 404 Dredge and Fill Permits States EPA USACE EPA includes Regional Offices, FWS includes Field Offices, USACE includes Division and District Offices
5 Waters of the U.S. Waters of the State Two thirds of all states place some legal constraint on the authority of state and local government officials to adopt aquatic resource protections beyond waters of the U.S. Stringency limitations Property-based limitations Combinations of the two Half the states have some provisions that extend protections beyond waters of the U.S. Some pre-date stringency limitations and may not be retroactive Limitations may only be partial
6 A Short History of Waters of the U.S. CWA (1972): legislative history indicate term should be construed as broad as the Commerce Clause allows Riverside Bayview (1985): navigable waters include wetlands adjacent to other jurisdictional waters SWANCC (2001): presence/habitat for migratory birds not sufficient as sole basis for CWA jurisdiction affected isolated waters reasoning suggested some connection to navigability needed
7 The Rapanos Decision (2006) Issues: does CWA cover non-navigable tributaries and their adjacent wetlands? Result: nine justices and five opinions, with none having a majority of votes. Remanded. Plurality/Scalia: Jurisdictional if relatively permanent or seasonal rivers, or wetlands with continuous surface connection to such waters. Kennedy: wetlands and waters are jurisdictional if significant nexus to navigable waters (individually or cumulatively), affecting phys/chem/bio of navigable waters. EPA/Corps guidance (2008) reflects these principles, although underlying regulation has not changed
8 What Waters are at Issue? adjacent wetlands non-navigable tributaries navigable-in-fact waters adjacent wetlands isolated waters
9 What Waters are at Issue? adjacent wetlands Rapanos non-navigable tributaries Riverside Bayview navigable-in-fact waters adjacent wetlands SWANCC isolated waters 9
10 Why are They Important? 20% of remaining wetland acreage - USFWS Prairie Potholes Bogs Vernal Pools 10 Playas Carolina Bays
11 Why are They Important? Streams that flow for only part of the year comprise 59% of the nation s stream miles; they are the workhorses of the watershed.
12 Why are They Important? More than 117 million Americans are dependent on these seasonal or headwater streams for drinking water. Darkest orange indicates counties most dependent on these waters for drinking water
13 EPA-Corps Proposed Guidance (April 2011) Interstate Waters affirms protection of smaller tributaries and wetlands that cross state lines Adjacent Wetlands clarifies as including ecological and/or hydrologic connections; riparian area, watershed, and flood plain concepts Significant Nexus promotes watershed-scale aggregation of similarly situated streams, adjacent wetlands, or physically proximate waters (e.g., some isolated waters) Tributaries changes likely to result in assertion of jurisdiction over almost all tributaries and their adjacent wetlands Exclusions maintains all previous exclusions, such as for waste treatment systems
14 Impacts of Implementing the Guidance Compared to a baseline, if the proposed guidance is followed in all instances: 3% increase in waters addressed by the 404 program, affecting a few thousand waters each year 5% increase in wetlands mitigation acres 2% increase in stream mitigation miles 4% increase in total mitigation costs, representing an increment between $ million per year on an annual baseline of between $2-4 billion An additional $8-20 million per year administrative costs to the Corps and applicants Benefits from incremental wetland mitigation alone worth between $ million per year
15 What We Have Heard from States Rulemaking or legislation will be necessary to fully identify the scope of our nation s waters (acknowledges the need to clarify scope of jurisdiction) Regional technical guidance necessary to account for regional differences (e.g., stream channel structure in east versus west) Limits of jurisdiction needs to be more directly addressed (especially tributaries) Economic analysis should address state costs (303, 401, 402) Should not exclude waters that citizens would obviously find important, or include areas not intended to be regulated like stormwater detention basins Summarized from joint letter signed by ECOS, CSO, ASIWPCA, ASDWA, NASF, AFWA, GPC, ASFPM, ASWM
16 Moving Forward EPA and Corps will consider all comments, including calls for rulemaking Court cases will continue to work through the system States will continue to take the lead in developing water quality standards and issuing 402 permits Effective coordination among federal and state agencies and legislatures will improve implementation and avoid problems
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APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers
APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Form Instructional Guidebook. SECTION
APPENDIX B. Approved JD Form
APPENDIX B Approved JD Form APPROVED JURISDICTIONAL DETERMINATION FORM U.S. Army Corps of Engineers This form should be completed by following the instructions provided in Section IV of the JD Form Instructional