Paulina Williams: Waters of the U.S. Rule: What It Says and What It Means, Fall 2015 TWCA Conference
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© 2015 Waters of the U.S. Rule: What It Says and What it Means Paulina Williams October 16, 2015
Transcript of Paulina Williams: Waters of the U.S. Rule: What It Says and What It Means, Fall 2015 TWCA Conference
© 2015
Waters of the U.S. Rule:What It Says and What it
MeansPaulina WilliamsOctober 16, 2015
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Why Does this Rule Matter? CWA 404 Permitting
Any foot print expansion, ever? Any new, replaced, or significant maintenance of
infrastructure? Do you have any schedules for the above?
NPDES Point source discharges 316(b) applicability for cooling water intakes
SPCC Do you have an existing delineation or
jurisdictional determination? Do you NOT have an existing delineation or
jurisdictional determination?
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Rule is Stayed − Why Does this Still Matter?
Sixth Circuit Court of Appeals Nationwide Stay
Did Not Decide Court's Jurisdiction Potential spring back when jurisdiction
decided "in a matter of weeks" North Dakota District Court Stay
Limited to 13 States Agency Deference
Full Record to Come
The Rule is Down But Not Out
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Waters of the U.S. Definition
Fundamental basis →"Significant nexus" Final rule adopts (selectively) Justice Kennedy's Rapanos
concurrence as its guiding light)
Agencies repeatedly stress that the judgments they have made are based on: "The science"
Connectivity Report The law Their experience and expertise
Categorically In or Out, but some remaining case-by-case
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Big Picture - In
Categorically Jurisdictional Actually navigable, interstate, or territorial seas
("Primary Waters") Tributaries
Contributes flow either directly or through another water Ordinary high water mark and bed and banks
Impoundments of above Adjacent waters
Bordering, Contiguous, or Neighboring Neighboring = 100 ft or 100 yr flood plain/1500 ft
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Big Picture - Out
Categorically Excluded Qualifying Ditches Specific Features on Dry Land Groundwater Wastewater treatment systems Prior converted cropland
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Exclusions for Certain Ditches
Does not flow to Primary Waters Reaches Primary Waters (direct or
indirect) Ephemeral flow
Not in & did not relocate a tributary Intermittent flow
Not in & did not relocate a tributary Did not drain wetlands
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Other Exclusions Certain features constructed in dry land,
including: Artificially, irrigated that would revert to dry land Artificially, constructed lakes and ponds Water-filled depressions incidental to mining or
construction Stormwater control features Wastewater recycling structures
Erosional features Puddles
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Other Exclusions (cont'd)
Groundwater, including groundwater drained through subsurface drainage systems But can form the connection to make "other waters"
jurisdictional
Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act
Prior Converted Cropland
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Big Picture - Case-by-Case Case-By-Case Significant Nexus Evaluation
"Other Waters" Categorically Similarly Situated (i.e. Aggregated for the Watershed) Prairie potholes (glacial) Carolina and Delmarva bays Pocosins Vernal pools (CA) TX coastal prairie wetlands
Additional "Other Waters" Case-By-Case 100 year flood plain (>1500 ft) 4000 ft of OHWM Similarly Situated? Significant Nexus?
Texas A&M Agrilife Extension
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Cost - $158.4 -$306.6 Million/yr
AND
Benefit - $338.9- $349.5 Million/yr
Asserted Cost / Benefit
>jd of 2.84 %/ yr >jd of 4.65%/yr
Cost - $236.7- $465 Million/yr
AND
Benefit-$554.9- $572.3 Million/yr
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Likely Changes in Agency Practice
Other waters Will resume routinely asserting jurisdiction over
Other Waters 4000 foot limit - will likely have little impact in many
areas of the country Tributaries
More jurisdiction at upper ends
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Impacts on Corps Permit Processing
Corps workload likely to increase in light of expanded jurisdiction Potential for delays in requests for JDs Potential for delays in permit processing
Not Reopening Existing Approved JDs Unless requested by applicant Unless new information warrants revision of
the determination Not Reopening Existing Preliminary JDs Looking to next round of NWPs
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Procedural History
April 2014 - Proposed 1.2 million comments
May 27, 2015 - Release June 29, 2015 - Published in
Federal Register June 30, 2015 - First Suits August 27 - 13 State Stay August 28, 2015 - Effective
Elsewhere October 9, 2015 - Nationwide
Stay
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Our Now Governor Had This to Say . . . . The State of Texas remains perplexed by the federal
agencies’ continued reliance on Justice Kennedy’s ‘significant nexus’ test in asserting Clean Water Act jurisdiction. From a practical standpoint, the test is vague and provides no guidance or certainty to landowners. The federal agencies assert that the goal in passing this proposed rulemaking is to provide predictability, clarity, and consistency, yet, nothing could be further than the truth. The Rule establishes a test for jurisdiction that has no observable qualities and was developed by a single justice in the concurrence of one case.
Letter of Texas Attorney General Greg Abbott, dated August 11, 2014, to docket.
Procedural Status
District Court or Court of Appeals? CWA 509
(b)(1)(E) - Any effluent limitation or other limitation (b)(1)(F) - Issuing or denying any permit
Southern District of Georgia and Northern District of West Virginia rule that Court of Appeals has jurisdiction
North Dakota rules District Courts have jurisdiction Sixth Circuit has not ruled on jurisdiction Many district court cases stayed pending consolidation
Major Themes - States and Industries
Exceeds limits of Commerce Clause Exceeds statutory authority under Clean Water Act
"Other waters" jurisdiction inconsistent with SWANCC All tributaries and adjacent waters as jurisdictional
inconsistent with Rapanos Violates the 10th Amendment Administrative Procedure Act
Not a logical outgrowth of proposal Regulatory Flexibility Act, Anti-Lobbying, NEPA
Major Themes - Environmental Groups
Generally supportive of rule
Challenges Exemptions as Violations of CWA and APA, Possibly NEPA Wastewater treatment systems Established normal farming, ranching, and silviculture
activities Exclusion of "other waters" beyond 4000 feet
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An Unusual Development
U.S. House Oversight and Government Reform Committee released memoranda by top Corps officials criticizing the final rule - July 30, 2015
Limited Preliminary Injunction - 13 States August 27, 2015 North Dakota District Court Judge
Issues Preliminary Injunction Notes full record not available Refers to Corps deliberative memos criticizing rule
"[T]he States are likely to succeed on their claim because (1) it appears likely that the EPA has violated
its Congressional grant of authority in its promulgation of the Rule at issue, and (2) it appears likely EPA failed to comply with APA requirements when promulgating
the Rule."
"Devoid of reasoned process"
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Sixth Circuit Stays the Rule Nationwide
October 9, 2015 Pending decision on jurisdiction to hear challenges Preserve the Status Quo
Status Quo = Pre-Rule Finds Likelihood of Success on the Merits
Treatment of tributaries and adjacent waters "at odds with Rapanos"
Distance limitations not a "logical outgrowth" of proposal and not yet shown to be supported by science
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Sixth Circuit's Reasoning A stay allows for a more deliberate determination
A stay temporarily silences the whirlwind of confusion
A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters. . . .
A stay will, consistent with Congress’s stated purpose of establishing a national policy, …, restore uniformity of regulation under the familiar, if imperfect, pre-Rule regime, pending judicial review.
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Congressional Activity
Regulatory Integrity Protection Act (H.R. 1732) - would require agencies to withdraw rule and start over Passed House
Federal Water Quality Protection Act (S. 1140) - would limit the waters that could be found jurisdictional under a new rule Committee hearing held 37 co-sponsors
