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What are Waters of the United States and why should I care?.
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What are Waters of the United States and why should I care? According to USACE, those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. The proposed rules will greatly expand this definition.
Why does it matter? Federal laws like the Clean Water Act and Rivers and Harbors Act of 1899 prohibit the "unauthorized obstruction or alteration of any navigable water of the United States" unless you receive a permit from the Corps of Engineers. Obstruction or alteration includes: construction of any structure in or over any navigable water of the United States; excavation of dredge, or deposition of, fill material; the accomplishment of any other work affecting the course, location, condition, or capacity of such waters So if the definition of "waters of the US" expands, you will need permits to work in these areas.
History • 1985: Riverside Bayview Homes,the Supreme Court upheld the regulation of wetlands adjacent to or “inseparably bound up with” navigable waters • 1986: The agencies adopted the current regulations • 2001: The Supreme Court in SWANCC rejected regulation of “isolated waters” under the Migratory Bird Rule because the waters lacked a “significant nexus to navigable waters”
History • After SWANCC, the agencies adopted a broad interpretation that “waters of the U.S.” include any water “connected” to navigable waters • 2006: Supreme Court, in Rapanos, rejected the agencies’ “any hydrological connection” theory of jurisdiction as overly broad • Plurality opinion (Scalia): • Rejected assertion of jurisdiction over ephemeral streams, ditches, and drains • Relatively permanent waters
Current Status:“Waters of the United States” • April 21, 2014: Proposed Rule published in Federal Register regarding Waters of the United States and “wetlands.” • This national rulemaking is of major concern to local governments, landowners, elected officials, agriculture, real estate and the development community across the United States. • EPA: “save taxpayers $200,000,000/year by removing legal fights over jurisdiction”
“Waters of the United States” • Traditional: Rivers, streams, tidal waters, seas + • Expanded “Wetlands” (Scientific Report) • Federal: Soils, hydrology, vegetation (ALL 3) • FWS: Soils, hydrology or vegetation (1) • NEW: Riparian areas, other waters • Neighboring, adjacent, tributary, floodplain, ditch
“Waters of the United States” SHORT VERSION: • The Rule only has to do with the decision of what is to be regulated. Does not deal with the permit process (how). • The contributory nexus of riparian areas and ephemeral flow areas to traditional Waters is the biggest expansion of EPA regulatory jurisdiction since the CWA was signed into law by President Nixon. • The Draft EPA Report neglects fiscal impacts • The economic impact of the Rule will be profound, and felt by all sectors of the economy
“Waters of the United States” – Proposed Rules • All waters currently, in the past, or may be susceptible to use in interstate or foreign commerce, including tidal waters; • All interstate waters, including interstate wetlands; • The territorial seas; • All impoundments of waters identified in 1-3 above; • All tributaries of waters identified in 1-4 above; • All waters, including wetlands, adjacent to waters identified in 1-5 of this section; and • On a case-specific basis, other waters, including wetlands, that alone or in combination with other similarly situated waters in the region have a significant nexus to a water identified in paragraphs 1-3
New Definitions– Proposed Rules • Tributary: • Water body physically characterized by a bed and bank and ordinary high water mark which contributes flow directly or through other water bodies to waters in 1-4. • A water does not lose its tributary status if there are man-made breaks (such as bridges, culverts, pipes, dams) so long as bed and bank can be identified upstream of the break. • A wetland, pond, or lake can be a tributary, even if it lacks an OHWM and bed and bank, provided it contributes flow to 1-3. • A tributary can be natural, man-altered, or man-made and includes rivers, streams, lakes, impoundments, canals, and ditches (unless excluded).
New Definitions– Proposed Rules • Adjacent: Bordering, contiguous, or neighboring waters 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 and plant community of the area … • Floodplain: An area bordering inland or coastal areas that … is inundated during periods of moderate to high water flows
RECAP Traditional Waters of US Inland areas and “other waters” Ditches Expanded wetlands, hydric soils Tributaries Municipal facilities and tax base
IMPACTS ON PUBLIC INVESTMENT? Transportation projects Public-private investment Regional infrastructure Nourishment and inlet projects? Schools Stormwater facilities
Opposition Mounts • The Town of Carolina Beach has adopted and maintains policy that opposes legislation to expand Federal jurisdiction under the Clean Water Act” • "much of the anticipated cost of this rule would be financed from municipal resources, and thus divert resources from other essential public services“ • The Town requests that "EPA and the Corps of Engineers suspend consideration of the Waters of the U.S. rule”
Waters of the United States Regulatory Overreach Protection Act • Prevent the EPA and Army Corps of Engineers from: • developing, finalizing, adopting, implementing, applying, administering, or enforcing the proposed rule • using the proposed rule or proposed guidance, any successor document, or any substantially similar proposed rule or guidance as the basis for any rulemaking or decision regarding the scope or enforcement of the Federal Water Pollution Control Act (commonly known as the Clean Water Act). • 9/9/14: PASSED US HOUSE OF REPRESENTATIVES • Final vote: 262-152
Waters Advocacy Coalition North Carolina Workgroup • “Generate energy at state level” • Coalition of various interests: agriculture, building, real estate, aggregates, etc. • Ag groups: mapping NC tributaries, streams (MN has 100,000 ephemeral stream miles) • Working with Governor, General Assembly, DENR
What To Do? • Educate and discuss • Determine impacts • Engage Federal Officials • Provide Public Comment before October 20
TAKE ACTION! • Comments must be submitted before October 20, 2014 by one of three ways: DO IT! • Federal eRulemaking Portal: http://www.regulations.gov. • Email: ow-docket@epa.gov. Include EPA-HQ-OW-2011-0880 in the subject line of the message. • Mail: Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OW-2011-0880.
