D. Kenyon (“Ken”) Williams, Jr. Hall Estill Law Firm, Tulsa, Oklahoma Presented at: OML/OMUP Water & Environment Summit February 20, 2015

 Hall Estill Law Firm, Tulsa, Shareholder in the Environmental Practice Group  President, Tulsa County Bar Association  Speaks frequently on energy and environmental topics  A Tulsa native, he received a B.S. degree (Petroleum Engineering) and a J.D. degree from The University of Tulsa  Principal practice areas are Administrative, Environmental, Energy and Business Law and Litigation, and Municipal Law

“YES!”

January 29, 2015

February 4, 2015

 The Clean Water Act covers “navigable waters,” a CWA term defined as “the waters of the United States, including the territorial seas.”  But what are navigable waters?

 United States v. Riverside Bayview Homes: Wetlands adjacent to navigable waters  Solid Waste Agency of Northern Cook County v. Army Corps of Engineers: Considered non- adjacent waters for the first time; Overturned Migratory Bird Rule; First use of “significant nexus.”

 Rapanos v. United States: Wetlands adjacent to non-navigable waters  Plurality: Traditionally navigable waters, and their relatively permanent tributaries and adjacent wetlands  Kennedy Concurrence: Significant nexus is the focus – case-by-case determination  Three of the five opinions urged EPA and Corps to initiate rulemaking to alleviate confusion over Waters of the United States

 2008 EPA Guidance: The apparent goal was to reduce confusion post-Rapanos.  2011 EPA Guidance: The apparent goal was to narrow the categories that require case- specific analysis. So controversial that it was never reduced to a rule and was withdrawn.

 April 21, 2014: EPA and Corps jointly released the proposed rule.  October 20, 2014: The original deadline for public comments wasextended to November 14,  Almost 1,000,000 public comments!

Per se jurisdictional: ◦ Waters susceptible to interstate commerce, known as navigable waters (no change) ◦ All interstate waters, including interstate wetlands (no change) ◦ The territorial seas (no change) ◦ Tributaries of the above waters (new definition of “tributary”) ◦ All waters, including wetlands, that are adjacent to a water identified above (changes adjacent wetlands to adjacent waters)

Other Waters: ◦ Removes Commerce Clause-based jurisdictional provision. ◦ Adds coverage for more isolated waters if there is a significant nexus.

 Changed Definition: Adjacent Current Regulatory Language: The term adjacent means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘‘adjacent wetlands.’’ Proposed Regulatory Language: The term adjacent means bordering, contiguous or neighboring. Waters, including wetlands, separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are “adjacent waters.”

New Definition: Tributary  Water body physically characterized by a bed and a bank and ordinary high water mark which contributes flow directly or through other water bodies to waters defined  Water does not lose its tributary status if there are man-made breaks as long as bed and bank can be identified up and downstream of the break  A wetland can be a tributary  A tributary can be a natural, man-altered, or man-made body of water, and includes rivers, streams, lake impoundments, canals, and ditches

 New Definition: Neighboring The term neighboring, for purposes of the term “adjacent” in this section, includes waters located within the riparian area or floodplain of a water identified in paragraphs (s)(1) through (5) of this section, or waters with a shallow subsurface hydrologic connection or confined surface hydrologic connection to such a jurisdictional water.

 New Definition: Riparian Area The term riparian area means an area bordering a water where surface or subsurface hydrology directly influences the ecological processes and plant and animal community structure in that area. Riparian areas are transitional areas between aquatic and terrestrial ecosystems that influence the exchange of energy and materials between those ecosystems.

 New Definition: Floodplain The term floodplain means an area bordering inland or coastal waters that was formed by sediment deposition from such water under present climatic conditions and is inundated during periods of moderate to high water flows.

 New Definition: Significant Nexus The term significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region (i.e., the watershed that drains to the nearest water identified in paragraphs (s)(1) through (3) of this section), significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (s)(1) through (3) of this section. For an effect to be significant, it must be more than speculative or insubstantial.

Other waters, including wetlands, are similarly situated when they perform similar functions and are located sufficiently close together or sufficiently close to a “water of the United States” so that they can be evaluated as a single landscape unit with regard to their effect on the chemical, physical, or biological integrity of a water identified in paragraphs (s)(1) through (3) of this section.

Exclusions: ◦ Waste treatment systems, including treatment ponds or lagoons, that are designed to meet CWA requirements (no change) ◦ Prior converted cropland (no change) ◦ A list of features that have been excluded by long- standing practice and guidance and would now be excluded by rule, such as artificially irrigated areas that would revert to upland should application of irrigation water to the area cease. ◦ Two types of ditches:  Ditches excavated in uplands and that drain only upland and have no more than ephemeral flow.  Ditches that do not contribute flow, either directly or through another water, to a traditional navigable water, interstate water, impoundment, or the territorial seas.  Other ditches, if they meet the rule’s definition of “tributary,” would continue to be “waters of the United States” (one of the most controversial parts of the rule).

Exclusions: ◦ Proposed rule makes no change to and does not affect existing statutory and regulatory exclusions, including:  Normal farming, ranching, silviculture activities such as plowing, seeding, and cultivation  Permitting of agricultural stormwater discharges and return flows from irrigated agriculture  Water transfers that do not introduce pollutants into a water body

◦ EPA and the Corps estimate that the proposed rule will increase the Agencies’ exercise of CWA jurisdiction by approximately 3% compared to current practices  98% of streams evaluated in 2009 – 2010, compared to 100% under proposed rule  98.5% of wetlands evaluated during 2009 – 2010 were jurisdictional, compared to 100% under proposed rule  0% of “other waters” evaluated during the baseline period were jurisdictional, compared to 17% under the proposed rule

Costs: ◦ Costs to regulated entities and governments (federal, state, and local) are likely to increase as a result of the proposed rule. ◦ Section 404 program would see greatest impact. ◦ Projected costs associated with Section 404 program would affect landowners, development companies, state and local governments investing in infrastructure, and industries involved in resource extraction. ◦ The agencies estimate that incremental costs associated with the rule range from $162 million to $279 million per year.

Benefits: ◦ Value of ecosystem services provided by waters and wetlands protected as a result of CWA requirements. ◦ Government savings on enforcement expenses due to greater jurisdictional certainty. ◦ Business and government savings from reduced uncertainty. ◦ The agencies estimate that benefits of the proposed rule range from $318 million to $514 million per year.

Criticisms: ◦ American Farm Bureau: “Ditch the Rule” – claims that building a fence across a ditch, applying fertilizer, or pulling weeds could require a federal permit. ◦ Small Business Administration: Rule would have a direct and potentially costly impact on small businesses. ◦ H.R. 5078, the Waters of the United States Regulatory Overreach Protection Act ◦ Missouri Farm Bureau: That’s EnoughThat’s Enough

EPA Connectivity Report ◦ Provides scientific basis for “Other Waters” ◦ SAB Peer Review (Draft Report)  Supported by science  Should actually be more expansive (e.g. exclusion of groundwater from CWA protection does “not have strong scientific justification”)

Ken Williams (918)