Waters of the U.S.
The EPA land grab
Background
Water has always been regulated, either by states or the federal government.
The federal law is the Clean Water Act.
The U.S. Supreme Court in 2001 and 2006 handed down decisions reminding the
EPA and the U.S. Army Corps of Engineers that the Clean Water Act limits federal
power to “navigable waters.”
Navigable waters are those that can carry boats or ships.
Concluding that farm ditches, terraces or buffalo wallows are “navigable waters”
is nothing more than a federal land grab.
Background

In 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”


Emphasized Congress’ use of the term “navigable”
After SWANCC, the agencies adopted a broad interpretation that “waters of
the U.S.” include any water “connected” to navigable waters
Proposed Rule

On March 25, 2014, EPA released a proposed rule

Proposed Rule published in the Federal Register on April 21

Comments due July 21, 2014

Economic Analysis of Proposed Rule

Interpretative Rule on 404(f)(1)(A) Exemptions
WOTUS Under the Proposal
1.
All waters currently, in the past, or may be susceptible to use in
interstate or foreign commerce, including tidal waters;
2.
All interstate waters, including interstate wetlands;
3.
The territorial seas;
4.
All impoundments of waters identified in 1-3 above;
5.
All tributaries of waters identified in 1-4 above;
6.
All waters, including wetlands, adjacent to waters identified in 1-5 of
this section; and
7.
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 in Proposal

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 Category: Adjacent Water

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
Significant Nexus Definition

Significant Nexus:
 Means a more than speculative or insubstantial
effect that a water or wetland has either or alone
or in combination with other waters in the region
on waters 1-3.
 Other waters, including wetlands, are similarly
situated when they perform similar functions and
are located sufficiently close together so that they
can be evaluated as a single landscape unit.
All CWA Programs

Proposed Rule is an end run around what Congress intended and two Supreme
Court decisions

Navigable defines the limits of federal regulatory control

Congress provided a permit program for point sources and management/BMP
programs for nonpoint sources that are lead by States
9
Permits = EPA Control
 Jurisdiction
will result in severe restriction
on farming and ranching – or even prohibit
farming or ranching activities in any area
the government determines to be a water
 Everything
about this proposal serves to
expand the federal regulatory reach
Summary

Tributary = anything with flow (including ditches) (bed, bank and OHWM)

Adjacent Waters = waters that are “next” to any tributary including all
waters in a floodplain and riparian area

Other waters = otherwise isolated waters that can be aggregated with “other
waters” within “single landscape unit” to find significant nexus
11
Which of these are “navigable” waters?

These will be if the rule is finalized:
Which of these are “navigable” waters?

So will these:
Are these “navigable” waters?

We can’t be sure:
Exclusion in Proposal







Artificially irrigated areas that would revert to uplands should irrigation
cease
Artificial lakes or ponds created in dry land and used exclusively for stock
watering, irrigation, settling basins, or rice growing
Artificial reflecting pools or swimming pools created by excavating and/or
diking dry land
Small ornamental waters created by excavating and/or diking dry land for
primarily aesthetic reasons
Water-filled depressions from construction
Groundwater, including groundwater drained through subsurface
drainage systems
Gullies, rills, and non-wetland swales
Exclusions in Proposal

Waste treatment systems, including treatment ponds or lagoons, designed to
meet the requirements of the Clean Water Act;

Prior converted cropland;

Ditches excavated wholly in uplands and that drain only uplands and have
less than perennial flow; and

Ditches that do not contribute flow either directly or through other water
bodies to a water in 1-3 above
Agricultural Exemptions

Continues existing statutory and regulatory exemptions from section
404 permitting requirements for normal farming, ranching, and
silviculture practices where these activities are part of an ongoing
farming, ranching, or forestry operation

Issued “interpretive rule” immediately effective, adds 56 activities
that are exempt from permitting requirements if consistent with
Natural Resources Conservation Service (NRCS) conservation practice
standards

EPA and the Corps will enter into a Memorandum of Agreement with
the NRCS to develop and implement a process for identifying,
reviewing, and updating NRCS agricultural conservation practices and
activities that would qualify for the exemption
Agricultural Exemptions

Exemptions apply only so long as the conservation activities are ongoing

Do not apply if there is a change of use

Once conservation activities are complete, landowner will likely have
features that will be higher quality and more likely to be considered
waters of the U.S.

The agencies’ discussion of the agricultural exemptions is misleading and
intended to minimize opposition to the rule

Newly created permit exemptions, created by interpretive rule, nothing
more than agency guidance, do not have the force of law

Disingenuous to suggest that expanding the list of activities that are
exempt from 404 permitting requirements mitigates the effect of the
rule
Agricultural Exemptions

Interpretive rule has no effect on CWA jurisdiction:


Its exemptions are not an exclusion from federal CWA jurisdiction
Additional concerns with the agency’s approach:

Activities are only exempt when conducted consistent with NRCS
guidelines

Who will inspect and enforce compliance with NRCS guidelines?

Will third parties be able to challenge exempt status?

EPA’s involvement in NRCS programs through development of the
Memorandum of Agreement

Is this an interpretive or a legislative rule under the Administrative
Procedures Act?
Why Does Jurisdiction Matter
 Enforcement/likelihood
for potential
illegal discharges
 Type
of permit: General or individual
 “Federal
action” triggers: NEPA, ESA,
NHPA, 401 water quality certification, etc.
 Mitigation
 Third-party
citizen suits
What can you do?

Write a letter (KFB can help, but using your own words is best)

Respond with CapWiz on the KFB website

Send the post card

Write a letter to the editor (KFB can help)

CONTACT: Ryan Flickner

flicknerR@kfb.org

785-587-6327