Transcript EPA Proposed Definition of “Waters of US”

Waters of the United States
Conference of Western Attorneys General
July 22, 2014
Deidre G. Duncan
WOTUS Under the Proposed Rule
1.
2.
3.
4.
5.
6.
7.
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
3
New Definition: 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 manmade 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).
4
Affects All CWA Programs
•
The Proposed Rule replaces the definition of “navigable waters” and “waters
of the United States” in the regulations for all CWA programs, and in
particular sections 311, 401, 402, and 404:
− 33 C.F.R. § 328.3: Section 404
− 40 C.F.R. § 110.1: Oil Discharge Rule
− 40 C.F.R. § 112.2: Spill Prevention, Control and Countermeasure Plan
− 40 C.F.R. § 116.3: Designation of hazardous substances
− 40 C.F.R. § 117.1(i): Notification of discharge of hazardous substances
required
− 40 C.F.R. § 122.2: NPDES permitting and Storm Water
− 40 C.F.R. § 230.3(s) and (t): Section 404
− 40 C.F.R. § 232.2: Section 404 exemptions
− 40 C.F.R. § 300.5: National Contingency Plan for oil discharges
− 40 C.F.R. § 300, Appendix E to Part 300, 1.5: Structure of plans to
respond to oil discharges
− 40 C.F.R. § 302.3: Petroleum exclusion
− 40 C.F.R. § 401.11: Effluent limitations
5
Increased Obligations to Set and Meet
Water Quality Standards
Currently Designated WOTUS in Kansas
Additional WOTUS in Kansas
• If ephemeral streams are included as WOTUS
as proposed, Kansas estimates an increase
from 32,000 miles of streams to 134,000 miles of
streams subject to water quality standards
6
Cost of Compliance with
Water Quality Standards
• Park ditch that provides no
environmental or human benefits
other than flood control would be
considered WOTUS under the
proposed rule
• Cost to bring this ditch to current
water quality standards would be
$31,351,460
% Reduction
Needed
Lbs Reduction
Needed
Cost per Lb
Total Nitrogen
27%
3,795 lbs
$3,500/lb
$13,282,500
Total Phosphorus
64%
1,547 lbs
$11,680/lb
$18,068,960
Total
Cost for
Reduction
$31,351,460
7
Increased
Obligations for
Stormwater
Management
• Installation of baffles
and weirs for removal
of pollutants, required
by stormwater
permits, would require
complex section 404
permits
^v!
Increased Obligations for
Water Delivery Systems
• Regulators would have to require:
− NPDES permits for storm flows
diverted for water supply
− Section 404 permits for
maintenance activities in water
delivery systems
Central
Arizona
Project
Picacho
pumping
plant
Water Reuse
Systems
Sun City Regional Water Reclamation Facility
recharge ponds
Alessandro
Reclamation Facility
recharge pond abuts
San Jacinto River.
Green Infrastructure
Would Require Permits
• Green infrastructure reduces
flooding and protects water
quality using natural processes
• Not exempt under proposal
− Section 404 permits, other
permits, monitoring could be
required
• Would discourage
development of green
infrastructure
11
Increased Enforcement
• Confusion and uncertainty over what is WOTUS
put governments and industry at risk for criminal
and civil penalties
− In December 2013, a gas drilling company
paid a $10 million settlement for CWA
violations, including a $3.2 million fine for
damaging wetlands without permits
12
Risk of Third Party Litigation
• Confusion and uncertainty over what is WOTUS put
governments and industry at risk for third party
litigation
− Despite an agreement with EPA excluding
ephemeral waters, Missouri was sued by a third
party because it failed to designated uses and set
water quality criteria for all waters, including
ephemeral waters
− County of Monterey, CA, was found liable for not
maintaining a failed levee, even though its CWA
permit was not approved on time by the Corps
13
Deidre G. Duncan
Hunton & Williams LLP
2200 Pennsylvania Avenue, NW
Washington, DC 20037
(202) 955-1919
[email protected]