By Steve C. Morasch Schwabe, Williamson & Wyatt

1. Clarification or Land Grab?How EPA’s Proposal to Redefine “Water” to Include Dry LandExpands Agency Jurisdiction Beyond Historical Limits By Steve C. Morasch Schwabe, Williamson & Wyatt

2. New definition of “water”: • The EPA published a new definition of “water” for comment. • The definition determines the EPA and Army Corps of Engineers jurisdiction for a variety of regulatory programs under the Clean Water Act, including: • Section 404 dredge and fill • Section 402 pollution control (NPDES) • Comment period expires November 14, 2014

3. What is “water”? • Clean Water Act adopted in 1972 • Regulates only the "navigable" waters of the United States • Traditionally, a "navigable" water was large enough to float a boat used in commerce

4. Over the years. . . • EPA and Corps (with help of the courts) expanded the definition of "navigable" far beyond any traditional concept of navigation • Agencies often seek to regulate land that is sometimes saturated with water (from majority leader Kevin McCarthy’s webpage)

5. What’s the issue? Water runs downhill, gathering pollutants along the way Effort to stop pollution at its source by regulating the outer capillaries of the system

6. Local vs Federal control • Many argue that the capillaries of the system are adequately protected by local regulations • Washington has the GMA critical areas protections and SMA, which require habitat protection; Oregon has statewide planning goals 5, 6, 15, 16, 17, 18 and 19 • Definition of “water” applies to more than just water quality regulations • Also applies to dredge and fill rules

7. Proposed rule has been broadly criticized. . . House Appropriations committee chair Harold Rogers called the new rule “the biggest land grab in history” Groups opposed to the rule include: • American Farm Bureau • Pacific Legal Foundation • Waters Advocacy Coalition • National Council of Farmer Cooperatives • Agricultural Retailers Association • Congressional Western Caucus

8. Proposed rule also opposed in its current form by • Pacific Northwest Waterways Association (PNWA) • National Waterways Conference (NWC) • American Association of Port Authorities (AAPA)

9. Bipartisan opposition • Opposed by both democrats and republicans • H.R. 5078 passed the House with bipartisan support, and a vote of 262 to 152 • Bill prohibits EPA and ACOE from redefining “water” without consensus • President Obama threatens veto

10. The proposed rule is supported by • The Obama administration • Environmental groups • Seven state AG’s, including Washington State Attorney General Bob Ferguson ‎

11. The Obama administration claims the “land grab” is a myth. . . How do we sort out the truth?

12. Let’s start with the Supreme Court decisions: • 2001: Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers • 2006: Rapanosv. United States

13. SWANCC v. ACOE (2001) Case involved “isolated waters” – not traditionally navigable, not adjacent or tributary to a navigable water, in this case an abandoned gravel pit Court held “migratory bird rule” - whether a bird lands there – did not create CWA jurisdiction Court’s broad rationale cast doubt on CWA jurisdiction over any “isolated waters”

14. Rapanos v. United States (2006) • The Court noted that these agencies had, over the years, attempted to expand their jurisdiction to "any plot of land" containing a drainage "channel or conduit – whether man-made or natural, broad or narrow, permanent or ephemeral – through which rainwater or drainage may occasionally or intermittently flow" • EPA and Corps not authorized to undertake such an "immense" expansion of their jurisdiction

15. The Rapanos case involved. . . • four Michigan wetlands • which lie near ditches or man-made drains • that eventually empty into traditional navigable waters • located some 11 to 20 miles away

16. For filling these wetlands without a federal permit. . . • John Rapanos faced 63 months in prison • And hundreds of thousands of dollars in criminal and civil fines

17. Cost of wetland permitting in the U.S. in 2006 Average applicant for an individual permit spends: • 788 days (over two years) • $271,596 in permitting and consulting fees • Plus the cost of mitigating for the loss of the wetlands Over $1.7 billion is spent each year in the process of obtaining federal wetland permits in the U.S.

18. Rapanos holding: Court rules in favor of Mr. Rapanos, stating: • Corps stretched the term ‘waters of the United States' beyond parody • CWA does not authorize 'Land is Waters' approach to federal jurisdiction Given the clear and unambiguous language of the Rapanos decision, why does EPA claim the Court created uncertainty?

19. No majority (4/1/4 decision) Rapanos was a plurality decision • Four justices joined the plurality • Justice Kennedy concurred but for different reasons (the “significant nexus” test) • Four justices dissented

20. The EPA draft rule expands on the “significant nexus” test from Justice Kennedy’s concurrence: “Significant nexus" – not a scientific term: • It’s a legal term • Defined in the draft rule ‎with broad sweeping language • Includes any connection to a "navigable" water that is "more ‎than speculative or insubstantial"

21. In simple terms, the draft rule defines “water” to include: • Traditionally navigable waters, like navigable lakes, rivers and seas

22. In simple terms, the draft rule defines “water” to include: • Traditionally navigable waters, like navigable lakes, rivers and seas • Interstate waters and wetlands

23. In simple terms, the draft rule defines “water” to include: • Traditionally navigable waters, like navigable lakes, rivers and seas • Interstate waters and wetlands • Tributaries of navigable waters

24. In simple terms, the draft rule defines “water” to include: • Traditionally navigable waters, like navigable lakes, rivers and seas • Interstate waters and wetlands • Tributaries of navigable waters • Waters that are “adjacent” to navigable waters or their tributaries

25. In simple terms, the draft rule defines “water” to include: • Traditionally navigable waters, like navigable lakes, rivers and seas • Interstate waters and wetlands • Tributaries of navigable waters • Waters that are “adjacent” to navigable waters or their tributaries • Waters that have a “significant nexus” to traditionally navigable waters

26. Tributaries are defined broadly: • Includes wetlands, lakes and ponds • even if they lack a bed and banks or a ordinary high water mark • Any water that flows directly or indirectly into a navigable or interstate water • any hydrological connection is a tributary

27. Adjacent waters • No hydrological connection required

28. Adjacent waters include: • Waters that are bordering, contiguous or neighboring to a navigable water or a tributary

29. Adjacent waters include: • Waters that are bordering, contiguous or neighboring to a navigable water or a tributary • Waters, including wetlands that are separated from navigable waters or tributaries by man made dikes or barriers, natural berm, beach dunes, etc.

30. Adjacent waters include: • Waters that are bordering, contiguous or neighboring to a navigable water or a tributary • Waters, including wetlands that are separated from navigable waters or tributaries by man made dikes or barriers, natural berm, beach dunes, etc. • “Neighboring” waters that are located within the riparian area or floodplain of a navigable water or tributary or that have a hydrological connection to such waters

31. Significant Nexus means: • A water or wetland • That alone or in combination with other waters • Significantly affects the chemical, physical or biological integrity of a navigable water The effect need only be “more than speculative or insubstantial”

32. Significant Nexus waters are: • Evaluated on a case by case basis • Highly discretionary with the agency • Viewed “in combination” with other waters So, individually, a significant nexus water might only have an insubstantial effect, but if it is combined with other waters that have a “significant” affect as a whole, it will still be regulated

33. The only clarity in the proposed rule is the exemptions Waste Treatment Systems that meet the CWA are exempt

34. Exemptions Prior Converted Cropland

35. Exemptions Prior Converted Cropland What about ditches?

36. Exemptions Prior Converted Cropland What about ditches? • EPA has authority to override other agencies’ determinations about prior conversion to cropland • Normal farming operations on existing farms are exempt from dredge and fill permits under 40 CFR 232.3(c)(1) • Farming activities not be exempt from water quality rules

37. Ditches exempt? Only ditches with no hydrological connection are exempt: • Ditches that are excavated wholly in uplands, drain only uplands and do not have perennial flow • Ditches that do not contribute flow, either directly or indirectly to a navigable or interstate water A ditch that touches a wetland or that eventually flows into a navigable water, no matter how remote, is NOT exempt.

38. Exemptions continued: Artificially irrigated uplands are exempt

39. Exemptions continued: Artificial lakes or ponds created from uplands and used exclusively for stock watering, irrigation, settling basins or rice growing are exempt

40. Exemptions continued: • Artificial reflecting or swimming pools created out of dry uplands are exempt

41. Exemptions continued: Small ornamental ponds in dry uplands are exempt

42. Exemptions continued: • Water filled depressions created incidental to construction activity are exempt • Groundwater is exempt • Gullies, rills and non-wetland swales are exempt

43. Conclusion: Outside of these narrow exemptions, the draft rule broadly defines “waters” to allow EPA and ACOE great discretion to assert CWA jurisdiction over virtually any piece of land that, when viewed in combination with other lands, has anything more than a speculative or insubstantial effect on navigable waters.

44. Questions? Comment period expires November 14, 2014