ASSOCIATION OF AMERICAN PESTICIDE CONTROL OFFICIALS

Jeff Comstock

Vermont Agency of Agriculture

AAPCO Annual Meeting - March, 2015 – Alexandria, Virginia

Waters of the U.S. Rule WOTUS

(Proposed . . . But Not Yet Final)

Don Parrish

American Farm Bureau Federation

Brent KeithNat’l Assoc. of State Foresters

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Official Title:Definition of Waters of the United States

Under the Clean Water Act

Timeline: Proposed Rule Published: April, 2014(Comment Period Opened)

Comment Period Closed: November, 2014

Final Rule (Anticipated ?): Late Summer/Fall 2015

Feedback:EPA received over 1,049,129 commentsEPA received over 20,000 unique comments

58% Opposed5% neutral

37% Supported

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Brent Keith National Association of State Forestersbkeith@stateforesters.org (202) 624-5977

State Forestry Agencies & Forestry BMPs:40+ Years of effective, affordable & practical measures

used to protect water quality in managed forests

Forest Roads: Why State Foresters Care About WOTUSLegal Challenges EPA RulemakingsCongressional action to preserve exclusion of forest roads from CWA

point source permitting

Pesticide Application:FIFRA or CWA - Definition of WOTUS Matters

WOTUS Rule:Clarity of CWA JurisdictionRegulatory Uncertainty

(Potential legal exposure to impact rate of forest conversion)

Conclusions: What Comes Next for WOTUS ?

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Don ParrishAmerican Farm Bureau FederationSenior Director donp@fb.org (202) 406-3667

What Is Changing? Focus For Discussion

Tributaries

Adjacent Waters

“Other” Waters

WATERS OF THE US

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Tributary = All features including ditches that could contribute flow to downstream waters

Adjacent Waters = Undefined spatial concept left to agencies discretion. All waters “next” to any tributary including all waters in a floodplain and riparian area

Other waters = Geographically isolated waters – the agencies can use two new regulatory theories of jurisdiction aggregation and similarly situated within “single landscape unit” to find significant nexus

SUMMARY

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

THE FINE PRINT IN EPAS’ PROPOSAL

“The terms water and water bodies do not refer solely to the water contained in these aquatic systems, but the system as a whole including associated chemical, physical, and biological features”

(Footnote - 79 Fed. Reg. 22191)

Translation : H2O not necessary

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

“A tributary is a longitudinal surface feature that results from directional surface water movement and sediment dynamics demonstrated by the presence of bed and banks, bottom and lateral boundaries, or other indicators of OHWM” …“in some regions of the country where there is a very low gradient, the banks of a tributary may be very low or may even disappear at times.”

(79 Fed. Reg. 22202)

THE FINE PRINT IN EPAS’ PROPOSAL

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

“Under the proposed definition of tributary, the upper limit of a tributary is established where the channel begins.”

(79 Fed. Reg. 22202)

Translation - Channels are tributaries. (Water is optional).

THE FINE PRINT IN EPAS’ PROPOSAL

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

“When considering whether the tributary being evaluated eventually flows to downstream waters, the tributary connection may be traced using direct observation or USGS maps, aerial photography or other reliable remote sensing information.”

(79 Fed. Reg. 22202)

Translation - Any potential hydrological connection is enough

THE FINE PRINT IN EPAS’ PROPOSAL

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

“The agencies analyzed …the scientific literature and determined … it is reasonable to assert CWA jurisdiction over all tributaries as a CATEGORY - by rule.”

(79 Fed. Reg. 22204)

Translation - ALL features that MIGHT contribute flow to a downstream water is jurisdictional.

THE FINE PRINT IN EPAS’ PROPOSAL

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Artificially irrigated areas, Artificial lakes or ponds,

Artificial reflecting pools Swimming pools,

Small ornamental waters

Are Not WOTUS if that are excavated on dry land (79 Fed. Reg. 22218))

WHAT DOES IT SAY

ABOUT EPA’S PROPOSAL IF:

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

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

WHY DOES JURISDICTION MATTER ?

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Legislative Strategy

Regulatory Strategy

Litigation Strategy

THREE PRONGED STRATEGY

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Legislative StrategyIntroduce/Pass Stand-a-Lone Legislation

(Requires 60 Votes)Amendment on Must Pass LegislationRider on Appropriations

The President Will likely VETO stand-alone

Congressional Review Act

LEGISLATIVE STRATEGY

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Regulatory Strategy Focus on OMB’s Interagency Review Process

Agriculture Committee HearingLeverage USDALegitimize Farm Bureau’s Concerns

Judiciary Committee HearingBroaden lines of attack

REGULATORY STRATEGY

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Farm Bureau will support a rule – just not THIS rule

Support legislation that requires EPA toUndertake a new rulemakingComply with rulemaking procedural requirements Cease asserting jurisdiction over dryland, ditches and

ephemeral features

Disapproval of this regulation . . . Under the Congressional Review Act

FARM BUREAU’S MESSAGE

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Jeff Comstock AAPCO & Vermont Agency of Agriculture

Highlights of AAPCO Comments to the EPA Docket:

WOTUS Rule fails to establish criteria/definition(s)for use of FIFRA registered products “to, over or near water(s)”

Disregard for impact of current legal landscape on FIFRA programs related to “direct discharge” from mechanical equipment and “non-point source” related to time-of-travel or transport mechanism of “residues” through the environment to water(s).

Creates increased vulnerability for legal actions under CWAagainst pesticide applicators and state regulatory agencies for operations conducted in compliance with FIFRA and state pesticide control programs.

Despite stated (Preamble) goals to the contrary.

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Jeff Comstock AAPCO & Vermont Agency of Agriculture

AAPCO Comments cont:

Legal/Court actions create potential risk for expansion of use patterns that require NPDES Permits beyond the 4 covered by the Pesticide General Permit (PGP).

AAPCO contests legal expansion of “covered/jurisdictional waters” Water types #5 (tributaries), #6 (adjacent) & #7 (similarly situated/significant nexus) based on new, multi-tiered definitions.

AAPCO concern that Science Advisory Board (SAB) review of EPA Water Body Connectivity Report used as political justification for expansion of jurisdiction without legislative re-definition of CWA “waters”.

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Jeff Comstock AAPCO & Vermont Agency of Agriculture

Additional Concerns: State Lead Agency Perspective

SLA regulatory authority under state law extends to programs beyond FIFRA, CWA & SDWA jurisdiction and priorities.

Integration of State and Federal responsibilities and impact on state programs, staff & resources NOT adequately recognized.

Federal Rulemaking often disruptive to partnerships among state agencies and federal agency state offices.

SLA concern that land use, conservation & production practices protective of water quality will become subject to CWA permits.

2015 Annual Meeting

Waters of the United States WOTUS Rule: Status, Perspectives & Concerns

Questions & Conversation ?

Thank You