Waters of the U.S.Forestry on the Grow Conference

May 1, 2015

WOTUS Background• Rule proposed March 25, 2014

• Proposed Rule published in Federal Register April

21, 2014

• Greatly expands the reach of EPA and Corps of

Engineers over land and water resources

– Defines the scope of waters protected under the Clean

Water Act

– Regulations have been in place over 25 years

– Revisions due to Supreme Court rulings in 2001 and 2006

and replace Guidance issued in 2003 and 2008 (and 2011

but not finalized)

– Will trigger additional permitting and regulatory requirements

Waters of the U.S.• Jurisdictional – subject to the multiple regulatory

requirements of the CWA

• Non-Jurisdictional – do not have the federal legal

protections of the CWA requirements

WOTUS BackgroundCurrent Jurisdictional Waters

– Traditional Navigable Waters

– Interstate Waters and Wetlands

– The Territorial Seas

– Impoundments

Waters of the U.S.Particular focus on waters located in isolated places

– Expanded definitions of “adjacent” and “tributaries”

– Expanded definitions of “neighboring,” “riparian areas” and

“floodplains”

– Ditches, intermittent steams and ephemeral streams defined

as jurisdictional tributaries

– Other Waters

• “Adjacent” to jurisdictional water are categorically jurisdictional

• Non-adjacent will continue to require case-by-case

determination or significant nexus

• Broader aggregation of other waters could result in more being

found jurisdictional

• EPA estimates 3% new waters – 17% of other waters

Waters of the U.S.• Existing Statutory and Regulatory Exclusions

• No changes for normal farming, ranching and silviculture

activities

• Legal challenges may delay further

WOTUS Industry Concerns• Broadens scope of CWA beyond constitutional and statutory

limits established by Congress and the Supreme Court

• No clarity or certainty on terms such as Tributaries, Adjacent

and Neighboring

• Significant Nexus

• The proposed rule is set up to find that virtually all waters have a “significant

nexus” to navigable waters

• Based not only on the effect of the particular water at issue, but also the

effect in combination with other similarly situated waters located in the same

region

• Increased exposure to third-party lawsuits

• Confusing to private landowners

• Erodes states’ BMP programs

• Not adequately considered by the agencies

Significant NexusA water, including wetlands, either alone or in combination with

other similarly situated waters in the region, which significantly

impact the chemical, physical or biological integrity of a

jurisdictional water.

• “To establish CWA jurisdiction, there has to be some measure of the

significance of the connection for downstream water quality.”

— Supreme Court Justice Anthony Kennedy

Significant Nexus• Not a scientific term; rather, a determination of the agencies in light of law

and science

• The proposed rule is set up to find that almost all waters have a “significant

nexus” to navigable waters

• Based not only on the effect of the particular water at issue, but also the

effect in combination with other similarly situated waters located in the same

region

“Adjacent Waters” that

would be WOTUS

Neighboring

For purposes of the term Adjacent, includes waters

located within the Riparian Area or Floodplain of a

jurisdictional water, or waters with a surface or shallow

subsurface hydrologic connection to a jurisdictional

water.

• Waters including wetlands that are located within Riparian Areas

or Floodplains of a jurisdictional water would be jurisdictional

without a case-specific nexus analysis, even if separated from

such water by a natural or man-made feature.

Riparian Area

An area bordering a water where surface or subsurface

hydrology influence the ecological processes and plant

and animal community structure in that area. They are

transitional areas between aquatic and terrestrial

ecosystems that influence the exchange of energy and

materials between these ecosystems.

Floodplain

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.

TributaryWater physically characterized by the presence of a bed

and banks and ordinary high water mark which

contributes flow either directly or through another water

to a jurisdictional water.

• Wetlands, lakes and ponds are tributaries if they contribute flow

to a jurisdictional water

Expanded Jurisdiction

Non-navigable features that do not contain water most

of the time are NOT currently regulated without a case-

by-case finding of significant effect on navigable water.

• The proposed rule categorically regulates as a “Tributary” all

non-navigable ephemerals that ever carry any amount of water

that finds its way to a navigable water, regardless of volume,

frequency and duration of flow and distance to the actual

navigable water.

Ditches• Two types are exempt:

• Ditches that are excavated wholly in uplands, drain only uplands or non-

jurisdictional waters, and have less than perennial flow (Mythical Ditches)

• Ditches that do not contribute flow either directly or through another water,

to a traditional navigable water, interstate water, impoundment or territorial

sea

• Expanded Jurisdiction of Ditches and Ephemeral Streams

• CWA currently does not regulate ditches as WOTUS

• Corps has regulated some ditches on a case-by-case basis

• Non-navigable features that do not contain water most of the time are not

currently regulated without a C-B-C finding

• Rule broadly defines almost all ditches as WOTUS so no C-B-C evaluation

is needed

WOTUS – The Latest

• H.R. 1732 – the “Regulatory Integrity Protection Act of 2015”

from House Transportation Committee Chair Bill Shuster (R-PA)

– Mark-up and passed committee on April 15, 2015

– Awaits House Floor Action (Could be April 30, 2015)

– Enough votes to pass Senate

– Presidential veto probable

– Not enough Senate votes to override at this point

– Compels EPA to withdraw WOTUS rulemaking and develop a new

proposal• Requires close consultation with state and local officials

• Requires EPA to incorporate public comments

WOTUS – The LatestProposed rule pending at White House OMB (April 6)

– 90-Day interagency review process

– AF&PA and NAFO have requested meetings with OMB

– Waters Advocacy Coalition and Federal Water Quality

Coalition also expected to request meetings

WOTUS – The LatestEPA Administrator Gina McCarthy’s April 6 blog indicates there

have been changes, as requested

– 400 meetings across country and over 1 million public comments

– Better definition of Significant Nexus

– Define Tributaries more clearly• Limit protections to ditches that function like tributaries and carry pollution

downstream

– Clear definitions of Adjacent Waters and Other Waters

– Preserve CWA exclusions and exemptions for Agriculture

– Maintain status of waters within permitted storm sewer systems

“If you didn’t need a permit before the proposed rule, you won’t need

one when it’s finalized.”

EPA & Corps Comments• Acknowledge that the proposed rule will increase the

“geographic scope” of CWA jurisdiction– Expressly declaring some waters jurisdictional (Adjacent Waters)

– “All Waters including Wetlands” instead of wetlands

– Applications of the definitions, which give larger regulatory context to some types of

waters, such as Tributaries

• Do not believe that the proposed rule gives protection to any

“new” type of water that has not historically been protected

• Believe the Supreme Court’s interpretation of the law was too

narrow

WOTUS – The Latest• Sen. John Barasso (R-WY) Amendment to Senate

Budget Resolution March 25

– Limit EPA and Corps in their ability to claim numerous

waters as WOTUS

– Nonbinding, but sends strong message

• Senate Ag Committee hearing March 24

– Impacts of the rule on rural America

• State Agencies

• Agriculture

• Mosquito abatement

– 8 Senators called for rule to be withdrawn and rewritten

WOTUS – The LatestState Forester Joe Fox – March 5, 2015

Speaking before the House Committee on Agriculture,

Subcommittee on Conservation and Forestry

• Focus on successful implementation of state voluntary BMPs

• Proposed rule generates uncertainty and complicates existing

procedures

• Exposes forest landowners to legal action under the CWA

• Could contribute to more forest conversion

• Definitions of terms are too broad

• Distorts the concept of Significant Nexus and ignores whether there is

permanence of water

• Attempts to codify board terms in a national rule

• Takes the rule to a Terrestrial Level Management Tool

WOTUS Resources• Ditch the Rule Campaign – American Farm Bureau

ditchtherule.fb.org

• National Alliance of Forest Owners – NAFO

nafoalliance.org

• American Forest & Paper Association – AF&PA

www.afandpa.org/issues/waters-of-the-u-s-

• Environmental Protection Agency

www2.epa.gov/cleanwaterrule

About AFA…

• Established in 1947

• Only nonprofit representing state’s entire forestry community

• Located within sight of the State Capitol

• Leadership

• Members – 1,175

VisionThe Arkansas Forestry Association strives to be the

respected leader and credible information source for all

issues related to forestry.

MissionThe Arkansas Forestry Association advocates for the

sustainable use and sound stewardship of Arkansas’s

forests and related resources to benefit members of the

state’s forestry community and all Arkansans today and

in the future.

Questionsarkforests.org

facebook.com/arkforests

Twitter @arkforests