[PDF] - 7/27/2015 Welcome to todays GCSAA Webcast! Handouts are available PDF Document

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The Final “Waters of the United States” Rule: Implications and Implementation

Golf Course Superintendents Association of America July 28, 2015 Deidre G. Duncan

Welcome to today’s GCSAA Webcast! Handouts are available here: http://bit.ly/1LPSx0f

Current Regulatory Landscape

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Clean Water Act (CWA) provides federal jurisdiction
ver “navigable waters” defined as “the waters of the

United States.” (33 U.S.C. §§ 1344(a), 1362(7)).

The CWA prohibits the “discharge of pollutants” into

the “waters of the United States” (WOTUS) without a permit (Section 402 or Section 404).

Most States administer the Section 402 permitting

program and the Corps of Engineers administers Section 404.

Final “Clean Water Rule: Definition of ‘Waters of the United States’”

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On June 29, 2015, EPA and the Corps issued a

final rule to redefine the WOTUS subject to regulation under the CWA. 80 Fed. Reg. 37,054 (Jun. 29, 2015)

The WOTUS definition is significant:

− Discharges to WOTUS require CWA permits − WOTUS must meet Water Quality Standards − Citizens may sue to enforce the CWA

Rule is effective on August 28, 2015

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Affects All CWA Programs

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The Final 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

Final WOTUS Rule Definition

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Under the final WOTUS rule, the following categories of

waters are subject to federal jurisdiction: 1. Traditional navigable waters (TNWs) 2. Interstate waters 3. Territorial seas 4. Impoundments of otherwise jurisdictional waters 5. Tributaries 6. Adjacent waters 7. Enumerated regional features with a significant nexus 8. Waters in the 100-year floodplain or within 4,000 feet of a water of the U.S. with a significant nexus

Rule provides exclusions for certain features that will not

be treated as jurisdictional (even where they otherwise fall into one of these categories)

Tributary: New Definition

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Water body physically characterized by the

“presence of physical indicators of a bed and banks and ordinary high water mark which contributes flow directly or indirectly to traditional navigable waters, interstate waters, and/or territorial seas − Regardless of size, volume, frequency, or duration of flow − Regardless of distance from the downslope water − Includes ditches (with certain exceptions) − Includes ephemeral, intermittent, and perennial streams

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Tributaries - bed, banks, OHWM

Definition relies on bed, banks,

and OHWM, which can be seen even in features without

rdinary flow.
Field indicators often occur in

upland areas (e.g., debris and sand deposits).

Allows jurisdiction over areas

where there are historical indicators of prior existence of bed, banks, and OHWM (e.g., stream gauge data, elevation data).

Tributaries - bed, banks, OHWM

Bed, banks, and OHWM in arid southwest (Arizona)

Tributaries - bed, banks, OHWM

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Drainage with bed,

banks, and OHWM created by sheet flow (along former logging road)

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Roadside ditch

constructed and maintained by Wicomico County, Maryland roads department

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Golf Course Tributaries?

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Drainage with bed, banks,

and OHWM that contributes flow to other covered waters can be a tributary

Golf Course Tributaries?

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Tributaries: Ephemeral Streams

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Allows assertion of jurisdiction over ephemeral

drainages that flow for only a few hours or days following a rain event

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

f WOTUS

Currently Designated WOTUS in Kansas Additional WOTUS in Kansas

Tributaries: Narrow Exclusions for Ditches

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A tributary can be natural, man-altered, or man-

made and includes rivers, streams, lakes, impoundments, canals, and ditches unless excluded

The final rule excludes the following ditches:

− Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary − Ditches with intermittent flow that are not a relocated tributary or excavated tributary and do not drain wetlands − Ditches that do not flow, either directly or indirectly, into a TNW, interstate water, or territorial sea

Golf Course Manmade Channels?

Can include concrete

lined and other man- made channels (unless specifically excluded)

Waters are tributaries

regardless of manmade or natural breaks of any length

Stormwater ditches

and channels can be WOTUS

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Tributaries: Narrow Exclusions for Ditches

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Ditches that are jurisdictional include:

− Ditches that have perennial flow − Ditches that have intermittent flow and are a relocated tributary, excavated in a tributary, or drain wetlands − Ditches that have ephemeral flow and are a relocated tributary or excavated in a tributary

Applicants will be required to prove that their

ditches do not excavate or relocate a tributary, using topographical maps, historic photos, etc. Adjacent Waters: Expanded Definition

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Final WOTUS rule covers all “adjacent waters”
The rule broadly (and unhelpfully) defines the term

“water” as: − “Natural or man-made aquatic systems” (e.g., streams, lakes, wetlands, ponds, ditches) − Which can be identified based on the fact that they “contain water” or have chemical, physical,

r biological indicators
Adjacent waters include:

− All waters located within 100 feet of the OHWM of an (a)(1)-(5) water − All waters located within the 100-year floodplain

f and within 1,500 feet of an (a)(1)-(5) water

− All waters located within 1,500 feet of the high tide line of an (a)(1)-(5) water

Golf Course Adjacent Waters?

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Final WOTUS Rule will extend

jurisdiction to many “ponds,” unless otherwise excluded

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Case-Specific WOTUS Determinations

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Even if a water is outside the scope of these

“adjacent waters” distance thresholds, it can still be jurisdictional through a case-by-case significant nexus analysis

Under the (a)(8) category, waters in the 100-year

floodplain or within 4,000 feet of a water of the U.S. with a significant nexus are jurisdictional

Again, if any portion of the feature is within the

100-year floodplain or within 4,000 feet, the entire feature is jurisdictional Case-Specific WOTUS Determinations: 100 Year Floodplain

2013 jurisdictional determination

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Same area overlaid with 100-year floodplain

Case-Specific WOTUS Determinations: Enumerated Regional Features

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Under the (a)(7) provision, 5 subcategories of

regional water features are jurisdictional where they are determined to have a significant nexus to an (a)(1)-(3) water:

1. Prairie potholes
2. Carolina bays and Delmarva bays
3. Pocosins
4. Western vernal pools
5. Texas coastal prairie wetlands

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Exclusions from WOTUS Definition

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Waste treatment systems (WTS), including ponds or

lagoons designed to meet requirements of CWA

Certain ditches
Artificial, constructed lakes and ponds created in dry land,

such as settling basins and cooling ponds

Water-filled depressions created in dry land incidental to

mining or construction activity, including pits excavated for

btaining fill, sand or gravel that fill with water
Erosional features that do not meet the definition of

tributary

Groundwater
Stormwater control features constructed to convey,

treat, or store stormwater that are created in dry land

Wastewater recycling structures constructed in dry land

What is Dry Land ?

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Artificially irrigated areas that would revert to dry land if application
f water ceases;
Artificial, constructed lakes and ponds created in dry land (e.g.,

farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds);

Artificial reflecting pools or swimming pools created in dry land;
Small ornamental waters created in dry land;
Water filled depressions created in dry land incidental to mining or

construction activity, including pits excavated for obtaining fill, sand,

r gravel that fill with water;
Stormwater control features constructed to convey, treat, or store

stormwater that are created in dry land; and

Wastewater recycling structures constructed in dry land; detention

and retention basins built for wastewater recycling; and water distributary structures built for wastewater recycling. − Final rule starting at 164.

Implications for Golf Courses

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Water bodies account

for approximately 11 acres or 7% of the total acreage of an average 18-hole golf course

There are estimated

161,183 acres of water bodies on golf course facilities in the U.S.

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Golf Course Permit Implications

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Golf Course Permit Implications

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Section 402

− Many routine golf course management activities (such as fertilizer and pesticide applications) may be deemed to result in a “discharge of a pollutant” to new WOTUS − Activities that result in a “discharge” cannot legally go forward without a required permit − Failure to obtain a permit can result in civil and criminal penalties under the CWA

Golf Course Permit Implications

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Section 404

− Moving soil, such as planting trees, installing drainage, dredging ponds/wetlands, and fixing stream alignments or banks below the ordinary high water mark, including rip rap for erosion protection − Under federal authority, proposed golf course construction or renovation projects (dredging ponds) within jurisdictional areas may require an individual, regional, or nationwide permit − The rule gives much greater authority for the federal government, rather than the state, to approve or deny these projects

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Implementation: What do I do?

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Assess your golf course for water features that

connect to other offsite waters.

Assess whether the water features were

constructed in “dry land.” − Consider discussing with local permitting

fficials. Corps (404) and State or EPA (402).
Determine whether permit is required for

discharges of “fill” or other “pollutants.”

Determine whether general permit is applicable.
Seek a jurisdictional determination if unclear.

Existing and Pending JDs

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The rule contains the following grandfathering

provisions for jurisdictional determinations: − The agencies do not intend to reopen existing jurisdictional determinations (JDs) − JDs associated with issued permits and authorizations are valid until the expiration date

f the permit or authorization

− JDs associated with completed permit applications will be made consistent with existing regulations − Pending JDs that are not associated with a complete permit application are not grandfathered and will be considered under the new rule

Golf Course Permit Implications

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If permit coverage is obtained, permits often

include paperwork and reporting requirements in addition to any requirements aimed at protecting water quality

Violations of these paperwork or reporting
bligations carry the same potential penalties as

unlawful “discharges” – up to $37,500 per violation per day – and may be enforced by EPA, the state, or even interested citizens groups − Citizen-suit traps can disrupt operations and jeopardize businesses

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Adjacent Waters Determination

Is Your Pond a “Water of the U.S.” under the Final Rule?

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Case-Specific Determination

Is Your Pond a “Water of the U.S.” under the Final Rule?

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Is Your Pond a “Water of the U.S.” under the Final Rule?

Exclusions – Waste Treatment and Cooling Ponds

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Is Your Pond a “Water of the U.S.” under the Final Rule?

Exclusions – Other

Litigation: State Lawsuits

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Since the Final Rule was published in the Federal Register,

the lawsuits started pouring in.

There is some debate over whether judicial review must occur

in district court or in court of appeals. Many groups are filing in both district court and circuit court.

So far, 29 states have filed suit challenging the final rule in

five separate lawsuits: − Ohio and Michigan: Southern District of Ohio − North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico: District of North Dakota − Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, and Wisconsin: Southern District of Georgia − Texas, Louisiana, and Mississippi: Southern District of Texas − Oklahoma: Northern District of Oklahoma

Litigation: Industry Lawsuits

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So far, numerous industry groups have filed suits:

− U.S. Chamber of Commerce, National Federation of Independent Business, State Chamber of Oklahoma, Tulsa Regional Chamber, Portland Cement Association: Northern District of Oklahoma − Broad industry coalition, including, inter alia, American Farm Bureau Federation, American Petroleum Institute, National Association of Home Builders, National Association of Manufacturers, National Cattlemen’s Beef Association, National Mining Association: Sothern District of Texas − Murray Energy: Northern District of West Virginia and Sixth Circuit − Washington Cattlemen’s Association, California Cattlemen’s Association, New Mexico Cattle Growers Association, New Mexico Wool Growers, New Mexico Federal Lands Council, Duarte Nursery, Pierce Investment Company, LPF Properties, Hawkes Company: District of Minnesota − Utility Water Act Group: Fifth Circuit − Southeastern Legal Foundation; Georgia Agribusiness Council; Greater Atlanta Homebuilders Association: Northern District of Georgia and Eleventh Circuit

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Legislative Efforts

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Senate: S1140, Federal Water Quality Protection Act, has the

backing of 39 Republicans and 3 Democratic co-sponsors − Would require the agencies to rewrite the rule to clarify the scope

f CWA jurisdiction no later than Dec. 31, 2016

− Approved by the Senate Environment and Public Works Committee on June 10. Expected to go to the Senate floor for a vote later this summer. − Even if S1140 passes, it is not clear that there would be the necessary Senate support to push past a Presidential veto

House: In May, the House passed HR 1732, the Regulatory

Integrity Protection Act − Would require the agencies to immediately withdraw the final rule and prepare a new regulation complying with various procedural requirements − More focused on procedure rather than substance of the rule

If S1140 passes the Senate, there would be a conference committee

to reconcile HR 1732 and S1140

Other Legislative Efforts

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Policy riders blocking funding for the rule’s

implementation have also been included into both the House’s and the Senate’s fiscal 2016 funding bills for EPA

On July 8, 2015, a resolution (H.J. Res 59) was

introduced in the House to overturn the final WOTUS rule through the power of the Congressional Review Act (CRA) − The CRA allows Congress to pass a joint resolution to overturn regulations − Only one regulation has ever been overturned through this authority − The resolution would require the President’s signature to take effect