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Regulation of Ephemeral Waters Under the Proposed Redefinition of Waters of the U.S.: Implications on the Oil and Gas Industry December 3-4| Dallas, TEXAS Speakers Bruce M. Flowers, Esq ., Kane Russell Coleman Logan, PC, Shareholder and Head of

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Regulation of Ephemeral Waters Under the Proposed Redefinition

  • f Waters of the U.S.: Implications
  • n the Oil and Gas Industry

December 3-4| Dallas, TEXAS

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Speakers

Bruce M. Flowers, Esq., Kane Russell Coleman Logan, PC, Shareholder and Head of Environmental

Practice Group

  • 28 years experience; litigation, environmental due diligence, regulatory compliance, and contracts
  • BBA in Production and Operations Management; JD

Overview of the definition of Waters of the United States and where federal jurisdiction

  • ver WOTUS may be headed.
  • C. Keith Bradley, REP, CWP

, Director, Water and Natural Resources, Groundwater and Environmental Services, Inc.

  • Environmental Professional with more than 40 years experience
  • BS in Biology; Masters in Environmental Sciences

Ephemeral streams and their impact on oil and gas projects

DECEMBER 3-4, 2019 | DALLAS, TEXAS

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Waters of the United States (WOTUS) – From The Beginning Forward

  • 1899 Rivers and Harbors Act – Army Corp of Engineers
  • 1972 Water Pollution Control Act (Clean Water Act) – Corps and EPA
  • The issue: Which waters are regulated under the CWA and which are left to the states to

regulate

  • Beginning in 1985, the issue has been addressed in several US Supreme Court cases, most

importantly Rapanos v. United States (2006) (discussed later)

  • 2015 – Obama administration proposed a new expansive definition of WOTUS – the Clean

Water Rule

  • Lawsuits left the US with a patchwork of regulations and uncertainty – 26 states use the

CWR and 24 follow the definition of WOTUS in Rapanos

  • 2019 - The CWR is repealed; regulations return largely to the definition in Rapanos

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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The Rapanos Decision (2006)

  • A plurality opinion (4-1-4); since cited by 63 district courts in 42 states.
  • Writing for the plurality, Justice Scalia said the CWA should only extend to “relatively

permanent standing or continuously flowing bodies of water” connected to traditional navigable waters and to “wetlands with a continuous surface connection to” those types

  • f waters.
  • In a concurring opinion, Justice Kennedy articulated a less restrictive view of federal

authority, stating CWA jurisdiction extends to waters having a “significant nexus” with traditional navigable waters.

  • Appellate courts have since been split on which opinion to apply – 4 appellate circuits

rely on Justice Kennedy’s concurrence; 4 other circuits apply either the plurality opinion

  • r the concurrence.

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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2015 Clean Water Rule

  • Sought to expand jurisdiction based on the “significant nexus” test.
  • The CWR deemed certain waters “by rule” jurisdictional, and other waters “by rule” non-jurisdictional; the

CWR also contained a third category of waters that required further analysis. These include tributaries and adjacent waters.

  • Tributaries included ephemeral and intermittent drainages even where interrupted.
  • Adjacent waters include fixed distances for certain types of waters where, if within those distances, the

water would by jurisdictional

  • Court challenges resulted in injunctions preventing nationwide implementation and resulting in the CWR

taking effect in only 22 states.

  • The Trump administration’s repeal of the CWR takes effect this month.
  • Plans are to replace the CWR with a rule that will provide more certainty and scale back federal jurisdiction.
  • More lawsuits are promised and expected to impact the final definition and enforcement.

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Why important?

  • The definition of WOTUS touches everything from farming to

homebuilding, mining, oil and gas exploration and production, forestry, manufacturing, roadbuilding, commercial construction, etc.

  • Impacts enforcement of several CWA programs, and as a

result corresponding State programs – who has jurisdiction?

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Executive Order 13778

 On February 28, 2017, the President signed the “Executive Order on

Restoring the Rule of Law , Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

 Directs that EPA and the Army “shall consider interpreting the term

‘navigable waters’” in a manner “consistent with Justice Scalia’s

  • pinion” in Rapanos.

DECEMBER 3-4, 2019 | DALLAS, TEXAS

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Goals of Proposed Rule

 Respond to Executive Order 13778, which called for rescinding or

revising the 2015 definition of WOTUS.

 Increase predictability

, consistency , and regulatory certainty through a clearer definition of WOTUS.

 Restore and maintain water quality while respecting primary state and

tribal authority over their land and water resources.

 Operate within legal limits established by Congress as clarified by the

Supreme Court.

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Waters Proposed to Be WOTUS

 Traditional navigable waters, including territorial seas  Tributaries  Certain ditches  Certain lakes and ponds  Impoundments  Adjacent wetlands

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Waters/Features Excluded from Proposed Definition of WOTUS

 Waters not listed as WOTUS  Groundwater  Ephemeral features and diffuse stormwater run-off  Ditches not identified as WOTUS  Prior converted cropland (PCC)  Artificially irrigated areas that would revert to upland should irrigation cease  Artificial lakes and ponds constructed in upland  Water-filled depressions created in upland incidental to mining or construction

activity

 Stormwater control features constructed in upland  Wastewater recycling structures constructed in upland  Waste treatment systems

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Notes for Exclusions Generally

 Certain excluded features may convey perennial or intermittent flow to a

downstream jurisdictional water, thereby serving as a connection for upstream and downstream jurisdictional tributaries.

 Excluded features that connect jurisdictional waters do not become WOTUS themselves.  Where an exclusion is for a feature created in upland, the feature must be created

wholly in upland to be categorically excluded; features partially constructed in upland could potentially meet definition of WOTUS. However, the mere interface between the excluded feature constructed wholly in upland and a WOTUS would not make that feature jurisdictional.

 Some excluded features might be point sources.

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Programs Impacted

  • CWA Section 404 (wetlands)
  • Spill Prevention, Control and Countermeasure (SPCC)
  • Federal Stormwater Regulations
  • NPDES Regulations for Stormwater Discharges Associated with Oil and

Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities

  • Certain tribal and state water quality certification programs

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Where We Are and Where Are We Going?

  • The final rule takes effect on December 23, 2019.
  • The 2015 Clean Water Rule will be repealed.
  • The replacement definition seeking to more clearly define the difference between

federally regulated waterways and those waters that rightfully remain under state authority will likely be published.

  • Lawsuits seeking to revise or impede enforcement of the new definition are promised

and expected.

  • Given the historic splits between the Federal Circuits, the new definition will likely be tied

up in litigation for some time.

  • In response, state regulatory actions will seek to fill voids left from the new definition.

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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What’s an Ephemeral Stream?

Three types of streams:

  • Perennial – typically flows year-round.
  • Intermittent – flows seasonally, intercepts groundwater
  • r melting snowpack.
  • Ephemeral – only flows after a rain event.

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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What’s an Ephemeral Stream?

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

What’s an Ephemeral Stream?

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NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

What’s an Ephemeral Stream?

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Adjacent Wetlands

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Where are the Ephemeral Streams?

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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How Many Streams are Ephemeral?

Estimates Mostly from National Hydrography Dataset and combine ephemeral and intermittent streams:

  • EPA (2008)
  • 59% of streams in US
  • 81% of streams in arid and semi-arid Southwest

NHD does not capture large portion of ephemeral streams

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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How Many Streams are Ephemeral?

  • Example pipeline projects:
  • 22-mile pipeline, Refugio and San Patricio Counties,

TX: 1 perennial, 9 ephemeral streams (90%).

  • 25-mile pipeline, Bee and Refugio Counties, TX:

1 perennial, 2 intermittent, 24 ephemeral streams (89%).

  • 82-mile pipeline, Okfuskee to Muskogee Counties,

OK: 9 perennial, 44 intermittent, 308 ephemeral streams (85%).

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Affects on Oil and Gas Projects

  • Section 404
  • Most crossings of ephemeral streams (pipelines,

access roads) currently by Nationwide Permit – very routine.

  • Wetlands

currently jurisdictional by ephemeral “nexus” more problematic, especially for roads, well pads.

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Affects on Oil and Gas Projects

  • Spill Prevention, Control, and Countermeasure
  • Regulates potential releases into “navigable waters”,

which do not include ephemeral streams.

  • Releases into ephemeral streams that could reach

navigable waters subject to SPCC rules – no change anticipated.

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Affects on Oil and Gas Projects

  • Stormwater
  • EPA stormwater rules generally don’t apply to oil and
  • gas. FERC regulates interstate natural gas pipelines.
  • Almost all states have assumed EPA permitting

program and some do regulate oil and gas.

  • May regulate “waters of the State” rather than

“waters of the U.S.”.

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Affects on Oil and Gas Projects

  • General
  • Differentiating between intermittent and ephemeral

streams often difficult – requires field evaluation and professional judgement.

  • States generally depend on Section 404 permits to

identify and protect cultural resources near streams and wetlands.

  • State, local jurisdiction always possible.

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

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Thanks!

Questions?

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS