Fall 2015 TWCA Conference

1. © 2015
Waters of the U.S. Rule:
What It Says and What it Means
Paulina Williams
October 16, 2015

2. Why Does this Rule Matter?
 CWA 404 Permitting
 Any foot print expansion, ever?
 Any new, replaced, or significant maintenance of
infrastructure?
 Do you have any schedules for the above?
 NPDES
 Point source discharges
 316(b) applicability for cooling water intakes
 SPCC
 Do you have an existing delineation or
jurisdictional determination?
 Do you NOT have an existing delineation or
jurisdictional determination?
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3. Rule is Stayed − Why Does this Still Matter?
 Sixth Circuit Court of Appeals
 Nationwide Stay
 Did Not Decide Court's Jurisdiction
 Potential spring back when jurisdiction
decided "in a matter of weeks"
 North Dakota District Court Stay
Limited to 13 States
 Agency Deference
 Full Record to Come
 The Rule is Down But Not Out
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4. Waters of the U.S. Definition
 Fundamental basis →"Significant nexus"
 Final rule adopts (selectively) Justice Kennedy's Rapanos
concurrence as its guiding light)
 Agencies repeatedly stress that the
judgments they have made are based on:
 "The science"
 Connectivity Report
 The law
 Their experience and expertise
 Categorically In or Out, but
some remaining case-by-case
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5. Big Picture - In
 Categorically Jurisdictional
 Actually navigable, interstate, or territorial seas
("Primary Waters")
 Tributaries
 Contributes flow either directly or through another water
 Ordinary high water mark and bed and banks
 Impoundments of above
 Adjacent waters
 Bordering, Contiguous, or Neighboring
 Neighboring = 100 ft or 100 yr flood plain/1500 ft
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6. Big Picture - Out
 Categorically Excluded
 Qualifying Ditches
 Specific Features on Dry Land
 Groundwater
 Wastewater treatment systems
 Prior converted cropland
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7. Exclusions for Certain Ditches
 Does not flow to Primary Waters
 Reaches Primary Waters (direct or
indirect)
 Ephemeral flow
 Not in & did not relocate a tributary
 Intermittent flow
 Not in & did not relocate a tributary
 Did not drain wetlands
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8. Other Exclusions
 Certain features constructed in dry land, including:
 Artificially, irrigated that would revert to dry land
 Artificially, constructed lakes and ponds
 Water-filled depressions incidental to mining or
construction
 Stormwater control features
 Wastewater recycling structures
 Erosional features
 Puddles
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9. Other Exclusions (cont'd)
 Groundwater, including groundwater drained
through subsurface drainage systems
 But can form the connection to make "other waters"
jurisdictional
 Waste treatment systems, including treatment
ponds or lagoons, designed to meet the
requirements of the Clean Water Act
 Prior Converted Cropland
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10. Big Picture - Case-by-Case
 Case-By-Case Significant Nexus Evaluation
 "Other Waters" Categorically Similarly Situated (i.e.
Aggregated for the Watershed)
 Prairie potholes (glacial)
 Carolina and Delmarva bays
 Pocosins
 Vernal pools (CA)
 TX coastal prairie wetlands
 Additional "Other Waters" Case-By-Case
 100 year flood plain (>1500 ft)
 4000 ft of OHWM
 Similarly Situated?
 Significant Nexus?
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Texas A&M Agrilife Extension

11.  Cost - $158.4 -$306.6
Million/yr
 AND
 Benefit - $338.9- $349.5
Million/yr
Asserted Cost / Benefit
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 >jd of 2.84 %/ yr  >jd of 4.65%/yr
 Cost - $236.7- $465
Million/yr
 AND
 Benefit-$554.9- $572.3
Million/yr

12. Likely Changes in Agency Practice
 Other waters
 Will resume routinely asserting jurisdiction over
Other Waters
 4000 foot limit - will likely have little impact in many
areas of the country
 Tributaries
 More jurisdiction at
upper ends
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13. Impacts on Corps Permit Processing
 Corps workload likely to increase in light
of expanded jurisdiction
 Potential for delays in requests for JDs
 Potential for delays in permit processing
 Not Reopening Existing Approved JDs
 Unless requested by applicant
 Unless new information warrants revision of
the determination
 Not Reopening Existing Preliminary JDs
 Looking to next round of NWPs
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14. Procedural History
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 April 2014 - Proposed
 1.2 million comments
 May 27, 2015 - Release
 June 29, 2015 - Published in
Federal Register
 June 30, 2015 - First Suits
 August 27 - 13 State Stay
 August 28, 2015 - Effective
Elsewhere
 October 9, 2015 - Nationwide
Stay

15. Our Now Governor Had This to Say . . . .
 The State of Texas remains perplexed by the federal
agencies’ continued reliance on Justice Kennedy’s
‘significant nexus’ test in asserting Clean Water Act
jurisdiction. From a practical standpoint, the test is vague
and provides no guidance or certainty to landowners. The
federal agencies assert that the goal in passing this
proposed rulemaking is to provide predictability, clarity, and
consistency, yet, nothing could be further than the truth.
The Rule establishes a test for jurisdiction that has no
observable qualities and was developed by a single justice
in the concurrence of one case.
Letter of Texas Attorney General Greg Abbott, dated August
11, 2014, to docket.

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18. Procedural Status
 District Court or Court of Appeals?
 CWA 509
 (b)(1)(E) - Any effluent limitation or other limitation
 (b)(1)(F) - Issuing or denying any permit
 Southern District of Georgia and Northern District of West
Virginia rule that Court of Appeals has jurisdiction
 North Dakota rules District Courts have jurisdiction
 Sixth Circuit has not ruled on jurisdiction
 Many district court cases stayed pending consolidation

19. Major Themes - States and Industries
 Exceeds limits of Commerce Clause
 Exceeds statutory authority under Clean Water Act
 "Other waters" jurisdiction inconsistent with SWANCC
 All tributaries and adjacent waters as jurisdictional
inconsistent with Rapanos
 Violates the 10th Amendment
 Administrative Procedure Act
 Not a logical outgrowth of proposal
 Regulatory Flexibility Act, Anti-Lobbying, NEPA

20. Major Themes - Environmental Groups
 Generally supportive of rule
 Challenges Exemptions as Violations of CWA and
APA, Possibly NEPA
 Wastewater treatment systems
 Established normal farming, ranching, and silviculture
activities
 Exclusion of "other waters" beyond 4000 feet

21. An Unusual Development
 U.S. House Oversight and Government Reform
Committee released memoranda by top Corps
officials criticizing the final rule - July 30, 2015
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22. Limited Preliminary Injunction - 13 States
 August 27, 2015 North Dakota District Court Judge
Issues Preliminary Injunction
 Notes full record not available
 Refers to Corps deliberative memos criticizing rule
"[T]he States are likely to succeed on their claim
because (1) it appears likely that the EPA has violated
its Congressional grant of authority in its promulgation
of the Rule at issue, and (2) it appears likely EPA failed
to comply with APA requirements when promulgating
the Rule."
"Devoid of reasoned process"

23. Sixth Circuit Stays the Rule Nationwide
 October 9, 2015
 Pending decision on jurisdiction to hear challenges
 Preserve the Status Quo
 Status Quo = Pre-Rule
 Finds Likelihood of Success on the Merits
 Treatment of tributaries and adjacent waters "at odds with
Rapanos"
 Distance limitations not a "logical outgrowth" of proposal
and not yet shown to be supported by science
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24. Sixth Circuit's Reasoning
 A stay allows for a more deliberate determination
 A stay temporarily silences the whirlwind of confusion
 A stay honors the policy of cooperative federalism that informs
the Clean Water Act and must attend the shared responsibility
for safeguarding the nation’s waters. . . .
 A stay will, consistent with Congress’s stated purpose of
establishing a national policy, …, restore uniformity of regulation
under the familiar, if imperfect, pre-Rule regime, pending judicial
review.
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25. Congressional Activity
 Regulatory Integrity Protection Act (H.R. 1732) -
would require agencies to withdraw rule and start
over
 Passed House
 Federal Water Quality Protection Act (S. 1140) -
would limit the waters that could be found
jurisdictional under a new rule
 Committee hearing held
 37 co-sponsors
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26. Questions?
Paulina Williams
512.322.2543
paulina.williams@bakerbotts.com
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