Overview of Waters of the U.S.

1. Waters of the U.S.
Forestry on the Grow Conference
May 1, 2015

2. 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

3. 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

4. WOTUS Background
Current Jurisdictional Waters
– Traditional Navigable Waters
– Interstate Waters and Wetlands
– The Territorial Seas
– Impoundments

5. 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

6. Waters of the U.S.
• Existing Statutory and Regulatory Exclusions
• No changes for normal farming, ranching and silviculture
activities
• Legal challenges may delay further

7. 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

8. Significant Nexus
A 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

9. “Adjacent Waters” that
would be WOTUS

11. 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.

12. 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.

13. 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.

14. Tributary
Water 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

15. 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.

16. 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

17. 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

18. WOTUS – The Latest
Proposed 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

19. WOTUS – The Latest
EPA 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.”

20. 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

21. 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

22. WOTUS – The Latest
State 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

23. 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

24. About AFA…
• Established in 1947
• Only nonprofit representing state’s entire forestry community
• Located within sight of the State Capitol
• Leadership
• Members – 1,175

25. Vision
The Arkansas Forestry Association strives to be the
respected leader and credible information source for all
issues related to forestry.

26. Mission
The 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.

27. Questions
arkforests.org
facebook.com/arkforests
Twitter @arkforests