Transcript Oak Island - Topsail Beach, North Carolina

What are Waters of the United
States and why should I care?
According to USACE, those waters that are
subject to the ebb and flow of the tide and/or
are presently used, or have been used in the
past, or may be susceptible for use to transport
interstate or foreign commerce. The proposed
rules will greatly expand this definition.
Why does it matter?
Federal laws like the Clean Water Act and Rivers and Harbors Act
of 1899 prohibit the "unauthorized obstruction or alteration of
any navigable water of the United States" unless you receive a
permit from the Corps of Engineers.
Obstruction or alteration includes: construction of any structure
in or over any navigable water of the United States; excavation
of dredge, or deposition of, fill material; the accomplishment of
any other work affecting the course, location, condition, or
capacity of such waters
So if the definition of "waters of the US" expands, you will need
permits to work in these areas.
“Waters of the United States”
“Waters of the United States”
History
• 1985: Riverside Bayview Homes, the Supreme
Court upheld the regulation of wetlands
adjacent to or “inseparably bound up with”
navigable waters
• 1986: The agencies adopted the current
regulations
• 2001: The Supreme Court in SWANCC rejected
regulation of “isolated waters” under the
Migratory Bird Rule because the waters lacked
a “significant nexus to navigable waters”
History
• After SWANCC, the agencies adopted a broad
interpretation that “waters of the U.S.” include
any water “connected” to navigable waters
• 2006: Supreme Court, in Rapanos, rejected the
agencies’ “any hydrological connection” theory of
jurisdiction as overly broad
– Plurality opinion (Scalia):
• Rejected assertion of jurisdiction over ephemeral streams,
ditches, and drains
• Relatively permanent waters
Current Status:
“Waters of the United States”
• April 21, 2014: Proposed Rule published in
Federal Register regarding Waters of the United
States and “wetlands.”
• This national rulemaking is of major concern to
local governments, landowners, elected officials,
agriculture, real estate and the development
community across the United States.
• EPA: “save taxpayers $200,000,000/year by
removing legal fights over jurisdiction”
“Waters of the
United States”
• Traditional: Rivers, streams, tidal waters, seas
+
• Expanded “Wetlands” (Scientific Report)
– Federal: Soils, hydrology, vegetation (ALL 3)
– FWS: Soils, hydrology or vegetation (1)
• NEW: Riparian areas, other waters
– Neighboring, adjacent, tributary, floodplain, ditch
If we “only” expand wetlands…
“Waters of the United States”
SHORT VERSION:
• The Rule only has to do with the decision of what is to
be regulated. Does not deal with the permit process
(how).
• The contributory nexus of riparian areas and
ephemeral flow areas to traditional Waters is
the biggest expansion of EPA regulatory jurisdiction
since the CWA was signed into law by President
Nixon.
• The Draft EPA Report neglects fiscal impacts
• The economic impact of the Rule will be profound, and
felt by all sectors of the economy
“Waters of the United States” –
Proposed Rules
1. All waters currently, in the past, or may be susceptible to
use in interstate or foreign commerce, including tidal
waters;
2. All interstate waters, including interstate wetlands;
3. The territorial seas;
4. All impoundments of waters identified in 1-3 above;
5. All tributaries of waters identified in 1-4 above;
6. All waters, including wetlands, adjacent to waters
identified in 1-5 of this section; and
7. On a case-specific basis, other waters, including wetlands,
that alone or in combination with other similarly situated
waters in the region have a significant nexus to a water
identified in paragraphs 1-3
New Definitions– Proposed Rules
• Tributary:
– Water body physically characterized by a bed and bank and
ordinary high water mark which contributes flow directly or
through other water bodies to waters in 1-4.
– A water does not lose its tributary status if there are manmade breaks (such as bridges, culverts, pipes, dams) so long as
bed and bank can be identified upstream of the break.
– A wetland, pond, or lake can be a tributary, even if it lacks an
OHWM and bed and bank, provided it contributes flow to 1-3.
– A tributary can be natural, man-altered, or man-made and
includes rivers, streams, lakes, impoundments, canals, and
ditches (unless excluded).
New Definitions– Tributary?
New Definitions– Ditch?
New Definitions– Proposed Rules
• Adjacent: Bordering, contiguous, or neighboring
waters separated from other WOTUS by dikes, or
barriers are adjacent waters
• Neighboring: Waters located within a riparian area or
floodplain or waters with a shallow subsurface
connection or confined surface hydrologic connection
– Riparian area: Transitional areas between water and land
where surface or subsurface hydrology influences the
ecological process and plant community of the area …
– Floodplain: An area bordering inland or coastal areas that
… is inundated during periods of moderate to high water
flows
New Definitions– Floodplain?
RECAP
Traditional Waters of US
Expanded wetlands, hydric soils
Inland areas and “other waters”
Tributaries
Ditches
Municipal facilities and tax base
IMPACTS ON PUBLIC INVESTMENT?
Transportation projects
Public-private investment
Regional infrastructure
Nourishment and inlet projects?
Stormwater facilities
Schools
Opposition Mounts
Opposition Mounts
• The Town of Carolina Beach has adopted and
maintains policy that opposes legislation to
expand Federal jurisdiction under the Clean
Water Act”
• "much of the anticipated cost of this rule would
be financed from municipal resources, and thus
divert resources from other essential public
services“
• The Town requests that "EPA and the Corps of
Engineers suspend consideration of the Waters of
the U.S. rule”
Protecting Water and Property Rights
Act of 2014
Waters of the United States Regulatory
Overreach Protection Act
Prevent the EPA and Army Corps of Engineers from:
• developing, finalizing, adopting, implementing, applying,
administering, or enforcing the proposed rule
• using the proposed rule or proposed guidance, any
successor document, or any substantially similar
proposed rule or guidance as the basis for any
rulemaking or decision regarding the scope or
enforcement of the Federal Water Pollution Control Act
(commonly known as the Clean Water Act).
• 9/9/14: PASSED US HOUSE OF REPRESENTATIVES
• Final vote: 262-152
Waters Advocacy Coalition
North Carolina Workgroup
• “Generate energy at state level”
• Coalition of various interests: agriculture,
building, real estate, aggregates, etc.
• Ag groups: mapping NC tributaries, streams (MN
has 100,000 ephemeral stream miles)
• Working with Governor, General Assembly, DENR
Public Comment Extended
What To Do?
•
•
•
•
Educate and discuss
Determine impacts
Engage Federal Officials
Provide Public Comment before October 20
TAKE ACTION!
• Comments must be submitted before October 20,
2014 by one of three ways: DO IT!
– Federal eRulemaking Portal: http://www.regulations.gov.
– Email: [email protected]. Include EPA-HQ-OW-2011-0880 in the
subject line of the message.
– Mail: Send the original and three copies of your comments to: Water
Docket, Environmental Protection Agency, Mail Code 2822T, 1200
Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket
ID No. EPA-HQ-OW-2011-0880.
ncbase.org
SPECIAL THANKS
Tyler Newman
[email protected]