DANGEROUS WATERS State and Federal Jurisdiction, New State Regulations,

and Permitting Strategies

G. Braiden Chadwick

Mitchell Chadwick LLP

John Lane

Teichert Materials

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Federal Clean Water Act

Joint Permitting authority given to U.S. EPA and U.S. Army Corps of Engineers to regulate discharge of dredged and fill material under CWA §404

States required to ensure compliance with state water quality standards through CWA §401 certifications

The CWA regulates discharges only into “waters of the United States” - traditionally defined broadly

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Supreme Court Interprets CWA2001 and 2006: U.S. Supreme Court invalidates EPA interpretations and narrows CWA scope; CWA a work in progress

SWANCC v. U.S. Army Corps of Engineers, et al. [(2001) 531 U.S. 159]

invalidated the Migratory Bird Rule as stretching the Interstate Commerce Clause too far

Rapanos, et al. v. United States [(2006) 547 U.S. 715] Affirms SWANNC; Establishes “significant nexus” rule: Discharges of dredged or fill material into “isolated wetlands” no longer require CWA permits (did they ever?). 3

California Reacts to Supreme Court Rulings

State Concern that waters will not be adequately protected due to CWA narrowing In California, CWA § 401 Certifications were traditionally the

avenue for regulating discharges to wetlands at the state level

State Board expressed concern that CA wetlands would face degradation in light of SWANCC: 2004 Work plan “Filling the Gaps In Wetland Protection”

SWRCB Office of Chief Counsel Opinion asserted that State Porter-Cologne Act establishes jurisdiction over isolated wetlands (Effect of SWANCC v. United States on the 401 Certification Program. Craig Wilson, SWRCB Chief Counsel, January 25, 2001 at p. 3-4)

Paved the way for current State regulatory efforts4

CWA Today

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EPA:Proposed New Rule

State: “Gap-Filling”

Measures

Trouble for the regulated community looms as

the Feds and State head down different and

likely inconsistent paths to regulate waters

Similar Directions, Different Paths

EPA: Proposed Rule Main concern: no net loss of

wetlands

New Waters of the U.S. Definition:

“All waters, including wetlands, adjacent to a [traditional] water [of the U.S.]” and “other waters” with “significant nexus” to a Waters of the U.S.

Authority: CWA §404 Jurisdiction: Based on Hydrologic

Connectivity

Regulates: Dredge and Fill Activities

Work in Floodplains

Work in Riparian Areas

California: Riparian Policy Making (“Wetland Area

Protection and Dredge and Fill Permitting Policy.”)

Main concern: water quality Goal: protect all waters of the State,

including isolated wetlands, from dredge and fill discharges

Authority: supposedly under Porter Cologne Act which contains broad definition of “Waters of the State;” Policy defines “wetlands” broadly (includes mudflats)

Regulates: Dredge and Fill Activities

Work in Floodplains

Work in Riparian Areas6

Proposed Rules and Policies Can Still CHANGE in Response

to Comments EPA Science Advisory Board calls for EPA to

“toughen up” the proposed rule to:

Eliminate exclusions “not supported by science” to allow CWA to regulate groundwater and artificial ponds

created by excavation (Sept. 17, 2014)

Major impacts would result from this kind of change

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Criticism of New EPA Rule

Critics characterized proposed rule as “agency power grab”

Industry groups, farmers, land developers, local governments

September 9, 2014 – U.S. House of Representatives approves a bipartisan bill blocking proposed EPA rule (H.R.5078)

White House issues a veto threat against H.R.5078

EPA still accepting public comments on the proposal and extends comment period to November 14, 2014

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What Does This All Mean for the Regulated Community?

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Potential Implications: Mining Dual permitting for discharge of

dredged/fill material by EPA and State: same activity requires two permits

Different wetland delineations required (State is focused on watershed)

New and additional mitigation requirement for any fill of wetlands through State Policy

Wetlands on already-operating mines now jurisdictional Non-abandoned mine pits are

currently exempt from CWA 404 under “waterfilled depression” exception (51 Fed. Reg. 41,206; 41,217 (Nov. 13, 1986)

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Potential Implications: Agriculture

“Regular farming activities” are supposedly excluded from CWA coverage and are similarly exempt from State Policy.

However, a new State permit will be required if there is any discharge incidental to a farming activity that creates a new use or impacts the water “flow,” “circulation,” or “reach.”

Mitigation required for any impacts to wetlands per State no-net-loss policy

Applies to non-jurisdictional (i.e. “isolated”) wetlands

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Potential Implications: Infrastructure

Isolated wetlands found next to roadways would be regulated by State Policy causing potential impacts to maintenance and new road construction

These same wetlands could also qualify as Waters of the U.S. if “adjacent” to other waters

Dual delineation and dual permitting may be required

Mitigation required for any impacts to wetlands under State Policy

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What Can the Regulated Community Do?

Become knowledgeable on issues affecting your industry

Resources Available Through:

NSSGA

California League of Cities

California State Association of Counties

CalCIMA

Submit Comments on Rules/Regulations

EPA Rule: Comment Deadline Extended to Nov. 14, 2014

State Board: Formal Policy expected in 2015 for comment

Write Letters

Call Your Legislators and Regulators

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Suggested Protective Measures

Build time into permitting projects impacting ‘waters’ (as broadly defined by EPA and California) to ensure adequate time to process any new required permits or studies

Perform due diligence on new and existing sites to determine if State or federal ‘waters’ are impacted

Hire experienced and knowledgeable counsel to interface with regulators and protect against overreach 14

Questions?

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