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Waters of the United States Conference of Western Attorneys General July 22, 2014 Deidre G. Duncan

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WOTUS Under the Proposed Rule 3 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

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New Definition: Tributary 4 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 man- made 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).

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Affects All CWA Programs The Proposed Rule replaces the definition of navigable waters and waters of the United States in the regulations for all CWA programs, and in particular sections 311, 401, 402, and 404: 33 C.F.R. 328.3: Section 404 40 C.F.R. 110.1: Oil Discharge Rule 40 C.F.R. 112.2: Spill Prevention, Control and Countermeasure Plan 40 C.F.R. 116.3: Designation of hazardous substances 40 C.F.R. 117.1(i): Notification of discharge of hazardous substances required 40 C.F.R. 122.2: NPDES permitting and Storm Water 40 C.F.R. 230.3(s) and (t): Section 404 40 C.F.R. 232.2: Section 404 exemptions 40 C.F.R. 300.5: National Contingency Plan for oil discharges 40 C.F.R. 300, Appendix E to Part 300, 1.5: Structure of plans to respond to oil discharges 40 C.F.R. 302.3: Petroleum exclusion 40 C.F.R. 401.11: Effluent limitations 5

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Increased Obligations to Set and Meet Water Quality Standards 6 If ephemeral streams are included as WOTUS as proposed, Kansas estimates an increase from 32,000 miles of streams to 134,000 miles of streams subject to water quality standards Currently Designated WOTUS in KansasAdditional WOTUS in Kansas

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Cost of Compliance with Water Quality Standards Park ditch that provides no environmental or human benefits other than flood control would be considered WOTUS under the proposed rule Cost to bring this ditch to current water quality standards would be $31,351,460 7 % Reduction Needed Lbs Reduction Needed Cost per LbCost for Reduction Total Nitrogen27%3,795 lbs$3,500/lb$13,282,500 Total Phosphorus64%1,547 lbs$11,680/lb$18,068,960 Total$31,351,460

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Increased Obligations for Stormwater Management ^v! Installation of baffles and weirs for removal of pollutants, required by stormwater permits, would require complex section 404 permits

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Increased Obligations for Water Delivery Systems Central Arizona Project Picacho pumping plant Regulators would have to require: NPDES permits for storm flows diverted for water supply Section 404 permits for maintenance activities in water delivery systems

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Water Reuse Systems Sun City Regional Water Reclamation Facility recharge ponds Alessandro Reclamation Facility recharge pond abuts San Jacinto River.

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Green Infrastructure Would Require Permits 11 Green infrastructure reduces flooding and protects water quality using natural processes Not exempt under proposal Section 404 permits, other permits, monitoring could be required Would discourage development of green infrastructure

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Increased Enforcement 12 Confusion and uncertainty over what is WOTUS put governments and industry at risk for criminal and civil penalties In December 2013, a gas drilling company paid a $10 million settlement for CWA violations, including a $3.2 million fine for damaging wetlands without permits

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Risk of Third Party Litigation 13 Confusion and uncertainty over what is WOTUS put governments and industry at risk for third party litigation Despite an agreement with EPA excluding ephemeral waters, Missouri was sued by a third party because it failed to designated uses and set water quality criteria for all waters, including ephemeral waters County of Monterey, CA, was found liable for not maintaining a failed levee, even though its CWA permit was not approved on time by the Corps

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Deidre G. Duncan Hunton & Williams LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037 (202) 955-1919 dduncan@hunton.com

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