7/27/2015 Welcome to todays GCSAA Webcast! Handouts are available - PDF document

7/27/2015 Welcome to today’s GCSAA Webcast! Handouts are available here: http://bit.ly/1LPSx0f The Final “Waters of the United States” Rule: Implications and Implementation Golf Course Superintendents Association of America July 28, 2015 Deidre G. Duncan Current Regulatory Landscape • Clean Water Act (CWA) provides federal jurisdiction over “navigable waters” defined as “the waters of the United States.” (33 U.S.C. §§ 1344(a), 1362(7)). • The CWA prohibits the “discharge of pollutants” into the “waters of the United States” (WOTUS) without a permit (Section 402 or Section 404). • Most States administer the Section 402 permitting program and the Corps of Engineers administers Section 404. 2 Final “Clean Water Rule: Definition of ‘Waters of the United States’” • On June 29, 2015, EPA and the Corps issued a final rule to redefine the WOTUS subject to regulation under the CWA. 80 Fed. Reg. 37,054 (Jun. 29, 2015) • The WOTUS definition is significant: − Discharges to WOTUS require CWA permits − WOTUS must meet Water Quality Standards − Citizens may sue to enforce the CWA • Rule is effective on August 28, 2015 3 1

7/27/2015 Affects All CWA Programs • The Final 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 4 Final WOTUS Rule Definition • Under the final WOTUS rule, the following categories of waters are subject to federal jurisdiction: 1. Traditional navigable waters (TNWs) 2. Interstate waters 3. Territorial seas 4. Impoundments of otherwise jurisdictional waters 5. Tributaries 6. Adjacent waters 7. Enumerated regional features with a significant nexus 8. Waters in the 100-year floodplain or within 4,000 feet of a water of the U.S. with a significant nexus • Rule provides exclusions for certain features that will not be treated as jurisdictional (even where they otherwise fall into one of these categories) 5 Tributary: New Definition • Water body physically characterized by the “presence of physical indicators of a bed and banks and ordinary high water mark which contributes flow directly or indirectly to traditional navigable waters, interstate waters, and/or territorial seas − Regardless of size , volume , frequency , or duration of flow − Regardless of distance from the downslope water − Includes ditches (with certain exceptions) − Includes ephemeral, intermittent, and perennial streams 6 2

7/27/2015 Tributaries - bed, banks, OHWM • Definition relies on bed, banks, and OHWM, which can be seen even in features without ordinary flow. • Field indicators often occur in upland areas ( e.g. , debris and sand deposits). • Allows jurisdiction over areas where there are historical indicators of prior existence of bed, banks, and OHWM ( e.g. , stream gauge data, elevation data). Tributaries - bed, banks, OHWM Bed, banks, and OHWM in arid southwest (Arizona) Tributaries - bed, banks, OHWM • Drainage with bed, banks, and OHWM created by sheet flow (along former logging road) 9 3

7/27/2015 • Roadside ditch constructed and maintained by Wicomico County, Maryland roads department 10 Golf Course Tributaries? • Drainage with bed, banks, and OHWM that contributes flow to other covered waters can be a tributary 11 Golf Course Tributaries? 12 4

7/27/2015 Tributaries: Ephemeral Streams Currently Designated WOTUS in Kansas Additional WOTUS in Kansas • Allows assertion of jurisdiction over ephemeral drainages that flow for only a few hours or days following a rain event • 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 of WOTUS 13 Tributaries: Narrow Exclusions for Ditches • A tributary can be natural, man-altered, or man- made and includes rivers, streams, lakes, impoundments, canals, and ditches unless excluded • The final rule excludes the following ditches: − Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary − Ditches with intermittent flow that are not a relocated tributary or excavated tributary and do not drain wetlands − Ditches that do not flow , either directly or indirectly, into a TNW, interstate water, or territorial sea 14 Golf Course Manmade Channels? • Can include concrete lined and other man- made channels (unless specifically excluded) • Waters are tributaries regardless of manmade or natural breaks of any length • Stormwater ditches and channels can be WOTUS 15 5

7/27/2015 Tributaries: Narrow Exclusions for Ditches • Ditches that are jurisdictional include: − Ditches that have perennial flow − Ditches that have intermittent flow and are a relocated tributary, excavated in a tributary, or drain wetlands − Ditches that have ephemeral flow and are a relocated tributary or excavated in a tributary • Applicants will be required to prove that their ditches do not excavate or relocate a tributary, using topographical maps, historic photos, etc. 16 Adjacent Waters: Expanded Definition • Final WOTUS rule covers all “adjacent waters” • The rule broadly (and unhelpfully) defines the term “water” as: − “Natural or man-made aquatic systems” (e.g., streams, lakes, wetlands, ponds, ditches) − Which can be identified based on the fact that they “contain water” or have chemical, physical, or biological indicators • Adjacent waters include: − All waters located within 100 feet of the OHWM of an (a)(1)-(5) water − All waters located within the 100-year floodplain of and within 1,500 feet of an (a)(1)-(5) water − All waters located within 1,500 feet of the high tide line of an (a)(1)-(5) water 17 Golf Course Adjacent Waters? • Final WOTUS Rule will extend jurisdiction to many “ponds,” unless otherwise excluded 18 6

7/27/2015 Case-Specific WOTUS Determinations • Even if a water is outside the scope of these “adjacent waters” distance thresholds, it can still be jurisdictional through a case-by-case significant nexus analysis • Under the (a)(8) category, waters in the 100-year floodplain or within 4,000 feet of a water of the U.S. with a significant nexus are jurisdictional • Again, if any portion of the feature is within the 100-year floodplain or within 4,000 feet, the entire feature is jurisdictional 19 Case-Specific WOTUS Determinations: 100 Year Floodplain Same area overlaid with 2013 jurisdictional determination 20 100-year floodplain Case-Specific WOTUS Determinations: Enumerated Regional Features • Under the (a)(7) provision, 5 subcategories of regional water features are jurisdictional where they are determined to have a significant nexus to an (a)(1)-(3) water: 1. Prairie potholes 2. Carolina bays and Delmarva bays 3. Pocosins 4. Western vernal pools 5. Texas coastal prairie wetlands 21 7

7/27/2015 Exclusions from WOTUS Definition • Waste treatment systems (WTS), including ponds or lagoons designed to meet requirements of CWA • Certain ditches • Artificial, constructed lakes and ponds created in dry land, such as settling basins and cooling ponds • Water-filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand or gravel that fill with water • Erosional features that do not meet the definition of tributary • Groundwater • Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land • Wastewater recycling structures constructed in dry land 22 What is Dry Land ? • Artificially irrigated areas that would revert to dry land if application of water ceases; • Artificial, constructed lakes and ponds created in dry land (e.g., farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds); • Artificial reflecting pools or swimming pools created in dry land ; • Small ornamental waters created in dry land ; • Water filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; • Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land ; and • Wastewater recycling structures constructed in dry land ; detention and retention basins built for wastewater recycling; and water distributary structures built for wastewater recycling. − Final rule starting at 164. 23 Implications for Golf Courses • Water bodies account for approximately 11 acres or 7% of the total acreage of an average 18-hole golf course • There are estimated 161,183 acres of water bodies on golf course facilities in the U.S. 24 8