Under the existing WOTUS rule, wetlands adjacent to "waters of the United States" are explicitly listed as "waters of the United States." In the Proposal, however, "all waters, including wetlands, adjacent to" the waters covered by the first five categories of the proposed definition, i.e. traditional navigable waters through tributaries, are defined as WOTUS. In addition to changing "wetlands" to "all waters," the Proposal expands the concept of adjacency considerably. Current regulations define "adjacent" as "bordering, contiguous, or neighboring," and state that "[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’" See, e.g., 33 C.F.R. § 328.3(c). The Proposal, however, (1) states that "[w]aters, including wetlands, separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent waters,’" and (2) adds a definition of "neighboring" that may expand CWA jurisdiction over "adjacent" waters beyond what a court might have otherwise interpreted to be "bordering, contiguous, or neighboring."
Specifically, the Proposal defines "neighboring" to include waters located within the riparian area or floodplain of a traditional navigable water or its tributary, "or waters with a shallow subsurface hydrologic connection or confined surface hydrologic connection to such a jurisdictional water." Agency staff have asserted in outreach meetings that there is a geographic limitation on the subsurface connection, but it is not in the proposed rule text itself. A "floodplain" is an area that, among other things, "is inundated during periods of moderate to high water flows," although the definition does not reference a particular year flood interval but leaves it to the agencies’ "best professional judgment" to determine the appropriate area or flood interval. "Riparian area" is defined as "an area bordering a water where surface or subsurface hydrology directly influence [sic] the ecological processes and plant and animal community structure in the area." Because interpretation and application of these vague and expansive concepts is left in the hands of individual regulators and ultimately the federal courts, the rule provides us with no clarity or certainty.
Aside from the waters discussed above that are per se jurisdictional, the Proposal also includes "significant nexus" provisions that allow the agencies to determine on a case by case basis, that waters that are not traditional navigable waters, are not tributaries to traditional navigable waters, and are not "adjacent" to either (so-called "isolated waters") are WOTUS. Further it provides that the significant nexus can be found 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. These provisions expand existing CWA jurisdiction and do not provide certainty or clarity—two of the agencies’ stated goals for the rulemaking.
Since under the Proposal all waters, not just wetlands, are WOTUS if they are adjacent to a traditional navigable water or its tributary, and since "adjacent" means within the floodplain or within a riparian area—an area with a surface or subsurface hydrological influence on a jurisdictional water—many wetland areas, ponds, ditches, ephemeral drainages, and other water features that are located anywhere in the vicinity of a traditional navigable water or tributary system could arguably be considered WOTUS unless covered by an exemption.
Water is an important component of forest products manufacturing, and member manufacturing facilities are typically sited near water resources. Further, mills may have numerous "isolated waters" on their property. Accordingly, under the Proposal, those facilities are susceptible to unfounded claims by regulatory agencies or third parties that waters on their property are WOTUS.
Forestry operations occur on vast areas of land, often where rainfall is plentiful and where various water features (e.g., wetlands, ditches, and ephemeral drainages) dot the landscape. Under the proposal, many previously non-jurisdictional water features will categorically be WOTUS under the new definitions of "tributary" and "adjacent." Forest landowners will be vulnerable to unfounded claims by regulators or third parties that waters on their lands are WOTUS and therefore subject to regulatory controls not previously applicable to these features.
The broad language of the Proposal would leave mills subject to unwarranted claims of jurisdiction for water bodies on mill property that are part of the commercial activities on that property. The final rule needs to unequivocally avoid that result, for three reasons: First, treating such water bodies as subject to federal jurisdiction and covered by the various requirements of the CWA would be contrary to decades of agency practice in application of the CWA. It also would be contrary to both the agencies’ stated intentions with respect to the Proposal and the reasonable expectations of those who own and operate industrial and other commercial facilities. Secondly, treating such water bodies as WOTUS would greatly interfere with the operation of industrial and other commercial facilities, imposing excessive costs, regulatory delays, and other constraints. In many cases, literal application of CWA requirements to such a water body could render its use for commercial purposes difficult or impossible.
Thirdly, and most importantly, treating such water bodies as WOTUS would do little, if anything, to further the goals of the CWA, and it would impose excessive regulatory burdens on both facility operators and CWA permitting and enforcement authorities. A prohibition on discharge of fill material into, or dredging fill material out of, a water body without a permit makes no sense when that water body was created for the purpose of storing water containing suspended solids, or of settling solids out of that water, for example. Water quality standards designed to protect aquatic life in, or to assure the aesthetics of, a natural water body serve no purpose if applied to a water body that is part of an industrial operation. Maintaining healthy aquatic organisms in a water body may be the opposite of what is needed in ponds used to store water to be used for commercial purposes, such as for cooling water or for water used to process food or manufacture drugs. If EPA were to claim WOTUS jurisdiction over such ponds, EPA and state agencies would take on a tremendous burden of having to develop new water quality standards that would be appropriate for such uses, as well as issue CWA section 402 or section 404 permits for discharges into or activities related to maintenance of those waters—and for little or no regulatory benefit.
Finally, a number of existing exemptions (e.g., the exemption for artificial lakes and ponds) should be clarified to ensure that certain waters on manufacturing sites are not subject to CWA jurisdiction. As described above, there is no environmental benefit in regulating such waters, and their regulation would subject owners and operators of manufacturing facilities to needless costs and resource expenditures.
The Proposal will have a number of significant consequences for forest owners, including uncertainty whether water features on forest lands are jurisdictional; new or additional permitting obligations; new requirements to meet water quality standards or total maximum daily loads (TMDLs); and increased exposure to citizen suit litigation. The Proposal does not serve the agencies’ goal of providing clarity as to whether a given parcel of land contains WOTUS. Forest owners cannot reliably predict whether a seemingly isolated waterbody on their land will be deemed as lying within a "riparian area" or "floodplain" of jurisdictional water. Nor can they confidently distinguish between an excluded erosional feature and a jurisdictional ephemeral tributary. Given the ambiguity and lack of clarity in the proposal, forest owners will be put in a position of trying to account for extensive tributary systems, riparian areas, floodplains, and the extent of subsurface hydrologic connections that extend far beyond the boundaries of their lands. This may not be possible for landowners who are carrying out normal silvicultural activities that do not produce sufficient financial returns to justify the analysis. As a result, forest owners could lose the ability to manage lands and may seek other less benign uses for their land.
The Proposal also poses a significant problem for forestry operations subject to best management practices. Categorical designation of ditches and ephemeral streams, in particular, will cause considerable confusion as to how forest owners are to implement best management practices like buffers along roadside ditches. Moreover, despite existing exemptions in CWA Sections 404(f) and 402(l) for certain activities in the forest, the Proposal’s expansion of WOTUS could mean that non-stormwater discharges of pollutants into newly jurisdictional ditches and ephemeral drainages could be considered unlawful discharges without an NPDES permit, thereby potentially triggering daily penalties.
The expansion of jurisdiction under the Proposal could also trigger new obligations under CWA Section 303 relating to water quality standards and TMDLs. For example, an impaired waters listing and the regulatory restrictions resulting from the TMDL process could negatively impact private forest owners, who must comply with any resulting land use restrictions and may see a reduction in their property values.
Finally, forest owners have long had to defend against citizen suits such as the "forest roads" case that took almost a decade to resolve. The Proposal would invite similar citizen lawsuits against forest landowners seeking to halt operations. Given the vague terms in the proposal, citizen plaintiffs could find any number of ways to allege that a given silvicultural activity results in a direct discharge to some water feature that is purportedly a WOTUS. Regardless of whether such allegations have any merit, they cost time and money to resolve and they disrupt forestry operations.
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Thank you for the opportunity to comment on the Proposal. If you have any questions, please contact Jerry Schwartz (202-463-2581; jerry_schwartz@afandpa.org) or Chip Murray (202-742-0742; cmurray@nafoalliance.org).
Sincerely,