Regulation of Ephemeral Waters Under the Proposed ... › presentations... · Tributaries included...

Regulation of Ephemeral Waters Under the Proposed Redefinition of Waters of the U.S.: Implications

on the Oil and Gas Industry

December 3-4| Dallas, TEXAS

SpeakersBruce M. Flowers, Esq ., Kane Russell Coleman Logan, PC, Shareholder and Head of Environmental Practice Group◦ 28 years experience; litigation, environmental due diligence, regulatory compliance, and contracts◦ BBA in Production and Operations Management; JD Overview of the definition of Waters of the United States and where federal jurisdiction over WOTUS may be headed.

C. Keith Bradley, REP, CWP, Director, Water and Natural Resources, Groundwater and Environmental Services, Inc. ◦ Environmental Professional with more than 40 years experience◦ BS in Biology; Masters in Environmental SciencesEphemeral streams and their impact on oil and gas projects

DECEMBER 3-4, 2019 | DALLAS, TEXAS

Waters of the United States (WOTUS) –From The Beginning Forward

•1899 Rivers and Harbors Act – Army Corp of Engineers•1972 Water Pollution Control Act (Clean Water Act) – Corps and EPA•The issue: Which waters are regulated under the CWA and which are left to the states toregulate

•Beginning in 1985, the issue has been addressed in several US Supreme Court cases, mostimportantly Rapanos v. United States (2006) (discussed later)

•2015 – Obama administration proposed a new expansive definition of WOTUS – the CleanWater Rule

•Lawsuits left the US with a patchwork of regulations and uncertainty – 26 states use theCWR and 24 follow the definition of WOTUS in Rapanos

•2019 - The CWR is repealed; regulations return largely to the definition in Rapanos

NOVEMBER 28 - 29, 2017 | HOUSTON, TEXAS

The Rapanos Decision (2006) •A plurality opinion (4-1-4); since cited by 63 district courts in 42 states.

•Writing for the plurality, Justice Scalia said the CWA should only extend to “relativelypermanent standing or continuously flowing bodies of water” connected to traditionalnavigable waters and to “wetlands with a continuous surface connection to” those typesof waters.

•In a concurring opinion, Justice Kennedy articulated a less restrictive view of federalauthority, stating CWA jurisdiction extends to waters having a “significant nexus” withtraditional navigable waters.

•Appellate courts have since been split on which opinion to apply – 4 appellate circuitsrely on Justice Kennedy’s concurrence; 4 other circuits apply either the plurality opinionor the concurrence.


2015 Clean Water Rule• Sought to expand jurisdiction based on the “significant nexus” test.

• The CWR deemed certain waters “by rule” jurisdictional, and other waters “by rule” non-jurisdictional; the CWR also contained a third category of waters that required further analysis. These include tributaries and adjacent waters.◦ Tributaries included ephemeral and intermittent drainages even where interrupted.◦ Adjacent waters include fixed distances for certain types of waters where, if within those distances, the

water would by jurisdictional

• Court challenges resulted in injunctions preventing nationwide implementation and resulting in the CWR taking effect in only 22 states.

• The Trump administration’s repeal of the CWR takes effect this month.

• Plans are to replace the CWR with a rule that will provide more certainty and scale back federal jurisdiction.

• More lawsuits are promised and expected to impact the final definition and enforcement.


Why important?•The definition of WOTUS touches everything from farming to homebuilding, mining, oil and gas exploration and production, forestry, manufacturing, roadbuilding, commercial construction, etc.

•Impacts enforcement of several CWA programs, and as a result corresponding State programs – who has jurisdiction?


Executive Order 13778 On February 28, 2017, the President signed the “Executive Order on

Restoring the Rule of Law, Federalism, and Economic Growth byReviewing the ‘Waters of the United States’ Rule.”

Directs that EPA and the Army “shall consider interpreting the term‘navigable waters’” in a manner “consistent with Justice Scalia’sopinion” in Rapanos.

DECEMBER 3-4, 2019 | DALLAS, TEXAS

Goals of Proposed Rule Respond to Executive Order 13778, which called for rescinding or

revising the 2015 definition of WOTUS. Increase predictability, consistency, and regulatory certainty through a

clearer definition of WOTUS. Restore and maintain water quality while respecting primary state and

tribal authority over their land and water resources. Operate within legal limits established by Congress as clarified by the

Supreme Court.


Waters Proposed to Be WOTUS Traditional navigable waters, including territorial seas Tributaries Certain ditches Certain lakes and ponds Impoundments Adjacent wetlands


Waters/Features Excluded from Proposed Definition of WOTUS Waters not listed as WOTUS Groundwater Ephemeral features and diffuse stormwater run-off Ditches not identified as WOTUS Prior converted cropland (PCC) Artificially irrigated areas that would revert to upland should irrigation cease Artificial lakes and ponds constructed in upland Water-filled depressions created in upland incidental to mining or construction

activity Stormwater control features constructed in upland Wastewater recycling structures constructed in upland Waste treatment systems


Notes for Exclusions Generally Certain excluded features may convey perennial or intermittent f low to a

downstream jurisdictional water, thereby serving as a connection for upstream anddownstream jurisdictional tributaries.

Excluded features that connect jurisdictional waters do not become WOTUS themselves. Where an exclusion is for a feature created in upland, the feature must be created

wholly in upland to be categorically excluded; features partially constructed in uplandcould potentially meet definition of WOTUS. However, the mere interface between theexcluded feature constructed wholly in upland and a WOTUS would not make thatfeature jurisdictional.

Some excluded features might be point sources.


Programs Impacted•CWA Section 404 (wetlands)•Spill Prevention, Control and Countermeasure (SPCC)•Federal Stormwater Regulations•NPDES Regulations for Stormwater Discharges Associated with Oil andGas Exploration, Production, Processing, or Treatment Operations orTransmission Facilities

•Certain tribal and state water quality certification programs


Where We Are and Where Are We Going?

•The final rule takes effect on December 23, 2019.

•The 2015 Clean Water Rule will be repealed.

•The replacement definition seeking to more clearly define the difference betweenfederally regulated waterways and those waters that rightfully remain under stateauthority will likely be published.

•Lawsuits seeking to revise or impede enforcement of the new definition are promisedand expected.

•Given the historic splits between the Federal Circuits, the new definition will likely be tiedup in litigation for some time.

•In response, state regulatory actions will seek to fill voids left from the new definition.


What’s an Ephemeral Stream?Three types of streams:• Perennial – typically flows year-round.• Intermittent – flows seasonally, intercepts groundwater or melting snowpack.• Ephemeral – only flows after a rain event.


What’s an Ephemeral Stream?


Adjacent Wetlands


Where are the Ephemeral Streams?


How Many Streams are Ephemeral?Estimates Mostly from National Hydrography Datasetand combine ephemeral and intermittent streams:• EPA (2008)• 59% of streams in US• 81% of streams in arid and semi-arid Southwest

NHD does not capture large portion of ephemeralstreams


How Many Streams are Ephemeral?•Example pipeline projects:• 22-mile pipeline, Refugio and San Patricio Counties,TX: 1 perennial, 9 ephemeral streams (90%).

• 25-mile pipeline, Bee and Refugio Counties, TX: 1perennial, 2 intermittent, 24 ephemeral streams (89%).

• 82-mile pipeline, Okfuskee to Muskogee Counties,OK: 9 perennial, 44 intermittent, 308 ephemeralstreams (85%).


Affects on Oil and Gas Projects•Section 404• Most crossings of ephemeral streams (pipelines,access roads) currently by Nationwide Permit – veryroutine.

• Wetlands currently jurisdictional by ephemeral“nexus” more problematic, especially for roads, wellpads.


Affects on Oil and Gas Projects•Spill Prevention, Control, and Countermeasure• Regulates potential releases into “navigable waters”,which do not include ephemeral streams.

• Releases into ephemeral streams that could reachnavigable waters subject to SPCC rules – no changeanticipated.


Affects on Oil and Gas Projects•Stormwater• EPA stormwater rules generally don’t apply to oil andgas. FERC regulates interstate natural gas pipelines.

• Almost all states have assumed EPA permittingprogram and some do regulate oil and gas.• May regulate “waters of the State” rather than“waters of the U.S.”.


Affects on Oil and Gas Projects•General• Differentiating between intermittent and ephemeral streams often difficult – requires field evaluation and professional judgement.

• States generally depend on Section 404 permits to identify and protect cultural resources near streams and wetlands.

• State, local jurisdiction always possible.


Thanks!Questions?


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