Ripple Effect 04: WOTUS – Primer and Practicality

A discussion with Joan Card at Kelly & Culp regarding the history and significance of the final Waters of the United States Rule.

Transcription

Brian Lebrecht, President of Clyde Snow & Sessions 0:02
This podcast is brought to you by the law firm of Clyde Snow and Sessions, based in Salt Lake City with offices in Oregon and California. For over 65 years Clyde Snow has represented clients throughout the West. Clyde Snow: Serious About Solutions.

Emily Lewis , Host 0:22
Hello, and welcome to Ripple Effect, a podcast putting water into context. I’m Emily Lewis, your host, and I’m a water attorney here in Salt Lake City, Utah, practicing creative solutions to today’s and tomorrow’s water problems. Welcome to the conversation.

All right, and welcome to our fourth episode of Ripple Effect a podcast putting water into context. We are staying with the state stay at home orders here in the time of COVID-19, so please excuse any technical difficulties you see or audio issues we’re having. But regardless, I am very excited to have with me today, Joan Card. And she is with the law firm of Culp & Kelly, also operating as blueshift . And so Joan is a Utah native, she got her JD at the University of Montana, she has practiced across numerous western states in various capacities and doing some very exciting things, both on the ground and in terms of some policy devising. And she is currently practicing in Colorado. And so the reason I really wanted to have Joan join us here today is to talk about our favorite regulatory rule, the WOTUS rule Waters Of The United States, she is a working expert in the field. And we wanted to get her opinion both in terms of a little trimmer for those who are not so familiar with the matter, and to get her thoughts on what this means going forward for the arid western states. So Joan, if you have a moment, you want to kind of give us a little introduction about who you are and what you do kind of what you like about your practice and what you currently focus on.

Joan Card, Guest 2:10
Sure. Thanks, Emily, I’m really happy to be having this conversation with you today from our home offices or temporary offices during the stay at home orders in our, in our various states and counties. I, as you said, I’m with the firm of Culp & Kelly, LLP. I’ve been with this firm, about three years now. And it’s my first foray into private practice after about a 20 year career in government in various positions as an attorney, or an advisor, or even an administrator of federal and state programs, so I’m really enjoying being in private practice, and kind of applying what I’ve learned in my government career and applying that for, you know, clients, to help them through some of these challenges and problem solving and, and understanding how agencies approach permitting and compliance issues.

Emily Lewis 3:24
Well, so Joan, I wanted to have you here today, because, you know, the Waters of the United States rule is something that, you know, I feel like the water user community over the last seven or eight years has had a lot of attention to it. But it’s also a large issue. It’s going to affect a number of interests here in the West, a lot of us represent agricultural interests, you know, environmental interests. Though there’s been a lot of discussion about it, it is something that, you know, I think there’s always value to going back to discussing exactly how we got to where we are today. And today is a prominent day in the sense that the Trump administration just published the final Waters of the United States rule. And so it seems like a timely topic to go back and kind of do a little primmer about the role and function of the Waters of the United States rule, kind of maybe a little history of where we’ve been over the last six or seven years. And then I’d like to spend some time about kind of what this means for us on the ground going forward, in both as water practitioners in the legal field, but also just listeners who are water users, you know, what are some things that we should be looking out at and taking into account going into the future now that this will be the rule once it is effective in several weeks?

Joan Card 4:47
Sure. And I’ll do my best to be brief. It’s a huge topic and so, you know, obviously we don’t have a lot of time and people will get bored with the entire history but there’s a lot of water under the bridge here. But generally Waters of the US, Waters of the United States define jurisdiction of a handful of federal environmental laws, failure to comply can have some really significant penalties, you know, major fines up to criminal penalties. So it’s obviously extremely important that people understand what the jurisdiction of the Clean Water Act is, so they can comply if they need to comply, and that they can be certain that they won’t be penalized. If you know if the regulation doesn’t apply. Clarity is really important. And the most prominent one, the one we think of the most often is the Federal Clean Water Act. The Federal Clean Water Act, regulatory programs, the permitting programs apply to navigable waters in the statute. The agencies that implement the Clean Water Act primarily are the EPA, the Environmental Protection Agency, and the United States Army Corps of Engineers, and they, in the 70s, and 80s, adopted regulation to define navigable waters, or waters of the United States, excuse me. So the it’s actually the federal Clean Water Act itself that says navigable waters are waters of the United States, but then there was no further definition. So the agencies needed to create a definition. And they wrote the first regulation, the EPA wrote the first regulation, that was final in 1973. So that was one year after the adoption of the Clean Water Act. So that definition was primarily primarily based on these principles of waters in commerce, you know, waters and commerce are waters of the United States. And that’s a really legal, there’s a lot of legal ins and outs around commerce waters. But eventually, over the course of time, that was interpreted to be – and determined by the agencies to be a lot of types of waters – lakes, streams, and wetlands, whether they were interstate waters or wholly intrastate waters, and sometimes whether they were wet or dry didn’t matter. So for example, playas were listed specifically as waters of the United States and one of the regulations as were tributaries, and the like. So there’s been, you know, 40 years of permitting compliance, enforcement and litigation around those definitions. And the definitions have been fairly regularly updated and changed. Although we’ve been whipsawed with new regulations in the last few years.

Emily Lewis 8:16
Right. So then can you kind of get us that whipsaw is a great entree into what I call the saga of the Waters of the United States episodes that we’ve been seeing the last little bit. And so, you know, this really kind of starts in my mind, you know, kind of the pre-Obama years and things kind of heated up in the Obama administration and moving forward into, you know, the Trump administration, where we are today, can you kind of give a little bit of a background of kind of where the rule really was, and, and how the agencies were interpreting the rule, kind of prior to the Obama administration really coming into the picture.

Joan Card 9:00
Right. So there was this landmark Supreme Court decision about what is a water the United States under the Clean Water Act, and it’s known as the Rapanos Decision. And that Supreme Court decision was issued in 2006, during the Bush administration. So there’s actually, you know, I think three administrations that were dealing with this issue, in major ways, starting with with the Bush administration. And in the Rapanos Decision, it was an opinion, that there were actually three separate opinions, and there was no majority opinion. So it was, it was called a plurality. And then a concurrence by Justice Kennedy, the Kennedy significant nexus test and the bush Bush era, significant nexus guidance, and without getting into the whole deal of the details of that decision, there was sort of this plurality opinion that streams to be waters of the U.S. needed to be relatively permanent waters water as in the sense of water. And that there needed to be a continuous surface connection between wetlands and navigable waters in order for them to be waters of the United States, because failure to comply can have some really significant penalties, you know, major fines up to criminal penalties. So it’s obviously extremely important that people understand what the jurisdiction of the Clean Water Act is, so they can comply, if they need to comply, and that that can be certain that they won’t be penalized. If you know if the regulation doesn’t apply. Clarity is really important.

Emily Lewis 11:03
Great. So then, you know, we have the 2008 guidance, which, you know, kind of walks this line between the plurality opinion and Rapanos and the concurrence by Kennedy, can you maybe start us on the first tooth of the whipsaw that we have? Right?

Joan Card 11:23
Well, so one of the things that the Supreme Court said in the Rapanos case is gee, you know, Congress really should take this issue up Congress really Congress’s job to make these clarifications, the courts shouldn’t be involved in this. And if it’s not Congress, it’s got the agencies, the agencies should be more clear in their regulation. Well, Congress tried to take it up, and nothing has come of that. So during the second term of the Obama administration, EPA, and the Army Corps, decided to take up the issue and tackle it with a regulatory initiative. And that is known as the Obama rule, or the Obama waters of the US rule. It was tagged the Clean Water rule. And that was the first time since the mid 80s. I think it was 1988, that EPA, and the Corps had revised the water of the US definition, with a formal regulatory revision.

Emily Lewis 12:36
And this is 2015, right? Just to give the listeners kind of a slip mark of where we are so really towards the end of the Obama administration.

Joan Card 12:44
Right. It was a couple of years of rulemaking effort. So it started in 2012-2013 timeframe. And ultimately, a final rule was issued in 2015.

Emily Lewis 13:00
And how was that perceived by the water user community?

Joan Card 13:04
Well, it was not well loved by a lot of folks, especially people who, as you described are, you know, required to ensure that their activities fall within or clearly fall without Clean Water Act regulatory requirements, so they can have that sort of regulatory certainty in their activities. It was perceived as being more broad than it should be, or more broad than the Rapanos decision allowed. And I think, you know, it was certainly less broad than the regulation that was on the books, the 1988 and 86 regulations that it was amending, but I think a case could be made that it was more broad than the 2008 guidance, or the Rapanos case, you know, opinion itself would allow. So it was much litigated, and when the administration changed, it was on the slate of things to revise. So in the litigation, it was actually the 2015 rule was actually stayed in many states, so it never came into effect in places like Utah and Arizona. It did come into effect for a little while in Colorado here. But ultimately, it was it was repealed by the Trump administration. And that repeal rule was final in December of 2019.

Emily Lewis 14:50
I remember so distinctly watching one of the debates between Trump and Hillary Clinton and WOTUS coming up and being like, my goodness, did someone just mentioned water law in a national debate? So then that kind of brings us to where we are today.

Joan Card 15:06
Today, they published what they call the Navigable Waters Protection Rule, defining waters of the US state for purposes of the Clean Water Act and a few other federal laws. And that will be in effect on June 22, 2020. And when that occurs in just a few weeks from now, there, we will be in the position to have sort of a brand new sort of clean slate of what is a Water of the United States? Do I think it will actually be a clean slate? In June of 2020? Probably not, because we’ll probably see litigation similar to the kind of litigation we saw of the 2015 rule. And so time will have to tell it on a state by state basis, jurisdiction by jurisdiction, what Waters of the US rule will apply for some time. So for folks looking for certainty, I’m afraid that we’re not going to see it for some time on this issue.

Emily Lewis 16:21
We live in the age of uncertainty. We are learning to be adaptable.

Joan Card 16:27
We must be, we must be.

Emily Lewis 16:31
That was awesome. That was such a good history and primer. Which kind of brings us to really why I wanted to have you on today is to kind of talk about what we think this new 2020 Navigable Waters Protection Rule is really going to do on the ground. So just in general does the new 2020 rule essentially take us kind of back to the 2008 guidance? Or does it make pretty significant changes in addition to that? Like what if you were to give a nutshell description, how would you describe it?

Joan Card 17:04
Well, I would describe it well, their intent, their expressed intent in this process was to be more faithful, if you will, to the plurality opinion of Rapanos. So they really, in this rule, abandon Kennedy significant nexus test and the Bush era, significant nexus guidance, and go for the sort of relatively permanent water approach and continuous surface connection with the navigable waters approach. So what that sort of looks like in this rule, and just kind of focusing, I think, on the sort of the Intermountain West and the semi arid West, where, you know, you and I both have the most experience, I think the the major result is that it categorically excludes ephemeral waters. So, to this day, under the significant Nexus test, and all prior waters of the US definitions of ephemeral waters were neither expressly included, nor expressly excluded from the definition. But they were generally considered waters of the United States, because they are generally tributaries to downstream navigable waters.

Emily Lewis 18:42
Joan, could you just give for listener, you know, what is just a basic definition of ephemeral? Because I think that that’s thrown around that could go many different directions.

Joan Card 18:54
Good, good thought. No, thanks. And so the, what they’ve done here and the definition, I’ll just kind of use and I’m paraphrasing of course, but they the agencies in this rule described tributaries as either perennial, intermittent or ephemeral. So, a perennial stream is a stream that flows year round, and intermittent stream is a stream that flows seasonally, and can be you know, in many cases is a stream that’s supported by groundwater, so as groundwater water rises and falls, so does the flow in the stream. And then ephemeral streams are streams that flow only in response to precipitation or snow mount. So you know, these are the big dry well, they could be big or small. These are arroyos and washes and dry streams and rivers that we see in southern Utah in you know, southern Arizona many parts of Arizona eastern, excuse me, western and southern Arizona, portions of Colorado, where you have these water bodies that flow only in response to two storms –

Emily Lewis 20:18
The places you don’t camp.

Joan Card 20:21
Right? Don’t pitch your tent in an ephemeral stream.

Emily Lewis 20:26
Don’t go there!

Joan Card 20:27
Don’t go there. Yeah, no, I’ve been there before, on the Escalante river where I thought I was actually not in the floodplain. But indeed we were. Yeah, that’s a, that’s a lesson you learn quickly.

Emily Lewis 20:43
Completely. So let’s go back to you know, now we’ve defined it a little bit, but how this new rule treats these ephemeral streams? And kind of and how what what implications is that going to have for, you know, water users in those various states that that you just mentioned?

Joan Card 21:01
Right. So ephemeral streams are no longer Waters of the United States. So that means that the permitting requirements of the Clean Water Act and these permitting requirements that I’m referring to are generally the discharge of pollutants in water. So this would be discharges from you know, factories, waste treatment systems, etc. If those are discharging to ephemeral waters, they would no longer be discharging at least directly to waters of the United States. With respect to another permitting programunder the Clean Water Act, the section 404 permitting requirement program that requires permits for the discharge of dredged or fill material to waters of the United States. And so you know, a common permit, the 404 permit would be like a utility crossing, if you’re constructing a pipeline, under or through an ephemeral water, then you’d be looking at whether that ephemeral water was a Water of the U.S. Under this definition, it would categorically not be a Water of the U.S.

Emily Lewis 22:28
And in that case, it would be potentially subject to state regulation under a state program?

Joan Card 22:33
Yes, correct. So, Utah has, of course, a stream alteration permitting program that’s managed, in large part in conjunction with the Clean Water Act 404 program. But with respect to, you know, these dredged or fill construction type activities and ephemeral waters the Clean Water Act 404 permit may no longer apply. Another permit that may apply to that activity is a floodplain use permit from a local flood control district. So these are things that that you have to look for, even if 404 permitting doesn’t apply

Emily Lewis 23:18
The quilt of jurisdiction.

Joan Card 23:20
Yes.

Emily Lewis 23:20
In broad western states.

Joan Card 23:22
Right.

Emily Lewis 23:23
Right. Great. So in my discussions to date, you know, with this kind of WOTUS discussion, you know, another big topic that has come up is is the the treatment of ditches. And so I was hoping you could talk a little bit about, you know, how ditches and agricultural ditches and are going to be or potentially could be treated under this new rule. If you have any thoughts on that?

Joan Card 23:52
Yeah, well, they expressly kind of deal with ditches in this rule, but to understand how they approach ditches, you kind of have to back up a little bit to this concept that’s really important to Waters of the United States’ definition and that is the traditional navigable water. So it’s these connections with traditional navigable water, since the Rapanos Supreme Court decision, that kind of drive decisions about whether a water is Water of the United States. And traditional navigable water is a term of art. And, it’s that sort of whole area of law about commerce, waters and navigability and whether we’re talking about navigability In fact, or navigability of law, navigability for stream title, etc, etc. This is the Clean Water Act, term of art, traditional navigable water that for the most part includes all of those other kinds of things. navigable waters, navigable in fact waters, waters that are deemed navigable under the rivers and harbors act by the Corps. So it’s a fairly broad category of traditional navigable waters.

Emily Lewis 25:14
And so just to maybe put this in a in a specific context

Joan Card 25:18
So let’s do that let’s take the Great Salt Lake which has actually been deemed by the United States Supreme Court to be a navigable water so it’s considered a Clean Water Act traditional navigable water even though it’s a wholly intrastate body of water.

Emily Lewis 25:35
And I believe it’s because they had a ship that brought people over and they had cattle they brought to Antelope Island I believe.

Joan Card 25:43
Yeah, exactly when commerce on boats on the Great Salt Lake in the in throughout history. So any stream tributary stream to the Great Salt Lake that contributes is perennial and or intermittent and contributes flow to the Great Salt Lake in a typical year is going to be deemed a Water of the United States. Another sort of aspect of the tributary definition is that a ditch is a tributary and a Water of the United States only if the ditch was constructed or in a perennial or intermitent tributary or rerouted one. The rule clearly says that ditches and ditch refers to a canal, it’s really just sort of any sort of manmade conveyance of water ditches that are constructed in uplands, so not in tributaries are not to reroute tributaries are expressly excluded from the definition.

Emily Lewis 26:50
And so those might be like, the ditches actually like in between fields, you know, and like and like a tilled area.

Joan Card 26:57
Exactly right. So your laterals and your drainage ditches as well are if they’re constructed in uplands, which they typically are, they are not Waters of the United States under this rule. And another thing to think about and to remember with respect to ditches, is that agriculture return flows, return flows from irrigated agriculture, have a special exclusion under the Clean Water Act and don’t require permits. Stormwater from agricultural fields is also sort of excluded. So there are a number of exemptions and exclusions related to ditches, ditch maintenance, and water flowing in ditches that would apply. And that, frankly, have applied for many years, even under the even under the Obama and Bush rules

Emily Lewis 27:59
And have just been retained after 2020.

Joan Card 28:01
So right now they’re exactly. They’re expressly kind of included in this new rulemaking.

Emily Lewis 28:08
So john, you said something that I want to fall back on, you just said a moment ago that, it’s going to really be up to the agency to determine if it’s a Waters of the United States. And so another reason that I really wanted to have you on in particular is you have such a great breadth of experience with multiple states. And so I was hoping you could talk a little bit about, how this new rule is going to impact or affect, you know, state regulatory bodies, and kind of what you see happening in the future. And, what a farmer in Utah might need to do opposed to a farmer in California might, very different. And if you have thoughts on how this is going to kind of affect things on a state by state level.

Joan Card 28:50
Yeah, well, it’s interesting, where, especially in the in the arid/semi arid West, where this rule is really changing, you know, 40 years of how things have been done, and which water quality law applies, right? Since 1972-1973, it’s been pretty well understood that if a stream is a tributary of a navigable water, it’s a Clean Water Act jurisdictional water. Well, with this rulemaking, we’re gonna have a lot of waters tributaries that were under the Clean Water Act suddenly, you know, it’ll be questionable. At best for a while, it’ll be questionable whether a water is in or out of Clean Water Act jurisdiction. And of course, if it’s out of federal Clean Water Act, you stay within the state’s jurisdiction to permit activities in relation to that water body. So each state is going to have to approach that in a different way and will, will do so. And I think that, you know, there’s a spectrum of states. So if you think about California, California has pretty much already taken steps to replace the federal Clean Water Act with state jurisdiction over all state waters. And so, activities associated with state waters will require a California permit, regardless of whether it’s a Water of the United States or not. You know, the other end of the spectrum is a state like Arizona, where their state permitting program, their state water quality permitting program relies entirely on the federal definition of what a Water of the United States is, and they don’t have a permitting program that relates to waters of the state. Utah and Colorado, on that spectrum, are in between. Utah does have aspects of a waters of the state permitting program. And of course, we already talked about the stream alteration permit program as well. So they’re going to be sort of Utah’s going to be ready in some respects to just continue permitting, discharges and activities in state waters, as they always have. Colorado is probably closer to California, in terms of having a state permitting program or waters of the state permitting program that applies to most or all state waters, including some of the ones that won’t be waters of the United States under this new definition. So it’s going to be really important depending on what state you’re in to understand how the states are going to approach this change. Arizona has already embarked on an initiative to develop some kind of waters of the state program, recognizing kind of the major impact that this new rule is having on the regulatory landscape in Arizona. Colorado hasn’t really announced what what it’s doing just yet, and Utah has been relatively quiet. So time will have to tell but it’s going to be very important to follow what each of your state, you know, what each of the states are doing and how they’ll approach discharge permitting after this new rule.

Emily Lewis

Yeah, I just feel for agricultural producers right now was such the last several years of like steel tariffs, and, you know, disruptions for migrant farmworkers. Now, with COVID and WOTUS rule. I think it’s a tough time to make business decisions, if that’s the business you’re in.

Joan Card

Yeah, I will say I mean, it is this is all really challenging stuff. And I will say, you know, I’ve looked at this for a number of years, and I think agricultural activities, due to, you know, the existing exemptions that have been in place for many, many years. And some of this sort of narrowing of jurisdiction. You know, I think it’s agriculture, generally is likely to be less impacted. I think the industries that are most impacted by this will be water utilities, and you know, we work with a lot of water utilities. I think city, land management agencies, flood control districts, and land developers are going to be the most impacted by this. And they’re the ones that are really going to have to study the rule in relation to their planned activities to determine, you know, what the regulatory landscape is.

Emily Lewis 34:21
That’s a good, that’s a really good perspective. I also kind of wonder, too, and this has come up in several other discussions we’ve had about just the interrelatedness between land use planning rules and water and how, you know, it’s necessary to have a discussion so that, you know, our stormwater is appropriately taken care of from a land use perspective, and, you know, you layer on top of it, potentially new regulatory jurisdiction under the Clean Water Act, that’s a lot for an agency to deal with.

Joan Card 34:54
It is there’s a lot of moving parts. It’s a web really have regulatory and policy issues that people have to be thinking through.

Emily Lewis 35:06
Yeah. Great. Well, Joan, I think that was a spectacular short little primer on the WOTUS rule and where we’re going. Do you have any other thoughts that we didn’t get a chance to discuss that you want to add or, you know, any predictions or anything else that you think would be relevant for us to kind of consider before we conclude?

Joan Card 35:26
Well, you know, I guess I would emphasize the importance of kind of doing the analysis from the traditional navigable water perspective, you know – Does a tributary contribute flow to a traditional navigable water in a typical year? Unfortunately, that analysis is going to require quite a lot of data. The typical year is based on a 30 year average, it would be a rolling average. So it’s going to be a moving target, whether a water body contributes float in a typical year to downstream, traditional navigable water, the other issue, and the data that’s going to be necessary is a water body a traditional navigable water. And while the Army Corps of Engineers does maintain a list of those waters, their list is not complete. And so until they, you know, take the steps to make those designations and complete the list, people are going to have to guess whether a downstream water is a traditional navigable water or not. That’s not true in the case of the Great Salt Lake as an example. But that could be true in the case of many other rivers, streams and lakes in the West. So that’s something that people are going to have to sort of watch and wait for probably long after months, if not years after this rule is in effect.

Emily Lewis 37:06
Great. Well, I want to thank you so much for your time, and I hope we get to have you back on our podcast again, I know you’ve got a couple other really cool projects. Your green infrastructure project, maybe we’ll have to talk about your upcoming paper for – was in the water law reporter?

Joan Card 37:24
It’s slated for publication in the May issue of the Water Report. So I’d love to come back and talk anytime I really enjoyed visiting with you, Emily and love the work that your firm does as well. So I appreciate the collaboration and I was really happy to do this today.

Emily Lewis 37:43
Great. Awesome, well be safe and be well and we’ll be in touch.

Joan Card 37:49
Thanks.

Brian Lebrecht 38:01
Nothing said in this podcast should be taken as providing legal advice or as establishing an attorney client relationship with you or anyone else. Thank you for listening.

Transcribed by https://otter.ai