American Oil and Gas Reporter - July 2015 - 169

gram faces practical constraints because
of the vast array of human structures and
activities that incidentally cause bird
mortality, the analysis says. The agency's
response is to focus on activities and industries that chronically kill birds, it
states, although it adds that may prove difficult since there is a limited amount of information regarding mortality rates attributable to specific industries or activities.
USFWS is contemplating leaving some

industrial sectors and activities out of its
permitting program and addressing those
impacts through enforcement discretion,
the legal analysis predicts. It notes that this
approach would be viable only because the
MBTA has no citizen suit provision.
After the programmatic environmental impact statement is completed in July,
media reports indicate USFWS will develop a draft EIS and issue it for public comment. According to published reports, the

agency hopes to issue draft regulations this
winter and have a final rule in place before the end of the Obama administration.
Based on delayed efforts to change the permitting program over bald and golden eagles, media reports say regulating the incidental take of more than 1,000 species
of migratory birds by a wide variety of industry sectors and activities across all regions of the United States likely will prove
complicated.
❒

Industry Awaits 'Waters Of U.S.' Rule
WASHINGTON-The federal government's push to redefine the "waters of the
United States" will lead to far more significant economic impacts and unintended consequences than President Obama's administration forecasts, the Independent Petroleum Association of America warns.
"Increased federal jurisdiction over
nearly all waters in the United States will
create substantial permitting and compliance burdens for few environmental benefits," says IPAA Executive Vice President Lee Fuller. "The impacts of this rule
go beyond American energy development.
There are serious concerns about retroactive applications of the rule making and
added costs on business operations."
The U.S. Environmental Protection
Agency and Army Corps of Engineers released the final rule making redefining
WOTUS to clarify definitions contained
in the Clean Water Act on May 27. According to EPA, the revised rule ensures
that waters protected under the act are more
precisely defined and predictably determined. It says the new rule will make permitting easier, faster and less costly. The
change does not create any new permitting
requirements for agriculture, and maintains
all previous exemptions and exclusions, the
agency adds.
According to EPA, the Clean Water
Rule (CWR) serves as a "definitional
rule" that clarifies the scope of WOTUS
consistent with science and CWA decisions issued by the Supreme Court.
"Fewer waters will be defined as 'waters of the United States' under the rule
than under the existing regulations, in part
because the rule puts important qualifiers
on some categories such as tributaries," the
CWR states. "In addition, the rule provides
greater clarity regarding which waters are
subject to CWA jurisdiction."
Texas, Louisiana and Mississippi sued
the federal government on June 29, saying revising the regulatory definition of
navigable waters vastly expands EPA's au-

thority and threatens the ability of states
and private property owners to use their
own land. In the lawsuit, Texas Attorney
General Ken Paxton asserts the rule violates the U.S. Constitution, federal laws
and precedents established by the Supreme
Court.
"The EPA's new water rule is not about
clean water-it's about power," Paxton
says. "If it moves forward, essentially anybody with a ditch on their property would
be at risk of costly and unprecedented new
regulations, and a complicated web of bureaucracy. Texans shouldn't need permission from the federal government to use
their own land."
Senator John Barrasso, R-Wy., criticized the WOTUS rule, saying EPA bureaucrats exceeded their authority and have
no business regulating irrigation ditches,
isolated ponds and other non-navigable
features as waters of the United States. Barrasso says Congress should pass SB 1140,
the Federal Water Quality Protection Act,
which he and five cosponsors introduced
April 30.

Rule Categories
The final rule says it includes eight categories of jurisdictional waters in its
WOTUS definition, adding it maintains exclusions for certain categories and adds
some exclusions that are applied regularly in practice. The rule recognizes jurisdiction for three basic categories:
* Waters that are jurisdictional in all
instances, including traditional navigable
waters, interstate waters, territorial seas and
impoundments of jurisdictional waters;
* Waters excluded from jurisdiction;
and
* A narrow category of waters subject
to case-specific analysis to determine
whether they are jurisdictional.
"This rule replaces procedures that
often depend on individual, time-consuming, and inconsistent analyses of the
relationship between a particular stream,
wetland, lake or other water with down-

stream waters," the rule states.
The federal government's definition of
WOTUS regulated all tributaries without
qualification, the CWR points out, while
the revision more precisely defines them
as waters that are characterized by the presence of physical flow indicators-beds and
banks or ordinary high-water marks-and
that contribute flow directly or indirectly
to a traditional navigable water, an interstate water or the territorial seas. It adds features not meeting these distinctions are not
jurisdictional under the rule.
The CWR says the revised rule continues the policy of regulating ditches constructed in tributaries or, that in certain circumstances drain wetlands or that science
demonstrates are functioning as a tributary.
"These jurisdictional waters affect the
chemical, physical, and biological integrity of downstream waters," CWR
states. "The rule further reduces confusion
and inconsistency regarding the regulation
of ditches by explicitly excluding certain
categories of ditches, such as ditches that
flow only after precipitation."
Adjacent Waters
The federal agencies say they determined that "adjacent waters," as defined
by the CWR, have a significant nexus to
traditional navigable waters, interstate
waters and territorial seas, based on their
hydrological and ecological connections
to, and interactions with, those waters.
Under the rule, adjacent means bordering, contiguous or neighboring, and includes waters separated from other WOTUS by man-made dikes or barriers, natural river berms, beach dunes or other features. It states that waters that connect segments of, or are at the head of, a stream or
river are considered adjacent to that
stream or river. Adjacent waters also include wetlands, ponds, lakes, oxbows, impoundments and similar water features, the
rule says-although the category does not
include waters subject to established normal farming, silviculture and ranching acJULY 2015 169
American Oil and Gas Reporter - July 2015

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