Knowing exactly what constitutes a Water of the United States (WOTUS) is an important definition because these waters are regulated under the Clean Water Act (CWA). Owing to a variety of factors, what once was a relatively simple definition has grown increasingly complex, litigious, and controversial.
The relatively simple definition is what I recall from my undergraduate classes in the late 1970s. I distinctly remember my professors talking about “navigable waters” as a premise for defining those waters (a water of the United States) regulated under the CWA. My professor’s definition at the time involved the use of a fuzzy peach dropped into a small tributary and whether that peach would make its way to a larger waterway. If the peach made it, the tributary was considered “navigable” and, thus, covered under the regulation.
However, the definition of WOTUS has proven to be more than elusive and certainly more involved than a “floating peach.” My, how far we have come … from permit battles to Supreme Court cases to the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (ACE) recently releasing its Final Rule defining WOTUS.
WOTUS Supreme Court Cases
There have been three Supreme Court cases heard around this very issue of whether specific water is jurisdictional under the CWA. These three cases include United States v Riverside Bayview Homes; Solid Waste Agency of Northern Cook County v US Army Corps of Engineers; and Rapanos v United States (Dragun provided technical expertise in the Rapanos case).
Regulatory guidance documents followed two of the Supreme Court Cases, the first in 2003 and the second in 2008. This guidance attempted to address the issue of “significant nexus” and when waters were connected via chemical, physical, or biological characteristics. Yet, this issue of WOTUS has remained a bit of a conundrum.
So, in March 2014, the USEPA and USACE released a proposed rule to clarify the “scope of waters of United States.” Now, a little more than one year and one million public comments later, the nearly 300-page Final Rule was issued.
Final CWA Rule and defining WOTUS
The Final Rule purports to “…clarify and simplify implementation of the CWA … through clearer definitions and increased use of bright-line boundaries to establish waters that are jurisdictional by rule and limit the need for case-specific analysis.”
Whether this Final Rule lives up to these expectations remains to be seen. There are many who are still sifting through the pages of the final rule trying to understand exactly how it will work in the “real world.” Ultimately, it is that application in the months to come that will likely be more telling than the analysis of the final rule.
With this said, here are some observations on this important Final Rule.
The 50,000-foot view is that waters (think hydrologic cycle) are either
- jurisdictional in all instances (clearly WOTUS; think fuzzy peach),
- excluded water (not WOTUS; think get good legal and technical counsel and don’t take anything for granted), or
- case specific (requires more work to determine if they are WOTUS; think get good legal and technical counsel and prepare for a battle).
The focus of the Final Rule is on what are referred to as jurisdictional waters, which include three main categories: Navigable waters, Interstate waters, and Territorial seas. Additionally, tributaries and adjacent wetlands/waters to the main jurisdictional waters are considered WOTUS.
While no changes have been made to the jurisdictional waters definitions in the new rule, it does define tributaries (not previously defined). Tributaries are defined as water features with a bed, banks, an ordinary high water mark, and flow downstream (note that the size of the tributary is irrelevant). Tributaries covered by the new rule include perennial, intermittent, and ephemeral streams. EPA emphasizes that the finding of jurisdiction for covered tributaries and covered adjacent waters was not based on the mere distance of a water body to downstream waters, but rather a determination that the “nexus” between these covered tributaries, or covered adjacent waters, in the watershed is significant from physical, chemical, or biological considerations.
Under the final rule, “adjacent” means bordering, contiguous, or neighboring, including waters separated from other WOTUS by constructed dikes or barriers, natural river berms, beach dunes, and the like. Further, waters that connect segments of, or are at the head of, a stream or river are “adjacent” to that stream or river. “Adjacent waters” include wetlands, ponds, lakes, oxbows, impoundments, and similar water features.
Also, in this new rule, wetlands and open waters in floodplains were determined to be “adjacent waters” that affect the integrity of downstream water. Therefore, the rule covers (1) waters located in whole or in part within 100 ft of the ordinary high water mark of jurisdictional water or tributary, (2) waters located in whole or in part in the 100-year floodplain and are within 1,500 ft of the ordinary high water mark of jurisdictional water or tributary, and (3) waters located in whole or in part within 1,500 ft of the ordinary high water mark of a traditional navigable water (including the Great Lakes) or territorial seas.
Isolated or “Other” waters are subject to a case-specific analysis to determine if a significant nexus exists and the water is a WOTUS. The “Other” waters include non-floodplain wetlands and open waters, as well as five types of waters listed (Prairie potholes, Delmarva and Carolina bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands) determined to be “similarly situated,” and, thus, are to be considered in combination in a significant nexus analysis. These waters are WOTUS if they, “either alone, or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas.”
The Final Rule purportedly attempts to eliminate case-specific scenarios by creating more “bright line” guidance regarding what constitutes a significant nexus and the strength of the chemical, physical, and biological connections between up- and down-stream waters. That being said, after reading the Science Advisory Board (SAB) review of the technical basis for EPA’s proposed rule, my take is that the line is not necessarily “bright,” but it is long and far reaching.
The Final Rule reemphasizes that the 404 (f) exemptions remain for normal farming, ranching, and silviculture activities. It’s worth noting that while agriculture has specific exemptions, including modified rules under Spill Prevention Control and Countermeasure (SPCC) Plans, the “clearer” definitions of waters of the US provided by this Final Rule may necessitate a closer look at specific SPCC plans. For example, if a SPCC was previously deemed “not necessary” because a spill would not reach a WOTUS – is this still the case today?
Under this new rule, undeveloped areas of a property, a conveyance ditch, or a retention pond may be covered under the Final Rule because the undeveloped area is within a 100-year flood plain, or the conveyance ditch matches the definition of a tributary, or a significant nexus is found to exist between the retention pond and the WOTUS triggering more stringent, spill-control requirements.
It strikes me as odd that a Final Rule that is supposed to provide mere clarification requires 300 pages of text. It also strikes me as odd that the USEPA claims that these 300 pages of text do not create any new regulatory requirements. In my opinion, this Final Rule brings many properties into the CWA arena because of the expanded definition of jurisdictional waters; therefore, many property owners will have “new” regulatory requirements. The fact that I can write a blog that requires three pages and only scratches the surface of the nuances of this Final Rule makes me question the clarity that was sought.
I’m sure there will be more than a few legal analyses of this Final Rule in the coming weeks and months that will provide insight. We, like you, will be watching for additional interpretations and how it might impact future permitting for our clients and the regulated community.
If you have questions about Clean Water Act permits or any other environmental permits, feel free to contact me (firstname.lastname@example.org) at 248-932-0228, ext 125.