By Jeryl L. Olson, Andrew H. Perellis and Patrick D. Joyce
The EPA and Army Corps of Engineers recently released its Final Clean Water Rule: Definition of “Waters of the United States.”
We had previously blogged about the Agency’s draft of the proposed rule that was distributed in November, 2013 as well as a “clarification” of the proposed rule distributed in March, 2014.
EPA claims that the Final Rule does not create any new or different regulatory requirements and is only a “definitional rule” that clarifies the scope of the “waters of the United States” under the Clean Water Act in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview Homes, 474 U.S. 121 (1985), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), and Rapanos v. United States (Rapanos), 547 U.S. 715 (2006). Many commentators and experienced environmental practitioners, however, believe that the rule expands federal jurisdiction. Challenges to the rule are expected, and the courts will have another say in determining the extent to which federal jurisdiction can extend to “waters,” including wetlands and ephemeral streams that are isolated, or otherwise not directly adjacent to what is considered to be a traditional navigable water or tributary to a traditional navigable water.
The Final Rule identifies three basic categories of jurisdictional waters (“the Big Three”) for which the scope of federal jurisdiction largely is not in dispute. These include:
- Traditional navigable waters
- Interstate waters
- The territorial seas
Additionally, tributaries to the above, and wetlands adjacent to either tributaries or to the Big Three are considered to be regulated waters of the United States.
In addition, the Final Rule identifies a category of waters subject to case-specific analysis to determine whether they are jurisdictional. The following six types of waters are jurisdictional if the satisfy the “significant nexus” test and therefore “significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas in the region:”
- Prairie potholes
- Carolina and Delmarva bays
- Western vernal pools in California
- Texas coastal prairie wetlands
- Waters within the 100-year flood plain and that are within 4,000 feet of the tide line or the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, impoundments, or covered tributary (“similarly situated waters”)
Finally, the Final Rule identifies the following waters that are specifically excluded from jurisdiction:
- Waste treatment systems and wastewater recycling structures on dry land
- Prior converted cropland
- Ditches with ephemeral or intermittent flow that are not a relocated tributary or excavated in a tributary and ditches that do not flow into another water
- Irrigated lands that revert to dry land
- Artificial lakes such as stock watering ponds, irrigation ponds, settling basins, rice fields, log ponds, and cooling ponds and artificial reflecting pools or swimming pools on dry land
- Depressions incidental to mining or construction that may become filled with water
- Erosional features, including gullies, rills, and ephemeral features such as ephemeral streams that do not have a bed and banks and ordinary high water mark
- Stormwater control features constructed to convey, treat, or store stormwater on dry land
The final rule differs from the proposed rule in some respects, three of which are noted below.
First, the proposed rule defined “floodplain” and “riparian area” in very scientific terms. The final rule abandons this approach. Instead, EPA uses a 100-foot measure from the ordinary high water mark in lieu of the term “riparian area.” Also, instead of just using the term “floodplain,” EPA now defines adjacent waters as being a maximum of 1,500 feet from the jurisdictional water and within the FEMA 100-year floodplain.
Second, unlike the proposed rule, the scope of the case-by-case significant nexus analysis now has a geographic limit. Under the final rule, to be potentially subject to regulation, the water must be within 4,000 feet of the ordinary high water mark of a tributary and within the FEMA 100-year floodplain.
Third, the final rule clarifies the scope of regulation over ditches. As proposed, a ditch is somewhat more narrowly regulated, and is jurisdictional only where it is (1) an ephemeral or intermittent ditch excavated in a tributary or constructed in order to relocate a tributary or (2) an intermittent ditch that drains wetlands directly into another jurisdictional water.
The final rule is complex and the regulated community should seek legal advice in determining how the new rule may apply in particular situations.