In the late 1980s, life was simple: DeLoreans, parachute pants, Michael J. Fox in theaters. Life under the Clean Water Act was simple as well. Over the last three decades, a lot has changed.
We’ve seen multiple Supreme Court cases (Bayside, SWANCC, and Rapanos) dealing with the limits of the U.S. Army Corps of Engineers (USACE) and Environmental Protection Agency (EPA) jurisdiction under the Clean Water Act. These cases and subsequent agency guidance muddied the waters, so to speak. Some waters and wetlands were “in” and some were “out,” with substantial confusion as to which was which.
In May 2015, the agencies attempted to remove the confusion by issuing a new definition of “waters of the U.S.” (WOTUS). This definition could, in many parts of the country, take us back in time relative to USACE and EPA jurisdiction under the Clean Water Act.
The New Definition in a Nutshell
Paragraph “a” defines the eight categories of WOTUS:
- traditional navigable waters
- interstate waters
- territorial seas
- impoundments (of 1 - 3 above and 5 below)
- adjacent waters
- five special groups of similarly situated waters
- case-specific significant nexus waters
These are referred to as “a(#)” waters by the agencies. For the most part, the categories covered in paragraphs a(1) through a(5) are familiar ground. Traditional navigable waters, interstate waters, and territorial seas have always been considered jurisdictional, as have impoundments of those waters and tributaries with an OHWM. Little has changed except the clarification that a tributary must have an OHWM and a “bed and banks.”
Adjacent waters, or a(6), morphed from the 1986 version limited to only adjacent wetlands to include other waters such as ponds, lakes, oxbows, impoundments, and similar waters. Adjacency is defined in the rule as “bordering, contiguous, or neighboring” an a(1) through a(5) water. Generally, these include waters at least partially within 100 feet of an OHWM, or within 1,500 feet of an OHWM and within the FEMA 100-year floodplain.
From Here It Gets Tricky
The last two categories are based on the agencies’ interpretation of the significant nexus standard presented in the Supreme Court cases: waters are WOTUS “if they, either alone or in combination with similarly situated waters in a region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas” (Clean Water Rule: Definition of WOTUS, USACE & EPA, May 27, 2015, emphasis added). Note the key words similarly situated and significantly affect. A water can have a significant nexus if it significantly contributes just one of nine different functions — sediment trapping, nutrient recycling, pollutant filtering, floodwater retention, runoff storage, flow contribution, organic matter export, food resources export, and aquatic species habitat — to the integrity of a downstream jurisdictional water.
Paragraph a(7) waters include five special groups already determined to be similarly situated:
- prairie potholes (in the upper Midwest)
- Carolina/Delmarva bays (along the Atlantic coast)
- pocosins (in the central Atlantic coast)
- western vernal pools (in California)
- Texas coastal prairie wetlands (along the Texas Gulf Coast)
All of these are typically discrete, freshwater, depressional wetlands scattered across their respective landscapes. Many had been considered isolated and non-jurisdictional after the 2001 SWANCC Supreme Court case. These waters will be considered jurisdictional on a case-specific basis if all such waters in single watershed meet the significant nexus standard, which is not likely to be difficult.
Last but not least, there are the a(8) waters. This is sort of a catchall category for any waters left out above that might meet the significant nexus standard. There are “bright line” limits, however. These waters have to fall within the 100-year floodplain, or within 4,000 feet of the OHWM or high tide line.
In many areas of the country, especially east of the Rocky Mountains, the 4,000-foot limit will include vast areas. One exercise we ran using GIS showed 99% of the area west of Houston could fall within 4,000 feet of a tributary with a potential OHWM and bed and banks. Wetlands and other waters within this area, even if considered isolated and non-jurisdictional before, could be considered jurisdictional on a case-specific basis. The figure here illustrates those non-tidal waters considered to be jurisdictional by rule, those requiring case-specific analysis, and those that are isolated or unregulated.
So What’s NOT Included?
A second paragraph in the new rule defines what are not considered WOTUS. These include waste treatment systems, prior converted cropland, artificially irrigated areas, stock ponds, man-made lakes, rice fields, stormwater control features, wastewater recycling structures, swimming pools and ornamental waters constructed in dry land, water-filled depressions associated with mining or construction (including borrow pits), erosional features that are not tributaries, groundwater, and (my personal favorite) puddles.
But what about ditches? It turns out not all ditches are alike in the eyes of the agencies. The new definition excludes ditches that don’t flow most of the time (perennial), so long as they are not relocating a natural tributary or draining wetlands. Ditches that do not flow into a WOTUS are also not jurisdictional. However, ditches with relatively permanent flow, or those that drain a wetland or relocate a stream, are still potentially jurisdictional.
A third paragraph of the new rule defines seven key terms: adjacent, neighboring, tributary, wetland, significant nexus, OHWM, and high tide line. For the most part, these definitions are identical or very similar to their predecessors, with the exception of the linear footage limits given above. The most notable exception is “tributary,” which is now defined by the presence of a bed and banks and an OHWM.
Implications of the New Clean Water Act Rules
- Expanded Clean Water Act jurisdiction in parts of the country, especially where the five special groups of similarly situated waters occur
- Greater scrutiny of potential jurisdiction for ditches
- Increased permitting requirements under Clean Water Act Section 404 and Section 402 National Pollutant Discharge Elimination System stormwater discharge permits
- A likely increase in the USACE and EPA permit backlog affecting permittees’ project schedules and increasing project costs associated with permitting and mitigation
So it’s back to the future for Clean Water Act jurisdiction. In some parts of the country, jurisdiction will for all practical purposes look very similar to pre-SWANCC days when any water that fit the definition of a tributary or a wetland required a permit. Time to find my parachute pants and jump in the DeLorean.
EDITOR’S NOTE: On Aug. 27, 2015, Chief Judge Ralph R. Erickson of the U.S. District Court for the District of North Dakota issued a stay on the Clean Water Rule’s implementation in Colorado, North Dakota, Alaska, Arizona, Arkansas, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico. The judge’s stay only applies to these states. The rule went into effect for all other states on Aug. 28, 2015.