On May 27, 2015, US EPA and the Army Corps of Engineers (ACOE) released the final version of the rule which defines federal jurisdiction over waterways (referred to as the "Clean Water Rule").
Those who support the rule argue that it merely puts in place existing guidance and practice. Supporters also argue that the final rule will provide much needed clarity regarding wetland and stream permitting requirements.
"[The new rule] will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable." President Obama
Opponents argue the rule amounts to a massive power grab by the federal government. There is already pending Congressional action to block the rule.
“Our analysis shows yet again how unwise, extreme and unlawful this rule is,” American Farm Bureau Federation President Bob Stallman said
Background on Rule
The Clean Water Act was passed more than 40 years ago, yet the scope and reach of the Act is still being debated. Congress created the uncertainty by limiting the Act to "navigable waters" which is defined as "waters of the United States, including the territorial seas." 33 U.S.C. Section 1361(7)
Interpretation of the vague term- "waters of the United States"- has been left largely to guidance and the Courts. The most significant decisions were issued by the Supreme Court in Rapanos and SWANCC. The Court found CWA jurisdiction extended to both navigable waters and any non-navigable water that had a "significant nexus" to a navigable waterway.
Following the Supreme Court decision, many determinations as to whether wetlands or streams were protected under the Clean Water Act were made on a case-by-case basis using Justice Kennedy’s "Significant Nexus" Test. The Army Corps and EPA followed with guidance documents interpreting how the Significant Nexus Test should be applied in practice.
The case-by-case approach led to a tremendous amount of uncertainty and also a lot of litigation over application to the test. As discussed in prior posts, the Army Corps became increasingly expansive in finding federal jurisdiction utilizing the Significant Nexus Test. Furthermore, property owners and developers did not have a clear path to challenge the Corps determinations (called "Jurisdictional Determinations" or JDs).
While both regulators and business/property owners called for more certainty, both had very different ideas as to the scope of the jurisdictional rule. The EPA and Army Corps erred on the side of being expansive in the federal government’s jurisdiction so as to not leave out important waterways or wetlands. The final Clean Water Rule will replace existing guidance going forward.
Structure of the Rule- Per Se Jurisdictional and Case-By-Case
The rule extends per se jurisdiction to "traditional navigable waters," "interstate waters," "territorial seas" and "impoundments thereof." (i.e. "Traditional Jurisdictional Waters").
The rule then creates new categories of per se jurisdictional waters to include those that meet the definitions of "tributaries," "adjacent," and "neighboring" waterways.
The definition of tributary is broadly defined as:
- Regardless of flow (i.e. ephemeral, intermittent, and perennial streams);
- Having a defined bed an bank;
- Has an "ordinary high water mark:" and
- Contributes flow either directly or through another water to a Navigable Water
The definition of adjacent is defined as:
- bordering, contiguous or neighboring;
- located at the head of traditional navigable, interstate, territorial seas, or tributaries or impoundments thereof
Neighboring is defined as any water within the following proximity to a Traditional Jurisdictional Water:
- within 100 feet of the ordinary high water mark;
- within the 100 year floodplain but not more than 1,500 feet from the ordinary high water mark of Traditional Jurisdictional Waters; and
- within 1,500 feet of the high tide line of Traditional Jurisdictional Waters and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes.
Following the per se federal jurisdictional waters, the rule still includes the catchall Significant Nexus Test that would capture any other waters that:
- alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical or biological integrity of a Traditional Jurisdictional Water;
- factors used in applying the Significant Nexus Test include: consider the function of the water in sediment trapping, nutrient recycling, pollutant trapping, transformation, filtering or transport, retention and attenuation of flood waters, runoff storage, contribution of flow, export of organic matter or food resources, and provision of aquatic habitat for species located in traditional navigable water, interstate water, or territorial sea
Waters automatically subject to the Significant Nexus Test include:
- certain regional water resources automatically fall under the Significant Nexus Test, including: prairie potholes, carolina bays, pocosins, western vernal pools and Texas coastal prairie wetlands
- all waters located within the 100-year floodplain of a Traditional Jurisdictional Water and those within 4,000 feet of a high tide line or ordinary high water mark of a jurisdictional water will be subject to the Significant Nexus Test.
The only clear cut non-jurisdictional waterways are those that fall within the rules explicit exclusions, which include:
- Ditches- including those with ephemeral flow that are not a relocated tributary or excavated in a tributary, those with intermittent flow that are not relocated tributary, excavated in a tributary or drain wetlands, and those that do not flow directly or through another water into a traditional navigable water, interstate water or territorial sea;
- Storm water control features and wastewater recycyling features;
- Erosional Features- Including gullies, rills and non-wetland swales that do not meet the definition of "tributary;"
- Artificial lakes and ponds created in dry land for certain specified purposes such as farming or swimming; and
- Construction or Mining– water filled depressions associated with these activities
Current and Pending Jurisdictional Determinations
Property owners must obtain a wetland and stream delineation using a private consultant, then they submit the delineation to the Army Corp for approval. The Corps approval of a wetland/stream delineation are call Jurisdictional Determinations or JDs.
A JD allows a property owner or developer to rely on approved delineation for purposes of determining the location, size and quality of wetlands and streams on the property. This can assist the property owner or developer in avoiding wetland impacts or minimizing such impacts as part of development.
The Clean Water Rule will not be effective until sixty (60) days after it is published in the federal register. A key question is what happens to existing JDs that were issued before the Clean Water Rule becomes effective? The preamble to the rule states that existing JDs will be grandfathered unless:
- New information warrants revision of the determination before the JD expiration period; or
- If requested by the applicant
What about requests for JDs that are submitted after the publication date but prior to the date the rule is effective? The Army Corps and EPA state they do not expect to issue JDs during this period. This summer most property owners and developers will need to wait at least sixty days before being able to obtain a JD.