Army Corps of Engineers

On March 30, 2018, EPA Administrator Scott Pruitt issued a memorandum eliminating the authority of Regional Administrators to veto decisions by the Army Corps of Engineers to grant a permit for impacts to streams or wetlands.  The veto authority has been re-delegated to the U.S. EPA Administrator.

Any project that results in a discharge of dredged or fill material into waters of the U.S. must obtain a permit from the Army Corps of Engineers under 404 of the Clean Water Act (CWA).  Under the CWA, EPA is given authority to potentially veto the Army Corps issuance of a 404 permit if EPA determines it the permit will allow unacceptable impacts to waters of the U.S.

Administrator Pruitt’s memo states the change in control was to “restore regulatory certainty and promote the rule of law.”  However, the current regulatory uncertainty does not stem from vetoes of issued permits.  Rather, the regulatory uncertainty stems from the ongoing litigation associated with the Obama Administrations Waters of the U.S. Rule which defined the scope of federal jurisdiction under the CWA. (See prior post)  That uncertainty is likely to persist due to ongoing litigation in multiple courts.

EPA Spokesperson downplayed the significance of the memorandum:

This memo explains that jurisdictional determinations that raise significant issues or technical difficulties should be handled in a consistent and uniform manner, particularly during the WOTUS rulemaking,” EPA spokeswoman Liz Bowman said. “Regions will absolutely be involved in the process and work closely with the administrator’s office when doing the work to assess jurisdiction for very select, and often rare, cases.”

The authority under Section 404(c) of the CWA has rarely been used by EPA.  According to EPA’s webpage, the authority has only been used thirteen (13) times since 1970.

This week the U.S. Supreme Court ruled in Nat’l Ass’n of Mfrs. v. Dep’t of Def., No. 16-299 that district courts have jurisdiction to hear challenges to any rule that attempts to define "Waters of the United States" for purposes of determining the scope of coverage of the Clean Water Act.  As detailed on this blog previously, ever since the Supreme Court’s prior decision in Rapanos, there has been tremendous uncertainty as to which streams and wetlands fall under federal jurisdiction.

The Obama Administration attempted to end the uncertainty by through the Clean Water Rule which broadly defined the federal jurisdiction.  Even before the rule went into effect, multiple legal challenges were filed seeking to block the rule.  

Before a decision could be reached on the merits of the rule, the proper venue for challenges to the rule had to be decided.  The Sixth Circuit ruled the proper venue was in the circuit court of appeals, not district courts.  However, the Supreme Court overturned the lower court ruling sending the challenge back to district courts.  

The ruling also removes the Sixth Circuit’s injunction against administering the Clean Water Rule.  With the injunction removed, the Clean Water Rule becomes effective in all but 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming).  These states are subject to a separate preliminary injunction which was issued by the federal district court in North Dakota. 

The Trump Administration also issued a rule to unwind the Clean Water Rule which will also likely be challenged, now in district courts.  The Administration has promised a second rule defining the scope of jurisdiction more narrowly than the Clean Water Rule.  

What the Supreme Court decision means is the district courts will likely be awash in legal challenges to both the Obama Administrations Clean Water Rule as well as the Trump Administration’s rules.  It will take years for all this litigation to percolate back up to the Supreme Court for a ruling on the merits.  In the meantime, industry and land owners will be forced to navigate uncertainty.  

The Trump Administration has promised massive deregulation, in particular reductions in environmental regulations. A major target of the Trump Administration’s deregulation agenda is the Obama Administration’s Waters of the U.S. Rule (WOTUS) which defines which wetlands and streams are federally regulated.

However, as described in this post, despite the controversy, all of the regulatory activity over the last several years really just leaves us in the status quo.

CWA Defines Jurisdictional Waters

Section 301(a) of the Clean Water Act (CWA) prohibits discharges of pollutants to “navigable waters” without a permit.  See, 33 U.S.C. Section 1311(a), 1362(a).   The CWA defines “navigable waters” as “waters of the United States…” See, 33 U.S.C. Section 1362(7)

However, what exactly constitutes “waters of the United States” has been controversial since passage of the CWA in 1972.

Supreme Court Weighs in Three Times

The Supreme Court has addressed the issue of “waters of the U.S.” on three separate occasions:

  • Adjacent waters- In the Court’s initial decision, it captured the issue of the extent of federal jurisdiction succinctly- “Between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs–in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land.  Where on this continuum to fine the limit of “waters” is far from obvious.” The Court said the term “navigable” in the statute is of little import.  The history of the CWA shows Congress intended broad regulations of waters. In this case, the Court concluded the wetlands adjacent to “waters of the U.S.” were federally regulated.  See, United States v. Riverside Bayview Homes 474 U.S. 121 (1985)
  • Habitat for Migratory Birds- The Court determined the Army Corps went too far trying to assert federal regulation over intrastate waters on the basis the waters provide habitat for migratory birds. SWANNCC v. U.S. Army Corps of Engineers, 531 U.S. .159 (2001)
  • Scalia and Kennedy Tests-  The third time the Court visited the issue it could not get five justices to agree on the extent of federal jurisdiction under the CWA.  Two tests emerged- Justice Scalia’s and Justice Kennedy’s.  Justice Scalia limited federal jurisdiction to navigable waters, adjacent wetlands and non-navigable streams that are permanent flow year round or at least seasonally. Justice Kennedy extended jurisdiction further, to any waters with a “significant nexus” to navigable waters.  Rapanos v. U.S., 547 U.S. 715 (2006)

Post-Rapanos the uncertainty and litigation continued over the extent of federal regulation.

Obama WOTUS Rule

In 2015, the Obama Administration attempted to put an end to the uncertainty by defining “waters of the U.S.” by rule (WOTUS).  Under the proposal federally regulated waters included the following:

  • Streams with perennial, intermittent or ephemeral flow
  • Defined bed, bank and an ordinary high water mark
  • Contributes flow, either directly or through another water, to a jurisdictional water
  • Part of a network that drains to a jurisdictional water
  • Excludes man-made ditches

Those opposed to the rule felt any small stream or water could meet the definition triggering federal regulation over even incidental creeks and streams or even drainage ditches.

The rules was immediately subject to over 20 legal challenges.  On October 9, 2015 the Sixth Circuit issued a stay of the effectiveness of the rule while its legality was determined.

Litigation is before the Supreme Court to determine not the legality of the rule, but the proper venue the rule can be challenged.  Despite those who argue the Trump Administration is rolling back protections of waterways, the WOTUS rule never went into effect.  Instead, we still determine the extent of federal jurisdiction using the Scalia and Kennedy tests from Rapanos.

Trump Executive Order

Despite the fact the WOTUS rule was not in effect, on February 28, 2017, President Trump issued an executive order titled “Restoring the rule of Law, Federalism and Economic Growth by Reviewing the “Waters of the U.S. Rule.”

The Executive Order had two goals:

  1. Rescind WOTUS;
  2. Issue an new rule interpreting “Navigable Waters” consistent with Justice Scalia’s test in Rapanos.

Step 1- Rescinding WOTUS

July 27, 2017, EPA proposed revocation of WOTUS.  EPA accepted public comments on the proposed rule through September 27th.

Step 2- Propose a New Definition of WOTUS

The next step will be for EPA to propose a definition of the rule that drops the Kennedy “significant nexus” test and limits jurisdiction to the test articulated by Justice Scalia.  However, similar to WOTUS, this rule will almost certainly face numerous legal challenges.

Back to the Beginning?

While the legal challenges work their way through the courts over the next several years, the law will not have changed since Rapanos was decided in 2006.  Both the Kennedy and Scalia tests for jurisdiction will be used by all circuits.

For over forty years the issue of how far to extend federal jurisdiction over waters has not been conclusively decided.  It appears this issues will not have greater clarity for the foreseeable future.

Developments that have small impacts to wetlands (typically around 1/2 acre or less) or streams (typically around 300 feet or less) have been able to qualify for expedited permitting known as Nationwide Permits (NWP).  Projects with greater impacts must obtain individual wetland or stream permits known as a 404 Army Corps Permit and 401 Ohio EPA Water Quality Certification (click here for Basics of Wetland Permitting).

Most developers try to arrange their development projects to stay under NWP thresholds if at all possible due to the time and cost savings associated with expedited permitting, which include:

  • Time Savings- NWP time frame 3-6 months versus 12-18 months for individual 404/401
  • Costs Savings- Permitting preparation range can be from $8,000 to $15,000 or more in cost savings just in permit preparation costs

The process for developing NWPs starts with the Army Corps of Engineers proposing NWP for the entire country under its 404 Clean Water Act authority.  Each individual state has the option of placing restrictions on usage of the NWPs under its 401 Clean Water Act authority.  The NWPs once finalized are effective for five years.

On March 17, 2017, Ohio EPA finalized its 401 water quality certification for the 2017 NWP.  The 2017 new NWPs are effective from March 19, 2017 through March 18, 2022.  

Under the new 401 water quality certification, Ohio EPA has placed significant limits on the use of the expedited permits for impacts to high quality streams in Ohio.  The Agency has developed a color coded map that designates areas into three categories:

  • Ineligible Areas (Purple)– Any impacts to streams in these areas are ineligible for coverage under NWP.  Any project with stream impacts in these areas must pursue an individual 404/401 permit.
  • Possibly Eligible Area (Yellow)–  Any impacts to streams in these areas require additional work before an applicant will be eligible for a NWP.  The applicant must:
    • Take pH values
    • Perform a habitat assessment- Qualitative Assessment Habitat Evaluation Index (QHEI) or Headwater Habitat Evaluation Index (HHEI) assessment of the stream. 
  • Eligible Areas (No color code)– any proposed  impact to streams within the project area are eligible for NWP coverage.

 In Northeast Ohio, the much of the Rocky and Cuyahoga River watersheds are color coded purple (ineligible for NWPs).  These new restrictions will have significant consequences for developers and property owners throughout Ohio.

On January 20th, President Trump’s Chief of Staff, Reince Priebus issued a Memorandum to the Heads of Executive Departments and Agencies imposing a regulatory freeze. There appears to be a lot of confusion among environmental attorneys and consultants as to whether the freeze applies to the Army Corps of Engineers (ACOE) Nationwide Permits (NWP).  

NWP are authorizations to fill wetlands and/or impact streams for certain projects that have limited impacts.  NWP are general permits that allow projects to bypass more complicated and costly individual permitting.  The NWPs are a key authorization necessary to allow projects to move forward. Without effective NWP a project only alternative was to seek an individual 404 permit which takes months.

The freeze applies to recently enacted regulations that had not taken effect by the date of the memorandum.  The new NWP were published in rule on January 6, 2017 but will not be effective until March 19, 2017.  Based upon the publication date, the NWP regulation would be subject to the freeze.

Federal agencies can petition the Office of Management and Budget (OMB) for a special exemption from the regulatory freeze.  The ACOE filed for and was granted an exemption so the 2017 NWP will go into effect on Marcy 19, 2017 which was the original effective date.  The ACOE issued a notification last week that it was granted an exemption from the freeze.

I have seen e-mails and memorandum circulating indicating NWP may not be available this spring due to the freeze.  That now appears not to be the case.  

[Photo courtesy Junior Libby]

On October 31, the Army Corps of Engineers ("ACOE") issued new guidance as to the types and prioritization of jurisdictional determinations (JDs).  Regulatory Guidance Letter (RGL) 16-01 "Jurisdictional Determinations" has very little new guidance in reality.  However, some key language in the RGL makes clear the real purpose behind the RGL.  

What is a Jurisdictional Determination?

A Jurisdictional Determination (JD) is an official determination of the ACOE as to whether wetlands or streams fall under federal jurisdiction pursuant to the Clean Water Act.  The Corps practice has been to issue either "Approved JDs" or "Preliminary JDs."  

An "Approved JD" is a final legal determination that there are, or that there are not, wetlands or streams under federal jurisdiction. See, 33 U.S.C. 331.2 The "Approved JD" will also identify the geographic limits of the wetlands or streams on the property.  An "Approved JD" can be either issued as a a "Stand Alone Approved JD" or it can be associated with a permit action.  

A "Preliminary JD" is used to expedite the permitting process.  It does not take as much time to issue a "Preliminary JD" because the ACOE simply presumes all the wetlands and streams on the property are jurisdictional.  By presuming all wetlands/streams are under federal jurisdiction, a "Preliminary JD" negates the need for a site visit by the ACOE which expedites the permitting process.  The "Preliminary JD" also will delineate the limits of wetlands on the property.

Hawkes Decision

In United States Army Corps of Engineers v. Hawkes the Supreme Court concluded that JDs issued by the ACOE constitute final agency action under the Administrative Procedure Act thereby allowing immediate review in Court.  This was a big win for property owners who were previously left with administrative appeals before the Army Corps of Engineers to challenge JDs.  

The fact pattern in the Hawkes decision sheds light as to why the ACOE decided to issue the regulatory guidance letter.  The landowner in Hawkes was facing a long and expensive permitting process to allow impacts to wetlands on its property.  Prior to initiating the permitting process, the landowner sought a JD with the hope the wetlands would be determined non-jurisdictional.  When the ACOE determine the wetlands were, in fact, jurisdictional the landowner sought to challenge the determination in Court rather than through an administrative appeal before the ACOE.

Now that the Supreme Court determined JDs can be challenged in Court, the ACOE was concerned that landowners would have a strong incentive to request JDs only to set up legal challenges in Court to the ACOE’s jurisdiction.

Real Purpose Behind RGL 16-01

RGL 16-01 is the first RGL issued during the Obama Administration and the first RGL since 2008.  The stated purpose of RGL 16-01 is to clarify the differences behind the an "Approved JD" versus a "Preliminary JD."  The ACOE states the clarification will help the public choose which type of JD may be appropriate for their project.  

The reality is there was little confusion between the types of JDs.  The real purpose of the JD can be found in the following sentence on the first page of the RGL:

"The district engineer should set reasonable priorities on the district’s workload and available resources.  For example, it may be reasonable to give higher priority to a JD request when it accompanies a permit request."

This statement makes clear that the ACOE will prioritize processing "Approved JD" request with a permit application versus "Stand Alone Approved JD" request.  The goal is to avoid issuing "Approved JDs" to landowners who may be making the request simply to challenge the JD in court and avoid permitting all together if the court challenge is successful.

Those seeking an "Approved JD" without submitting a permit application may be waiting a long time to get their determination.

Today, the Sixth Circuit issued a stay of the Clean Water Rule in response to a challenge filed by eighteen states, including Ohio.  The issuance of a stay represents a major set back to EPA in  effort to better define the limits of federal jurisdiction under the Clean Water Act (CWA).  Unlike the stay issued by the North Dakota District Court, this stay applies to implementation of the rule nationwide.

The CWA limits jurisdiction 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. Justice Kennedy, plurality decision in Rapanos held that CWA jurisdiction extended to both navigable waters and any non-navigable water that had a "significant nexus" to a navigable waterway.

EPA issued the Clean Water Rule in attempt to better define how the significant nexus test should be applied as well as establish which waterways were exempt from coverage.  The rule was harshly criticized as an overreach by EPA. Soon after its release, the rule was challenged by a number of states and business groups.  

States sought a stay of the effectiveness of the rule while the Court considers their challenge.  The issuance of a stay prevents EPA from using the the Clean Water Rule to define federal jurisdiction over wetlands or streams.  In order to be granted a stay, the states challenging the rule had to demonstrate they were likely to win on their challenge to the legality of the rule.  In addressing this issue the Court said the following:

Meanwhile, we conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims. Petitioners first claim that the Rule’s treatment of tributaries, “adjacent waters,” and waters having a “significant nexus” to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers. Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of “waters of the United States” as used in the Clean Water Act,3 it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.

Now that the stay has been issued, the Army Corps of Engineers (ACOE) will have to revert back to the prior methods for issuing Jurisdictional Determinations (JDs) which were largely based on internal guidance.  

In practical experience, the ACOE has been aggressive in asserting jurisdiction over wetland and streams even before the Clean Water Rule.  However, the rule would have provided them more legal support for their determinations when they are challenged.

With the Court’s grant of a stay, it seems pretty likely the rule will be overturned and EPA will have to go back to the drawing board.

Last week, the U.S. District Court for North Dakota imposed a preliminary injunction against EPA’s implementation of its "Waters of the U.S. Rule" which defines the waterways and wetlands regulated under the Clean Water Act.  See, North Dakota v. EPA.  The Court issued its decision despite the EPA and Army Corps’ argument that exclusive jurisdiction to hear the challenge to the rule lies with the Sixth Circuit Court of Appeals, where several similar cases are currently pending review.

In order for the Court to issue a preliminary injunction it must determine that the State of North Dakota (and other challengers) have a "likelihood to succeed on the merits" once the Court makes its final determination of the legality of the rule.  In holding that the State of North Dakota would likely succeed, the Court found that EPA went beyond the test articulated by Justice Kennedy in the Supreme Court’s decision in Rapanos when developing the rule:

The Rule allows EPA regulation of waters that do not bear any effect on the “chemical, physical, and biological integrity” of any navigable-in-fact water. While the Technical Support Document states that pollutants dumped into a tributary will flow downstream to a navigable water, the breadth of the definition of a tributary set forth in the Rule allows for regulation of any area that has a trace amount of water so long as “the physical indicators of a bed and banks and an ordinary high water mark” exist.

The 13 states covered under the Court’s injunction are: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. Practically speaking, this means that two different standards for determining federal jurisdiction over waters exist. at least under the Sixth Circuit rules.

Two other District Court’s ruled that district courts do not have jurisdiction to hear challenges to EPA’s rule defining waters of the United States because courts of appeal have original jurisdiction over “any effluent limitation or other limitation" citing § 509(b)(1) of the CWA, 33 U.S.C. § 1369(b)(1). See, Murray Energy v. EPA and Georgia v. McCarthy, et al.,

Under the Clean Water Act (CWA), you cannot impact a federally protected stream or wetland unless you obtain a 404 permit from the Army Corps of Engineers (ACOE).See 33 U.S.C. §§ 1344(a), 1362(7). If you trigger the need for a 404 permit, you will also need a 401 Water Quality Certification.  Ohio Administrative Code Chapter 3745-32.

After the release of the new jurisdictional rule this summer, most streams and wetlands will likely fall under federal protection (See, prior post discussing the new "Waters of the U.S. Rule").  Assuming you are dealing with federally protected wetlands or streams, what does the typical permitting process look like?

Step 1:  Wetland Stream Assessment-  If you are evaluating a piece of property (or multiple properties) for development you may want to consider a basic wetland/stream assessment.  This is not a formal determination of the exact locations of wetland on the property.  An assessment provides general information regarding the ecological issues on the property, including:

  • General estimate of the quality, size and location of wetlands on the property;
  • Quality and length of streams on the property; and
  • Presence of any endangered species habitat on the property

Gathering this information can be extremely helpful in determining the viability of development on a piece of property.  It can also assist with determining permitting timeframes.  

When evaluating between a number of different properties, assessments can also provide critically important information when deciding which property would likely be the least costly to obtain required permits and involve the shortest permitting timeframes.

Step 2:  Wetland Delineation-  This is a formal determination by a qualified wetland consultant as to the exact location, size and quality of wetlands and streams on a property.  A formal delineation is more costly than a basic assessment, but it is a required step for the permitting process.  A property owner or developer must hire a qualified wetland/stream consultant to perform the delineation.

It typically takes around two weeks to complete a wetland delineation.

Step 3:  Jurisdictional Affirmation-  The Army Corps reviews the wetland delineation report and performs a site visit typically thirty (30) days after receipt of the report.  After the site visit is complete, the Army Corps will issue a formal Jurisdictional Determination or JD.  The JD is an approval of the wetland delineation.

Step 4:  Determination of the Type of Permit Needed

After the Army Corps issues its JD, the next step is to determine the type of permit that the project will require.  The type of permit is dependent on the nature of the wetlands and the size of impacts.  Many developers try and configure their project to fall under a Nationwide Permit as described below because it is the least costly and has the quickest permitting timeframes.

Army Corps Nationwide Permit-  Industrial and commercial developments can typically impact up to .5 acre of jurisdictional wetland or 300 linear feet of stream under a Nationwide Permit (NWP).  A NWP is a streamlined permitting process and does not require the level of justification an individual permit requires. 

  • Timeframe:  3-6 months

Ohio EPA Isolated Permit-  Ohio is in the minority of states that created their own wetland permitting program for any wetlands that do not fall under federal jurisdiction (i.e. Isolated Wetlands).  After release of the "Waters of the U.S. Rule"  it is even less likely that wetlands will be classified as isolated.  If you have isolated wetlands, the application is filed only with Ohio EPA.  (Note: You can have both federal jurisdiction and isolated wetlands on the same property).  

  • Timeframe: 3 – 8 months

Individual Army Corps 404 Permit and Ohio EPA 401 Water Quality Certification-  If your project impacts more than the Nationwide Permit thresholds, it will need an individual permit.  This is the most costly, complex and uncertain permitting process.  

  • Timeframes:  12-18 months 
  • Alternatives Analysis:  Individual permits require a demonstration in the application that other locations were evaluated and the selected site is the best alternative for the project.  Alternative site configurations must also be shown to minimize on-site impacts.  The alternatives analysis can be highly subjective and the process can be very lengthy. 

Step 5:  Mitigation-  In addition to the consultant fees discussed above, a property owner/developer must also mitigate for all stream and wetland impacts (Ohio EPA Wetland and Stream Mitigation Webpage).  The regulations contain ratios of required mitigation which is tied to the quality of wetland or stream impacted (Ex: 2 to 1 or 3 to 1).  

Regulations no have a preference toward approved wetland mitigation banks where credits can be purchased to offset impacts to streams or wetlands.  To utilize a mitigation bank, credits must be available in the mitigation bank within the watershed where the project is taking place.  Wetland mitigation bank credits can cost anywhere from $30,000 to $60,000 per acre.  Stream mitigation credits can cost between $300-$500 per linear foot. 

If credits are not available, then a conceptual mitigation plan will likely need to be submitted to the Army Corps and Ohio EPA.  This could require identifying a piece of property off-site which currently is not protected.  If mitigation bank credits are not available, the cost and complexity of mitigation becomes much more significant.

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.

Non-Jurisdictional Waterways

The only clear cut non-jurisdictional waterways are those that fall within the rules explicit exclusions, which include:

  1. 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;
  2. Storm water control features and wastewater recycyling features;
  3. Erosional Features- Including gullies, rills and non-wetland swales that do not meet the definition of "tributary;"
  4. Artificial lakes and ponds created in dry land for certain specified purposes such as farming or swimming; and
  5. 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:

  1. New information warrants revision of the determination before the JD expiration period; or
  2. 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.