Month: April 2015
On April 3, The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) submitted a proposed rulemaking for final interagency review to revise the definition of “waters of the U.S.” (WOTUS) in the Federal Clean Water Act (CWA). The revisions will affect the circumstances in which permits are needed to disturb and discharge fill material into streams, wetlands, or other waters. The EPA and the Corps jointly released the proposed rule in April 2014 and have since received almost one million public comments. The proposed WOTUS rule expands the types of waters that will be considered jurisdictional and subject to CWA permitting requirements through the use of various opinions from past Supreme Court decisions regarding the connections of drainageways and wetlands to downstream waters, as well as by proposing new WOTUS categories and definitions.
The proposed rule will allow the EPA and the Corps to assert CWA jurisdiction on a categorical and regional basis in cases where jurisdiction is currently questionable (e.g., ephemeral or discontinuous streams, isolated wetlands, and ditches), instead of requiring a case-by-case Significant Nexus Determination (SND) process. This SND process is a result of the 2006 Rapanos v. U.S. Supreme Court (Rapanos) case, which enables EPA and Corps staff to use the SND logic (or just the threat of a formal Jurisdictional Determination) to lay a de facto claim to any tributary streams or adjacent wetlands, including the uppermost extent of dry ephemeral channels and wetlands near, but lacking direct connections to, WOTUS. In most cases, when jurisdiction is in question for a project, applicants relent to the EPA and Corps opinions before the case is subjected to a SND, because the SND process can be time-consuming, cumbersome, and expensive. Therefore in practice, the new rule may have less impact on streams than on ditches, artificial drainageways, and isolated wetlands.
EPA claims that the rule would improve clarity and certainty regarding CWA jurisdiction, and stated in press releases that “confusion has led some people not to apply for permits where in fact they must” and that the rule would extend CWA jurisdiction to an additional 20 million acres of wetlands and more than half of our nation’s streams. However, the inclusion of drainageways and “other waters” into the rule on the basis of any hydrological or ecological connections, not just “significant” connections, would depart drastically from the Rapanos plurality decision that only channels with “relatively permanent” flow should be jurisdictional under the CWA.
The Ditch Issue and CWA Exemptions
Once a ditch or other area is under federal CWA jurisdiction, modifications or disturbance (including routine maintenance) may be subject to CWA Section 404 permitting requirements. Unless the rule is revised and clarified, even constructed drainageways, swales, and similar surface flow conveyances would be considered jurisdictional unless it can be demonstrated that they are not connected to a WOTUS, and that they do not meet the definition of wetlands. This is problematic considering that in many non-arid regions, the recently revised methodology for wetland determination makes it relatively easy to classify even very small, seasonally saturated areas with opportunistic hydrophytic vegetation as wetlands.
The rule appears to lay the burden-of-proof on the applicant to prove a feature is not jurisdictional. Ditches are exempt from regulation under the rule and past Corps regulatory guidance letters if they: 1) are excavated in uplands, drain only uplands, and have less than perennial flow; and 2) do not contribute to flow, either directly or indirectly, to a WOTUS. Since most ditches are constructed to collect and transport runoff to a discharge point at a stream or wetland, only ditches that are wholly disconnected from a watershed and remain dry during most of the year are likely to qualify for these exemptions.
The original CWA also provided conditional exemptions for other activities, detailed at the links below, which are preserved with the new rule. However, use of these exemptions can be contentious in practice and subject to case-by-case evaluation that differs based on the regulatory climate within each Corps District and EPA Region. For more information, see:
- Activities exempted under by CWA Part 232.3 definitions
- More detailed explanation of CWA Section 404(f) exemptions
For example, many Corps reviewers have been apt to reject an exemption for “maintenance of drainage ditches” if vegetation and sediment had accumulated in a constructed channel or basin, on the rationale that this infrastructure was abandoned because of lack of routine maintenance, or if the ditch is in the vicinity of protected wildlife species habitat. The Corps Regulatory Guidance Letter 07-02 discusses ditch maintenance exemption in more detail.
Stormwater and Green Infrastructure Jurisdictional Claims
Stormwater treatment systems and other constructed water treatment systems were traditionally not claimed by the Corps because these systems are designed and maintained to satisfy Section 402 of the CWA (regarding point and non-point discharges and NDPES permitting), thus considered impractical to be regulated as jurisdiction WOTUS under Section 404.
Recently, however, some Corps Districts have already begun claiming stormwater channels and basins on the basis that they are either not regularly maintained or convey flow to/from a wetland or stream, and are thus de facto jurisdictional tributaries. This is a slippery slope; if the mere connection to a stream or wetland is sufficient to claim jurisdiction, rather than considerations of function and form, then most stormwater facilities could be subject to CWA Section 404 permitting requirements.
Additionally, green infrastructure (bioretention basins, rain gardens, vegetated swales, constructed wetlands, etc.) have been widely promoted by EPA and others as an effective solution for stormwater control, water quality, and other issues. Despite appeals by many stakeholders, the EPA and the Corps have declined so far to provide an explicit exemption for green infrastructure—which may have a chilling effect on its use.
What You Can Do to Reduce Exposure to the CWA Proposed Rule
Maintain your drainage ditches…or else! Maintain artificial drainageways by removing accumulated sediment and colonizing vegetation, and controlling fugitive runoff or seepage to prevent the area from meeting the definition of wetlands.
Retain documentation (e.g. design plans, permits, and maintenance records) for water conveyance systems, especially green infrastructure. This documentation may be proof to refute jurisdictional claims in the future and prove that features were excavated in, and drain only, uplands.
Where possible, design drainage controls so that they are “off-line” from the local watershed, and avoid controls that channelize or detain surface flows (e.g., curb/gutter elimination, infiltration, bioretention), to reduce exposure to CWA jurisdictional claims.
Remember, even though you design a system or have a permit, the EPA and the Corps may reevaluate in the future and determine that conditions have changed and your infrastructure is now subject to regulation.
If you have questions on if/how the new WOTUS rule may affect your facility, contact Jonathan Farrell at 412-977-1456 or firstname.lastname@example.org. If you require assistance inspecting and maintaining your stormwater system, contact Rick Celender at (412) 249-2309 or email@example.com. The EPA has established a website dedicated to public outreach at http://www2.epa.gov/cleanwaterrule. We recommend more reading at http://www.naco.org/legislation/Pages/WOUS.aspx.
Recently, the USEPA provided a prepublication copy of standards for the disposal of coal combustion residuals (CCR) in landfills and surface impoundment. Section 257 of the federal code will be modified to include new measures covering the location, design, operation, and closure of existing and proposed CCR disposal units.
Owners of existing CCR surface impoundments will be required to provide assessments of the “structural integrity” of their facilities shortly after publication of the final rules. Owners must obtain a certification from a qualified professional engineer stating that each of these assessments meets the requirements of the stipulated CCR regulations.
Within 18 months of publication, owners or operators of a CCR impoundment must provide the following initial engineering assessments:
Hazard Classification (§257.73(a)2) – The owner is required to document the hazard potential of the impoundment based on the potential loss of human life, economic loss, environmental damage, disruption of lifeline facilities, or other impacts resulting from failure or mis-operation. The hazard classification uses a scale of low, high, or significant, and directly impacts spillway capacity, emergency action planning, and response requirements.
History of Construction (§257.73(c)) – The owner must compile documentation of the physical condition of the impoundment, including information on foundation and abutment soils, embankment and staging information, detailed drawings of the impoundment (including drainage and outlet structures), and normal and peak pool operating elevations.
Structural Stability Assessment (§257.73(d)) – The owner must document the adequacy of the impoundment design, construction, operation, and maintenance. The assessment must document the condition of the impoundment foundation and abutments, slope protection, vegetation, spillway condition and capacity, and associated hydraulic structures.
Safety Factor Assessment (§257.73(e)) – The owner must document the calculated factors of safety for critical cross sections of the impoundment embankments. The safety factor assessment must include stability calculations for operating and loading conditions (such as seismic loading) typical for dam design and construction.
These engineering assessments must be updated every five years following the initial assessment.
Within 24 months, a written Emergency Action Plan (§257.73(a) 3) must be prepared for any CCR surface impoundment classified with high or significant hazard potential. The EAP must contain information on procedures to detect a safety emergency, define responsible persons and notification procedures, provide contact information, include a map delineating the downstream area potentially impacted by a failure, and provide for meetings between the owner and local emergency responders. The written EAP must be reevaluated, at a minimum, every five years.
Longer term (42 months after publication), owners must demonstrate that existing surface impoundments comply with location restrictions for fault areas (§257.62) and seismic impact zones (§257.63). Facilities located within these areas will require site-specific evaluations of the performance of the facilities under seismic (earthquake) events. These evaluations must demonstrate that all structural components (including liners, leachate collection systems, and surface water control systems) are designed to function under the impacts of maximum horizontal ground motion. This task will include performing liquefaction, slope stability, and deformation analyses of waste, foundation, and embankment soils.
Any existing impoundment not demonstrating compliance with these requirements must cease placement of CCR and non-CCR waste streams into the unit within 6 months and commence closure operations in accordance with §257.102.
If you have questions about the proposed changes to the federal rules governing CCR disposal and the engineering assessments discussed, please contact Doug Clark (firstname.lastname@example.org; 800-365-2324) or Steve Dixon (email@example.com; 800-365-2324). More information on the proposed rule changes is available at EPA’s website.