Author: Richard Celender, C.E.T., CPESC, CPSWQ
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.
Impending EPA Post-Construction Stormwater Regulations Highlight Importance of Stormwater and Infrastructure Maintenance
The U.S. Environmental Protection Agency (EPA) has announced that it will propose and take final action by November 2012 on a first-time national rule that would control stormwater discharges from newly developed, previously developed and redeveloped sites. EPA plans to propose a regulation to strengthen the national stormwater permit program, including, at a minimum, new design or performance standards to control post-construction stormwater discharges from developed sites under the authority of section 402(p) of the Clean Water Act. According to EPA, the Agency is gearing up to revise the National Pollutant Discharge Elimination System (NPDES) regulations to respond to a 2008 National Research Council (NRC) report that calls for “radical changes” to EPA’s stormwater control program. The report, Urban Stormwater Management in the United States, concludes that the lack of requirement for post-construction stormwater controls in the construction industry’s general permit is a “glaring shortcoming.”
In order to prepare for these pending stormwater regulations, property owners may need to evaluate whether maintenance and rehabilitation of the infrastructure of their facilities is needed to achieve the requirements of the regulations. The monitoring and maintenance of property infrastructure is critical to ensure it functions as designed and meets or exceeds its design life. The specific aspects of site infrastructure that can impact stormwater discharge quality and can be addressed during a property infrastructure assessment include:
Stormwater Facilities: Inspection and maintenance of stormwater facilities ensures that stormwater infrastructure is functioning in accordance with the design and regulatory permitting requirements. Maintaining properly functioning stormwater management facilities results in improved water quality, reduced stormwater runoff, and reduced nonpoint source pollution to surface waters (rivers, streams, ponds, lakes, etc.) within the community. Improperly maintained facilities not only decrease efficiency and pollutant removal rates, but can also create environmental hazards such as flooding and contamination to surface waters. Further, the deterioration of stormwater facilities can result in the distress of other site infrastructure features (e.g., sinkhole formation beneath pavement).
Pavement: Either the Pavement Surface Evaluation and Rating (PASER) or ASTM Pavement Condition Index (PCI) systems can be used to assess pavement conditions. Both provide an easy to understand comparative evaluation that will allow you to make cost-effective decisions relative to the maintenance and rehabilitation of the existing pavement. Additionally, a subsurface exploration can assess the as-built conditions and thickness of the existing pavement components and the pavement subgrade materials. Once the analysis is complete, a site pavement rehabilitation plan can then be prepared inclusive of details and bid documents for use during maintenance and rehabilitation. A wide variety of rehabilitation/maintenance techniques can be incorporated to maximize the cost-efficiency of the rehabilitation, including overlays, sealants, joint repairs and subgrade improvements.
Overall Site Conditions: Site modifications, changes to surface drainage patterns, offsite development and/or other factors may impact the quality of stormwater discharges from the property. A site condition review will evaluate slopes and embankments, sidewalks and crosswalks, pavement markings and traffic signage, surface drainage controls, slope benches and drainage outlets.
Ponds and Natural Enhancement Areas: Not to be overlooked is the natural environment of existing pond and landscape areas. Consider beautifying existing pond areas by removing cattails and invasive species and replacing them with native species and attractive wildflowers that will improve the biodiversity of an existing development. These improvements will enhance water quality and reduce the amount of erosion generated over time. This sustainable approach to stormwater management can turn a functional asset into an amenity.
While assessing the site infrastructure that can directly impact stormwater discharge quality, other site features can be assessed including:
Parking Lots:Reviewing existing parking lot layouts allows the evaluation of the efficiency of site parking areas, internal access roads and external driveways. Pedestrian and vehicular safety can be assessed as well. Pavement rehabilitation/maintenance provides an opportunity for property owners to upgrade the site parking lot and roadway layouts in an economical manner to address changes in site use to meet local zoning requirements, state Department of Transportation requirements, and/or Americans with Disabilities Act (ADA) criteria.
Site Utilities: Underground utility infrastructure can be located using a variety of geophysical technologies. The location of utility infrastructure is an important element of property maintenance; particularly in the absence of “as built” information, or if site expansions and/or modifications are proposed.
It’s important that property owners take time to fully inspect infrastructure for signs of damage due to aging, natural elements or harsh weather. Further, an annual infrastructure evaluation allows you to maximize efficiency of your resources. The monitoring and maintenance of property infrastructure is critical to ensure it functions as designed and meets or exceeds the design life.
To learn more about how your infrastructure can impact stormwater discharges from your site, or assist with infrastructure maintenance and rehabilitation needs, contact Mike Sheleheda, P.E. at (800) 899-3610 or MSheleheda@cecinc.com, or Rick Celender, C.E.T., CPESC, CPSWQ at (800) 365-2324 or RCelender@cecinc.com).