The United States Environmental Protection Agency (U.S. EPA) and United States Army Corps of Engineers (U.S. ACE) proposed a new definition of “Waters of the United States” (WOTUS) on December 11, 2018. The significance of this proposal is that WOTUS are the waters that these agencies regulate under Section 404 of the Clean Water Act (CWA).
The proposal defines WOTUS as including Traditional Navigable Waters (TNW, which are primarily waters upon which interstate commerce could be conducted), intermittent and perennial streams, ditches, channels that are relocated tributaries, impounded streams, wetlands adjacent to streams, and wetlands that have a direct connection to TNW.
The proposal further defines tributaries as excluding ephemeral streams, which are those that only flow during heavy rainfall events. This is likely the most significant part of the rule that will be challenged and is a rollback of the current 2015 federal definition of WOTUS (2015 Rule; see below) and the pre-2015 Significant Nexus standards.
The proposal also seeks to replace the Significant Nexus test with clear, defined categories, making WOTUS easier to determine and not subject to continual legal interpretations. Significant Nexus, a relatively defined and traceable pathway to TNW, had been defined by a United States Supreme Court ruling in 2006 called the Rapanos Ruling. That ruling eliminated federal jurisdiction to regulate isolated wetlands and channels under the CWA. Several clarifications of the Rapanos Rule were later issued, further complicating the definition and interpretation of a Significant Nexus.
The proposal is currently in a 60-day public comment period in which any member of the public can submit a comment and the agencies will consider them. According to the U.S. EPA, the proposal, if finalized, “would apply nationwide, replacing the patchwork framework for Clean Water Act jurisdiction that has resulted from litigation challenging the 2015 Rule. The proposal would also re-balance the relationship between the federal government, states, and tribes in managing land and water resources.”
The current federal definition of WOTUS, enacted August 28, 2015 by the Obama Administration (2015 Rule), essentially includes all channels, wetlands, and ponds that are within 100 feet of a “tributary” to a TNW, or within 1,500 feet of TNW water itself. “Tributaries” are broadly defined and often include discontinuous channels, drainage swales, and any wetland or water body located in a 100-year flood plain. This definition often extends jurisdiction over excavated ditches and other areas that were considered uplands prior to the 2015 Rule. WOTUS could include areas that were determined to contribute to downstream flow, retention, and even nutrient recycling, among other inclusive criteria. Prior to the 2015 Rule, these areas were not regulated unless it could be demonstrated that there was a Significant Nexus.
The 2015 Rule has been heavily litigated, with varying rulings issued in several states and on different legal grounds. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the 2015 Rule. Several other court cases moved forward in the meantime, making the rule effective in some states and not in others at varying times. Several rulings were issued and overturned in several courts and states. As of September 18, 2018, the latest ruling was that the 2015 Rule only applied in 22 states throughout the U.S., while the prior definitions applied in the remaining 28 states. This unpredictability has added to the already difficult regulatory hurdles faced by landowners, businesses, and the regulated public. Acquisition due diligence has become increasingly difficult, as it is almost impossible to determine what would be regulated; what the permitting path, if any, may be available; and how long the issue would take to resolve.
These hurdles, combined with other laws such as the Endangered Species Act,1 create significant economic hardships for landowners, farmers, real estate developers, and other businesses and industries. Some of these hardships are halting projects or rendering previously developable or farmable land unusable. As a result, the development and agricultural communities argued that the 2015 Rule was an overreach by the U.S. EPA and U.S. ACE. In light of this regulatory landscape, most industries involved in real estate development agree that a formal definition of WOTUS is needed to create predictability in due diligence. Furthermore, such a definition could help owners or consultants identify WOTUS without government verification and alleviate fear of differing WOTUS opinions by the U.S. ACE after a project has commenced, leading to enforcement actions.
Prior to the 2015 Rule, WOTUS were generally defined in the U.S. ACE regulations adopted under the CWA (33 Code of Federal Regulations Part 328.3). Several guidance documents such as the 1987 U.S. ACE Wetland Delineation Manual, Natural Resources Conservation Service Technical Notes, state-issued rainwater and storm water manuals, and Federal Regulatory Guidance Letters were used to further identify and determine the limits of WOTUS. While these resources shed light on how to identify WOTUS, they did not technically define what WOTUS was or what was regulated and what was not. As a result, most developers sought U.S. ACE verifications of WOTUS opinions, typically with the help of consultants. These verifications are expensive and often take months to obtain. In many parts of the U.S., these verifications can only be conducted during the growing season—the time when plants are not dormant. Combined with clearing restrictions, survey windows, and local permitting, this made legally timing construction activities a difficult proposition, delaying or halting projects and increasing carrying costs.
After the 60-day comment period ends, the most optimistic predictions forecast that the agencies will adopt the new proposal in September of 2019. If history is any indicator, however, the rule will be mired in legal challenges and politics. In the meantime, the 2015 Rule applies in 22 states and the prior standard applies in the 28 remaining states. Landowners and developers should exercise caution when acquiring property and add extra time for due diligence to avoid potentially catastrophic economic risk.
If you have questions about WOTUS or relevant regulatory updates, please contact Bill Acton (email@example.com) or at 614-310-1041.
1 The Endangered Species Act can delay land development projects by requiring season-specific surveys for protected species and preparation and agency approval of habitat conservation plans, and by imposing seasonal restrictions on land clearing activities.
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.