Clean Water Rule Redefines “Waters of the U.S.”
This week, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“Agencies”) jointly released the “Clean Water Rule,” which redefines the scope of waters protected under the federal Clean Water Act (“CWA”). The goal of the Clean Water Rule is to clarify which bodies of water are considered jurisdictional “waters of the United States,” a definition that was subject to multiple interpretations and has generated significant confusion and controversy. To streamline the process of identifying waters protected under the CWA, the Clean Water Rule revises the definition of “waters of the United States,” excludes additional categories of waters from the definition, and adopts new definitions such as “tributaries,” “adjacent,” “neighboring,” and “significant nexus.”
The National Pollution Discharge Elimination System permit program (CWA § 402), the permit program for discharge of dredged or fill material (CWA § 404), and the oil spill prevention and response program (CWA § 311) are all affected by the Clean Water Rule. The Agencies received more than one million public comments on the proposed rule, which was published in April 2014. As a result, the final Clean Water Rule contains a number of significant revisions from the proposed rule. Notable features of the final Clean Water Rule are summarized below. A redline of the differences between the proposed and final definition of “waters of the United States” is also included at the end of this E-Alert.
Jurisdictional Waters
The Clean Water Rule identifies eight categories of waters that are jurisdictional (i.e. subject to regulation under the CWA). The jurisdictional waters include waters historically protected under the CWA. The primary difference, however, is the manner in which certain types of these waters are individually categorized, based upon the new definitions established in the final rule.
Tributaries
Tributaries were previously identified as “waters of the United States,” but lacked a regulatory definition. The Clean Water Rule now defines “tributaries” for the first time. Under the final rule, a tributary is jurisdictional only if it is characterized by the presence of a bed and banks and an ordinary high water mark. According to the Agencies, these physical indicators demonstrate that the water has sufficient volume, frequency, and duration of flow to qualify as a tributary. “Tributary” waters are defined as jurisdictional “by rule.”
Adjacent Waters
Likewise, certain jurisdictional “adjacent waters” were subject to the same level of regulatory uncertainty and are now clarified under the Clean Water Rule. The Agencies determined that all waters meeting the definition of “adjacent waters” have a hydrological and ecological connection to other “waters of the United States,” and are therefore jurisdictional “by rule.” The final rule defines “adjacent” to mean bordering, contiguous, or neighboring, including those waters separated by constructed dikes or barriers, natural river berms, and beach dunes, as well as those waters that connect segments of a stream or river or are at the head of a stream or river. It is important to note, however, that “adjacent waters” do not include waters subject to established normal farming, ranching, and silviculture activities as those terms are used in CWA § 404(f).
The Clean Water Rule also adopts a new definition of “neighboring” for the purposes of determining adjacency. Three circumstances describe when waters would be “neighboring” and therefore “waters of the United States”:
- Waters located in whole or in part within 100 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment of a jurisdictional water, or a tributary, as defined in the rule;
- Waters located in whole or in part in the 100-year floodplain and that are within 1,500 feet of the ordinary high water mark of the same waters identified above; and
- Waters located in whole or in part within 1,500 feet of the high tide line of a traditional navigable water or the territorial seas, and waters located within 1,500 feet of the ordinary high water mark of the Great Lakes.
Because the Clean Water Rule excludes groundwater from regulation (see below), the Agencies explain in the preamble that “the rule does not include a provision defining ‘neighboring’ based on shallow subsurface flow, though such flow may be an important factor in evaluating a water on a case-specific basis [as an ‘adjacent water’] as appropriate.”
Other Waters
The Agencies further clarified the meaning of “other” jurisdictional waters. The old definition of “waters of the United States” included “[a]ll other waters…the use, degradation or destruction of which could affect interstate or foreign commerce.” Because almost all “other” waters and wetlands across the country could be subject to a case-specific jurisdictional determination, the Agencies attempted to streamline this analysis to increase the predictability and consistency of results. The Clean Water Rule therefore provides more detail as to what a case-specific determination entails. A “significant nexus” analysis is now applied, which looks to, among other things, whether the water significantly affects the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas. The Clean Water Rule also identifies five specific types of waters in specific regions that require a significant nexus analysis: Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas costal prairie wetlands. Waters within a 100-year floodplain or within 4,000 feet of the high tide line or ordinary high water mark of most jurisdictional waters, are additionally subject to a case-specific significant nexus analysis.
Non-Jurisdictional Waters
The Clean Water Rule retains all existing exclusions from the definition of “waters of the United States” and adds several new exclusions as well.
Ditches
The Agencies first proposed to exclude certain types of ditches in the proposed rule, but have now expanded this exclusion in the final rule. The Clean Water Rule excludes ditches with ephemeral or intermittent flows that are not a relocated tributary or excavated in a tributary; and ditches that do not directly or indirectly flow into a traditional navigable water, interstate water, or the territorial sea.
Features
The Clean Water Rule excludes many water features and structures from regulation. Perhaps the most notable exclusions are stormwater control structures to convey, treat, or store stormwater, provided they are created in dry land; wastewater recycling and groundwater recharge basins, percolation ponds, and other structures built for wastewater recycling; and groundwater (including groundwater drained through subsurface drainage systems). With respect to groundwater, the Agencies note in the premable that this exclusion “does not apply to surface expressions of groundwater…such as where groundwater emerges on the surface and becomes baseflow in streams or spring fed ponds.” Similarly, discharges of pollutants to “waters of the United States” via groundwater with a direct hydrologic connection are also still subject to the CWA.
The Clean Water Rule also excludes artificial and ornamental water structures (e.g. constructed lakes, irrigation ponds, cooling ponds, swimming pools) created in dry land; water-filled depressions incidental to mining or construction activity that are created in dry land; erosional features, such as gullies, rills, and non-wetland swales; and puddles.
In sum, the Clean Water Rule does not establish any regulatory requirements, but, according to the Agencies, clarifies the scope of “waters of the United States” consistent with the CWA, Supreme Court precedent, and science. The Agencies expect that the Clean Water Rule will increase CWA program predictability and consistency and will reduce the need for permitting authorities to make jurisdictional determinations on a case-specific basis. However, it remains to be seen what impact the Clean Water Rule may have on the regulatory landscape. The Agencies emphasize in the preamble that nothing in the Clean Water Rule limits or impedes a state or tribe from establishing more protective standards or limits to protect waters in its jurisdiction.
The Clean Water Rule will become effective 60 days after publication in the Federal Register. However, there are reports that critics will file lawsuits challenging the rule and the definition of “waters of the United States” may end up before the Supreme Court. The Docket Number is EPA-HQ-2011-0880 and more information on the Clean Water Rule is available here.
Redline of Differences Between Proposed and Final Definition
A redline of the differences between the proposed and final definition of “waters of the United States” follows below:
(a)For purposes of all sections of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (b) of this section, the term “waters of the United States” means:
(1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(2) All interstate waters, including interstate wetlands;
(3) The territorial seas;
(4) All impoundments of waters otherwiseidentified in paragraphs (a)(1) through (3) and (5) of as waters of the United States underthis section;
(5) All tributaries, as defined in paragraph (c)(3) of this section, of waters identified in paragraphs (a)(1) through (3)(4)of this section;
(6) All waters, including wetlands, adjacent to a water identified in paragraphs (a)(1) through (5) of this section,including wetlands, ponds, lakes, oxbows, impoundments, and similar waters;
(7) All waters in paragraphs (i) through (v) of this paragraph where they are determined, Oon a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, to have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section. The waters identified in each of paragraphs (i) through (v) of this paragraph are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (a)(1) through (3) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an adjacent water and no case-specific significant nexus analysis is required.
(i) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest.
(ii) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain.
(iii) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.
(iv)Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.
(v)Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas Gulf Coast.
(8)All waters located within the 100-year floodplain of a water identified in (a)(1) through (3) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (a)(1) through (5) of this section where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in (a)(1) through (3) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an adjacent water and no case-specific significant nexus analysis is required.
(b) The following are not “waters of the United States” notwithstanding whether even where they otherwise meet the terms of paragraphs (a)(1)(4) through (7)(8) of this section—.
(1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.
(2) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Ffederal agency, for the purposes of the Clean Water Act., the final authority regarding Clean Water Act jurisdiction remains with EPA.
(3) Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow. The following ditches:
(i) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary.
(ii) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands.
(4)(iii) Ditches that do not contribute flow, either directly or through another water, to into a water identified in paragraphs (a)(1) through (4)(3) of this section.
(5)(4) The following features:
(i) Artificially irrigated areas that would revert to upland dry land should application of irrigation water to that area cease;
(ii) Artificial, constructed lakes orand ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growingin dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds;
(iii) Artificial reflecting pools or swimming pools created by excavating and/or diking in dry land;
(iv) Small ornamental waters created by excavating and/or diking in dry landfor primarily aesthetic reasons;
(v) Water-filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water;
(vi) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways; and
(vii) Puddles.
(5) Groundwater, including groundwater drained through subsurface drainage systems; and.
(6) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land.
(7) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.
(vii) Gullies and rills and non-wetland swales