May 28, 2015

Author: Samuel Lee Lofland slofland@rcalaw.com 602.440.4889

On May 27, 2015, the prepublication version of the Final Rule, “Clean Water Rule: Definition of ‘Waters of the United States,’” was released.  The Final Rule has a 197-page preamble to explain the eight-page rule.  The Final Rule increases the jurisdictional scope of the CWA by expanding the definition of “Waters of the United States” to make tributaries and adjacent waters, even those that are intermittent or ephemeral, “per se jurisdictional without the need for a significant nexus determination.” Preamble at p. 86. [1]

The EPA and Army Corps of Engineers received over 1 million comments on the Proposed Rule (released April 21, 2014, with the comment period ending November 14, 2014).  “This final rule reflects the over 1 million public comments on the proposal, the substantial majority of which supported the proposed rule, as well as input provided through the agencies’ extensive public outreach effort, which included over 400 meetings nationwide with states, small businesses, farmers, academics, miners, energy companies, counties, municipalities, environmental organizations, other federal agencies, and many others.”  Preamble at p. 14. [2]

The Preamble, and EPA materials explaining the Final Rule, repeatedly assert that the “scope of jurisdiction in [the Final Rule] is narrower than that under the existing regulation. Fewer waters will be defined as ‘waters of the United States’ under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries.”  See e.g. Id. at p. 3 and 188.  However, the Final Rule has the opposite impact and will pose significant burdens on the regulated community, particularly those in residential and commercial development, the agriculture industry, the mining industry, and local governments.  The Final Rule causes water bodies, such as canals and ditches with only remote and speculative hydrological connections to traditionally navigable and interstate waters, to become “jurisdictional waters” under the CWA for the first time.

FINAL RULE HIGHLIGHTS

• The provisions discussing “Traditional Navigable Waters,” “Interstate Waters,” and “Territorial Seas” are identical in wording and scope to the existing and the Proposed Rule.
• The provision discussing “Impoundments” is identical to the wording in the existing rule, but changed from the Proposed Rule to encompass not only impoundments of traditional navigable waters, interstate waters, or territorial seas, but also impoundments of tributaries and “adjacent” waters.
  • Under the Final Rule any waters meeting the definition of “tributary” or “adjacent” waters are jurisdictional if they are impounded and/or connected to a water body that is impounded and considered a traditional navigable water, interstate water, territorial sea, tributary, or adjacent water.
  • Consequently, the Final Rule expands the scope of jurisdictional waters encompassed by “impoundments,” consistent with the expansion in scope of the rule associated with the inclusion of “tributaries” and “adjacent’ waters as, per se, jurisdictional waters.
• The Definition of “tributaries” represents one of the areas where EPA and Army Corps are expanding the scope of the CWA.  This is a new definition, not in the current rule.  The Final Rule made minor modifications to the definition of “tributary” from the Proposed Rule, and added a definition for the term “ordinary high water mark.”
  • Under the Final Rule, a tributary is any water body, whether natural, man-altered, or manmade, which:
    • Has a bed and bank, and an ordinary high water mark, and
    • Contributes flow either directly, or indirectly, to a traditional navigable water, interstate water, territorial sea, or impoundment of the same.
      • “Waters through which a tributary may contribute flow indirectly include, for example, impoundments, wetlands, lakes, and other tributaries.”   Preamble at p. 88.
      • “A tributary may contribute flow through any number of downstream waters, including non-jurisdictional features, such as a ditch excluded under paragraph (b) of the rule, and jurisdictional waters that are not tributaries, such as an adjacent wetland - but it must be part of a tributary system that eventually flows to a traditional navigable water, an interstate water, or the territorial seas.”  Id.
  • The Preamble provides that with respect to determining whether a water body flows directly or indirectly to a traditional navigable water, interstate water, territorial sea, or impoundment of the same “the connection can be traced using direct observation, U.S. Geological Survey (USGS) data, stream datasets such as the National Hydrography Dataset, aerial photography or other reliable remote sensing information, or other appropriate information.”  Id. at 89.
  • To establish the presence of bed and banks, and an ordinary high water mark, the Preamble provides that the agencies can use field observations, remote sensing or mapping, aerial photography, modeling, lake and stream gage data, flood predictions, historic records of water flow, LIDAR, and statistical evidence.  Id. at 89-92.
  • The term “tributary” includes water bodies with perennial, intermittent, and ephemeral flows.  Those terms are not defined in the Final Rule, but the Preamble provides:
    • Long-standing agencies’ practice considers perennial streams as those with flowing water year-round during a typical year, with groundwater or contributions of flow from higher in the stream or river network as primary sources of water for stream flow.
    • Intermittent streams are those that have both precipitation and groundwater providing part of the stream’s flow, and flow continuously only during certain times of the year (e.g., during certain seasons such as the rainy season).
    • Ephemeral streams have flowing water only in response to precipitation events in a typical year and are always above the water table. Precipitation can include rainfall as well as snowmelt.  Id. at 89.
• “Adjacent” Waters is a new definition not in the current rule.  The new provision discussing “Adjacent” Waters, as defined in the Final Rule, represents one of the areas where EPA and Army Corps are expanding the scope of the CWA .  The Final Rule is significantly different, and broader in scope, than the Proposed Rule because of the manner in which the term “neighboring” is defined.
  • Adjacent waters are any waters, including wetlands, ponds, lakes, oxbows, impoundment, and similar waters, whether natural, man-altered, or manmade, which are bordering, contiguous, or neighboring a traditional navigable water, interstate water, territorial sea, tributary, or impoundment of the same.
    • Adjacent waters include water separated by constructed dikes or barriers, natural river berms, beach dunes, and the like.
    • “Adjacent” open waters, such as ponds or lakes, include any wetlands within or abutting the ordinary high water mark.
    • Adjacent waters do not have to be located laterally to a traditional navigable water, interstate water, territorial sea, tributary, or impoundment of the same.
    • Adjacent water includes all waters which connect segments of a traditional navigable water, interstate water, territorial sea, tributary, or impoundment of the same.
  • Neighboring is defined to include any of the following waters (the entire water is considered “adjacent” if all or any portion falls within the following locations):
    • All waters located within 100 feet of the ordinary high water mark of a traditional navigable water, interstate water, territorial sea, tributary, or impoundment of the same.
    • All waters located within the 100-year floodplain of a traditional navigable water, interstate water, territorial sea, tributary, or impoundment of the same and not more than 1,500 feet from the ordinary high water mark of such water.
    • All waters located within 1,500 feet of the high tide line of a traditional navigable water, interstate water, or territorial sea, and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes.
• There are two categories of “other waters” subject to a case-specific determination as to whether they are jurisdictional, based upon the definition of “significant nexus.”  These two new categories are not in the existing rule.
  • The Final Rule revises the definition of “other waters” in the Proposed Rule to include five specific categories which would be subject to case-specific determinations: (1) Prairie potholes; (2) Carolina bays and Delmarva bays; (3) Pocosins; (4) Western vernal pools; and (5) Texas coastal prairie wetlands.
  • The Final Rule also provides a categorical catch-all of “other waters” within a certain distance of traditional navigable water, interstate water, territorial sea, tributaries, or impoundments of the same, and that have a “significant nexus” to a traditional navigable water, interstate water, or territorial sea.  The following is a list of “triggers” which may make a particular water subject to a case-specific determination as to whether it is a jurisdictional water:
    • Any and all waters located within any portion of the 100-year floodplain of a traditional navigable water, interstate water, or territorial sea, but greater than 1,500 feet from the ordinary high water mark of such water, where they are determined on a case-specific basis to have a significant nexus to a traditional navigable water, interstate water, territorial sea.
    • All waters located within 4,000 feet of the high tide line or ordinary high water mark of a traditional navigable water, interstate water, territorial sea, tributary or impoundment of the same where they are determined on a case-specific basis to have a significant nexus to a traditional navigable water, interstate water, territorial sea.
  • The definition of “significant nexus” in the Final Rule specifically enumerates factors, which independently or cumulatively, can establish a “significant nexus.”
    • “Significant Nexus” is defined to mean “a water, including wetlands, either alone or in combination with other similarly situated waters in the region, [which] significantly affects the chemical, physical, or biological integrity of [a traditional navigable water, interstate water, or territorial sea]. The term ‘in the region’ means the watershed that drains to the nearest [of a traditional navigable water, interstate water, or territorial sea]. For an effect to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and are sufficiently close to function together in affecting downstream waters.”  The term “significant nexus” identifies the following aquatic functions as the basis for determining whether a “significant nexus” exists:
      • Sediment trapping;
      • Nutrient recycling;
      • Pollutant trapping, transformation, filtering, and transport;
      • Retention and attenuation of flood waters;
      • Runoff storage;
      • Contribution of flow;
      • Export of organic matter;
      • Export of food resources; and
      • Provision of life cycle dependent aquatic habitat for species located in a traditional navigable water, interstate water, or territorial sea.
  • The “Exceptions” were expanded to clarify which “ditches” are not jurisdictional and to clarify that existing exceptions stay the same with the addition of exceptions for erosional features, depressions in dry land associated with construction and mining which fill with water, and stormwater control features.
    • The following ditches are not jurisdictional:
      • Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary.
      • Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands.
      • Ditches that do not flow, either directly or through another water, into a traditional navigable water, interstate water, or territorial sea.
      • Ditches which withdraw water from a jurisdictional water without altering the flow of the jurisdictional water.
      • However, the following ditches would be jurisdictional as tributaries if they flow, directly or indirectly, into a traditional navigable water, interstate water, territorial sea, or an impoundment of the same and are:
        • Ditches with perennial flow;
        • Ditches with intermittent flow that are a relocated tributary, or are excavated in a tributary, or drain wetlands, even if the wetlands themselves are not jurisdictional; and
        • Ditches, regardless of flow, that are excavated in or relocate a tributary.
  • A water qualifying for an exception, which thus is not within the jurisdiction of the CWA, can convey water between “jurisdictional waters,” such as a ditch which connects two tributaries, and does not become “jurisdictional,” provided it still meets the requirements of the exception.

  CONCLUSION

  The Preamble, along with the publicity campaign of the EPA, asserts that the Final Rule reduces the scope of the existing rule and provides stakeholders with clarity and certainty.  For example, according to the Preamble “[t]he existing definition of ‘waters of the United States’ regulates all tributaries without qualification. The final rule protects only waters that have a significant effect on the integrity of traditional navigable waters, interstate waters, or the territorial seas.”  Id. at p. 87. [3]

  This characterization is disingenuous, as under the existing regime whether a specific water body is a tributary is determined on a case-by-case basis, with an analysis as to whether the particular water body has a “significant nexus” to a traditional navigable water, interstate water, territorial sea, or impoundment of the same. [4]  Conversely, under the Final Rule, any water body that meets the definition of “tributary” is per se jurisdictional, and, thus, no analysis as to whether there is a “significant nexus” takes place.  The new provisions regarding “tributaries” and “adjacent” waters in the Final Rule expands the scope of the CWA because it, per se, makes a water body jurisdictional if it is “connected” directly or indirectly to a traditional navigable water, interstate water, territorial sea, or impoundment of the same, even if the water body flows only on an intermittent or ephemeral basis.

  The Final Rule includes some additional clarifications with respect to ditches and other types of waters which are, by rule, not jurisdictional.  Notably, the Final Rule adds as an exception stormwater control features, erosional features, and clarifies the exceptions for depressions in dry land that become filled with water, artificial lakes and ponds, and groundwater.  However, the number of exceptions is not nearly enough to curtail the expansion in scope of the CWA that the EPA and Army Corps have effectuated in their Final Rule.

  One may posit, how can EPA and Army Corps have such a strong view regarding a “contraction” of their authority, whilst the stakeholders have a view that the Final Rule is an expansion of authority?  The answer is the manner in which the EPA and Army Corps currently view their authority, which is all encompassing.  See Preamble at p. 87.  However, under the current regime, the EPA and Army Corps must, on a case-specific basis, prove each water body is within their jurisdiction under the CWA. [5]  The case-specific determinations are time-consuming, costly, and do not always yield a result which reflects the expansive scope of the CWA held by the EPA and Army Corps.  Therefore, by this Final Rule, EPA and Army Corps have, in one fell swoop, made thousands of water features jurisdictional, dispelling any requirement or burden they have to show that a particular water body, even ephemeral water bodies great distances from traditional navigable waters, interstate waters, or territorial seas, have a “significant nexus” to traditional navigable waters, interstate waters, or territorial seas.

  Summarily, the Final Rule is fundamentally flawed, because it causes remote waters with only insignificant connections to traditional navigable waters, interstate waters, and territorial seas, to become jurisdictional under the CWA for the first time, without forcing EPA or the Army Corps to show that the remote waters have a significant impact on downstream traditional navigable waters, interstate waters, and territorial seas.

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  [1] See e.g. Congressional Research Service Report, Claudia Copeland, EPA and the Army Corps Proposed Rule to Define "Waters of the United States," dated November 21, 2014, available online at https://www.fas.org/sgp/crs/misc/R43455.pdf (last visited January 7, 2015) ("Proposed changes would increase the asserted scope of CWA jurisdiction, in part as a result of expressly declaring some types of waters categorically jurisdictional (such as all waters adjacent to a jurisdictional water), and also by application of definitions, which would give larger regulatory context than previously to some waters, such as tributaries.").

  [2] Lawmakers from the House Agriculture; Oversight and Government Reform; and Science, Space and Technology committees asked EPA Administrator Gina McCarthy for documents regarding the agency's campaign of support for the "Waters of the U.S." rule.  See e.g. May 26, 2015 Letter from members of the House of Representatives to Gina McCarthy regarding the Final Rule and EPA's efforts to gain public comments in support of the same, available online at http://www.eenews.net/assets/2015/05/27/document_gw_04.pdf (last visited May 28, 2015).

  [3] See also, Specifically, the Clean Water Rule:

  • Clearly defines and protects tributaries that impact the health of downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
  • Provides certainty in how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.  EPA News Release from May 27, 2015, entitled "Clean Water Rule Protects Streams and Wetlands Critical to Public Health, Communities, and Economy," available online at http://yosemite.epa.gov/opa/admpress.nsf/0/62295CDDD6C6B45685257E52004FAC97 (last visited May 28, 2015).

  [4] Id. ("Specifically, the Clean Water Rule: . . . • Reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.)

  [5] Id.