- Ag Docket
The EPA and Army Corps unveiled their long-awaited final Clean Water Rule on May 27, 2015. The proposed rule had been pending for more than a year. The final rule, which faced severe opposition in its proposed form, retains most of its original provisions. It does, however, incorporate a number of changes in response to the more than one million comments received.
The final rule identifies eight categories of “jurisdictional waters.” These are waters over which EPA and the Army Corps could exercise Clean Water Act jurisdiction. These categories include:
The final rule does not alter the agencies’ treatment of traditional navigable waters, interstate waters, territorial seas, or impoundments of jurisdictional waters. Coverage of these waters has not changed from that announced in the proposed rule. These are the traditional waters widely agreed to be protected by the Clean Water Act
The “tributaries” category was among the most controversial of the proposed rule’s categories of jurisdictional waters. For the first time the agencies sought to define the word “tributary,” and the proposed definition met with great opposition. The proposed rule broadly defined tributaries to include natural or man-made waters, wetlands, lakes, ponds, canals, streams, and ditches if they contribute flow directly or indirectly to interstate waters. The proposed rule had no requirement that the waterways continuously exist or have any nexus to traditional “waters of the United States,” as has traditionally been required.
The final rule retains the general definition of tributary offered by the proposed rule. The final rule, however, specifies that wetlands and waters that do not have beds, banks, and high water marks will be evaluated for inclusion as “adjacent” waters rather than as “tributaries.”
Also, in response to heavy criticism, the final rule does expand the exclusion for certain ditches as noted in the exclusion section below.
Under the proposed rule, “adjacent” was defined to include “bordering, contiguous or neighboring” waters. Under this definition, all waters (not just wetlands) within the same riparian area or flood plain of interstate waters would be “adjacent” waters subject to CWA regulation.
The final rule largely retains this definition, but adds a restricting definition for “neighboring,” which includes:
The proposed rule stated that other waters with a “significant nexus” to traditional navigable waters, interstate waters, or territorial seas would be covered by the rule.
The final rule adds more detail. Specifically, the rule provides that the following waters are jurisdictional when it is determined through a case-specific analysis that they have a significant nexus to traditional navigable water, interstate waters, or territorial seas:
The final rule also includes within its definition all waters located within the 100-year floodplain of a traditional navigable water, interstate water, or territorial sea and all waters located within 4,000 feet of the high tide line or ordinary high water mark of those same waters if it is determined on a case-specific basis that they have a significant nexus to the traditional navigable water, interstate water, or territorial sea.
The final rule enhances the descriptions of specific waters that are excluded from jurisdiction, even if they would otherwise meet the definition of a jurisdictional body of water. As mentioned above, certain ditches and puddles are now specifically excluded from the definition. Specific exclusions include the following:
Although the final rule is more limited in scope than the proposed rule, it still marks an expansion of agency water quality jurisdiction. EPA states that this expansion would be around three percent. Within the executive summary, the agencies state with respect to agriculture, “The rule does not add any additional permitting requirements on agriculture. The rule also does not regulate shallow subsurface connections nor any type of groundwater, erosional features, or land use, nor does it affect either the existing statutory or regulatory exemptions from NPDES permitting requirements, such as for agricultural stormwater discharges and return flows from irrigated agriculture or the status of water transfers.”
It is not likely that agricultural and other groups will be assured that the new rule will not impact them. We will be watching as legislative initiatives continue. On May 12, the House passed the Regulatory Integrity Protection Act, which would require the agencies to withdraw their rule and start again. Pending in the Senate is S. 1140, the Federal Water Quality Protection Act, which would require the agencies to abide by certain guidelines and which would invalidate any rule not abiding by those guidelines.
We will keep you informed as developments unfold. Although unveiled today, the new rule will not be effective until 60 days following its publication in the Federal Register. It is amenable to judicial review two weeks after the date of publication.
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