EPA and Army Corps Unveil Final Clean Water Rule

Overview

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:

  1. Traditional navigable waters
  2. Interstate waters
  3. Territorial seas
  4. Impoundments of jurisdictional waters
  5. Tributaries
  6. Adjacent Waters
  7. Specific Waters Subject to Case-Specific Significant Nexus Analysis
  8. Other Waters Subject to Case-Specific Significant Nexus Determinations

Traditional Navigable Waters, Interstate Waters, Territorial Seas, and Impoundments of Jurisdictional Waters

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  

Tributaries

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.  

Adjacent Waters

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:

  • Waters located within 100 feet of the ordinary high water mark of navigable waters, interstate waters, territorial seas, impoundments, or tributaries   
  • Waters located within the 100-year floodplain of navigable waters, interstate waters, territorial seas, impoundments, or tributaries and not more than 1,500 feet from the ordinary high water mark of such water
  • Waters located within 1,500 feet of the high tide line of navigable waters or a territorial sea and all waters located within 1,500 feet of the ordinary high water mark of the Great Lakes

Specific Waters Subject to Case Specific Significant Nexus Analysis

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:

  • Prairie potholes
  • Carolina and Delmarva bays
  • Pocosins (evergreen shrub bogs)
  • Western Vernal Pools in California
  • Texas coastal prairie wetlands

Other Waters Subject to Case-Specific Significant Nexus Determinations

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.

Specific Exclusions

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:

  • Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act
  • Prior converted cropland
  • Artificially irrigated areas that would revert to dry land should application of water to that area cease
  • Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds
  • Artificial reflecting pools or swimming pools created in dry land
  • Small ornamental waters created in dry land
  • 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
  • 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
  • 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
  • Puddles
  • Groundwater, including groundwater drained through subsurface drainage systems
  • Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land
  • 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

Conclusion

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.

CALT does not provide legal advice. Any information provided on this website is not intended to be a substitute for legal services from a competent professional. CALT's work is supported by fee-based seminars and generous private gifts. Any opinions, findings, conclusions or recommendations expressed in the material contained on this website do not necessarily reflect the views of Iowa State University.

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