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The final rule of the Clean Water Act’s definition of the Waters of the U.S. (WOTUS) was issued on May 27, 2015. Initially proposed last year, the changes will go into effect shortly. Project managers and landowners need to understand how the revised ruling will affect their projects.

10 Second Summary

  1. The new rules sought to add clarity and reduce the number of case-by-case jurisdictional determinations, however some vagueness remains.
    1. One example: the 4,000 foot rule, which states waters within 4,000 feet of navigable or jurisdictional waters are also jurisdictional, if they are connected to downstream waters
  2. The revised definition of tributary appears largely unchanged, and will still require significant nexus tests to downstream jurisdictional waters
  3. Final rule also creates a new uniform definition for “significant nexus.”
  4. There still appear to be aspects of the rule that are not entirely clear and will require interpretation and individual assessment based on its specific physical features.
  5. There may also be confusion around whether erosional features and ditches, may now fit the description of jurisdictional ones if they are defined differently or are confused with ephemeral streams (this has led to the concern that farm ditches are now potentially jurisdictional).

Impetus for the Rule change
The motivation was based around confusion over the definition of Waters of the U.S. jurisdiction following court rulings, including Solid Waste agency of Northern Cook County (SWANCC) v. Army Corps of Engineers and Rapanos v. United States.

Key Aspects of the Rule Change
The new rule outlines 8 categories of waters, 6 of which are jurisdictional by rule, and 2 of which are subject to significant nexus tests. The two which are subject to test are:

  1. Five types of regional waters but must have a connection to downstream water, such as prairie potholes.
  2. Waters within the 100-year floodplain of a traditionally navigable water or within 4,000 feet of jurisdictional water.

Another change, revised the definition “tributary” water of a traditionally navigable water, which is currently jurisdictional. Per the definition, a tributary must have physical signs or features of flow – defined bed and bank, and an ordinary high water mark (OHWM).

Implementation of the Rule
There is a grandfathering provision for transitioning to the new rule from the old one. JDs (jurisdictional determinations) that are submitted prior to the posting of the new rule in the Federal Register may use the old rules. The new rule will be effective 60 days after it is published in the Federal Register.

In a panel discussion hosted by the Environmental Law Institute government officials and legal advisors discussed industry, NGO, and agency perspectives. We recap select key points below, and you can listen to the full panel discussion on C-Span.

Industry Perspective on the Rule
The main issue from the industry representative is that the rules are largely unchanged relative to defining jurisdiction, and in particular to the definition of “tributary”. The agencies still use the OHWM (ordinary high water mark) method, which is problematic and broad, and may lead to regulation of a variety of water conveyances.

The distance threshold is also problematic. If any part of a feature is within the 4,000-ft threshold and is connected, the whole feature is regulated.

Portions of exclusions in the new rules are problematic. Erosional features are excluded, but only if they lack a defined bed and bank, stream features, and an OHWM. There may be difficulty distinguishing erosional features, ephemeral streams, and ephemeral ditches.

Certain features created in dry land are excluded, but there is no agreed upon definition of “dry land”. Artificial water features may or may not be jurisdictional depending on whether they were created in dry land, which must be proven historically.

NGO Perspective
A representative from the Natural Resources Defense Council was largely in favor of the changes. He noted disappointment with an exclusion for isolated wetlands, which he explained are mostly excluded from jurisdiction (as long as there is no connection to traditionally navigable water or tributaries).

Dry Land Exclusion & OHWM Discussion
The panel discussed the dry land exclusion, which the industry representative suggested may affect features such as green infrastructure. For example, a stormwater swale created to capture water may take on wetland characteristics over time, which may result in this feature becoming jurisdictional over time if it can’t be proven that the feature was created in dry land. The EPA insisted that the likelihood of losing tract of the history of these features is unlikely.

OHWM has regional variability. The EPA suggested that adding presence of “physical features” will help to add clarity to determining jurisdictional streams. The USACE panelist indicated that the USACE will provide resources, including manuals, to help make these determinations.

Additional reference: The National Law Review