On May 27, 2015, the U.S. Army Corps of Engineers (COE) and the U.S. Environmental Protection Agency (EPA) finalized the Clean Water Rule (the Rule) in an effort to protect streams and wetlands from degradation and pollution by more clearly defining protected waters (Waters of the U.S., or WOTUS). The press announcement emphasizes that clarity in jurisdiction will result in a less costly and complex permitting process, and will ultimately result in cleaner water. The Rule does include many improvements suggested by Industry. In Maryland and Virginia, due to the combination of geology and state laws, we do not anticipate significant changes in the overall regulation of wetlands, streams, and ponds as a result of this Rule, because isolated wetlands and other waters are regulated by the states – except for certain ditches.
The EPA’s Website provides a collection of Rule-related information. This Rule is 297 pages long, but the meat of it is in Part 328 – Definition of Waters of the U.S. (pages 198 – 206). The rule will be published in an upcoming Federal Register and will become effective 60 days after that publication date. That will be the final step in the public process that began in April 2014 with a proposed rule and involved a public comment period (with more than 1,000,000 comments), as discussed in WSSI’s September 2014 Field Notes article. The split Supreme Court decision Rapanos and Carabell in 20061 created the need to clarify what is a WOTUS (see Field Notes Volume 14, Number 4), which is being attempted by this Rule.
Existing and Pending Jurisdictional Determinations (JDs) - Could Cause Permit Delays
Existing JDs (including preliminary JDs) will not be changed, and expirations will still be the latter of the JD’s expiration date or the expiration date of an associated permit.
However, the COE may not be issuing JDs during the 60 days between the Rule’s publication and its effective date. Pending delineations and JD reviews will follow the new Rule (Rule page 80) – if this is the case, some permits may be delayed because (a) DEQ requires an approved JD and (b) the COE must have an approved JD when it issues a permit.
Isolated Waters/Wetlands
It is important to note that in Maryland and Virginia most isolated waters/ wetlands that the COE did not regulate since the Fourth Circuit Court’s U.S. v. Wilson decision2 and the U.S. Supreme Court’s SWANCC decision in 20013 have been regulated by these states. It now appears that most isolated waters/wetlands will again be regulated by the COE under §328.3(a)(8) because any such area “…located within 4,000 feet of the high tide line or ordinary high water mark…” of a regulated stream can be included on a case by case basis if there is a “significant nexus” to an historically navigable water, interstate waters, or a territorial sea. In our area the average “spacing” of streams ranges 800 to 1,500 linear feet apart – so those areas could again be regulated by the COE.
The Joint Permit Application and Joint Federal State Application processes (for Virginia and Maryland, respectively) already captured those “isolated” waters which had to be reported to the states, therefore the process will not be much different.
Ditches
The Rule does address the vexing issue of which ditches are not WOTUS (§328.3 (b)(3)). However, ditches that are excavated out of dry lands, do not relocate a tributary, or drain wetlands, are still WOTUS if they have perennial flow. Thus in deep highway cuts or areas with high water tables – there are ditches that may now be regulated by the Federal Government.
Response to Industry Comments
Many of the Building Industry comments have been addressed in the final rule. (See NAIOP letter of November 14, 2014):
1. Stormwater facilities that are created in dry land are now clearly not regulated as WOTUS.
2. Use the FEMA definition of a 100 Year Floodplain in the preamble (Rule page 107) (though did not specify a drainage area) instead of a geomorphic definition.
3. Did not take jurisdiction over erosion gullies or water-filled depressions in dry land from construction.
4. Clarified what isolated waters are regulated without case by case analysis, and which ones do need analysis – though more encompassing than desired.
5. Numerically clarified the term “neighboring” – though it uses a much larger number than desired.
Impact Assessment
While we do not see a big impact in the DC Metro Area as noted above – there will be impacts:
a. in areas where drainage ditches intercept the groundwater table;
b. in states that did not regulate isolated wetlands and other waters (for duck hunters in the Prairie Potholes region this is a positive impact; for some farmers, potentially negative); and
c. in the arid West as Arroyos are clearly regulated.
The Economic Analysis of the EPA – Army Clean Water Rule prepared by these agencies concludes:
• Compared to the current regulations and historic practice of making jurisdictional determinations, the scope of jurisdictional waters will decrease as would the cost and benefits of CWA programs.
• Compared to a baseline of recent practice, the agencies assessed two scenarios. Those scenarios result in an estimated annual increase of between 2.84 and 4.65 percent in positive jurisdictional determinations.
• These agencies’ analysis indicates that for both scenarios, the change in benefits of CWA programs exceed the costs by a ratio of greater than 1:1.
Their analysis is an heroic effort – since there is no definitive nationwide mapping of WOTUS under any definition – their methodology of sampling past JD decisions is probably the only practicable way to approach this.
One thing missing from the analysis is the increase in wetlands area due to implementation of Regional Supplements, changes to the vegetation and soil criterions (more plants and soils are “wet”).
So why do some people interpret a dramatic increase in WOTUS – and others see a minimal increase? Perspective.
If your basis of comparison is “navigable waters” – this is a huge increase. If your basis of comparison is recent jurisdictional decisions – it’s a small increase in scope.
Legislative Activity
We fully expect that this Final Rule will increase focus on alternative legislation; recent proposals include S. 1140 (Federal Water Quality Protection Act), S. 1178 (the Defending Rivers from Overreaching Policies (DROP), and H.R. 594 (Waters of the United States Regulatory Overreach Protection Act of 2015). Some of these are extremely far-reaching in effect. The biggest problem we’ve seen to date is that some of these bills are being written without any regard for science or on-the-ground realities. For example, the introduced “Federal Water Quality Protection Act” proposes that the only streams subject to regulation should be those on ”maps created using the United States Geological Survey National Hydrology Dataset Plus at the 1:100,000 scale.” WSSI used Fairfax County’s field-verified perennial stream data and GIS stream layer to illustrate the impact of this proposal; even 330 miles of perennial streams that are Resource Protection Area core components would be excluded.
