Monday, June 15, 2015
Joan Darling, Ph.D., Environmental Assessment
You’ve undoubtedly read or heard that the U.S. Environmental Protection Agency (EPA) has just developed a new definition of Waters of the United States (WOUS), which are regulated by the EPA and the U.S. Army Corps of Engineers (Corps) under the Clean Water Act (CWA).
You’ve also probably read or heard numerous groups are opposing the new definition, including the U.S. House of Representatives. In addition, several organizations representing farmers, developers, and local governments have stated their opposition to it, and some states are even considering a lawsuit to delay or overturn it.
Anyone who has a project that could impact wetlands or streams is obviously concerned about the implications of this rule. In reading the latest headlines, it appears that this rule may create very big problems, indeed. But let’s move past the headlines and see what the rule really says, and what the rule potentially means to you.
History of the Clean Water Act
The CWA was enacted in 1972 in response to the polluted conditions of many of the nation’s rivers and lakes. The law established regulations to protect water quality in WOUS but, unfortunately, didn’t clearly define WOUS. Regardless of where waters were located, or how far from a navigable water they were, the Corps took jurisdiction over them and required a CWA Section 404 permit for discharge of fill material.
Supreme Court decisions in 2001 and 2006 eliminated some waters from the Corps' jurisdiction. If you are interested in more details of CWA history and changes, click here.
However, there still were no clear-cut definitions of WOUS, despite jurisdictional guidance provided by EPA and the Corps in 2008. Because that guidance had lots of “gray areas,” different Corps districts—and even different Corps regulators within a district—began to interpret it their own ways. There was little consistency in how each situation was interpreted to be either a WOUS or a “Waters of the State,” the latter not regulated under the CWA.
The 2015 rule
It became clear that there had to be a more consistent way of determining what a WOUS was. That’s what the EPA and the Corps have attempted to do in the new 2015 rule that’s been in the news lately. The EPA has drawn some lines and distances that define which wetlands and waters are jurisdictional, and which are not.
Other definitions have been clarified but might still be subject to interpretation. For example, where does a tributary (i.e., a WOUS) start? With the 2015 rule, a tributary has now been defined as needing bed and banks and an ordinary high-water mark. Most Corps districts already used this previously unwritten rule of thumb. However, for others, this clarification may extend WOUS upslope, causing confusion on where exactly CWA jurisdiction starts and what other waters thus might be “adjacent.”
The rule specifically excludes some waters that were never formerly addressed before, leading to some of those “gray areas” of inconsistency. Some of these waters include the following:
More or less WOUS?
The EPA and the Corps indicate that the rule will increase waters under the CWA’s jurisdiction by only 3 percent. At the same time, the rule will remove other waters from jurisdiction. This apparent contradiction may actually be true, but the changes will not be consistent across the entire United States. What will likely happen is that, in some parts of the country and in some Corps districts, jurisdiction may increase (sometimes dramatically). In other parts of the country, there will indeed be fewer WOUS.
In Nebraska, for example, the Olsson experience indicates there will be little or no expansion of jurisdiction. In fact, jurisdiction may decrease since some of the areas now specifically spelled out as "not WOUS" have, at times, been regulated by the Corps.
Not so in the Dakotas. Large complexes of isolated wetlands called “prairie potholes” that developed after glaciers retreated mostly have been considered waters of the state and, thus, not regulated under the CWA. In contrast, the new definition specifically includes them as likely to be WOUS. Instead of an analysis based on an individual pothole, the analysis will now need to be made on a watershed-wide basis. This will potentially make efforts to show that these waters are isolated very time consuming and expensive. Defining these wetland complexes as likely WOUS could make a huge difference for proposed projects in these regions, and is almost certain to engender a new round of court cases.
In addition, the determination still stands from the 2006 Supreme Court case that if a “significant nexus” (or “connection”) exists, a water or wetland is jurisdictional. The new rule attempts to clarify the 2006 determination by listing functions that need to be evaluated to determine “significant nexus.” However, nowhere does it spell out how large the nexus must be to be significant. As in the past, this is likely to remain an area of uncertainty and confusion.
table that compares regulated waters prior to the proposed rule, what the proposed rule covered, and changes in the final rule. If Interested in reading the rule, rather than about the rule, find it here.The EPA has put together an at-a-glance
What’s the bottom line?
Any time there is a change in rules, there is a period of adjustment during which regulators may be uncertain how to proceed. This rule hasn’t officially taken effect yet. Further, the uncertainty will be increased by almost certain legal challenges brought by individuals, groups, and possibly even some states claiming that EPA and the Corps have improperly extended jurisdiction over “Waters of their State.” In addition, the Senate is now considering joining the House of Representatives in overturning this rule.
Regardless of the outcome of lawsuits or Congressional votes, the new definition, in some cases, draws a few black-and-white lines that can help landowners, consultants, and regulators determine what is and what is not jurisdictional under the CWA. This will help save time and money regardless of whether affected entities are happy with the outcome. However, there are still gray areas open to interpretation. Olsson can help you interpret them.
If you have any questions about what the new definition means for your project, Olsson has environmental staff members in our Lincoln, Omaha, Kansas City, Oklahoma City, Golden, and Grand Junction offices who can help. Please click here to contact an office near you.