Summary of Final Rule: Waters of the United States (WOTUS) June 2, 2015 The final WOTUS rule significantly increases federal jurisdiction over waters historically regulated by states. EPA made some changes in the final rule that we think were well intended, but at the end of the day the final rule does not provide the clarity or certainty necessary for business owners to make multi‐million dollar investments in business or infrastructure. Indeed, beyond the waters determined by rule to be jurisdictional, the final rule subjects the vast majority of the nation’s water features to the “significant nexus test” which has a very low threshold to satisfy, and therefore subjects the vast majority of water features to likely federal jurisdiction. Waters that are jurisdictional (1) traditional navigable waters1 (2) interstate waters (3) territorial seas (4) impoundments of (1)‐(3) waters (5) tributaries (6) adjacent waters Waters identified above as (1)‐(4) are unchanged from the proposal, and are consistent with existing regulations and guidance. Tributaries: The final definition of tributaries is very broad and largely unchanged from the proposed rule. The definition likely captures all perennial, intermittent, and ephemeral streams that have a bed, bank and ordinary high water mark (OHWM). For purposes of this rule, EPA has made a policy determination that if a feature has an OHWM then there is sufficient flow for it to be a WOTUS, regardless of how often it actually flows. The final rule preamble provides numerous options for identifying an OHWM, or an historic OHWM, from a computer or desktop (i.e., no field verification necessary). Reliance on the OHWM concept is very problematic, as even the Army Corps of Engineers acknowledges the term is ambiguous and is applied inconsistently. A tributary will continue to be a tributary regardless of natural or manmade breaks (rock piles, culverts, roads) of any length. Adjacent waters: The definition includes all headwaters of (1)‐(5) waters and all streams that connect segments of (1)‐(5) waters. The definition of also includes all “neighboring” waters, the definition of which has been revised since the proposed rule. “Neighboring” waters include: ‐
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All waters located within 100 feet of the OHWM of a(1) ‐(5) water; All waters located within the 100‐year floodplain of a (1) ‐(5) water, but not more than 1,500 feet from the OHWM of such water; and All waters located within 1,500 feet of the high tide line of a (1)‐(3) water. Importantly, the entire water is “adjacent” even if only a small portion falls within the “neighboring” definition. Reliance on the OHWM problematic here as well, for the same reasons noted above. Reliance on the 100‐year floodplain is also problematic. To identify the 100‐year floodplain, the final rule preamble recommends using FEMA maps but also acknowledges that large areas of the country do not have FEMA maps identifying the 100‐
year floodplain, and some maps may be out of date or otherwise inaccurate. If the agencies determine a FEMA map is out of date or inaccurate, it can use various other tools, including soil surveys, tidal gage data and site‐
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Numbers (1)‐(9) will be used throughout this paper to easily reference the identified water features. The final rule uses a similar numbering convention with the prefix (a), and includes (a)(1)‐(8). For ease of reference, this paper breaks out (a)(8) into two different waters, identified as (8) and (9) on page 2. 1 Summary of Final Rule: Waters of the United States (WOTUS) June 2, 2015 specific modeling to determine the extent of the floodplain. As such, determining whether a water is in or out of the floodplain may be very difficult for landowners and could lead to litigation with agencies or citizens. Waters that may be jurisdictional if they have a significant nexus to a (1)‐(3) water (7) enumerated regional features (prairie potholes, Carolina bays and Delmarva bays, pocosins, western vernal pools and Texas coastal prairie wetlands) (8) waters in the 100‐year floodplain of (1)‐(3) waters above (9) waters within 4,000 feet of an ordinary high water mark or high tide line of (1)‐(5) waters above All regional features in (7) within a single watershed are by rule “similarly situated” and must be aggregated to determine if those features together have a significant nexus to a (1)‐(3) water. This means these features within a watershed can be brought under federal jurisdiction regardless of how far away they are from an actual WOTUS. Importantly, priairie potholes may only be aggregated with other prairie potholes; and pocosins may only be aggregated with other pocosins, etc. In addition, a (7) feature may not be aggregated with any (6) adjacent feature for purposes of the significant nexus analysis. For example, a prairie pothole that is “adjacent” to a WOTUS cannot be aggregated with other prairie potholes to establish a significant nexus. As a practical matter, given the aggregation requirement and the very low threshold for the significant nexus test (discussed further below), these features will likely always be determined jurisdictional. Waters identified above as (8) and (9) can be determined “similarly situated” and aggregated together to determine if those waters together have a significant nexus to a (1)‐(3) water. As with the (7) features, an (8) or (9) water may not be aggregated with any (6) adjacent water for purposes of the significant nexus analysis. Importantly, a water that is entirely outside the (8) and (9) geographic boundaries can never be jurisdictional; however, the agencies’ own economic analysis states, “The agencies have determined that the vast majority of the nation’s water features are located within 4,000 feet of a covered tributary, traditional navigable water, interstate water, or territorial sea.” (Emphasis added.) As such, very few waters will be excluded based on (8) and (9) boundaries and the “vast majority of the nation’s water features” will be subject to the significant nexus test which, as described further below, is very easy to satisfy. Significant nexus test The term “significant nexus” means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a (1)‐(3) water. A water has a significant nexus “when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, and biological integrity” of the nearest (1)‐(3) water (emphasis added). For purposes of the significant nexus test, the term “region” means the watershed that drains to the nearest (1)‐(3) water. The term “contributes significantly” is not defined; however, for an effect on a water to be significant, it must be “more than speculative or insubstantial.” The effect on a WOTUS may occur from just one of the functions listed below. ‐ Retention and attenuation of ‐ Sediment trapping; flood waters; ‐ Nutrient recycling; ‐ Runoff storage; ‐ Pollutant trapping, transforming, ‐ Contribution of flow; and transport; 2 Summary of Final Rule: Waters of the United States (WOTUS) June 2, 2015 ‐
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Export of organic matter; Export of food resources; and ‐
Provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a (1)‐
(3) water. In addition to the enumerated functions, the final rule preamble clearly states that shallow groundwater connections, including drain tiles, will also be considered in a significant nexus analysis. In our view, the significant nexus test would be very easy to satisfy and could be used to deem nearly any water, or a combination of “similar” waters, jurisdictional. Exclusions The final rule lists many exclusions, but most have fairly significant qualifications. All exclusions are listed below with some commentary/explanation. Waters that qualify for an exclusion are not WOTUS, even if they otherwise fall within one of the (4)‐(9) waters. Note, (1)‐(3) waters cannot qualify for an exclusion. Waste treatment systems, including ponds or lagoons designed to meet the requirements of the CWA ‐ The agencies assert this exclusion is substantively unchanged from prior rules and guidance. ‐ The final rule does not clarify the prior confusion with this exclusion. Prior converted cropland (PCC) ‐ The agencies assert this exclusion is substantively unchanged from prior rules and guidance. ‐ EPA retains authority to make its own determination of prior converted cropland, regardless of a determination by any other federal government (NRCS, USDA, etc.). Three specific types of ditches: (i) ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary; (ii) ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands; and (iii) ditches that do not flow, either directly or through another water, into a (1)‐(3) water ‐ If an intermittent ditch intersects with a wetland, it is considered “draining” that wetland. ‐ It is unclear if PCC would be considered a “wetland” for purposes of this exclusion. Common sense would suggest that a PCC should NOT be considered a wetland in this context; but the agency has not confirmed that interpretation. ‐ All ditches (ephemeral, intermittent or perennial) are excluded from jurisdiction if they do not flow directly or through another water into a (1)‐(3) water. It is unclear how flow “through another water” is established. ‐ Ditches that are not excluded may be categorically jurisdictional tributaries or adjacent waters, or may be subject to the significant nexus test. ‐ In a short conference call on the day the rule was released an EPA official summarized the agencies’ position on ditches as follows, “if it looks and acts like a stream, it is a stream not a ditch.” Artificially irrigated areas that would revert to dry land if application of water ceases ‐ The final rule preamble clarifies that only the specific land being directly irrigated would qualify for the exemption, not the surrounding land or other waters within the watershed. Several types of features are excluded only if they were created in “dry land”, including: artificial, constructed lakes and ponds (e.g., 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; small ornamental 3 Summary of Final Rule: Waters of the United States (WOTUS) June 2, 2015 waters; water filled depressions incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; storm water control features constructed to convey, treat or store storm water; wastewater recycling structures, detention and retention basins and distributary structures built for wastewater recycling. ‐ The rule does not provide an actual definition of term “dry land” because the agencies “determined that there was no agreed upon definition given geographic and regional variability.” ‐ The final rule preamble does describes “dry land” as “areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds, and the like.” ‐ Historical evidence of pre‐construction conditions may be difficult to obtain and/or may be inconclusive as to whether the feature was in fact constructed in “dry land.” Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non‐wetlands swales, and lawfully constructed grassed waterways ‐ It is possible for many erosional features to have a bed and bank, which means they may be considered tributaries and not excluded from jurisdiction. ‐ This exclusion does not clarify, and may make even more complicated, the question of whether erosion areas are considered WOTUS. ‐ The final rule preamble states that grassed waterways can be lawfully constructed within tributaries, and therefore the areas up and downstream of a grassed waterway may be jurisdictional even if the grassed waterway itself is excluded. Puddles ‐ The final rule preamble describes puddles as “a very small, shallow, and highly transitory pool of water that forms on pavement or uplands during or immediately after a rainstorm or similar precipitation event.” Groundwater, including groundwater drained through subsurface drainage systems ‐ The exclusion does not apply to surface expressions of groundwater, such as where groundwater daylights and becomes baseflow of a stream or spring fed pond. ‐ Although groundwater is excluded from jurisdiction, the final rule preamble explicitly states that shallow groundwater connections, including drain tiles, can be used to determine if one or more waters has a significant nexus to a (1)‐(3) water. Grandfathering The final rule preamble provides the following “grandfathering” provisions: ‐
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the agencies do not intend to reopen existing jurisdictional determinations (JDs); JDs associated with issued permits and authorizations are valid until the expiration date of the permit or authorization; JD applications associated with completed permit applications and completed pre‐construction notifications will be made consistent with the existing rule; and reliance on preliminary JDs is not affected by the issuance of the final rule. The agencies do not anticipate issuing any new JDs between the pre‐publication and the rule’s final effective date, so any pending applications not included in the grandfathering provisions above will presumably be subject to the new final rule. 4