EPA and Army Corps of Engineers Expand Protection of Streams and
Wetlands – Comment Period Ends November 14, 2014.
Authors: Aaron Maier, Trihydro Corporation
On April 21, 2014 the Environmental Protection Agency (EPA) released a proposed rule (titled:
“Definition of ‘Waters of the United States’ Under the Clean Water Act) describing how the federal
government may grant additional jurisdiction to the United States Army Corps of Engineers (Corps) on
bodies of water that connect to tributaries, navigable waters, interstate waters, or adjacent wetlands
(herein referred to as “proposed rule”, EPA 2014). The Corps is responsible for regulating and protecting
jurisdictional waters of the U.S., including wetlands, which are defined and regulated by Section 404 of
the Clean Water Act (CWA) 33 CFR Part 328.3 and Section 10 of the Rivers and Harbors Act (RHA) 33
USC 1344. The EPA and the Corps define a wetland as: “those areas that are inundated or saturated by
surface or ground water at a frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil
conditions” (EPA 2014). Wetlands generally include swamps, marshes, bogs and lakes. In the western
Great Plains, arid west, and southern plains (e.g., Texas) wetlands also include: vernal pools, prairie
potholes, playas, seeps, springs, and slope wetlands (Corps 1987). Petrochemical manufacturing and
refining facilities are often located in close proximity to these types of wetlands.
Wetlands are currently classified as “jurisdictional wetlands”, “waters of the state”, and “isolated”
depending on their regulatory jurisdiction and geographic location. If a wetland is a “navigable water” or
used for interstate or foreign commerce, it may also be considered a “water of the United States” and
would be classified as a “jurisdictional wetland” by the Corps. Under Section 404 of the Clean Water
Act, authorization must be obtained from the Corps to discharge dredged and fill material into waters of
the United States, including jurisdictional wetlands. Impacts to wetlands are permissible, as
aforementioned, with proper authorization and permitting with the Corps and the state in which the
wetlands are located. Typically, the Corps and state agencies would prefer that no impacts be made to
wetlands, although impacts are not always avoidable.
The proposed rule released in April 2014 attempts to clarify the definition of a wetland by providing
additional terminology and guidance on the extent of what is or is not jurisdiction. Wetlands may have a
“significant nexus” to navigable, interstate, and tributary bodies of water if it affects the “chemical,
physical, or biological integrity of waters downstream within a watershed, either through permanent,
intermittent, or ephemeral flow” (EPA 2014). In the past, varying interpretations of “a significant nexus”
have resulted in confusion and inconsistent applications of identifying and delineating wetlands that may
be subject to regulatory jurisdiction. Since the passage of the CWA and according to the mandate that the
Corps assert jurisdiction under Section 404, what is or is not considered to be a jurisdictional wetland
(i.e., those waters that require a permit if dredged or filled) has been subject to scrutiny due to loosely
crafted definitions, fluctuating site conditions, and the relative impermanence of the waterbody (i.e.,
intermittent or ephemeral).
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As an attempt to streamline the delineation process and as a guide to wetlands assessment throughout the
U.S., the Corps has historically utilized the “1987 Wetland Delineation Manual” (Corps 1987). The
manual’s purpose is to provide wetland delineators with specific criteria to evaluate whether a suspected
wetland and/or surface water is regulated by the CWA. An area must include hydrophytic vegetation,
hydric soils and wetland hydrology to be considered a jurisdictional wetland. However, at many sites
where these wetland criteria are not readily apparent, it is difficult to determine whether or not the
Corphas jurisdiction. Petrochemical refining sites are often located adjacent to large waterways where
jurisdictional wetlands occur. Distinguishing wetland “boundaries” where wetlands transition to uplands
can be very difficult.
Following the passage of the Clean Water Act in 1972, early wetland delineation methodology utilized
methods and procedures described in the 1987 manual. The manual was the Corps’ best attempt at
providing to the general public methodology that could be used to identify positive evidence for the three
primary wetland characteristics, which, along with the presence of surface waters, provide evidence that a
wetland may be considered a jurisdictional water of the U.S.
Regional supplements to the 1987 manual were published between 2007 and 2010. These documents
attempt to clarify the 1987 manual where regional wetland characteristics differ (i.e., Alaska, Arid West,
Atlantic and Gulf Coast, etc.). Such differences include regional criteria specific to making
determinations on the presence or absence of hydrophytic vegetation, hydric soils, and wetland
hydrology. Changes to the hydrophytic vegetation criteria include simplification of indicator plant status
and modifications to the prevalence index and dominance test calculations. In addition, plant
morphological adaptations can be used as supplemental evidence for whether wetland plants dominate the
site. Changes to hydric soils criteria include changes to regional soil type criteria that are more
characteristic of soils in each region of the country. The supplements provide additional guidance to help
the wetland delineator apply wetland indicators in their specific region.
Despite the publication of regional supplements and refinements to the 1987 manual, delineating a
wetland for the purposes of determining whether or not a site is jurisdictional by the Corps is difficult at
best. The proposed rule attempts to clarify this process. Prior to site construction and development, a
wetland scientist must be consulted to determine if site activities will impact potential jurisdictional
and/or state regulated wetlands. At that time, the project manager can determine if an on-site delineation
is warranted. The on-site delineation is typically submitted in report format to the Corps for approval.
Following review of the delineation report, the Corps determines jurisdiction over the wetlands. The
Corps is responsible for verifying wetland boundaries and acreages, as established by the delineation. In
some instances, a wetland scientist will conduct a delineation to confirm the absence of wetlands. These
determinations should be submitted to the Corps to verify that wetlands are not located on-site.
Permitting and/or a preconstruction notification may be required if any work is proposed within or near
the wetlands.
The process of permitting wetland dredging and filling activities has been the subject of scrutiny by both
the courts and industry alike. Several important U.S. Supreme Court cases have helped define what is or
is not jurisdictional under the CWA. In 2001, the Supreme Court ruled in “Solid Waste Agency of
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Northern Cook County [SWANCC] v. U.S. Army Corps of Engineers” that the Corps was not authorized
to assert jurisdiction over isolated waterbodies on the basis of migratory waterfowl. The so called
“migratory bird rule” was determined to be unwarranted, and as such, the Corps supposedly no longer
regulates isolated wetlands. The second key court case was “Rapanos v. United States” in 2006. In the
late 1980s, John A. Rapanos of Midland, Michigan, filled in 54 acres of property he owned with sand in
preparation for construction of a mall; he did so without filing for a permit. The Sixth Circuit Court of
Appeals determined that the wetlands were "adjacent" (i.e., having a significant nexus) to waters of the
U.S. As a result of the filled-in “wetlands” having surface connections to tributaries of navigable waters,
the court determined that Rapanos was in violation of the CWA. In 2006, the Supreme Court held that
the term "navigable waters" included "only relatively permanent, standing or flowing bodies of water, not
intermittent or ephemeral flows of water and only those wetlands with a continuous surface connection to
bodies that are waters of the U.S. in their own right are adjacent to such waters and covered by the CWA"
(United States v. Rapanos 2006).
Despite the SWANCC and Rapanos rulings, guidance on how to handle jurisdiction over ephemeral or
intermittent drainages remains unclear. This uncertainty was the basis of the proposed rule released in
March 2014. The proposed rule, along with a science report release by the EPA in September 2013 titled:
“Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific
Evidence”, attempts to clarify jurisdictional rulemaking criteria following the release of the 1987 manual,
various regional supplements, as well as the SWANCC/Rapanos court decisions.
Pursuant to the proposed rule, wetlands may now possess connectivity to navigable and interstate waters
through intrastate lakes, rivers, streams, mudflats, sandflats, sloughs, prairie potholes, wet meadows,
playa lakes, and natural ponds. Under the proposed rule, multiple wetland categories are considered
“jurisdictional by rule”. These primary ones include navigable waters, interstate waters, and territorial
seas. More importantly, “tributaries” and “adjacent” wetlands are newly defined wetland types that are
also considered “jurisdictional by rule.” In the arid west (i.e., those regions west of the Mississippi),
wetlands that do not fall into the aforementioned wetland types are considered to be “other waters” and
will be determined to be jurisdictional on a case-by-case basis. The proposed rule does not include prior
converted cropland, gullies, rills, non-wetland swales, and irrigation ditches. A complicating factor with
the proposed rule is the use and interpretation of the definitions of “tributaries”, “adjacent waters”, and
“other waters”, which are critical to the jurisdictional determination process. Although the intent of the
rule is to not expand the extent of jurisdictional wetlands regulated under the CWA, definitions continue
to be loosely defined or defined with such ambiguity that jurisdictional determinations will likely
continue to be inconsistent across project types, wetland types, and regions. Critical to finalizing the
proposed rule will be the need to have the EPA and the Corps ensure that wetland delineation and
jurisdictional determination methodology, including the process for determining a significant
nexus/tributary/adjacent/“other” water, is administered in a consistent and technically sound manner that
is fair and equitable to the property owner.
In summary, the EPA and Corps believe that the addition of this proposed rule will provide additional
technical guidance, improve accuracy, and decrease the time/effort required for identifying and
delineating wetlands. However, the proposed rule may expand the number of areas defined as wetlands,
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and areas previously considered non-wetlands may need to be re-evaluated for a significant nexus.
Determination of a significant nexus will be decided by the Corps on a case-by-case basis; therefore,
jurisdictional waters may likely vary by region. The proposed rule may have significant implications for
refineries and/or petrochemical operations that are located near or adjacent to waters of the U.S. The
public comment period for this rule ends November 14, 2014. Comments can be posted to the following
website: http://www.regulations.gov/#!submitComment;D=EPA-HQ-OW-2011-0880-0001.
References
U.S. Army Corps of Engineers (Corps). 1987. Corps of Engineers Wetland Delineation Manual. Wetlands Research
Program Technical Report Y-87-1, 143 pages.
U.S. Environmental Protection Agency (EPA). 2014. Definition of ‘‘Waters of the United States’’ Under the Clean
Water Act. Federal Register Vol. 79, No. 76, Monday, April 21, 2014: 40 CFR Parts 110, 112, 116, et al.
United States v. Rapanos, 547 U.S. 715 (2006).
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