I am still somewhat fascinated by the political nature of filed lawsuits and general fury caused by the new rule defining waters of the United States. A final draft was added to the Federal Register on June 29, 2015. The rule will be effective on August 28, 2015 unless one of the suits changes that.
Even among stormwater professionals, there still seems to be gross misunderstanding and fear of the potential impacts of the clarifying rule. As I sort out the elements of the rule that most affect my work, mainly stormwater management and ditches, I thought I would share my interpretations with you. Here we go.
The Clean Water Act (CWA) discusses “navigable waters” which might indicate only those waters that can be navigated. However, it defines those navigable waters as, “waters of the United States” which reaches beyond waters that can accommodate a boat. Another clue regarding Congress’ intent related to the influence of smaller waters is the stated purpose of the law – “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” National water quality goals of pollutant elimination and restoration of our “Nation’s waters” were also included.
The new definition of waters of the United States (WOTUS) generally includes eight different types of waters. I will call them “jurisdictional.” The first three I’ll call “core waters.”
(1) waters used (past, present, or future) for interstate or foreign commerce (waters connected the exchange of money),
(2) interstate waters and wetlands (crossing state boundaries),
(3) territorial seas (coastal waters up to about 14 miles from the coast),
(4) impoundments of jurisdictional waters,
(5) tributaries of core waters,
(6) all waters adjacent to the waters listed above (1-5 waters),
(7) special waters – Prairie potholes, Carolina bays and Delmarva bays, Pocosins, Western vernal pools, and Texas coastal prairie wetlands, and
(8) other proximity waters (my term) – waters within the 100-year floodplain of a core water and waters within 4,000 feet of the high tide mark or ordinary highwater mark (OHWM) of core waters and their impoundments and tributaries, with a significant nexus to a core water (waters 1-3).
The terms tributary and tributaries are defined as waters with bed, banks, and a OHWM characteristics that contribute flow to a core water.
The term adjacent is defined as bordering, contiguous, or neighboring. Neighboring is defined as all portions of a water with a portion of the water: within 100 feet of the OHWM of a 1-5 water; within 1,500 feet of OHWN and the 100-year floodplain; or within 1,500 feet of the OHWM of the Great Lakes.
The term significant nexus means waters and wetlands that significantly affect the chemical, physical, and biological integrity of a core water. Functions relevant to significant nexus evaluation are: sediment trapping, nutrient recycling, pollutant management and transport, retention and attenuation of flood waters, runoff storage, contribution of flow, export of organic matter, export of food resources, and provision of life cycle dependent aquatic habitat.
What’s not Regulated
One of the most positive aspects of the rule, in addition to the increased clarity, is the fairly detailed list of exclusions, or waters that are not considered to be jurisdictional. These waters are NOT waters of the US, even if they meet the definition and have characteristics of those waters listed above. Excluded waters include: groundwater; waste treatment systems and wastewater recycling structures; prior converted croplands, farm ponds, French drains, and irrigated areas; small and artificial features such as pools and fountains, industrial and construction-related basins, lakes, and ponds; and puddles (clearly to dispel the propaganda claiming that EPA is now regulating mud puddles).
The rule also clearly states that stormwater features constructed to “convey, treat, or store stormwater” that are created in dry land, are excluded from jurisdiction. This modification of earlier drafts addresses the concern of many that the new rule could set back gains in the development of LID approaches and disincentivize green infrastructure. I still have a hint of concern in regards to the “constructed in dry land” statement. I will consider dry land to be that area not defined as a water or wetland and remember that groundwater is specifically excluded also.
While this specific exclusion does not cover roadside ditches, they are also addressed specifically in another paragraph. The rule states that the agencies do not expect the scope of ditches excluded to be different regardless of the use (including stormwater control) as there is little practical need to distinguish between the two.
The rule excludes ditches with ephemeral flow that were not excavated in tributaries. It excludes those with intermittent flows that were not excavated in tributaries and do not drain wetlands. Ditches with perennial flow are considered waters of the state. Regarding ditches with intermittent flows and the draining wetlands determination, this will require case-by-case assessment to determine intersection and flow characteristics of upstream and downstream portions of the ditch. I suspect we will see additional agency guidance for field personnel on this topic.
As a matter of fact, I expect that we will see internal agency guidance over the next few months that will give us more insight into the increases or decreases of regulatory burden on the regulated. I am hopeful however. I didn’t like where and how we were trending regarding some of these elements before the rule. Hopefully, the supplemental implementation guidance will retain the stated intent of EPA officials to clarify and streamline as they continue to administer the Clean Water Act.
I would enjoy getting your take as well. Comment below.
The rule and other supporting information can be viewed HERE.