Vol. 23 No. 4 June 2, 2015

EPA & COE Redefine Which Wetlands
and Streams are Federally Regulated

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. Virginia and Maryland state laws already regulate isolated wetlands and other waters – 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 which 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 the EPA and the COE have attempted with this Rule.

Existing and Pending Jurisdictional Determinations (JDs)

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.

For pending JDs:

…jurisdictional determinations issued prior to the effective date of the rule and jurisdictional determinations associated with permit applications deemed by the Corps to have been complete on the date this rule is published in the Federal Register, including complete pre-construction notifications, will be made consistent with the existing rule, unless the applicant requests that its approved jurisdictional determination or permit authorization be decided after the effective date of the new rule… (Rule page 80)

However, if there is a rush of JD requests, the Agencies may not be able to meet the new demand for JDs and thus state:

...It is important to emphasize that the agencies do not anticipate being able to complete new jurisdictional determinations submitted after this rule is published before it becomes effective. As a result, requesters seeking jurisdictional determinations after the rule is published should expect the determination will be made consistent with this rule... (Rule page 80)

The bottom line – the COE will try to issue JDs as they come in, but there is no guarantee that they will be issued under the existing rule. This is important in Virginia because Department of Environmental Quality (DEQ) regulations require a JD for a permit application to be complete. Thus there is potential for permit delays

Isolated Waters/Wetlands

It is important to note that Maryland and Virginia have regulated most isolated waters/wetlands that the COE did not regulate as a result of the Fourth Circuit Court’s U.S. v. Wilson decision2 and the U.S. Supreme Court’s SWANCC decision in 20013. 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.

But because the Joint Permit Application and Joint Federal State Application processes (for Virginia and Maryland, respectively) already captured those “isolated” waters, as they were regulated by the states, the process and timing should 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 COE and EPA. However, the universe of ditches to be regulated by the COE and EPA is still likely less than those currently regulated by Maryland and Virginia (see DEQ's Ditch Guidance of 2008.)
Response to Industry Comments

Many of the Building Industry comments have been addressed in the final rule. (See NAIOP, NAHB and AGC):
•
Stormwater facilities that are created in dry land are now clearly not regulated as WOTUS (§328.3(b)(6)).
•
The Rule uses the FEMA definition of a 100 Year Floodplain in the preamble (Rule page 107) (though it does not specify a drainage area) instead of a geomorphic definition.
•
The Rule does not take jurisdiction over erosion gullies or water-filled depressions in dry land from construction (§328.3 (b)(4)(vi)).
•
The rule clarified which isolated waters are regulated without case by case analysis, which ones do need analysis, and which ones are “combined” for significant nexus analysis (Prairie Potholes, Carolina Bays and Delmarva Bays, Pocosins, Western Vernal Pools, and Texas Coastal Prairie Wetlands; §328.3(b)(7 and 8)) – though more encompassing than desired.
•
The rule numerically clarifies the term “neighboring” – though it uses a much larger distance than desired (§328.3 (c)(2)).

Significant Nexus

§328.3(c)(5) attempts to clarify the “muddy” definition of which isolated waters have significant nexus to waters “Jurisdictional by Rule” (Rule pages 18 – 20). This continues the confusion brought about by the Supreme Court in Rapanos and will likely be the source of future contention and litigation in states that do not regulate such areas because no metrics or quantification of the waters’ effect on the downstream chemical, physical, or biological integrity is provided.

Impact Assessment

While we do not see a big impact in our region as noted above – there will be impacts across the nation:
•
in areas where drainage ditches intercept the groundwater table;
•
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
•
in the arid West, as Arroyos are now clearly regulated at the Federal level.
The Economic Analysis of the EPA – Army Clean Water Rule prepared by these agencies concludes (page ix):
•
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. Because there is no definitive nationwide mapping of WOTUS under any definition, their methodology of sampling past JDs is probably the only practicable way to approach this. However the data provided in the Economic Analysis does not support the first conclusion stated above. Figure 18 (pages 66 – 67) clearly shows an expected increase of wetland mitigation (3,781 acres) and stream mitigation (111,916 linear feet) per year.

One missing element in the analysis is the recent increase (post Rapanos) in wetlands area due to implementation of Regional Supplements, which changed the vegetation and soil criterions (more plants and soils are “wet;” see Field Notes Volume 20, Number 6).

So why do some people interpret a dramatic increase in WOTUS – and others see a minimal increase? Perspective. If your basis of comparison is “Traditionally 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

Efforts in Congress are already at work to curtail EPA’s authority under this rule. The House of Representatives passed the Regulatory Integrity Protection Act, H.R. 1732, which would force the Agencies to withdraw the final rule, and similar legislation has been introduced in the Senate. The Obama Administration is likely to veto any legislation restricting EPA’s authority and has vowed to defend the rule rigorously.

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.
The map inset illustrates the difference in field verified streams and the NHD Plus dada set. Click the picture for a complete comparative stream map of Fairfax County, Virginia.

Extent of Fairfax County Streams (by data set)

NHD Plus at 1:100,000 scale

±525 miles

Fairfax County Perennial Streams

±855 miles

Fairfax County Non-Perennial Streams4

±2,100 miles

Streams to be excluded using NHD Plus

±2,430 miles

Solving the Real Problem

What’s missing from this debate is what is most important for the economic vitality of the United States: an understandable and predictable permit process for landowners who need to impact WOTUS because healthy federal, state and local economies and clean waters of the U.S. are integrally related; balanced economic development and protection of our waterways are not mutually exclusive.5 There are four areas that the COE and EPA need to focus on to achieve that goal:
•
What areas are regulated (areas and activities)
•
What activities are regulated in those areas
•
What is required (of applicants) to work in those areas
•
Timeliness requirements (for agency responses) when obtaining permits to work in WOTUS

The COE and EPA are to be commended for their efforts in trying to clarify the definition of the areas that are regulated. However, the program needs further revision to address what activities are regulated in these areas, the requirements imposed on applicants, and the timeliness of agency responses.

An effective permit program needs to tell applicants what is required by providing a specific list and description of what is necessary for an application to be complete. States that have done so have dramatically reduced the time that staff and applicants expend on “getting in the door” with a complete application suitable for a timely review. This Rule, or proposed legislation to date, does not address this need.

Timeliness requirements are critical for effective and efficient CWA permit review. A timeframe for completeness review must be established (e.g., 15 days). The regulators must either ask for more information consistent with the program requirements or accept the application. Then, depending on the type of permit, an outside timeframe for issuance must be mandated for all permits. This has been proven to work (e.g., compare Virginia to Maryland) but also is not addressed by this Rule nor by proposed legislation to date.

Addressing all four of these areas in a holistic manner would reduce the angst over the definition of WOTUS and allow our country to improve its economy and protection of the environment.

Stay tuned for more changes, as this battle has waxed and waned since the last rulemaking in 1986. If you have questions about how the Clean Water Rule will impact your projects, please contact Mike Rolband, Mark Headly, Dan Lucey, Mike Klebasko, Ken Wallis, or Ben Rosner.

1 Rapanos v. United States, 547 U.S. 715 (2006)

2 United States v. James J. Wilson, 133 F. 3d 251 (4th Cir. 1997)

3 Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers et al., 531 U.S. 159 (2001)

4 Some of these may be non-jurisdictional ditches or swales

5 Paraphrasing Virginia’s Chesapeake Bay Preservation Ordinance, which states “Healthy state and local economies and a healthy Chesapeake Bay are integrally related; balanced economic development and water quality protection are not mutually exclusive.”