US EPA Releases Finalized “Waters of the United States” Rules

The controversial expansion of EPA authority, embedded in newly proposed rules widely referenced as “Waters of the United States,” were released today. This act follows a lengthy comment period, where over one million comments were received both supporting and opposing the changes in Agency authority.

The EPA website describes the rules: “The rule ensures that waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand.”

Read the EPA’s “factsheets” on the proposed rule online.

Representatives from EPA and the United States Corps of Army Engineers held a conference call for local government and tribal stakeholders on the afternoon of May 27.  During that call, the federal representatives stressed that the rule did not create any new permitting requirements or undermine any existing exemptions and in fact narrowed the scope of ditches .  New specific exemptions were created for artificial ponds and waterways subject to a Municipal Separate Storm Sewer System (MS4) permit.  However, the representatives did anticipate a 2-4% positive jurisdictional determination  in the “other waters” category (mainly from wetlands).  A summary of the jurisdictional changes under the waters of the US is included in the following chart:

Subject Old Rule Proposed Rule Final Rule
Navigable Waters Jurisdictional Same Same
Interstate Waters Jurisdictional Same Same
Territorial Seas Jurisdictional Same Same
Impoundments Jurisdictional Same Same
Tributaries to the Traditionally Navigable Waters Did not define tributary Defined tributary for the first time as water features with bed, banks and ordinary high water mark, and flow downstream. Same as proposal except wetlands and open waters without beds, banks and high water marks will be evaluated for adjacency.
Adjacent Wetlands/Waters Included wetlands adjacent to traditional navigable waters, interstate waters, the territorial seas, impoundments or tributaries. Included all waters adjacent to jurisdictional waters, including waters in riparian area or floodplain, or with surface or shallow subsurface connection to jurisdictional waters. Includes waters adjacent to jurisdictional waters within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark.
Isolated or “Other” Waters Included all other waters the use, degradation or destruction of which could affect interstate or foreign commerce. Included “other waters” where there was a significant nexus to traditionally navigable water, interstate water or territorial sea. Includes specific waters that are similarly situated: Prairie potholes, Carolina & Delmarva bays, pocosins, western vernal pools in California, & Texas coastal prairie wetlands when they have a significant nexus.Includes waters with a significant nexus within the 100-year floodplain of a traditional navigable water, interstate water, or the territorial seas, as well as waters with a significant nexus within 4,000 feet of jurisdictional waters.
Exclusions to the definition of “Waters of the U.S.” Excluded waste treatment systems and prior converted cropland. Categorically excluded those in old rule and added two types of ditches, groundwater, gullies, rills and non-wetland swales. Includes proposed rule exclusions, expands exclusion for ditches, and also excludes constructed components for MS4s and water delivery/reuse and erosional features.

Source: EPA Clean Water Rule Summary Fact Sheet

The representatives also stated that EPA will be holding a series of webinars starting next week to discuss the impact of the new rule and asking the Local Government Advisory Committee (LGAC) to help with the local implementation of the rule.

The American Farm Bureau, a critic of the proposed rule, has offered online comments on the release of final version and the process leading to it:

We are undertaking a thorough analysis of the final WOTUS rule to determine whether the Environmental Protection Agency listened to the substantive comments farmers and ranchers submitted during the comment period. Based on EPA’s aggressive advocacy campaign in support of its original proposed rule – and the agency’s numerous misstatements about the content and impact of that proposal – we find little comfort in the agency’s assurances that our concerns have been addressed in any meaningful way.

“The process used to produce this rule was flawed. The EPA’s proposal transgressed clear legal boundaries set for it by Congress and the Courts and dealt more with regulating land use than protecting our nation’s valuable water resources. EPA’s decision to mount an aggressive advocacy campaign during the comment period has tainted what should have been an open and thoughtful deliberative process. While we know that farmers and ranchers were dedicated to calling for substantial changes to the rule, we have serious concerns about whether their comments were given full consideration.

“We expect to complete our review in the next few days. We are looking in particular at how the rule treats so-called ephemeral streams, ditches, small ponds and isolated wetlands. We will decide on an appropriate course of action once that review is complete.

MACo had submitted comments asking that ditches and MS4 water channels be explicitly exempted under the proposed rule. Subsequently, the National Association of Counties (NACo) submitted comments calling for a repeal of the proposed rule and restarting the rulemaking process.

Prior Conduit Street Coverage on Waters of the US

Michael Sanderson

Executive Director Maryland Association of Counties