Review of Corps-EPA 2015 Rule Defining Waters of the U.S. Under the Clean Water Act

Rae Frederick News

  1. Introduction

On June 29, 2015, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) issued the 2015 waters of the U.S. (WUS) final rule to clarify their Clean Water Act (CWA) jurisdiction considering the U.S. Supreme Court’s Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. United States and Carabell v. United States decisions (79 Federal Register 22188).  The rule became effective August 28, 2015; however, the rule has been only implemented in half the country due to ongoing litigation.  The rule expands the agencies’ geographic scope of jurisdiction under Section 404 of the CWA when compared with how the agencies previously determined the geographic scope of their Section 404 jurisdiction.

Key changes include:

  • Designating most intermittent and ephemeral drainages as WUS;
  • Designating most wetlands near rivers, streams, and their tributaries as jurisdictional;
  • Establishing that a shallow subsurface hydrologic connection can suffice to demonstrate that wetlands and waters are connected for the purposes of determining jurisdiction;
  • Establishing that the lack of an ordinary high water mark (OHWM), bed, or bank is not sufficient to “isolate” wetlands or waters upgradient of this break in jurisdictional characteristics; and
  • Proposing a case-specific approach to establish jurisdiction for “other waters” and wetlands that alone or in combination with “other similarly situated” waters and wetlands have a “significant nexus” to jurisdictional waters.

The 2015 final rule also:

  • Maintains the existing exemptions for agriculture;
  • Clarifies that groundwater is not a WUS;
  • Clarifies the jurisdictional status of irrigation ditches; and
  • Establishes numerous new terms.
  1. What’s Jurisdictional?

Under the 2015 final rule, the term “waters of the United States” (jurisdictional waters and wetlands) are:

(a)(1)    All waters which are currently used, were used in the past, or may be susceptible to use in interstate or

foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(a)(2)    All interstate waters, including interstate wetlands;

(a)(3)    The territorial seas;

(a)(4)    All impoundments of (a)(1) through (a)(3) and (a)(5) waters;

(a)(5)    All tributaries of (a)(1) through (a)(4) waters;

(a)(6)    All waters, including wetlands, adjacent to (a)(1) through (a)(5) waters; and

(a)(7)    On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in

combination with other similarly situated waters, including wetlands, located in the same region have a

significant nexus to an (a)(1) through (a)(3) water.  The proposed rule would delete the current requirement

that an “other water” be one the use, degradation, or destruction of which could affect interstate commerce.

The agencies refer to these categories of waters in the proposed rule by the numbering system provided above and propose that the (a)(1) through (a)(6) waters are jurisdictional by rule as they have a significant nexus to an (a)(1) through (a)(3) water.  Case-specific jurisdictional determinations would still be required for the “other waters” (a)(7) category.

The 2015 final rule uses a variety of terms, many of which are new to Section 404 of the CWA (Table 1).  Most of the new terms are related to defining the geographic scope of Section 404 jurisdiction and the case-specific significant nexus determination for “other waters.”

Table 1.  Terms associated with the 2015 final rule.

Term Effect on How CWA Jurisdiction will be Determined
Adjacent Bordering, contiguous, or neighboring.
Associated alluvial deposits Can provide connections for tributaries to jurisdictional waters.
Confined surface hydrologic connection Consists of permanent, intermittent, or ephemeral surface connections through directional flowpaths, such as (but not limited to) swales, gullies, rills, and ditches.
Directional flow path A location where water flows repeatedly from the wetland or open water to the nearest jurisdictional water that at times contains water originating in the adjacent wetland or open water as opposed to directly from precipitation.
Either alone or in combination Applies to the significant nexus test.  This allows the determination of a significant nexus to consider the individual water or wetland at issue or to group the individual water or wetland aggregated with other waters or wetlands in the watershed.  If the destruction of all of the aggregated wetlands or waters could have an effect that is more than speculative or insubstantial on a jurisdictional water, then any wetland or water in the group has a significant nexus and would be considered jurisdictional.
In the region Applies to the significant nexus test.  The region in which similarly situated waters or wetlands would be aggregated is the watershed that drains to the nearest jurisdictional water.  Waters are considered “in the region” if they fall within the same watershed.
Neighboring Includes waters located in whole or in part within 100 feet of the OHWM of a water identified as an (a)(1) through (a)(5) water, or within the 100-year floodplain of a water identified as an (a)(1) through (a)(5) water that is located within 1,500 feet of the OHWM of that jurisdictional water, or located in whole or in part within 1,500 feet of the high tide line of a water identified as an (a)(1) through (a)(5) water.
Perennial flow Water is present in a tributary year-round when rainfall is normal or above normal.
Significant nexus A water, including wetlands, either alone or in combination with other similarly situated waters in the region (i.e., the watershed that drains to the nearest (a)(1) through (a)(3) water) and significantly affects the chemical, physical, or biological integrity of an (a)(1) through (a)(3) water.  For an effect to be significant, it must be more than speculative or insubstantial.  The jurisdictional status of other waters (not jurisdictional by rule) would be determined by a significant nexus test.
Similarly situated Applies to the significant nexus test.  Waters are similarly situated where they perform similar functions and are located sufficiently close together or when they are sufficiently close to a jurisdictional water.
Single point of entry Used to geographically define the watershed (“in the region”).  The region for determining whether similarly situated wetlands or waters have a significant nexus is the watershed that drains to the nearest jurisdictional water through a “single point of entry.”
Swale Distinct from streams in that they are nonchannelized shallow trough-like depressions that carry water mainly during rainstorms or snowmelt.  Swales are not considered tributaries and nonwetland swales are nonjurisdictional.
Tributary A water physically characterized by the presence of a bed and bank, and OHWM, which contributes flow, either directly or through another water, to an (a)(1) through (a)(4) water.  A tributary can be perennial, intermittent, or ephemeral.
Watershed The area draining into the nearest jurisdictional water for the purposes of grouping “similarly situated” wetlands or waters “in the region” for determining the presence or absence of a significant nexus.
  1. Key Changes

The 2015 final rule affects the geographic scope of the agencies’ Section 404 jurisdiction in the following ways.

Eliminate the Isolation of Waters and Wetlands Based on Breaks in Jurisdiction

The 2015 final rule significantly expanded the geographic scope of Section 404 jurisdiction in the arid West where there are numerous intermittent and ephemeral drainages.  The headwaters of many of these drainages were previously considered “isolated” (per guidance following SWANCC).  Previously, when a drainage lacked continuous characteristics of a WUS (i.e., OHWM, bed, and bank), the reaches of the drainage and any associated wetlands upgradient of this break in jurisdictional characteristics were typically considered nonjurisdictional.  The rule states that a water that otherwise qualifies as a tributary does not lose its status as a tributary if, for any length, there are one or more man-made breaks, or one or more natural breaks so long as a bed and bank, and OHWM can be identified upstream of the break.  The elimination of breaks in jurisdiction isolating the upper reaches of drainages translates to an increase in the scope of Section 404 jurisdiction on intermittent and ephemeral drainages and their associated wetlands.

Adjacent Waters are Waters of the U.S.

The 2015 final rule makes adjacent waters, rather than simply adjacent wetlands, WUS.  For example, waters in lined gravel pit lakes adjacent to a river with no outlet to the river were previously considered nonjurisdictional, but wetlands in these gravel pit lakes are considered adjacent and jurisdictional under the 2015 final rule.  Under the 2015 final rule, both the water and wetlands in the gravel pit lakes would be considered adjacent and jurisdictional.  See Table 1 for more information on “adjacency.”

Ditches

Under the 2015 final rule, ditches that are excavated wholly in uplands, and have less than perennial flow (Table 1), would not be considered WUS.  Ditches would be considered jurisdictional if they have perennial flow; have intermittent flow and are a relocated tributary, or excavated in a tributary, or drain wetlands; or regardless of flow, are excavated in or relocated in a tributary.  The previous policy on ditches did not distinguish among ditches with perennial, or less than perennial, flow.

Tributaries

Under the 2015 final rule, any water that meets the definition of a “tributary” is a WUS (Table 1).  In addition to breaks in jurisdictional characteristics not isolating drainages (discussed above), the 2015 final rule also establishes other situations that do not eliminate jurisdiction including:

  • Tributaries that have been channelized in concrete, or otherwise have been human altered, may still meet the definition of tributaries under the 2015 final rule so long as they still contribute flow to an (a)(1) through (a)(4) water.
  • Waters that meet the definition of a tributary under the proposed rule are jurisdictional even if there is an impoundment at some point along the connection from the tributary to the (a)(1) through (a)(3) water. Because an impoundment is considered by rule to not cut off a connection between upstream tributaries and a downstream (a)(1) through (a)(3) water, tributaries above the impoundment are still considered tributary to a downstream (a)(1) through (a)(3) water even where the flow of water is impeded due to the impoundment.
  • The significant nexus between a tributary and a jurisdictional water is not broken where the tributary flows through a culvert or other structure.

Gullies, rills, nonwetland swales, and certain ditches would not be considered tributaries or WUS under the proposed rule, even if these features contribute flow to a tributary in systems with steep side slopes.  These nonjurisdictional features may still serve as a “confined surface hydrologic connection” (Table 1) between an adjacent wetland or jurisdictional water, provided there is an actual exchange of water between those waters and the water is not lost to deep groundwater through infiltration.

Groundwater

The 2015 final rule states that groundwater is not a WUS.  However, a shallow subsurface hydrologic connection can be used to demonstrate that a wetland or water is “adjacent” to a jurisdictional wetland or water.  Guidance is not provided on how to demonstrate that a particular water or wetland does or does not have a shallow subsurface hydrologic connection.  Groundwater monitoring studies can be time consuming, so the responsibility and cost will likely fall on the project proponent to demonstrate the lack of a connection or, in the interest of time, assume a connection and jurisdiction.

Floodplains and Riparian Areas

Waters outside of the riparian area or floodplain that lack a shallow subsurface hydrologic connection or a confined surface hydrologic connection would be analyzed as “other waters.”  Currently, such wetlands or waters would be typically considered isolated and nonjurisdictional.

 Significant Nexus Test

A significant nexus occurs when it is determined that an “other water” significantly affects the chemical, physical, or biological integrity of an (a)(1) through (a)(3) water.  As proposed, the significant nexus test for “other waters” would be applied to waters and wetlands, either alone or in combination with other similarly situated waters in the region (i.e., a watershed).  This allows the determination of a significant nexus to consider the individual water or wetland at issue or to group the individual water or wetland with other waters or wetlands in the watershed.  When the functional contributions of the aggregated waters and wetlands in a watershed are considered, it would be an unusual situation that in the aggregate there is no significant nexus to an (a)(1) through (a)(3) water.  As proposed, a significant nexus for the aggregate translates to a significant nexus for the individual water or wetland in question.  It would be a rare exception that a water or wetland would not be determined jurisdictional under the proposed rule.  The combination of aggregating waters and wetlands in a watershed for the significant nexus test for jurisdiction for “other waters,” and including all tributaries as jurisdictional by rule (no jurisdictional breaks considered), would leave very few “other waters” as nonjurisdictional.  This becomes particularly clear when the agencies state that a hydrologic connection is not necessary to establish a significant nexus because in some cases the lack of a hydrologic connection would be a sign of the water’s function in relationship to an (a)(1) through (a)(3) water (e.g., sediment trapping, nutrient recycling, pollutant trapping and filtering, retention or attenuation of flood waters, runoff storage, and provision of aquatic habitat).

Link to PDF of September 2015 Article:  “New Clean Water Act Rule Defining Waters of the United States”, The Colorado Lawyer