EPA’s new water rule finalized

The controversial new federal Clean Water Rule is now final. Barring legislative action, the rule becomes effective later this summer and will govern which U.S. “waters” are protected by the Clean Water Act.

EPA’s new water rule finalized

The controversial new federal Clean Water Rule is now final. Barring legislative action, the rule becomes effective later this summer and will govern which U.S. “waters” are protected by the Clean Water Act.

The U.S. Army Corps of Engineers issues permits to discharge fill material into waters defined by the rule, and EPA issues permits to discharge pollutants into such waters. Persons discharging pollutants or fill material into jurisdictional waters without first receiving a permit are subject to steep civil and criminal penalties.

EPA and the corps jointly released the final rule May 27. The rule, which faced severe opposition from ag and other industry groups in its proposed form, retains most of its original provisions. The agencies did, however, incorporate some changes in response to the more than 1 million comments received.

The final rule generally identifies eight categories of “jurisdictional waters.” The first six categories are automatic. If a body of water meets the definition for one of these categories, it is automatically regulated by the Clean Water Act, unless it falls within several specific exclusions also detailed in the rule. The eight jurisdictional categories include: 1) traditional navigable waters; 2) interstate waters; 3) territorial seas; 4) impoundments of jurisdictional waters; 5) tributaries; 6) adjacent waters; 7) specific waters subject to case specific significant nexus analysis; 8) other waters subject to case-specific significant nexus determinations.

Traditional navigable waters, interstate waters, territorial seas and impoundments of jurisdictional waters. The rule does not alter the agencies’ treatment of these waters. Coverage of these waters has not changed from that announced in the proposed rule. These are the traditional waters generally agreed to be protected by the Clean Water Act.

Tributaries. The “tributaries” category was among the most controversial of the proposed rule’s categories of jurisdictional waters. For the first time, the agencies sought to define the word “tributary,” and the proposed definition was widely viewed as a great expansion of the agencies’ authority. The proposed rule broadly defined tributaries to include natural or man-made waters, wetlands, lakes, ponds, canals, streams and ditches if they contribute flow directly or indirectly to interstate waters.

The proposed rule had no requirement that the waterways continuously exist or have any nexus to traditional “waters of the United States,” as was required under previous guidance.

The final rule retains the general definition of tributary offered by the proposed rule. Under the final rule, however, waters that do not have beds, banks and high water marks will be evaluated for inclusion as “adjacent” waters instead of as “tributaries.” Certain ditches, as detailed later, are also excluded from the definition.

Adjacent waters. Under the proposed rule “adjacent” was defined to include “bordering, contiguous or neighboring” waters. The final rule largely retains this definition of “adjacent” but adds a definition for “neighboring,” which includes:

Waters located within 100 feet of the ordinary high water mark of navigable waters, interstate waters, territorial seas, impoundments or tributaries.

Waters within the 100-year floodplain of navigable waters, interstate waters, territorial seas, impoundments or tributaries, and not more than 1,500 feet from the ordinary high water mark of such water.

Waters located within 1,500 feet of the high tide line of navigable waters or a territorial sea, and all waters located within 1,500 feet of the ordinary high water mark of the Great Lakes.

The “neighboring” definition brings some clarity to the definition of “adjacent.” It does appear, however, it will bring many previously unregulated waters under the jurisdiction of the Clean Water Act.

Specific waters. These are subject to case-specific significant nexus analysis. The final rule provides that the following waters are jurisdictional when it is determined through a case-specific analysis that they have a significant nexus to traditional navigable water, interstate waters, or territorial seas: 1) Prairie potholes; 2) Carolina and Delmarva bays; 3) Pocosins; Western Vernal Pools in California; 4) Texas coastal prairie wetlands.

Other waters. These are subject to case-specific significant nexus determinations. The final rule also includes within its definition all waters located within the 100-year floodplain of a traditional navigable water, interstate water or territorial sea, and all waters within 4,000 feet of the high tide line or ordinary high water mark of those same waters if it’s determined on a case-specific basis they have a significant nexus to the traditional navigable water, interstate water or territorial sea.

Specific exclusions. The final rule enhances the descriptions of specific waters that are excluded from jurisdiction, even if they would otherwise meet the definition of a jurisdictional body of water. As mentioned above, certain ditches and puddles are now specifically excluded. Exclusions most applicable to ag include:

prior converted cropland

artificially irrigated areas that would revert to dryland should application of water to that area cease

artificial, constructed lakes and ponds created in dryland, such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds or cooling ponds

artificial reflecting pools or swimming pools created in dryland

small ornamental waters created in dryland

ditches with ephemeral flow that aren’t a relocated tributary or excavated in a tributary

ditches with intermittent flow that aren’t a relocated tributary, excavated in a tributary, or drain wetlands

ditches that do not flow, either directly or through another water, into a traditional navigable water, interstate water or territorial sea

water-filled depressions created in dryland incidental to mining or construction activity, including pits excavated for obtaining fill, sand or gravel that fill with water

erosional features, including gullies, rills and other ephemeral features that don’t meet the definition of tributary, non-wetland swales and lawfully constructed grassed waterways

puddles

groundwater, including that drained through subsurface drainage systems

In conclusion, the agencies estimate the overall expansion of jurisdictional waters under this rule will be only 2.84% to 4.65%. Ag and other groups are not assured. Many have vowed to fight the rule. Even before the new rule’s May 27 release, the U.S. House on May 12 passed the Regulatory Integrity Protection Act, which would require the agencies to withdraw their rule and start again. Pending in the Senate is S. 1140, the Federal Water Quality Protection Act, also designed to rework the rule. We will keep you informed as developments unfold.

Tidgren is staff attorney for the Center for Agricultural Law and Taxation at Iowa State University. Visit calt.iastate.edu.

This article published in the July, 2015 edition of WALLACES FARMER.

All rights reserved. Copyright Farm Progress Cos. 2015.

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