PAINT.ORG: On Aug. 27, Judge Ralph Erickson of the U.S. District Court for the District of North Dakota, blocked the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers' Waters of the U.S. Rule (WOTUS), granting a preliminary injunction for 13 states to prevent the rule from taking effect Aug. 28.
In June of 2015, North Dakota and 12 other states filed suit in the U.S. District Court for the District of North Dakota against the federal government against the WOTUS rule. The states argued that EPA went outside its authority because the final rule violates state sovereignty, asserting jurisdiction over waters that are subject to state rather than federal control. The states that requested a temporary injunction against the rule were Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Dakota and Wyoming.
EPA issued a statement that this ruling only applies to those 13 states involved in the suit, so the rest of the 37 states must abide by the new WOTUS rule: http://www2.epa.gov/cleanwaterrule/clean-water-rule-litigation-statement. On Sept. 4, Judge Erickson also ruled that the injunction only applies to the 13 states involved in this lawsuit.
The states prevailed because they sufficiently demonstrated that their claim is likely to succeed on the merits and that the states would suffer irreparable harm without injunctive relief. "The risk of irreparable harm to the states is both imminent and likely," Erickson was quoted in the Washington Post, and noted that the rule would require "jurisdictional studies" of every proposed natural gas, oil or water pipeline project in North Dakota.
A number of other states have also filed suit against EPA against the WOTUS rule, including Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, Wisconsin, Oklahoma, Ohio, Michigan, Texas, Louisiana and Mississippi. Additionally, organizations such as the U.S. Chamber of Commerce, the American Farm Bureau Federation, and the American Petroleum Institute have sued. A number of these suits have been consolidated in the Sixth Circuit Court of Appeals.
The WOTUS rule will likely significantly expand federal jurisdiction over waters. Because the Clean Water Act (CWA) affects many aspects of federal and state regulation, many are calling this proposed rule the most significant CWA development in years.
On Nov. 14, 2014, ACA joined with more than 300 trade associations and chambers of commerce from 50 states representing a wide range of industries to voice strong concerns about the WOTUS proposed rule to dramatically expand the scope of federal authority over water and land uses across the United States, and calling for the proposal to be withdrawn. The effort was led by the U.S. Chamber of Commerce.
ACA's comments submitted to EPA/Army Corps of Engineers argued that the proposed rule further complicates CWA jurisdiction with new, vague terms, expands far outside the scope established by Congress, compromises state authority, and could have profound and costly impacts on facilities regulated under federal permits. ACA also stated that the expansive WOTUS definition would trigger greater regulatory obligations in regard to federal permitting programs, and the new broad and vague definitions would allow for significantly more waters to be connected and eventually lead to a traditional navigable water, so that businesses will face tremendous difficulty determining which waters meet the WOTUS definition.
Final Rule
Under the CWA, jurisdictional waters include traditional navigable waters, interstate waters, territorial seas, impoundments of them. These jurisdictional waters remain the same under the final rule.
However, the new rule impacts the definition of tributaries, adjacent wetlands (adding now "adjacent waters," which are determined by physical, distance limitations for how far the water can be and still be considered "adjacent"), similarly situated regional waters, and case specific determinations of jurisdiction based on the significant nexus test. The final rule retains current exclusions and enumerates a number of new exclusions.
Defining "Tributary" for the First Time
EPA defines the terms tributary as a water that contributes flow, either directly or through another water (including an impoundment), to a traditional navigable waters, interstate waters, or the territorial seas that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary.
A tributary can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, canals, and ditches that are not excluded under the Rule. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. EPA emphasized that you need both sufficient flow and volume, and frequency to make it an ordinary high water mark and bed and bank.
Adding "Adjacent Waters"
Under the CWA, all wetlands adjacent to traditional navigable waters, interstate waters, or the territorial seas are considered WOTUS. Under the new definition, EPA has added "adjacent waters" to navigable waters, interstate waters or the territorial seas, impoundments, and tributaries, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters. EPA also clarified the meaning of "adjacent" which means bordering, contiguous, or neighboring including waters separated by constructed dikes or barriers, natural river berms, beach dunes, and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its ordinary high water mark. Adjacent waters also include all waters that connect segments of a water or are located at the head of a water and are bordering, contiguous, or neighboring such water.
Significantly, EPA also provides a definition of "neighboring," which for the first time establishes distance thresholds for what waters are considered to be neighboring: The term neighboring means:
(i) All waters located within 100 feet of the ordinary high water mark of traditional navigable waters, interstate waters, territorial seas, impoundments, tributaries, and adjacent waters. The entire water is neighboring if a portion is located within 100 feet of the ordinary high water mark;
(ii) All waters located within the 100- year floodplain of traditional navigable waters, interstate waters, territorial seas, impoundments, tributaries, and adjacent waters, and not more than 1,500 feet from the ordinary high water mark of such water. The entire water is neighboring if a portion is located within 1,500 feet of the ordinary high water mark and within the 100-year floodplain;
(iii) All waters located within 1,500 feet of the high tide line of a water identified in paragraphs of traditional navigable waters, interstate waters and the territorial seas, and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of the high tide line or within 1,500 feet of the ordinary high water mark of the Great Lakes.
EPA stated in its webinar that the FEMA map identifies the 100-year floodplain, but if there is no FEMA map available, there are other resources available to agencies such as the NRCS soil maps.
Adding Similarly Situated Regional Waters
One of the significant changes EPA makes to the definition of WOTUS is a list of five categorically jurisdictional waters, or "similarly situated regional waters" that have been determined by EPA to have a significant nexus to traditional navigable waters, interstate waters and the territorial seas:
(i) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest.
(ii) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain.
(iii) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.
(iv) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.
(v) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands
EPA Discretion: Case-Specific Waters Based on Significant Nexus Test
EPA has also "clarified" that certain waters can be considered WOTUS on a case-by-case jurisdictional basis. The test the EPA would use to determine jurisdiction is the "significant nexus" test established by Justice Kennedy in Rapanos v. U.S. Significant nexus means a water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of the traditional navigable waters, interstate waters, or the territorial seas. A water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest navigable water, interstate water, or the territorial sea.
EPA stated in its webinar that the significant nexus test would be a three step process: 1) determining what waters are in the watershed that drain into a navigable water, interstate water or territorial sea, 2) seeing which waters are similarly situated, and 3) evaluating whether any of these functions alone or in combination affect the chemical, physical or biological integrity of the waters. For an effect to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and are sufficiently close to function together in affecting downstream waters.
EPA lists factors that are relevant for a significant nexus evaluation, but explained that even if all 9 factors are present, that does not automatically mean the water is jurisdictional, the effect has to be significant: (i) Sediment trapping, (ii) Nutrient recycling (iii) Pollutant trapping, transformation, filtering, and transport, (iv) Retention and attenuation of flood waters, (v) Runoff storage, (vi) Contribution of flow, (vii) Export of organic matter, (viii) Export of food resources, and (ix) Provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in traditional navigable waters, interstate waters, or the territorial seas.
Additionally, EPA adds a section to the definition of WOTUS that all waters are WOTUS that are 1) located within the 100- year floodplain of a traditional navigable water, interstate water or territorial sea, and 2) all waters located within 4,000 feet of the high tide line or ordinary high water mark of a traditional navigable water, interstate water or territorial sea, impoundment, tributary or adjacent water where they are determined on a case-specific basis to have a significant nexus. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain or within 4,000 feet of the high tide line or ordinary high water mark.
Clarifying and Adding New Exclusions
EPA retained a number of exclusions and "clarified" several new exclusions. These are not considered waters of the United States:
(1) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act. (retained in new rule)
(2) Prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (retained in new rule)
(3) The following ditches: (i) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (ii) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (iii) Ditches that do not flow, either directly or through another water, into traditional navigable waters, interstate waters and the territorial seas.
(4) The following features: (i) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (ii) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds; (iii) Artificial reflecting pools or swimming pools created in dry land; (iv) Small ornamental waters created in dry land; (v) Water-filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (vi) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways; and (vii) Puddles.
(5) Groundwater, including groundwater drained through subsurface drainage systems. (retained in new rule)
(6) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land.
(7) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.
EPA/Army Corps Next Steps
In the EPA/Army Corps webinar that took place on Aug. 27, the agencies indicated that they will be posting "commonly asked questions" on their websites as they continue to receive them. Also, in an effort to increase transparency, the agencies will be posting jurisdictional determinations (JDs) as they are made, as well as basic information that went into making that determination.
The agencies also seek to improve the permitting process (improving flexibility, making the process work smoothly) but did not provide specifics as to how and what they are going to change. The agencies are also holding training sessions for their field officers and are planning for regional offices to conduct local field training events, and joint field assessments later this spring. The agencies have also initiated a subcommittee the National Advisory Council for Environmental Policy and Technology (NACEPT) to examine how to facilitate section 404 permitting in more states and tribes.
More information on the final rule is available at http://www2.epa.gov/cleanwaterrule]http://www2.epa.gov/cleanwaterrule.