By Claudio Ternieden, Kristina Twigg, and Seth Brown
On May 27, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) finalized the Clean Water Rule (http://www2.epa.gov/cleanwaterrule), which EPA and the USACE believe, ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry,
The rule, published in the Federal Register on June 29, is expected to become effective August 28, depending on the outcome of some lawsuits filed by a number of states seeking to stop the rule from going into effect. The rule is grounded in law and the latest science, according to an EPA fact sheet (http://www2.epa.gov/cleanwaterrule/documents-related-clean-water-rule#Fact), and it received substantial public input from more than 400 stakeholder meetings and more than 1 million public comments. EPA and USACE also maintain that the rule creates no new permitting requirements for agriculture and maintains all previous exemptions and exclusions, including dredged or fill requirements.
Stormwater controls not affected
In general, the Clean Water Rule clarifies which bodies of water are classified as “waters of the United States,” thereby requiring federal pollution controls. The Rule maintains the current status of municipal separate storm sewer systems (MS4s) and encourages the use of green infrastructure to protect water quality. Specifically, the final rule states:
(2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)(iv) through (viii) of this section.
(vi) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land.
By using the terms “constructed” “in dry land,” the new rule allows EPA to assert jurisdictional authority over the natural lakes, ponds, wetlands, rivers, and streams while not impacting MS4 elements. This section should help to exclude urban stormwater control measures in most cases, as the rule also stresses in the preamble: “This exclusion responds to numerous commenters who raised concerns that the proposed rule would adversely affect municipalities’ ability to operate and maintain their stormwater systems, and also to address confusion about the state of practice regarding jurisdiction of these features at the time the rule was proposed.”
Existing jurisdictional determinations and permits are valid until they expire. By promoting more consistent and effective implementation of Clean Water Act regulatory programs, the rule sets the stage for permit streamlining during implementation.
Some areas may be challenged
However, questions remain about the rule’s definition of tributaries and when that definition applies to ephemeral or intermittent streams — which would make them jurisdictional. According to EPA, 60% of U.S. stream miles flow only seasonally or after rain, and 1 in 3 Americans rely on these sources for drinking water. According to some environmental attorneys, the tributary definition is the part of the rule most likely to be challenged. Based on the rule, a tributary must possess the physical characteristics of a bed, bank, and an ordinary high water mark as well as evidence of the frequency, duration, and volume of flow characteristic of a tributary. Further, to be considered jurisdictional, tributaries must significantly affect the health of downstream waters. Based on these definitions, tributaries primarily include headwater streams. Erosional features and ditches with intermittent flow specifically are excluded along with ditches draining into wetlands.
The final rule also further defines adjacent open waters and wetlands as jurisdictional if they are within 100 feet of the ordinary high water mark of a jurisdictional water or within the 100-year floodplain and within 1500 feet of the ordinary high water mark of covered waters. Certain isolated waters also could fall under the scope of the Clean Water Act based on both their connectivity and proximity to traditional navigable waters, interstate waters, and territorial seas. A significant nexus determination is based on the isolated water’s effects on the physical, biological, or chemical integrity of jurisdictional waters, such as through an exchange of pollutants, flow, or organisms. Additionally, scientific analyses assessing connectivity will consider how isolated waters affect the nearest jurisdictional water as a group rather than individually.
That analysis will be informed by EPA’s final report published last January, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=296414), where it summarized current understanding about the connectivity and mechanisms by which streams and wetlands affect the physical, chemical, and biological integrity of downstream waters. The report serves as the technical backbone of the final Clean Water Rule. Even if an excluded ditch falls within the defined limits of adjacent waters, an exclusion will trump an inclusion, said Ken Kopocis, deputy assistant administrator of EPA’s Office of Water, in a recent webcast about the rule.
In addition to the issue of defining tributaries, EPA and USACE say the Clean Water Rule:
- Protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they affect downstream waters.
- Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. Ditches not constructed in streams and that flow only when it rains are not covered.
- Significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act.
- Only protects the types of waters that have historically been covered under the Clean Water Act. It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows, or tile drains. It does not make changes to current policies on irrigation, water transfers, or erosion in a field. The Clean Water Rule addresses the pollution and destruction of waterways, not land use or private property rights.
The Water Environment Federation will continue to follow the developments related to this rule and provide analysis and information.
Claudio Ternieden is the director of government affairs and Kristina Twigg is the associate editor of World Water: Stormwater Management at the Water Environment Federation (WEF; Alexandria, Virginia). Seth Brown, P.E., is a WEF senior adviser on stormwater issues and is the principal/founder of Storm and Stream Solutions, LLC (Springfield, Virginia).
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