EPA’s New Waters of the U.S. Rule

NOTE: As of December 8, 2015, this post has been updated to include the memorandum issued by the EPA and the U.S. Army Corps of Engineers on November 16. Please view the update below.

Earlier this year, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) issued a final rule that defined the waters protected under the Clean Water Act (CWA). Although the EPA maintains that the nearly 300-page document clarifies the scope of the CWA’s definition “waters of the United States,” opponents of the rule claim that it redefines the term. The United States argues that the rule is narrower (i.e., fewer waters will meet the definition) and that it offers clarity, but many organizations contend that it would actually expand the number of waters under the jurisdiction of the CWA. Whatever your opinion may be regarding this issue, it is important that we all understand the EPA’s new Waters of the U.S. rule.

The EPA’s New Waters of the U.S. Rule

Who will be affected by the rule?

Anyone trying to obtain construction permits for land disturbance who may be near a water body that could be considered a wetland or water of the U.S. (under the specified definitions) will be affected.

How will these people be affected?

If your project will impact a wetland or a water of the U.S., you may need additional permission from state and federal authorities. In addition, you can expect there to be delays in your schedule. Plan protective best management practices (BMPs) to avoid impacting nearby waters or mitigate your impact through fees, mitigation bank credits, the construction of new wetlands as a part of the project, etc.

What is considered a “Water of the U.S.?”

• Anchor Waters: This includes Anchor Waters currently used, used in the past, or likely to be used in the future for federal or interstate commerce, as well as interstate waters or wetlands and the ocean. Tributaries to Anchor Waters are also included under the definition, as well as streams and wetlands within the 100-year floodplain of Anchor Waters.
• Impoundments of Water: Impoundments of water that would otherwise be identified as a Water of the U.S. (“once in, never out”) are included, as well as dammed waters.
• Adjacent Waters: Water bodies and wetlands that are adjacent to any of the waters identified above are included under the new rule.
• Categorical Waters:These include prairie potholes, Carolina/Delmarva bays, pocosins, vernal pools, and Texas coastal prairie wetlands.
• High Tide Areas: Waters or wetlands within 4000 feet of the high tide or ordinary high water mark (OHWM) of an Anchor Water, tributary, adjacent water, or significant nexus water are considered Waters of the U.S.
• Waters with a Significant Nexus to Anchor Waters: This includes waters and wetlands that significantly affect the chemical, physical, or biological integrity of a Water of the U.S. To determine whether a significant nexus exists and whether removing that nexus would have an impact on the overall system, an analysis by the Corps of Engineers and/or a consultant is required.

What is not considered a “Water of the U.S?”

• Waste treatment systems permitted elsewhere (such as an NPDES permit for a treatment pond or lagoon)
• Prior converted cropland
• Ditches that are not relocated or modified tributaries and do not drain wetlands
• Artificially irrigated waters
• Artificial lakes or ponds in otherwise upland (dry) areas (for example: rice fields, cooling ponds, livestock watering ponds)
• Artificial reflecting pools, ornamental waters, or swimming pools created in dry land
• Groundwater deeper than 24 inches
• Erosion features
• Potholes and ruts
• Puddles
• Storm water control features (for example: impoundments)

Have there been complaints? 

Yes. This ruling is not without contention. As of August 28, 2015, 30 states have filed complaints challenging the rule, and a Federal District Court Judge has granted a preliminary injunction that blocks the ruling from taking effect in thirteen states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. Judge Erikson concluded that the EPA’s process was “inexplicable, arbitrary, and devoid of a reasoned process.”

UPDATE 12/8/15: What is the purpose of the memorandum issued by the EPA and U.S. Army Corps of Volunteers on November 16, 2015?

The memorandum is titled “Administration of Clean Water Programs in Light of the Stay of the Clean Water Act Rule; Improving Transparency and Strengthening Coordination.” It first notes that the U.S. Court of Appeals for the Sixth Circuit stayed the new Clean Water Act Rule on October 9th, which means that the legal process has been halted. The Agencies (the EPA and the Army Corps of Engineers) will comply with the stay, using prior regulations for the definition of the term “waters of the United States” instead. This will continue throughout the length of the stay.

However, the Agencies also “look forward to vigorously defending the merits of the Clean Water Rule, which [they] continue to believe is fully consistent with the law and based on the best available peer-reviewed science” (source). In addition, the Agencies hope to improve transparency and strengthen coordination between the EPA and the Corps of Engineers.

If you’re not sure whether or not a water body near a proposed construction site falls under the EPA’s new Waters of the U.S. rule, Environmental Works can help. We can also provide wetland delineations and assistance implementing BMPs, obtaining the required permits, and coordinating mitigation. To learn more, please give us a call at 417-890-9500. We would be happy to help!