New Definition of "Waters of the U.S." Effective August 28, 2015

08.28.2015

On Friday, October 9, 2015 the U.S. Court of Appeals for the 6th Circuit granted a nationwide stay against the so-called Waters of the United States rule, which is intended to clarify which bodies of water are covered by the Clean Water Act. 

Find out how this rule may affect your current and future projects.

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published their Final Rule on the new federal definition of Waters of the U.S., as applied under the Clean Water Act (CWA). Published in the Federal Register on June 29, 2015 (80 FR 124: 37054-37127), the Final Rule replaces all previous rules and guidance on the federal definition of Waters of the U.S., and became effective August 28, 2015.

What is the Rule?

Termed "The Clean Water Rule" (Final Rule), it serves to clarify the geographic scope of federal jurisdiction over waters of the U.S., including wetlands, under the CWA.

The Final Rule was issued following years of controversy and debate in the wake of several pivotal Supreme Court Cases (most notably Riverside Bayview, 1985, SWANCC, 2001 and Rapanos/Carabell, 2006), which left the jurisdictional status of some features unclear.

The Final Rule is based upon an evaluation of legal precedent, peer-reviewed scientific research (of over 1200 publications), over one million public comments solicited in more than 400 meetings, and four decades of agency experiences in implementing the CWA.

The Final Rule most significantly affects the way features such as small tributaries and potentially “isolated” features (including wetlands, vernal pools, prairie potholes, and pocosins) are evaluated to determine, or refute, their jurisdictional status under the CWA.

The Final Rule also specifically excludes some features from being considered Waters of the U.S.

What are the major changes of the Final Rule?

New exclusions from the definition of "Waters of the U.S." – for example, certain types of ephemeral and intermittent ditches, erosional gullies and rills, some municipal stormwater (MS4) components, and more.

New definition of a "tributary" – tributary features are defined as having physical indicators flow - a bed, banks, and ordinary high water mark (OHWM) – and that contribute flow directly or indirectly to a traditional navigable water, an interstate water, or the territorial seas; tributaries are also clarified to include some man-altered and man-made drainage features which have an OHWM and a bed & bank. 

New definition of, and physical boundaries to, "adjacency" – there is a now a ‘bright line’ with respect to defining ‘adjacent’ and ‘neighboring’ features and their jurisdictional status, including features that are physically isolated from downstream waters. 

Clarifications on when a case-specific "significant nexus test'" must be used to determine jurisdictional status, for:
  • isolated features that are within a 100-year floodplain and/or within 4,000 feet of other jurisdictional waters; and
  • isolated features such as western vernal pools, prairie potholes, Texas coastal prairie wetlands, pocosins, and Carolina and Delmarva bays.
     

What does the new Final Rule mean for projects that may involve waters, wetlands, or questionable features?

  • The Final Rule potentially reduces the number of situations for which a case-specific “significant nexus test” will be used to determine jurisdictional status;
  • It may increase the need for documentation and analysis relative to topography and hydrology at the watershed level to support decisions about federal jurisdiction; and
  • The Rule increases the need for GIS analysis, to evaluate buffer distances and support decisions about federal jurisdiction.

Click here to see ESA’s flowchart illustrating the jurisdictional analysis process under the Final Rule.

ESA has been partnering with clients to submit delineation evaluations to local USACE Districts. We continue to usher projects successfully through the permit review and approval process. If you have specific questions about how the ruling may impact your project or for assistance, contact:

  • California: efischer [at] esassoc [dot] com (Erich Fischer) at 916.564.4500
  • Florida and the Southeast: jsullivan [at] esassoc [dot] com (Julie Sullivan) at 407.403.6302
  • Pacific Northwest: tvanderburg [at] esassoc [dot] com (Teresa Vanderburg )or mclancy [at] esassoc [dot] com (Margaret Clancy) at 206.789.9658