The proposed rule
from the U.S. Environmental Protection Agency and the U.S. Army Corps of
Engineers reduces the types of waterways that are covered as compared to the
2015 Obama era rule that was the subject of controversy because of the scope of
the reach of jurisdiction. The more restrictive interpretation included in the
proposed rule is based on a 2006 opinion by Supreme Court Justice Scalia, in Rapanos v. United States 547 U.S. 715 (2006). who opined that the federal Clean Water Act only applied to relatively permanent waters; while the other
areas, should be regulated by states.
Of particular interest is the section that discussed crop land:
Prior converted cropland.
§ This longstanding exclusion for certain agricultural areas would be continued under the proposal, and the agencies are clarifying that this exclusion would cease to apply when cropland is abandoned (i.e., not used for, or in support of, agricultural purposes in the preceding five years) and has reverted to wetlands.
o
Traditional navigable waters
(TNWs)
§ Under the proposal, traditional navigable waters would
be large rivers and lakes, tidal waters, and
the territorial seas—such as the Atlantic Ocean,
the
Mississippi River, the Great Lakes, and
tidally influenced waterbodies, including
wetlands, along
coastlines—used in interstate or foreign
commerce.
o
Tributaries
§ In the agencies’ proposal, tributaries
would be rivers and
streams that flow to traditional
navigable waters—such as Rock Creek, which feeds to the Potomac River in Washington,
D.C.
§
Under the proposal, these naturally
occurring surface
water channels must flow more often than
just when it rains—that is, tributaries as proposed
must be perennial or intermittent. Ephemeral
features would
not
be tributaries under the proposal.
§ Tributaries can
connect to traditional
navigable waters directly,
through other “waters of the United States,” or through other non-jurisdictional
surface waters so
long as those waters convey
perennial or intermittent flow downstream.
o
Certain
ditches
§ A ditch under the proposed rule would be an “artificial
channel used to convey
water.”
§ Under the proposal, ditches would be jurisdictional where they are traditional navigable waters, such
as the Erie Canal, or subject to the ebb and flow of the tide.
§ Ditches may also be jurisdictional where they satisfy
conditions of the tributary
definition as proposed
and either 1) were constructed in
a tributary or 2) were built in adjacent wetlands.
o
Certain
lakes and
ponds
§ Lakes and ponds would
be jurisdictional where they are traditional navigable waters,
such as the Great Salt Lake in
Utah or Lake Champlain along the Vermont-New York border.
§ Lakes and ponds would
be jurisdictional where they contribute perennial or intermittent flow to a traditional navigable water either directly, through other
“waters of the United States,” or through other non-jurisdictional
surface waters so
long as those waters convey
perennial or intermittent flow downstream,
such as Lake Pepin
in Minnesota or Lake Travis in
Texas.
§ Lakes and ponds would
be jurisdictional where they are flooded
by a “water of the United
States” in a typical year,
such as many oxbow lakes.
o
Impoundments
§
Under the proposal, impoundments of “waters
of the United States” would be jurisdictional.
o
Adjacent wetlands
§ Under the proposal, wetlands that physically
touch other jurisdictional waters would be
“adjacent wetlands,” such as Horicon Marsh in
Wisconsin.
§ Wetlands with a surface water connection in a typical year that results
from
1) inundation from a “water of
the
United States” to the wetland
or 2) perennial or intermittent flow between the wetland
and a “water of the United
States” would be
“adjacent.”
§ Wetlands that are near a jurisdictional water but don’t physically touch that water because they are separated,
for example by a berm, levee, or upland,
would be adjacent only where they have a surface water
connection described in
the previous bullet through
or over the barrier,
including wetlands flooded by jurisdictional waters
in a typical year.
·
The proposal also clearly outlines what would not
be “waters of the United States,” including:
o
Waters that would
not be included in the proposed categories of “waters
of the United
States” listed
above—this would provide clarity that if a water or feature
is not identified as jurisdictional in the proposal, it would not
be a jurisdictional water
under the Clean Water Act.
o
Ephemeral features that contain water only during
or in response to rainfall.
o
Groundwater.
o
Ditches that do not meet the proposed
conditions necessary to be considered
jurisdictional, including most farm and roadside ditches.
o
Prior converted
cropland.
§ This longstanding exclusion for certain agricultural areas would
be continued under the proposal,
and
the agencies are clarifying that this exclusion would
cease to apply when cropland is abandoned (i.e., not used for, or in
support of, agricultural purposes
in
the preceding five years) and
has reverted to
wetlands.
o
Stormwater control features excavated or constructed
in upland to convey,
treat, infiltrate, or store stormwater
run-off.
o
Wastewater recycling structures such as
detention, retention and
infiltration basins and ponds,
and groundwater recharge
basins would be excluded
where they are constructed in upland.
o
Waste treatment systems.
§ Waste treatment systems have been
excluded from the definition of “waters of the United
States” since 1979 and
would continue to be excluded under this proposal; however, waste treatment systems are being defined for the first time in this proposed rule.
§ A waste treatment system
would include all components, including lagoons and treatment
ponds (such as settling or cooling
ponds), designed to convey
or retain, concentrate, settle, reduce,
or remove pollutants, either actively
or passively, from wastewater or stormwater prior
to
discharge (or
eliminating any such
discharge).
This article is
based on preliminary reporting- we will update this report further on this as
we review the related documents that
were released. There is a sixty day comment period for the proposed rule.
