The Clean Water Act “Waters
of the US” Proposed Rule -What is it and
what are the implications for agriculture?
August 1, 2014
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Acronyms and Terms
Agencies
Environmental Protection Agency &
U.S. Army Corps of Engineers
CWA
Clean Water Act
WOTUS
“Waters of the U.S.”, those waters
under the jurisdiction of the CWA
Rule
The Agencies’ proposed WOTUS
rulemaking
FEMA
Federal Emergency Management Agency
USGS
US Geological Survey
Agencies’ WOTUS Rule
• Proposal published in Federal Register on April 21,
2014
– https://www.federalregister.gov/articles/2014/04/2
1/2014-07142/definition-of-waters-of-the-unitedstates-under-the-clean-water-act
• Comments are due on October 20, 2014
– Email: ow-docket@epa.gov. Include EPA-HQ-OW-20110880 in the subject line of the message.
– Mail: Send original & 3 copies to: Water Docket, USEPA,
Mail Code 2822T, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460, Attention: Docket ID No. EPA-HQOW-2011-0880
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Why a Rule Now?
•
Over last 30 years the Agencies have claimed broad jurisdiction, using
expansive interpretations of the non-navigable waters that are subject to
CWA
•
Many of those expansive interpretations have never been spelled out in a
formal rulemaking
•
Two Supreme Court decisions (2001 & 2006) involving wetlands
– Told the Agencies their wetlands interpretations were too broad
– Signaled that their interpretations involving streams and ditches with
less than permanent flow were too broad
– Indicated that a not insubstantial and more than speculative finding of a
“significant nexus” between remote wetlands, streams/ditches on one
end and permanent flowing waters on the other could, under certain
circumstances, make the remote waters WOTUS
– Indicated a rulemaking was needed.
•
This proposed rule is a response to this situation
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What Does the Rule Do?
• Restates that navigable waters are WOTUS
• Defines in rulemaking for the first time, and make
WOTUS
– Tributaries, no matter how limited their flow of water
or how remote they are;
– Numerous ditches found in common circumstances
• Defines “adjacent” wetlands and waters, including those
in “floodplains” and “riparian zones”
• Creates a case-by-case significant nexus test for remote
waters and wetlands – the so-called “other” waters.
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What is a WOTUS Under the Rule?
•
•
•
Courts have said the CWA covers waters that are navigable and certain
non-navigable waters; the law doesn’t define the latter.
The Agencies have interpreted which of the non-navigable waters are
WOTUS.
The rule defines WOTUS as:
– Coastal waters and territorial seas;
– Rivers and lakes;
– Tributaries that reach the above waters (including many ditches with
requisite characteristics);
– All “impoundments” of the above;
– Waters or wetlands that are “adjacent” to, and have some type of
water connection, with any of the above; and
– On a case-by-case basis, “other” waters or wetlands that are
isolated and don’t fall into one of the categories above, but alone or
in combination with similar waters have a significant nexus to the
above.
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What Does the Rule Exclude
From Jurisdiction?
•
Prior converted cropland
– PC’s are determined by USDA-NRCS under Swampbuster
– But the Agencies state that they retain right to make a different CWA determination.
•
Two types of ditches
(1) those ditches that are excavated wholly in uplands, drain only uplands, and have less
than permanent flow, and
(2) those ditches that do not contribute flow, directly or indirectly through
waters, to a WOTUS.
other
•
Tile drains
•
Waste treatment systems
•
Farm and stock ponds and settling basins that are excavated in uplands and collect
surface runoff
– Farm and stock ponds are WOTUS if they are created by impounding any size of
stream
•
Artificial irrigation areas in land that would return to upland if irrigation ceases
•
Gullies, rills and non-wetland swales
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What Are “Tributaries?”
• A feature is a tributary if
– It is a natural or manmade channels;
– Has a discernible bed, bank and ordinary high
water mark
– Has any flow in it for any length of time
• Year-round, the “perennial” tributaries
• Seasonally, the intermittent tributaries
• Only when it rains, the ephemeral tributaries
– And it contributes flow to another water through a
surface or subsurface connection
• Includes rivers, streams and, subject to certain
conditions, ditches
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WOTUS Tributaries in West Central Ohio – National databases can map some but not all
tributaries. This is from USGS data. The blue/red lines are perennial, intermittent or ephemeral
streams. But clearly visible beyond the mapped streams are additional, unmapped tributaries. All
of these tributaries are WOTUS. The yellow hatched area is a FEMA 100 year floodplain (more on
this later).
Source: Agricultural Nutrients Policy Council map prepared by Geosyntec
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Drainage in Illinois Corn Field – Drainage features such as this in an Illinois corn field drain off
spring rains and can create tributary features like those seen in the previous slide which meet the
WOTUS definition even if they are not identified in the national databases.
Which Ditches Are
Jurisdictional?
• Ditches that drain a WOTUS
• Ditches in upland area that flow permanently
• Ditches not in upland areas
– The rule does not define upland
– EPA science document defines upland as not
in a wetland or floodplain
• Ditches created through improvement of a
stream
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Ditch in floodplain (non-upland), WOTUS
Former (ephemeral) stream, improved for
drainage, WOTUS
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What Does “Adjacent” Mean?
• Adjacent means bordering, contiguous or neighboring,
and includes waters and wetlands separated from
WOTUS by dikes , berms, and dunes
• Neighboring means waters located in riparian area or
floodplain of a WOTUS, or waters with a shallow
subsurface or confined surface hydrologic connection to
WOTUS
• Riparian area means area bordering a WOTUS where
surface or subsurface water influence plants and animals
in that area
• Floodplain means area bordering WOTUS where
sediment is deposited through inundation during periods
of moderate to high water flows.
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Floodplains in West Central Ohio – The rule asks for comments on how to precisely define a
floodplain. In this map, the yellow hatched areas represent an estimate of floodplain for the rule
using FEMA 100 year floodplain data, and the white areas are estimates for those tributaries that
haven’t been mapped by FEMA, using a 35 foot buffer. Wet areas, wetlands, ditches, in the
floodplain are WOTUS.
Source: Agricultural Nutrients Policy Council map prepared by Geosyntec
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Riparian area in S. New Jersey – Waters in a riparian area that is hydrologically connected to a
WOTUS are themselves WOTUS. These marked features may also be impoundments of an
ephemeral or intermittent stream, which also would make them WOTUS under the rule.
Source: Base map from the USDA-NRCS web soil survey
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How Do Remote Wetlands and
Waters Become WOTUS?
• These “other” remote waters and wetlands
become WOTUS if, on a case-specific basis,
they have a significant nexus with the other
WOTUS;
• The remote waters or wetlands are evaluated in
combination with other similarly situated waters
or wetlands located in the same region;
• Significant nexus means these remote waters
significantly affect the chemical, physical, or
biological integrity of the downgradient WOTUS
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Isolated Wetlands
Wetlands in South
Dakota. Do these,
alone or in
combination with
others that are
similarly situated in
the area, have a
significant nexus to
relatively permanent
flowing waters
downstream?
Source: Agricultural Nutrients Policy Council image
from maps prepared by Geosyntec
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Existing CWA Exemptions Apply
• Section 404(f) normal farming, ranching and
silviculture activities still exempt
• Normal ditch maintenance is exempt
• Agricultural stormwater discharges are exempt
• Irrigation return flow discharges are exempt
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What Are Agriculture’s Major
Concerns & Why?
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Jurisdiction Claimed is Too Broad!
After two Supreme Court decisions, how can
Agencies claim so many features as WOTUS?
Iowa tributaries from
USGS database
(perennial + intermittent
waters)
Iowa tributaries from USGS
(perennial + intermittent + ~
35% of ephemeral waters) +
FEMA 100 year floodplain
Source: Agricultural Nutrients Policy Council map prepared
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by Geosyntec
Rule Creates More Uncertainty
There are literally millions of open questions in farm country
to be answered by Agency personnel – are these WOTUS?
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More Section 404 Problems
• More drainage features being jurisdictional
means either
– More Army Corps 404 permitting
– More Agency challenges in the field to normal
farming activities
“This regional general
permit with authorize
the discharge of fill
materials into waters
of the US in the
upper reaches of
watersheds.”
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Suits Leading to NPDES Permitting for
Row Crops
• CWA citizen suits have resulted in aquatic
pesticides needing NPDES permits
• Under this rule, citizen suits would call for
NPDES permits for the normal use of fertilizers
and pesticides around dry drainage features that
would now be WOTUS
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Isn’t the CWA About Waters that
are Fishable and Swimmable?
We can work together to
reduce losses of nutrients
and sediments to protect
quality of valuable waters.
Drainage features like these will
never be fishable or swimmable,
and don’t need that designation
to protect downstream waters.
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