In spring 2014, we updated our subscribers on the EPA’s proposed Waters of the United States (WOUS) rule, more commonly called the Clean Water Rule (CWR). Well, a year later, the rule was formalized in the Federal Register on June 29, 2015. Here are four things you need to know about this new rule and what it could mean for you.
Most Ephemeral Streams Are Now Jurisdictional By Default
Under previous guidelines, only relatively permanent waters were automatically covered. Other streams needed to be evaluated on a case-by-case basis. Following the finalization of the CWR, an ephemeral steam is jurisdictional as long as it exhibits bed and banks, has another indicator of an ordinary high water mark (OHWM), and is part of a tributary system.
Adjacency Is More Clearly Defined
A waterbody must meet one of the following criteria to be considered adjacent:
- Within 100 feet of the OHWM of a jurisdictional stream
- Within the floodplain of a jurisdictional stream and within 1,500 feet of the OHWM
- Within the floodplain of a jurisdictional stream and within 4,000 feet of the OHWM on a case-by-case basis
Texas Coastal Prairie Wetlands Given Special Consideration
Now, Texas coastal prairie wetlands in the same watershed are considered similarly situated and must be combined for a significant nexus analysis. A coastal prairie wetland that previously did not appear significantly connected to another WOUS now may be regulated because it is “similarly situated” to another coastal prairie wetland that together, appear to have more than an insubstantial or speculative effect on a navigable water.
New Exclusions to the WOUS Definition
All previous exclusions to the definition of WOUS have been retained, and new exclusions have been added. They include:
- Ephemeral or intermittent ditches excavated wholly in uplands
- Ditches that don’t flow to a WOUS
- Artificial pools, ponds, and irrigated areas that would revert to upland without irrigation
- Water-filled depressions created by construction activity
- Gullies, rills, and non-wetland swales
The rule goes into effect on August 28, 2015. Are you prepared for the new changes? Contact us to learn more and see how this new rule may affect your project.
About the author
- As an environmental scientist, Kate has more than 13 years of experience including ecological surveys and field studies, functional assessments, preparing environmental reports and permits, data management, stream channel and wetland restoration, peer reviewed research, and coordinating with local, state, and federal regulatory agencies, as well as public and private stakeholders.