After the US Supreme Court rulings in the Solid Waste Association of Northern Cook Counties (SWANCC) and Rapanos cases, many were left wondering what waters are jurisdictional, what are not, what “significant nexus” meant, and how do you quantify it? To address these questions, a ruling (EPA-HQ-OW-2011-0880) was drafted by the Environmental Protection Agency (EPA) and the US Army Corps of Engineers, the regulatory agency currently responsible for the identification and permitting of waters of the United States (WOUS).
WOUS now cover all navigable waters, including streams, creeks, and tributaries with an ordinary high water mark and defined bed and banks, such as intermittent and ephemeral channels, wetlands, adjacent waters, and “other waters.”
According to the EPA, the rules do not:
- Protect any new types of waters
- Broaden the historical coverage of the Clean Water Act (CWA)
- Regulate groundwater
- Expand regulation of ditches
- Or remove any exemption currently in the statute or regulations
Some key changes to the definition of WOUS include:
- All tributaries are considered jurisdictional, even if they have a natural or manmade “break,” as long as bed-and-bank can be found upstream of the break.
- The term adjacent now includes “waters” and not just “wetlands.” This provided protection to adjacent waters that are not wetlands such as oxbow lakes and sloughs.
- The definition of adjacent now includes neighboring, which is defined as waters within the floodplain or riparian area of a tributary.
“Other waters” is considerably vague, and in these cases, the gradient of connection, or the amount of nexus, will be evaluated on a case by case basis. The “other waters” are defined as being anything not previously listed in the ruling (stream, river, wetland, lake, or territorial sea.) When all other options for bodies of water commonly recognized are excluded, what remains to qualify as other waters?
The first part of the answer comes from the discussion of a significant nexus analysis or adjacency determination, which looks for a physical, chemical, or biological connection between an “other water” and a WOUS. Subsurface hydrological connections can be considered for significant nexus in seemingly unconnected bodies of water. Additionally, several smaller hydrologic features (ephemeral streams or wetlands) can be consolidated into one ecological unit where proximity and ecological parity permit, and then be considered jurisdictional as a whole once significant nexus is established.
This draft ruling was released for a 90 day public comment period on March 25, 2014. If interested, you can comment on this proposed rule by June 23, 2014, and let the agencies know how this may impact your industry. If you need assistance, please don’t hesitate to contact us. We can meet with you at your convenience, discuss your concerns, and address them in a formal letter for your approval before submission.
Contact: Neil Boitnott at firstname.lastname@example.org or (903) 525-9838
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.
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