On Tuesday December 11, 2018, the Environmental Protection Agency released the long awaited (promised by President Trump) proposed rule that would reduce the types of areas covered by the wetlands programs under the federal Clean Water Act.
( Pre-publication version of the Federal Register notice, the supporting analyses and fact sheets are available at: https://www.epa.gov/wotus-rule)
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.
The proposed rule creates six exclusive categories of areas that fall under federal jurisdiction. This text if from the EPA Fact Sheet:
Traditional navigable waters (TNWs)
- Under the proposal, traditional navigable waters would be largerivers and lakes, tidal waters, and the territorial seas—such asthe Atlantic Ocean, the Mississippi River, the Great Lakes, and tidally influenced waterbodies, including wetlands, along coastlines—used in interstate or foreign commerce.
- 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.
- 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) we reconstructed in a tributary or 2) were built in adjacent wetlands.
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.
- Under the proposal, impoundments of “waters of the United States” would be jurisdictional.
- Under the proposal, wetlands that physically touch other jurisdictional waters would be “adjacent wetlands,” such honorific 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 describe din 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:
- Waters that would not be included in the proposed categories of“waters of the United States” listed above—this would provide claritythat if a water or feature is not identified as jurisdictional in theproposal, it would not be a jurisdictional water under the Clean WaterAct.
- Ephemeral features that contain water only during or in response torainfall.
- Ditches that do not meet the proposed conditions necessary to beconsidered jurisdictional, including most farm and roadside ditches.
- Prior converted cropland.
- This longstanding exclusion for certain agricultural areas would be continued under the proposal, and the agencies areclarifying 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 hasreverted to wetlands.
- Storm water control features excavated or constructed in upland to convey, treat, infiltrate, or store storm water run-off.
- 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.
- Waste treatment systems.
- Waste treatment systems have been excluded from thedefinition of “waters of the United States” since 1979 andwould continue to be excluded under this proposal; however,waste treatment systems are being defined for the first time inthis proposed rule.
- A waste treatment system would include all components, including lagoonsand treatment ponds (such as settling or cooling ponds), designed toconvey or retain, concentrate, settle, reduce, or remove pollutants, eitheractively or passively, from wastewater or stormwater prior to discharge(or eliminating any such discharge).