The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) on May 27 completed and released a new and final rule on the water features over which they will claim jurisdiction. The new rule is the culmination of their long and controversial effort to align federal regulations with the latest U.S. Supreme Court decisions and simultaneously make permitting decisions easier. The new rule takes many of AGC’s extensive comments into account, and reflects the significant influence that AGC continues to exert. At the same time, it still appears likely to create a range of new problems and leaves ample room for further improvement. AGC will continue to work with its Congressional allies to require the agencies to revisit their rulemaking process. And AGC will continue to work directly with the agencies on the further guidance that they will inevitably need to issue.
In short, the new rule redefines “waters of the United States” (WOTUS). The final version has the same structure and framework of the proposed version, defining which rivers, streams, lakes and marshes fall under the jurisdiction of EPA and the Corps. It asserts federal jurisdiction over work in traditionally navigable waters, interstate waters/wetlands, territorial seas, impoundments, and tributaries that have physical signs of flowing water (even if they do not flow year round), and over ditches that “look and act” like tributaries. In addition, the final rule extends federal jurisdiction to adjacent waters/wetlands that are within a certain proximity to other jurisdictional waters.
The rule substitutes the new definition of “waters of the U.S.” throughout the Clean Water Act (CWA) regulations, and will have implications for all CWA programs, including the: water quality standards, total maximum daily load programs, discharge limitations, stormwater permits, dredge-and fill permits, water quality certifications, and spill protection measures – which make this rule extremely important to the business of construction. General contractors need to know whether the CWA applies before proceeding with construction work in any area in or near a potential WOTUS.
The good news is that the agencies made several important changes that AGC requested in the multiple sets of written comments that the association submitted and in several meetings with agency and White House representatives. Those changes include first-time exclusions for certain types of ditches that fall outside the “tributary” definition; some limits on when a stream or wetland should be jurisdictional because it is near or “adjacent” to other jurisdictional waters; limits on the area where waters are subject to a “significant nexus” test on a case-by-case basis; clarification on stormwater control features and unique water features like prairie potholes; an express exclusion for groundwater and shallow sub-surface drainage connections; provisions to address the validity of existing jurisdictional determinations, and further explanation of what the WOTUS rule means for municipal separate storm sewer systems (MS4s). Many of these changes came in response to the specific questions that AGC raised on behalf of the construction industry.
On the other hand, AGC remains concerned the definition of a “tributary” would still include many ditches as “waters of the U.S.” In addition, the exclusions for specific ditches remain narrow and private entities may find it difficult to prove (through topographic maps, historic photographs, areal photography, etc.) that they apply. As it works with its allies in Congress, AGC will also continue to engage with the agencies in a proactive effort get further clarification on these (and other) issues and to address the many potential problems in the implementation process.
Below is a more extensive analysis of the differences between the proposed rule and final rule and how those differences are likely to affect the construction industry.
Overview of Final Waters of the U.S. Rule
In this final rule, the agencies define “waters of the United States” to include eight categories of jurisdictional waters.
The rule groups these categories into the following areas: waters that are jurisdictional in all instances, waters subject to case-specific analysis to determine whether they are jurisdictional, and waters that are excluded from jurisdiction.
Waters that Are Jurisdictional in All Instances; No Case-by-Case Determination Needed
The final rule identifies the following types of waters as jurisdictional in all instances, meaning no case-by-case determination is needed: (1) traditional navigable waters (TNW), (2) interstate waters (including wetlands), (3) the territorial seas, and (4) impoundments of jurisdictional waters, (5) tributaries, and (6) adjacent waters. The preamble to the final rule states that “tributaries and adjacent waters are jurisdictional by rule, as defined, because the science confirms that they have a significant nexus to traditional navigable waters, interstate waters, or territorial seas.” As discussed below, the tributary definition is largely unchanged from the proposed rule, but the final rule makes significant changes to the “adjacent waters” definition.
The final types of jurisdictional waters, (7) enumerated regional features and (8) waters in the 100-year floodplain/4,000 feet of a WOTUS, are jurisdictional where the agencies find, after a case-specific analysis, they have a significant nexus to TNWs, interstate waters, or territorial seas – either alone or in combination with similarly situated waters in the region. The agencies have removed the proposed rule’s “other waters” category and replaced it in the final rule with these two case-specific types of jurisdictional waters.
The final rule provides a list of exclusions, which has been revised from the proposed rule. Features that qualify for the exclusions are not “waters of the United States” even where they otherwise fall into one of the jurisdictional categories.
Under the final rule, the federal government has jurisdiction over tributaries that show physical features of flowing water.
The proposed rule would have regulated all tributaries without qualification. According to the agencies, the final rule more precisely defines tributaries as waters that are characterized by the presence of physical indicators of flow – bed and banks and ordinary high water mark (OHWM) – and that contribute flow directly or indirectly to waters (1) through (3) listed above. The rule concludes that such tributaries are “waters of the United States.” “The physical indicators of bed and banks and OHWM demonstrate that there is sufficient volume, frequency, and flow in such tributaries to traditional navigable water, interstate water, or the territorial seas to establish a significant nexus,” the preamble to the final rule states. See “Significant Nexus” below. The agencies still intend to consider waters to be tributaries regardless of manmade or natural breaks of any length.
What About Ditches?
The final rule regulates ditches that are constructed in tributaries or are relocated tributaries, or in certain circumstances drain wetlands, or that science clearly demonstrates are functioning as a tributary.
The final rule expands the types of ditches explicitly excluded from jurisdiction: (i) ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary; (ii) ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands; (iii) ditches that do not flow, either directly or through another water, into a TNW, interstate water or territorial sea.
While the final rule exempts certain ditches, there are many ditches that will now be regulated as categorically jurisdictional tributaries. Final Rule at 98.
- Ditches that have perennial flow ARE jurisdictional.
- Ditches that have intermittent flow and are a relocated tributary, were excavated in a tributary, or drain wetlands ARE jurisdictional.
- Ditches that have ephemeral flow and are a relocated tributary or were excavated in a tributary ARE jurisdictional.
Applicants will be required to prove that their ditches do not excavate or relocate a tributary, using topographic maps, historic photographs, etc. This may be onerous to prove. The final rule allows the agencies to assert jurisdiction based on past conditions, not present.
AGC pointed out that the exclusions for ditches under the proposed rule were too narrow and difficult to understand as they included undefined terms like “uplands” and potentially would capture many roadside ditches that would affect construction sites. The final rule does not include an explicit exclusion for roadside ditches, “but the agencies believe the exclusions included in the final rule will address the vast majority of roadside and other transportation ditches,” the preamble to the final rule states. Final Rule at 169.
Under this final rule, “adjacent” means bordering, contiguous, or neighboring, including waters separated from other “waters of the United States” by constructed dikes or barriers, natural river berms, beach dunes and the like. The final rule includes a more detailed definition of “neighboring” that differs from the proposed definition (that was vague):
- All waters located within 100 feet of the OHWM of waters (1) through (5) listed above;
- All waters located within the 100-year floodplain of waters (1) through (5) listed above and not more than 1,500 feet from the OHWM of such water; and
- All waters located within 1,500 feet of the high tide line of waters (1) through (3) listed above.
The agencies explained on a March 27 call with stakeholders that for the first time, there are now “physical, measurable limits” on covering bodies of water/wetlands close to (or neighboring) those that are protected by the Clean Water Act.
Waters Subject to Case-Specific Analysis to Establish Jurisdiction; Significant Nexus Determination Needed
While the proposed rule would have subjected all “other waters” to individual significant nexus determinations, the final rule attempts to limit the need for such case-by-case analysis. The rule limits those waters to be considered on a case-by-case basis to specific waters that are similarly situated, including prairie potholes, Delmarva and Carolina Bays, pocosins, western vernal pools in California and Texas coastal prairie wetlands when they have a significant nexus. The rule establishes that waters within each of these subcategories are “similarly situated” and should be aggregated for purposes of a significant nexus analysis. In other words, the agencies can aggregate all prairie potholes within a watershed to determine if one prairie pothole has a significant nexus.
Under the final rule’s eight jurisdictional category, all waters located within the 100-year floodplain of waters (1) through (3) listed above – and all waters located within 4,000 feet of the high tide line or OHWM of a (5) water are jurisdictional where they are determined on a case-by-case basis to have a significant nexus a (1) through (3) water. If any portion of the water is within the 100-year floodplain or within 4,000 feet of the high tide line or OHWM, and the water is determined to have a significant nexus, the entire water is a water of the U.S.
AGC in its comments pointed out that the proposed “other waters” category was overbroad, ambiguous and confusing. The final rule limits waters that can be assessed under a case-specific evaluation to determine whether a significant nexus exists.
A water has a significant nexus “when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, and biological integrity” of the nearest waters (1) through (3) listed above. The functions include: sediment trapping; nutrient recycling; pollutant trapping, transformation, filtering, and transport; retention and attenuation of flood waters; runoff storage; contribution of flow; export of organic matter; export of food resources; and provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in waters (1) through (3) listed above.
Stormwater Control Features and MS4s
The final rule also specifically adds an exclusion for “stormwater control features constructed to convey, treat or store stormwater and cooling ponds that are created in dry land,” consistent with what the agencies called its “current practice” of excluding such features from the definition of “waters of the U.S.” They explained in the rule’s preamble that the new exclusion for stormwater control features is meant to include “green infrastructure” projects for which the agencies want to “avoid disincentives to this environmentally friendly trend in stormwater management.”
AGC specifically called for the exclusion of both municipal separate storm sewer systems (MS4s) – but ditches and stormwater control measures, in particular – and features built into construction sites or incorporated into the final project designed to help control, settle, and treat stormwater flow. Based on the language in the rule, the exclusion for stormwater control features should apply to both privately operated and municipally operated separate storm sewer systems. Final Rule at 177-79.
The grandfathering provision states that the agencies do not intend to reopen existing jurisdictional determinations (JDs). It also states that JDs associated with issued permits and authorizations are valid until the expiration date of the permit or authorization. Final Rule at 80.
The preamble also provides that JDs associated with permit applications deemed by the Corps to have been complete on the rule’s publication date, including complete pre-construction notifications, will be made consistent with the existing rule.
This grandfathering provision does not cover pending JDs that are not associated with a completed permit application. It also does not cover those applicants with pending JDs that have already spent a significant amount of time and money on the JD process. This provision would allow the agencies to retroactively apply the new final rule to JD applications that were filed under current regulations.
The agencies state that they do not anticipate issuing new JDs between the rule’s publication date and its effective date. Final Rule at 80.
AGC called for a grandfathering provision, as one did not appear in the proposed rule.
Waters that Are Expressly Excluded from Jurisdiction
All existing exclusions from the definition of “waters of the United States” are retained, and several exclusions reflecting longstanding agency practice are added to the regulation for the first time.
The final rule expressly excludes:
- Waste treatment systems, including ponds or lagoons designed to meet the requirements of the CWA;
- Prior converted cropland;
- Certain ditches: (i) ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary; (ii) ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands; (iii) ditches that do not flow, either directly or through another water, into an (1) through (3) water;
- Artificially irrigated areas that would revert to dry land if application of water ceases;
- Artificial, constructed lakes and ponds created in dry land (e.g., farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds);
- Artificial reflecting pools or swimming pools created in dry land;
- Small ornamental waters created in dry land;
- Water filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water;
- Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetlands swales, and lawfully constructed grassed waterways;
- Groundwater, including groundwater drained through subsurface drainage systems;
- Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land; and
- Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; and water distributary structures built for wastewater recycling.
Rule’s Implementation May Be Messy
Applying the new WOTUS definition across all CWA programs may lead to implementation issues. There will be increased requests for jurisdictional determinations (JDs) to determine the scope of “waters of the U.S.” on an applicant’s land, but the Corps does not appear to have the resources to process the increased volume of JD requests. In addition, whereas only CWA Section 404 permit applicants typically sought JDs in the past, now applicants will likely seek JDs in connection with other CWA programs (e.g., NPDES permits, oil spill prevention plans). EPA, which handles permitting under these non-404 CWA programs, does not routinely issue JDs and likely does not have the resources to handle an influx of JD requests. AGC will work hard to ensure the agencies develop protocols, programs and procedures to minimize the risk of disruption.
Ongoing Efforts to Achieve Further Improvements
While the new WOTUS rule includes a number of significant changes that AGC requested, the final measure still has problems, and we are working with Congress to enact legislation requiring the agencies to restart the rulemaking process. AGC has been actively speaking out about the substantial flaws in the economic, scientific and administrative rulemaking process upon which the WOTUS definition is based -- including that EPA and the Corps failed to adequately consult with states and small-business stakeholders in crafting the proposal, leading to a flawed policy. Overall, because of these flaws inherent in the process, and the problematic broadness of the rule despite important narrowing, AGC remains committed to pending legislation that would restart the rulemaking process with needed state/local and small business consultation and more robust economic and scientific analysis.
The final rule will take effect 60 days after the date of its publication in the Federal Register.