On Dec. 1, AGC raised concerns with the Interim Draft of the National Ordinary High Water Mark (OHWM) Field Delineation Manual for Rivers and Streams that federal agencies are using to identify tributaries and assert federal jurisdiction. (See coalition letters here and here.) The OHWM defines the boundaries of federal jurisdictional over a water and plays a role in calculating any required mitigation under the Clean Water Act. The manual takes an overly broad approach that could sweep in more water features as jurisdictional waters of the United States (WOTUS).
AGC asserts that the agencies cannot use the manual to skip the rulemaking process and expand WOTUS. OHWM does not set the regulatory bar or standard. Any tributary would still need to meet the “relatively permanent standard” -- making the manual irrelevant for regulatory uses but not limiting its potential for misuse.
The U.S. Army Corps of Engineers (Corps) intends the interim draft manual to result in more timely and consistent identification and delineating of OHWM. However, the manual incorporates a new datasheet with field procedures and uses a “weight of evidence” approach that would increase time and cost associated with identifying and delineating OHWM. AGC members have indicated that the Corps underestimates the administrative effort and cost related to technology and consultants that could be necessary. Lastly, the manual takes a broad reach of non-specific physical indicators as well as open-ended landscape-scale considerations increasing its complexity and potential to exert wider jurisdiction.
The Corps failed to review or update the manual following the U.S. Supreme Court case (Sackett v. EPA) that reaffirmed the relatively permanent standard. The Corps also denied requests (from AGC and others) to extend the comment period so that the regulated community could better understand how the Sackett ruling may impact the manual and offer substantive feedback. The Corps claims that the 386-page interim draft manual will not change the existing and long-standing, 4-page Regulatory Guidance Letter on OHWM (RGL 05-05).
For more information, contact Melinda Tomaino at firstname.lastname@example.org.