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June 8 — Clean Water Act coverage of isolated waters and wetlands won't be determined by a single function, such as trapping pollutants or storing water, the head of the Environmental Protection Agency's water office said at a June 8 seminar on the final jurisdiction rule.
Rather, a single function of an isolated water or wetland must have a significant impact on a downstream navigable water to be considered jurisdictional, Ken Kopocis, EPA deputy assistant administrator for water, said. Moreover, the agencies will look at the functions either singly or in combination to determine whether there is a significant nexus with downstream waters.
“The agencies won't just be looking for one function, saying, ‘If I find one, boom, you are in,' ” Kopocis said.
Owen McDonough, environmental policy program manager for the National Association of Home Builders, had asked whether an isolated water under the final clean water rule could effectively be considered jurisdictional simply because it serves any of the nine functions listed in the final clean water rule, also known as waters of the U.S. rule.
Under the final jurisdiction rule (RIN No. 2040–AF30), a water or wetland has significant nexus when any single function or a combination of functions performed by this water or wetland alone or together in similarly situated waters or wetlands in a region, contributes to “the physical, biological or chemical integrity” of waters.
Such functions include trapping pollutants and sediments, retaining flood waters, contributing flow, exporting organic matter and recycling nutrients. The functions also include providing lifecycle-dependent aquatic habitat for various species of wildlife.
The exchange between Kopocis and McDonough took place at the Environmental Law Institute seminar on the final waters of the U.S. rule, which the EPA and the U.S. Army Corps of Engineers released jointly on May 27.
The agencies expect to publish the rule in the Federal Register in the next two to three weeks, according to Craig Schmauder, deputy general counsel for Installations, Environment and Civil Works at the Department of Army, who also participated in the ELI seminar.
McDonough also asked about the case-by-case jurisdictional determination of isolated waters that fall within 4,000 feet from the ordinary high water mark of traditional navigable waters or their territories.
“We believe very few waters will be located outside of 4,000 feet,” said McDonough, as he cited from the joint economic analysis of the final rule by the EPA and the corps.
“The agencies have determined that the vast majority of the nation's water features are located within 4,000 feet of a covered tributary, traditional navigable water, interstate water, or territorial sea. We believe, therefore, that very few waters will be located outside 4,000 feet and within a 100-year floodplain. And even where these waters do exist, they would have to be found to have a significant nexus on a case-specific basis to be covered under the [Clean Water Act],” the economic analysis states.
McDonough's observation was prompted by Kopocis, who during his presentation said the final rule would reduce the case-by-case analyses currently conducted to determine the jurisdictional status of waters that are not directly connected to downstream navigable waters.
Kopocis said the agencies were trying to respond to comments on the proposed rule. The agencies in April 2014 had proposed to make all wetlands and waters jurisdictional that were located in floodplains and riparian areas without defining them.
“We were figuring out a place to land, to draw the line,” Kopocis said, adding that the 4,000-foot boundary was substantiated by the scientific evidence.
Schmauder said the 4,000-foot boundary would also cover the 100-year floodplain, and in most cases would serve as the outer boundary for jurisdiction.
Also participating in the seminar was Deidre Duncan, an attorney in the Washington-based office of Hunton & Williams LLP. She said the use of the ordinary high water mark in defining tributaries is “problematic” because many of the threshold distances are measured from it, such as the adjacency of wetlands and proximity of isolated waters.
Attorneys other than Duncan have commented that the definition of tributaries is most likely to be challenged because it covers a wide range of waters.
Tributaries that have an impact on downstream waters will be considered jurisdictional under the rule. These ephemeral, intermittent and perennial tributaries must have certain characteristics—a bed, a bank and indicators of ordinary high mark, such as scouring, debris deposition—to be covered.
“What is the difference between an erosional feature, an ephemeral ditch, and an ephemeral stream that is regulated?” asked Duncan rhetorically, adding, “It's all in the ordinary high water mark.”
The final rule regulates streams with ephemeral flow, but doesn't cover erosional features, such as gullies, rills and non-wetland swales, or ditches that aren't excavated out of streams and flow only when it rains.
Schmauder said the corps has manuals and tools that allow it to determine ordinary high water marks quite easily. Moreover, he said, the waters bearing beds, banks and indications of an ordinary high water mark need to contribute significant flows to downstream navigable waters to be considered jurisdictional.
Duncan agreed with Schmauder that ordinary high water marks are easy to spot, but added that they are not reliable indicators of flow. She said the agencies should have used scientific research to analyze whether the ordinary high water mark is a reliable indicator of flow. Moreover, Duncan said frequency, volume, and duration of flow rather than simply flow should be counted among the criteria to consider waters jurisdictional.
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The joint EPA-U.S. Army Corps of Engineers economic analysis of the final rule is available at http://www2.epa.gov/sites/production/files/2015-05/documents/final_clean_water_rule_economic_analysis_5-15_2.pdf.
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