Many Green Infrastructure Practices Not Jurisdictional Under Waters of U.S., EPA Says

By Amena H. Saiyid

Nov. 19 — Green infrastructure practices such as rain gardens and bioswales in uplands won't fall within the Clean Water Act's jurisdiction under the final waters of the U.S. rule, an Environmental Protection Agency water official clarified Nov. 19.

“A green infrastructure practice that is not constructed in the waters of the U.S. does not become a waters of the U.S.,” Ellen Gilinsky, senior policy adviser to the EPA Office of Water, told the 100 or so participants attending the National Clean Water Law Seminar organized by the National Association of Clean Water Agencies in St. Petersburg, Fla.

In her keynote address at the seminar, Gilinsky attempted to allay some of the concerns raised by municipalities regarding the jurisdictional status of green infrastructure practices to manage stormwater runoff. She also used the opportunity to clarify the status of some of the features that make up the municipal separate storm sewer systems (MS4s) and the status of ditches.

Green infrastructure techniques mimic natural processes by, for example, using vegetation to slow down the flow of stormwater and to capture runoff before it collects pollutants off paved surfaces and enters stormwater and combined sewer sanitary systems. It includes tree plantings, green roofs, wetlands construction, permeable pavement installation and drainage swales.

EPA Supports Green Infrastructure 

“The Environmental Protection Agency supports green infrastructure for its many benefits,” Gilinsky said, noting that Administrator Gina McCarthy has made green infrastructure a key component of the agency's strategy for building resiliency to climate change.

While rain gardens, cisterns and permeable pavements don't meet the standards of being a waters of the U.S., stream restoration involving dredging of a stream bank would be considered jurisdictional, she explained.

Also exempt from jurisdiction would be stormwater retention ponds if they are constructed in uplands, she added.

On concerns raised by local governments, she said, MS4s will experience no changes in jurisdiction.

Right now, many MS4s contain streams and ponds that are jurisdictional under the Clean Water Act, but “if you channelize a stream you will require a permit for it,” she added.

Question of Ditches

Regarding the jurisdictional status of ditches in the proposed rule, Gilinsky said the proposed rule will regulate fewer ditches as waters of the U.S. than is currently the case. She said most people don't know that ditches already are regulated under the Clean Water Act.

As a matter of practice, the U.S. Army Corps of Engineers considered ditches constructed wholly in uplands to be non-jurisdictional but said that policy was applied inconsistently, Gilinsky explained to Bloomberg BNA after her keynote address.

The proposed rule has narrowed the scope of jurisdictional ditches by excluding those constructed in uplands with a less than perennial flow and those that contribute flow.

Addressing concerns about roadside ditches, she said many of them are constructed in uplands and are exempt. Gilinsky acknowledged that the proposed rule doesn't specify that roadside ditches are excluded from federal jurisdiction, but she noted that maintenance of ditches is an exempt activity.

“We found that exemptions were not clearly understood. We will be working on wording of ditches, so it is clear that ditches are excluded now, whereas before they weren't,” Gilinsky said.

Man-Made Features

The National Association of Clean Water Agencies, which represents nearly 300 wastewater utilities that also manage stormwater, raised concerns about the status of green infrastructure practices under the proposed rulemaking.

In its Nov. 13 comments , NACWA said it agreed with the Local Government Advisory Committee that the EPA and the corps should explicitly contain stormwater exemptions in the final waters of the U.S. rule.

Taking the lead from the Local Government Advisory Committee, NACWA urged the EPA to exempt from federal jurisdiction all constructed features of MS4s that are used to transport stormwater. These include roads, pipes, gutters, constructed ditches, drains and constructed ponds as well as green infrastructure.

NACWA also asked the EPA to clarify the status of ditches in its final rule.

NACWA Applauds Remarks

Adam Krantz, managing director for NACWA's government and public affairs, told Bloomberg BNA Nov. 19 that he was heartened by Gilinsky's remarks.

“We know that EPA wants to work with us and other key stakeholders to get the WOTUS rule right,” Krantz said.

Gilinsky and other EPA officials said they are aware of the concerns raised by the public.

“We will be sharpening our pencils and sharpening our language,” Gilinsky said of the proposed waters of the U.S. rule that the EPA plans to finalize by mid-2015

EPA Said Providing Clarity

Two days before Gilinsky's talk, Kenneth Kopocis, deputy assistant administrator for the EPA Office of Water, acknowledged at a Nov. 17 “Clean Water Act: Law and Regulation” seminar that the final rule will include a lot of clarification that most commentators have sought.

He stopped short of providing specifics but said the EPA has heard from a number of people that the final rule will need to be a lot clearer than it is now.

“A lot of times we thought we were clear in our language, but the public didn't see that same level of clarity. Is that the policy we want? We need to do a better job. We heard that message loud and clear,” Kopocis said.

The same day as the Kopocis address at the American Law Institute-Continuing Legal Education seminar on the Clean Water Act, McCarthy met with reporters and defended the rulemaking, saying the agencies didn't try to minimize the impact but rather “tried to explain it the best we could.”

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com