The Clean Water Rule and You...

The Clean Water Act (CWA) protects the nation’s waters; a CWA permit is needed for activities that would pollute or destroy them. For many of our clients, this means a Section 10 or a Section 404 permit, often in the form of a nationwide or general permit, though some activities require an Individual Permit. The district offices of the U.S. Army Corps of Engineers (USACE) issues these permits. What does the new Clean Water Rule mean for our clients, moving forward?

Since the Supreme Court decisions in 2001 and 2006, there has been confusion about the limits of jurisdiction of the CWA; what constitutes a “water of the U.S.” and what the impacts of a proposed activity might be from a regulatory standpoint have not always been clear. The Clean Water Rule is intended to provide clarification—to ensure that waters protected under the Clean Water Act are more precisely defined, easier to understand, more predictable, and consistent with the law and the latest science.

How does the rule do this?

It defines three main categories of “waters”: those that are jurisdictional by rule (defines components that categorically make a feature a “water”), those that will be subject to analysis on a case by case basis based upon a “significant nexus”, and those that are excluded by rule.
Navigable waters, interstate waters, territorial seas, and impoundments of waters continue to be defined as jurisdictional.
Waste treatment systems and prior converted cropland were excluded by the old rule and continue to be excluded by the new rule, along with ditches that are not created out of or functioning as streams, groundwater, gullies, rills, and other erosional features, non-wetland swales, and constructed components for MS4s and water delivery/reuse.
It clarifies the definition of a tributary; the rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection.
The rule provides certainty in how far safeguards extend to nearby waters by setting boundaries on protecting nearby waters that are physical and measurable.
Wetlands and open waters without beds, banks, and Ordinary High Water Marks (OHWMs) will be evaluated for adjacency; adjacent wetlands and waters now must be located within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet from the OHWM.
The rule identifies and protects specific water features unique to certain regions; in Texas, this includes coastal prairie wetlands when they impact downstream waters.
The rule focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of or function like streams and does not protect ditches that are not constructed in streams and that flow only when it rains. The rule does not change the status of waters within Municipal Separate Storm Sewer Systems (MS4s) and encourages green infrastructure in the construction of these systems.
The rule reduces the use of case-specific analysis of waters by improving clarity about the limits of protection, or jurisdiction, and limiting the number of similarly situated water features.

The rule will continue to protect clean water while exempting certain agricultural, ranching, and forestry activities from regulation. The rule will not interfere with private property rights or address land use, and it will not regulate most ditches or groundwater, shallow subsurface flows, tile drains, rills, gullies or erosional features. It also does not change policy on irrigation or water transfers.

What does this mean for your project(s)?

We’ve already been working under many of the assumptions and conditions of the new rule since the proposed rule came out, and the changes in the final rule have mostly added clarity to content of the proposed rule. In the case of road improvements, many roadside ditches will now be more clearly exempt. The science behind the new rule shows that even ephemeral streams are clearly important parts of each watershed and have a significant impact on water quality; the requirement of a bed, banks, and OHWM may simplify the process of identifying jurisdictional areas and non-jurisdictional areas, such as vegetated, non-wetland swales, within their drainage-ways. With features that are adjacent to jurisdictional waters, we’ll have a better sense of whether to proceed with case-specific analysis, given the new parameters of floodplain situation and proximity. Overall, this increased clarity should help streamline our efforts a bit, which can end up saving our clients both time and money.

These clarifications are not, however, universal. The rule comes with more than 300 pages of backup and reference material. Water attorney Lauren Kalisek with our friends at the Lloyd Gosselink Law Firm stated, “the changes will affect industry, local governments, and provide developers on a project by project basis.” As your project develops, it will be important to consult closely with wetland specialists at AmaTerra to assure that work progresses effectively, especially in these first months following the rule’s effective date (later this fall).