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Final Clean Water Rule | May 2015

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) finalized the Clean Water Rule in May 2015 in an attempt to more clearly define waters of the U.S. This rule is not currently in effect as it is now under federal review. The U.S. Court of Appeals 6th Circuit is to evaluate if they have the authority to challenge the legality of the final rule.

The final rule identified four categories of regulated waters or waters of the U.S. which the EPA and USACE could exercise jurisdiction:

  1. Jurisdictional by rule
  2. Tributaries
  3. Adjacent waters
  4. Case-specific waters of the U.S.

Jurisdictional by Rule

These include traditional navigable waters, interstate waters, territorial seas and impoundments of jurisdictional waters. How the agencies treat these waters was not altered by the final rule and coverage of these waters has not changed. These are the traditional waters widely agreed to be protected by the Clean Water Act.

Tributaries

Tributaries contribute flow either directly or through another water to waters that are Jurisdictional by Rule, meaning they have a significant nexus. Tributaries must include bed and banks and have an ordinary high water mark to be considered jurisdictional.

Adjacent Waters

Waters adjacent to waters that are “Jurisdictional by Rule” are also considered jurisdictional. Under the final rule, a water must meet at least one of the following definitions of “neighboring” to be defined as an “Adjacent Water”:

  1. Waters that fall within 100 feet of a water that is “Jurisdictional by Rule”,
  2. Waters that fall within the 100-year floodplain and within 1,500 feet of a water that is “Jurisdictional by Rule”
  3. Waters that fall within 1,500 feet of the high tide line or ordinary high water mark of the Great Lakes

Adjacent waters may include wetlands, ponds, lakes, oxbows, impoundments and similar water features. Adjacent waters do not include waters that are subject to established normal farming, silviculture and ranching activities as those terms are used in Section 404(f) of the CWA. This suggests that stock tanks are not regulated.

Case-Specific Waters of the U.S.

These waters are jurisdictional if they have a significant nexus to waters that are “Jurisdictional by Rule”. These waters may include prairie potholes (can be in Texas), Texas coastal prairie wetlands, Carolina and Delmarva bays, pocosins, and western vernal pools in California. Other waters that may be considered similarly situated include waters within 100-year floodplain of a traditional navigable water, interstate water or territorial sea, and that are within 4,000 feet of the high tide line or the ordinary high water mark.

Specific Exclusions

The final rule identifies specific waters that are excluded from jurisdiction, even if they would otherwise meet the definition of a jurisdictional water. Of particular note, clarity was provided for the exclusion of ditches. Specific exclusions include:

  • Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary
  • Ditches with intermittent flow that are not a relocated tributary, or excavated in a tributary, or drain wetlands
  • Ditches that do not flow, either directly or through another water, into a water of the US
  • Ditches that do not flow, either directly or through another water, into a water of the US,
  • Artificially irrigated areas that would revert to dry land should application of irrigation water to that area cease
  • Artificial, constructed lakes or ponds created by excavating and/or diking dry land such as farm and stock watering ponds, irrigation ponds, settling basins, log cleaning ponds, cooling ponds, or fields flooded for rice growing
  • Artificial reflecting pools or swimming pools created by excavating and/or diking dry land
  • Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons
  • 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-wetland swales
  • Lawfully constructed grassed waterways
  • Puddles
  • Groundwater
  • Erosional features
  • Stormwater control features constructed to convey, treat, or store stormwater, and cooling ponds that are created in dry land

If you have any questions or would like additional information about the Clean Water Rule or how it may impact you, please contact Richard Aldredge at rga@freese.com or 214-217-2384.

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