Now’s the WOTUS in our Discontent….

as printed in IOGA of West Virginia e-newsletter, The month of january 2015

“Waters from the U . s . States” or “WOTUS” within the esoteric taxonomy from the Water That Is Clean Act (“CWA”), is really a term that most are becoming more and more familiar. This stealthily simple phrase is not simple in the application. The gas and oil market is more and more encountering the U.S. Ecological Protection Agency’s (“EPA”) proclivity finding CWA jurisdiction through WOTUS interpretation. New suggested regulating language released through the Environmental protection agency and also the U.S. Army Corps of Engineers (“USACE”), makes WOTUS even larger.
Background

Passed in 1972 to “restore and keep caffeine, physical, and biological integrity from the Nation’s waters,” the CWA prohibits unpermitted discharges of pollutants into “navigable waters.” “Navigable waters” are “the waters from the U . s . States, such as the territorial seas.”

The Final Court from the U . s . Condition (“SCOTUS”) first addressed the correct scope of WOTUS in U . s . States v. Riverside Bayview Homes, Corporation. (1985). In Riverside Bayview, SCOTUS upheld agency interpretation that WOTUS covered esturine habitat which “actually abut” traditional navigable rivers. A legal court didn’t rule on whether WOTUS may also include more remote waters.

Annually later, USACE rulemaking broadened the WOTUS definition. These rules covered typically navigable waterbodies, as well as “[a]ll other waters … (including intermittent streams)… esturine habitat sloughs,… or natural ponds… that could affect interstate or foreign commerce[.]” This definition remains, but SCOTUS has restricted its scope.

In 2001, SCOTUS made the decision Solid Waste Agency of Northern Prepare County v. U.S. Army Corps of Engineers (“SWANCC”). USACE used migratory wild birds to say jurisdiction on the defunct gravel pit. SCOTUS held the CWA’s utilisation of the term “navigable” couldn’t be overlooked, which migratory fowl were “far, indeed, in the ‘navigable waters’ and ‘waters from the U . s . States’ that the statute by its terms stretches.”

Environmental protection agency and USACE soon searched for to bypass SWANCC’s restrictions by declaring jurisdiction over any waters getting “any hydrological connection” to navigable waters, asserting such weren’t “isolated” per SWANCC if connected, however remotely, to navigable waters. Within the agencies’ view, this granted authority to manage non-navigable waters like a “water from the U . s . States.” In The Year 2006, SCOTUS addressed this new approach in Rapanos v. U . s . States.

In Rapanos, Environmental protection agency and USACE stated jurisdiction based tenuous hydrologic connections to navigable waters. A plurality opinion and separate concurrence declined the Corps’s assertion. Regrettably, the opinions gave different tests for determining WOTUS. The plurality held WOTUS incorporated “only relatively permanent, standing or flowing physiques water… continuously present, fixed physiques water, instead of ordinarily dry channels by which water from time to time or occasionally flows.” The concurrence held WOTUS put on esturine habitat having a “significant nexus” to navigable waters. This nexus been around “if… either alone or in conjunction with other similarly situated lands… considerably modify the chemical, physical, and biological integrity of other [navigable] waters.”

Joint Proposed Rules on “Waters of the United States”

On April 21, 2014, the EPA and USACE jointly proposed rules revising the definition of WOTUS in seven categories:

  1. All waters currently used, used in the past, or may be susceptible to use in interstate or foreign commerce, including tidal waters (i.e., traditional navigable waters (“TNWs”));
  2. All interstate waters, including interstate wetlands;
  3. The territorial seas;
  4. All impoundments of waters identified in (1)-(3) above;
  5. All tributaries of waters identified in (1)-(4) above;
  6. All waters, including wetlands, adjacent to a water identified in (1)-(5) above; and
  7. On a case-specific basis, other waters, including wetlands, that alone or in combination with other similarly situated waters in the region have a significant nexus to a water identified in (1)-(3) above.

A new definition of tributary is included as:

  • Water with a bed and banks and ordinary high water mark that contribute water flow directly, or through other water bodies, to waters in (1)-(4) above.
  • Wetlands, lakes, and ponds may be tributaries (even lacking bed, banks or ordinary high water mark) if they contribute flow.

Tributary status remains despite man-made interruptions, if bed, banks and ordinary high water mark are identifiable upstream. Unequalled, ditches are really jurisdictional tributaries beneath the CWA, unless of course obviously excluded.

The recommended rule also establishes a completely new category- adjacent waters-including swamplands within WOTUS. Adjacent means highlighting, contiguous, or “neighboring waters” separated off their WOTUS. “Neighboring” waters are in the “riparian area” or “floodplain,” obtaining a shallow subsurface, or limited surface, hydrological connection. “Riparian areas” are where surface or subsurface hydrology influence ecosystem and plant existence between water and land. A “Floodplain” edges inland or seaside areas which is inundated during moderate to high flow.

A completely new concept of “significant nexus” continues to be produced, and includes swamplands, either alone or along with other “similarly situated” waters in the region that significantly affect water recognized in (1)-(3) above. “Similarly situated” waters are sufficiently close together to get evaluated just like a single landscape unit and perform similar hydrologic functions.

Several exclusions apply, including: (i) CWA waste treatment systems (ii) prior converted cropland (iii) upland only ditches with under perennial flow (iv) ditches that do not directly lead flow, or through another water, with a water recognized in sentences (1)-(4) above (v) abnormally irrigated areas which will revert to upland without irrigation (mire) artificial ponds or ponds used exclusively for stock watering, irrigation, etc. (vii) artificial pools (viii) small ornamental waters for mainly aesthetic reasons (ix) water-filled construction downturns (x) groundwater, including subsurface draining systems and (xi) gullies, rills, and non-wetland swales. While such groups aren’t WOTUS, they may yet generate a link to a TWN by adjacency or significant nexus.
The Significance and Impact of the Proposed Rule

The outcome from the new rule is tough to overstate. Several groups not formerly considered WOTUS (e.g., ditches, waters inside a floodplain, and isolated waters) is going to be jurisdictional. A lot more activities will need section 404 (dredge and fill) enabling. Stormwater conveyances will probably be become susceptible to formerly inapplicable water quality standards. Spill Prevention, Control, and Countermeasures (SPCC) Plans will probably expand significantly because of inclusion of ditches and man made impoundments as WOTUS. Industrial ponds and other alike structures might also fall become adjacent waters. Condition government bodies have a tremendous rise in the amount of waters needing water quality standards. Elevated enforcement is really a given. And 3rd party lawsuit, probably in the ecological advocacy sector, is really a virtual certainty. The suggested rule have a significant adverse effect on small companies. Instead of “clarify,” WOTUS, the proposal creates additional regulating confusion and uncertainty. It’ll increase project/operational costs and cause enabling delays by growing the scope of numerous CWA regulating programs.