Administration’s Concessions and Clarifications: The Final Waters of the US Rule
We’re halfway through our series of blogs discussing the Obama Administration’s final rule redefining the scope of waters subject to jurisdiction under the Clean Water Act. Our two posts earlier this week addressed some of the questions remaining even after the Administration clarified a number of ambiguities in the proposed rule. Today we’ll point out a few of the more notable clarifications, as well as some concessions the Administration made in light of public comments.
Most significantly, as discussed in our first post, the administration has provided greater clarity as to what waters are jurisdictional based on their adjacency to tributaries. As proposed, the rule would have provided very scientifically-based definitions of “floodplain” and “riparian area” and included waters in those areas as jurisdictional ones. The final rule abandons those two terms, essentially substituting a 100-foot measure for the term “riparian area,” and up to 1,500 feet of the FEMA 100-foot floodplain for the term “floodplain.” This change will make it easier for laypersons to know what waters are jurisdictional under the rule.
The agencies have also made a large concession regarding ditches. At the time of the proposal, ditches would have been jurisdictional if constructed in waters in whole or in part. Given the expanse of the rule’s definition of waters and the fact that ditches are generally constructed in lower-lying areas, the regulated community feared that almost all ditches would be considered jurisdictional. The Agencies have changed their approach to ditches under the final rule – going forward, ditches will only be jurisdictional if they are (1) ephemeral or intermittent ditches excavated in a tributary or constructed in order to relocate a tributary or (2) intermittent ditches that drain wetlands.
The agencies have also provided a geographic limit to the case-by-case significant nexus test. As proposed, any water could potentially be subject to jurisdiction based on a case-by-case analysis of its significant nexus to downstream waters. Under the final rule, only waters within 4,000 of the ordinary high water mark of a tributary can potentially be subject to this test. It’s questionable how great a concession this actually is, but it does provide some measure of clarification.
One of the more confusing aspects of the proposal was its treatment of lakes and ponds. Undefined, these waters appeared not to require a bed and bank but were identified as tributaries despite the fact that tributaries need only ephemeral flow. Thus, it was entirely unclear what features would be needed to comprise a “lake” or a “pond” even though waters adjacent to them would be considered jurisdictional. The final rule still uses the terms “lake” and “pond” and still does not define them, but the preamble suggest that such waters will be considered “adjacent” waters and not “tributaries.” (We would note that this clarification is not completely clear: The rule itself implies that some lakes and ponds are tributaries when it states that “[f]or purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its ordinary high water mark.” This implication is consistent with the qualifier “typically” the Agencies use when stating that lakes and ponds aren’t tributaries (“The rule also is clearer regarding the jurisdictional status of certain ditches, and clarifies that wetlands and waters such as ponds and lakes that contribute flow to a traditional navigable water, interstate water, or the territorial seas but typically lack a bed and banks and ordinary high water mark are considered ‘adjacent’ but not a ‘tributary.’”))
The agencies have also adopted provisions excluding from jurisdiction, among other things:
“[w]ater-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.”
Wastewater recycling structures constructed in dry land; and
Thus, the final rule does move the regulated community somewhat closer to a clear understanding of what waters are regulated under the Act. Unfortunately, with those two steps forward, the Agencies took a step back: Tomorrow and Friday we’ll look at two definitions that the Administration didn’t change, why it should have changed them, and the confusion that will ensue as a result.