With enactment of the Clean Water Act (CWA) in

Transcription

1 Reproduced by permission Colorado Bar Association 44 The Colorado Lawyer 43 (September 2015). All rights reserved. NATURAL RESOURCE AND ENVIRONMENTAL LAW New Clean Water Act Rule Defining Waters of the United States by Deborah Freeman and Steve Dougherty On June 29, 2015, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers released a new rule defining waters of the United States subject to the agencies regulatory jurisdiction under the federal Clean Water Act. The new rule became effective August 28, This article is a follow-up to the December 2011 article that discussed guidance proposed by these agencies in 2011 identifying waters protected by the Clean Water Act. This article reviews the new rule and how it is likely to affect the regulated community, particularly in the Western United States. With enactment of the Clean Water Act (CWA) in 1972, 1 Congress defined navigable waters subject to CWA jurisdiction to mean waters of the United States (WOTUS). 2 Regulations adopted by the U.S. Army Corps of Engineers (Corps) in the mid-1970s sought to extend the reach of CWA Section 404 jurisdictional waters to the outer limits of Congress commerce power. 3 Those regulations interpreted Section 404 to cover waters and wet areas beyond those that are traditionally navigable and are used to transport interstate commerce. 4 In the last fifteen years, the U.S. Supreme Court decided two important cases regarding Section 404 of the CWA: Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC) and the consolidated cases of Rapanos v. United States and Carabell v. United States (Rapanos). 5 The SWANCC and Rapanos decisions and agency guidance interpreting those opinions 6 identified limitations on the geographic scope of jurisdiction under Section 404. These jurisdictional limits were grounded in the Commerce Clause of the U.S. Constitution and the recognized need for a significant link or nexus between given wetlands/waters and navigable waters to support the assertion of federal jurisdiction over them. 7 Our December 2011 article in The Colorado Lawyer reviewed these decisions and the prior agency implementing guidance. 8 That background information is not repeated here. The new rule (80 Fed. Reg , June 29, 2015) marks a re - versal in the trend toward constraints on CWA regulatory jurisdiction for the first time since Framework of the New Rule The new rule defines waters of the United States for all CWA sections that use that terminology, including: Section 404 (dredge and fill permits), Section 402 (National Pollutant Discharge Elimination System (NPDES) permits), Section 401 (state water quality certification), Section 311 (oil spill prevention and response program), and Section 303 (water quality standards and total maximum daily load programs). 9 This article focuses on how the new definition of WOTUS affects the Section 404 regulatory program. The rule relies heavily on the results of the Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (Connectivity Report). 10 The Connectivity Report was prepared by EPA to provide a scientific basis for determining which waters and wetlands are connected to traditionally navigable waters, interstate waters, or the territorial seas. The Connectivity Report reached the following major conclusions: Coordinating Editors Melanie Granberg (Environmental), Denver, Gablehouse Calkins & Granberg, LLC (303) , mgranberg@gcgllc.com; Kevin Kinnear (Water), Boulder, Porzak Browning & Bushong LLP (303) , kkinnear@pbblaw.com; Joel Benson (Natural Resources and Energy), Denver, Davis Graham & Stubbs LLP (303) , joel.benson@dgslaw.com About the Authors Deb Freeman is a shareholder with the law firm of Trout, Raley, Montaño, Witwer & Freeman, P.C. Her practice concentrates in the area of natural resources law, with emphasis on federal Clean Water Act, Endangered Species Act, and NEPA compliance. Steve Dougherty is a senior ecologist and professional wetland scientist with ERO Resources Corporation, a Denver-based consulting firm specializing in natural resource issues. Steve has been addressing wetland, riparian, and threatened and endangered species issues in Colorado and the West for over thirty-five years. Natural Resource and Environmental Law articles are sponsored by the CBA Environmental Law, Water Law, and Natural Resources and Energy Law Sections. The Sections publish articles of interest on local and international topics. The Colorado Lawyer September 2015 Vol. 44, No. 9 43

2 1. Tributary streams, including perennial, intermittent, and ephemeral streams, are chemically, physically, and biologically connected to downstream waters and influence the integrity of downstream waters. 2. Wetlands and open waters in floodplains and riparian areas are chemically, physically, and biologically connected with downstream waters and influence the ecological integrity of such waters. 3. Non-floodplain wetlands and open waters provide many functions that benefit downstream water quality and ecological integrity, but their effects on downstream waters are difficult to assess based on the available science. 11 In crafting the new rule, the agencies appear in many cases to have considered the connection of a water or wetland to downstream waters as equivalent to the presence of a significant nexus of that area to navigable waterways for purposes of establishing jurisdiction. The new rule establishes three broad categories of waters and wetlands: 1) those that are categorically jurisdictional by rule; 2) those that are not jurisdictional by rule; and 3) those that are to be evaluated on a case-specific basis under the significant nexus test to determine jurisdictional status. This approach is intended establish bright-line categories of waters for jurisdictional purposes in efforts to afford greater clarity and reduce the number of case-by-case evaluations by the agencies needed to determine jurisdiction. 12 These three broad categories are discussed below. Waters That are Jurisdictional by Rule Under the rule, the following are considered jurisdictional by rule: 1) traditional navigable waters (TNWs) waters that are currently used, were used in the past, or may be susceptible to use in the future for interstate or foreign commerce; 2) interstate waters and wetlands waters and wetlands that flow across or form parts of state boundaries regardless of navigability; 3) impoundments impoundments of TNWs, interstate waters and wetlands, the territorial seas, and now tributaries (see below); 4) territorial seas; 5) all tributaries; and 6) all waters adjacent to TNWs, interstate waters, territorial seas, impoundments, or tributaries. The first four types of waters have traditionally been treated as jurisdictional. It is the categorical assertion of jurisdiction over the latter two types of waters tributaries and adjacent waters that has the greatest potential to expand CWA jurisdiction under the new rule. Tributaries The rule for the first time defines tributary and does so in an expansive manner. The term tributary means a water that contributes flow, either directly or through another water (including an impoundment), to downstream traditional navigable waters, interstate waters, or territorial seas that is characterized by the physical indicators of a bed and banks and an ordinary high water mark (OHWM). 13 The rule states that a tributary can be a natural, man-altered, or man-made water and that it includes waters such as rivers, streams, ephemeral and intermittent drainages, canals, and ditches not excluded by the rule (discussed below). 14 A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if it contributes flow through another type of jurisdictional water or through a non-jurisdictional water to TNWs, interstate waters, or territorial seas. 15 Before the new rule, drainages that lacked relatively permanent flow were considered other waters and their jurisdictional status was dependent on a case-specific significant nexus evaluation. In the arid West, many of these dry drainages were found to lack a significant nexus to a TNW and were thus treated as non-jurisdictional. 16 Under the new rule, these same drainages are now considered tributaries and are automatically jurisdictional. There is no opportunity to consider their significance or insignificance to a downstream navigable water in determining jurisdiction. Dry ephemeral gulches and arroyos are common in the arid West and many of these have the physical indicators of a bed and banks and an OHWM for at least a portion of their length. Those will also now be considered jurisdictional by rule. The preamble to the rule states that the presence of these physical indicators demonstrates that there is volume, frequency, and duration of flow sufficient to qualify the feature as a jurisdictional tributary. Unfortunately, this assumption is not valid for many of the dryland drainages in the arid West. A simple relationship between a morphologic variable (such as the OHWM and stream bank) and a relevant discharge for purposes of establishing a significant nexus may be successful only for streams with definable regular flows or some definable steady state; this is not the case for dryland streams in arid areas where precipitation and runoff inputs may be sporadic at best. 17 These wide fluctuations prevent the development of a linkage between a particular flow magnitude and channel geometry related to bankfull conditions. 18 Of significance, under the new rule, a water that qualifies as a tributary does not lose its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams) or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground), as long as a bed and banks and an OHWM can be identified upstream of the break. 19 In the past, based on the prior SWANCC decision and guidance, 20 the agencies have frequently not asserted Section 404 jurisdiction over waters or wetlands that are physically isolated from and lack a surface water connection to jurisdictional waters; 21 in Colorado, intermittent or ephemeral drainages have been considered non-jurisdictional where a break in the lower portion has served to isolate the upper reaches from such a physical connection. This will likely no longer be the case. Adjacent Waters Adjacent waters are jurisdictional by rule. The rule broadly defines adjacent to include all waters bordering, contiguous to, or neighboring TNWs, interstate waters, territorial seas, jurisdictional impoundments, and tributaries, including waters separated by constructed dikes or barriers, natural river berms, beach dunes, and the like. 22 Neighboring is newly defined to include all waters located either (1) within 100 feet of the OHWM of such waters, or (2) within the 100-year floodplain out to a maximum of 1, The Colorado Lawyer September 2015 Vol. 44, No. 9

3 feet from the OHWM. 23 An entire water is neighboring if a portion of it is located within this area. 24 The rule s definition of adjacent expands the scope of Section 404 jurisdiction. Previously, the regulations extended adjacency only to wetlands (not waters) separated from other WOTUS by man-made dikes or barriers, natural river berms, beach dunes, and the like. 25 Now, all surface waters and wetland areas (not exempt from CWA jurisdiction) qualify as automatically jurisdictional if they fall within the above lateral distance parameters. Waters That are not Jurisdictional by Rule The rule preserves and codifies existing categorical exemptions from CWA jurisdiction for certain waters, and adds some categorical exclusions. See the accompanying Table For the first time, the rule excludes from CWA jurisdiction some waters that were previously considered jurisdictional on a case-specific basis for example, lawfully constructed grassed waterways. It also affords an express regulatory exclusion for certain waters that were previously treated as non-jurisdictional as a matter of policy i.e., the so-called Preamble Waters in Table 1 such as sand and gravel pits created in dry land. Unfortunately, the wording in the rule describing some of the exclusions is not clear and has created ambiguity. For example, many types of water facilities listed in the regulatory exclusions do not move, store, or treat wastewater, but rather handle raw water or even treated water. The existence of an exclusion for these nonwastewater facility components is not clear. 27 Another area of ambiguity, particularly for the arid West, concerns the exclusion for erosional features such as gullies, rills, and ephemeral features that do not meet the definition of tributary. This ambiguity occurs because jurisdictional tributaries, as defined by the presence of a bed, bank, and OHWM, will include many common Western arroyos, dry washes, and gulches that rarely flow. Thus they are likely not covered by the exclusion. As discussed above, physical characteristics such as an OHWM may occur in arid area erosional features as a consequence of high but extremely infrequent flows but are not a reliable indicator of frequent flows that reach, let alone affect, a downstream TNW. Ditches The rule excludes three types of ditches from jurisdiction (Table 1). It is unclear, however, whether the exclusion applies to irrigation and municipal water supply canals that oftentimes operate in a manner similar to ditches and are common throughout the Western U.S. The rule declined to define the terms ephemeral and intermittent for the stated reason that they are commonly used scientific terms, have been used by the agencies consistently, and are readily understood by field staff and the public. 28 However, these terms are described in the rule s preamble in the context of streams: intermittent streams are those that have both precipitation and groundwater providing part of the stream s flow and flow continuously only during certain times of the year, such as the rainy season. 29 Ephemeral refers to streams that have flowing water only in response to precipitation events in a typical year and are above the water table. 30 The preamble to the rule also adopts these two descriptions for purposes of the ditch exclusion. 31 These references appear focused more toward constructed roadside ditches and drainage ditches, rather than water supply structures. If the above references are intended to limit the types and sources of flow that qualify a ditch for an exclusion, it would appear that many Western municipal and agricultural ditches and canals may not be covered by the exclusion. However, one could also interpret the rule s language to exclude from jurisdiction those ditches and canals that operate only seasonally i.e., with less than perennial flow and otherwise meet the express exclusion criteria (of not being a relocated tributary, not having been excavated in a tributary, and not draining wetlands). Irrigation and water supply ditches and canals and the flows they convey are highly managed, and flows within those structures may run intermittently based on supply, demand, and type of use. The rule is also unclear on what constitutes a relocated tributary under the exclusion. A ditch that relocates a stream is not The Colorado Lawyer September 2015 Vol. 44, No. 9 45

4 excluded, and a stream is relocated either when at least a portion of its channel has been physically moved or when the majority of its flow has been redirected. 32 Many agricultural canals and ditches in the Western United States intercept the flow of tributary drainages or convey flow where such drainages end in the canal or ditch. Many canals and ditches in the Western United States derive their water from the exercise of lawfully decreed diversions from rivers or streams, and it is not uncommon for a ditch or series of ditches along a stream reach to divert at times, under their respective priorities, the majority of the natural flow regime. It is unclear how the majority of flow qualifier will be applied in such circumstances. According to the preamble, a ditch that is jurisdictional as a relocated stream is distinguishable from a ditch that withdraws water from a stream without changing the stream s aquatic character. 33 The latter type of ditch is excluded from jurisdiction when it meets the listed characteristics of excluded ditches (Table 1). The rule does not provide meaningful guidance on what constitutes changing the... aquatic character of the stream from which the water is withdrawn. According to the rule s preamble, the jurisdictional status of a ditch can be determined by ditch segment. Thus, it is possible to have both jurisdictional and non-jurisdictional segments on the same ditch. 34 Finally, the jurisdictional status of canals and ditches meeting the definition of tributary (Table 2), absent qualifying under the ditch exclusion (Table 1), 35 means that their adjacent waters and wetlands would also be included within the scope of Section 404 jurisdiction. This has the potential to substantially expand the scope of CWA Section 404 jurisdiction in the Western United States where extensive canal and ditch systems are common. Case-Specific Waters The third broad category addresses waters that do not fit under the automatic jurisdictional by rule or not jurisdictional by rule categories discussed above. Two sets of waters within this category will be subject to a case-specific analysis to determine whether they have a significant nexus to a TNW, interstate water, or territorial sea sufficient to make them jurisdictional. 36 The first set of waters consists of the following five identified subcategories: prairie potholes, Carolina bays and Delmarva bays, pocosins, Western vernal pools, and Texas coastal prairie wetlands. None of these occurs in Colorado. Specific waters and wetlands within each of these subcategories are considered similarly situated by rule and are to be combined for purposes of evaluating whether they have a significant nexus to the nearest TNW, interstate water, or territorial sea. 37 The second set of waters covers those that are within the 100- year floodplain of a TNW, interstate water, or territorial sea; and all waters within 4,000 feet of the high tide line or OHWM of a TNW, interstate water, territorial sea, impoundment of a jurisdictional water, or covered tributary. 38 Waters within these distance parameters are jurisdictional if they have a significant nexus based on a case-specific evaluation. A water has a significant nexus when any single function or combination of functions performed by the water, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of the nearest TNW, interstate water, or territorial sea. A significant effect is an effect that is more than speculative or insubstantial. 39 The significant nexus test will frequently involve a cumulative analysis. Waters are similarly situated in the region and must be considered in the aggregate when they perform similar functions and are sufficiently close in proximity to function together in affecting downstream waters. 40 The term in the region means the watershed that drains to the nearest single TNW, interstate water, or territorial sea, 41 which can span relatively large areas in the Western United States. 42 The rule identifies nine aquatic functions under the significant nexus test. 43 These include sediment trapping, nutrient recycling, contribution of flow, and provision of life cycle dependent aquatic habitat. In so doing, the new rule removes the prior regulatory provision under which jurisdiction extended to these other waters only where their use, degradation or destruction... could affect interstate or foreign commerce. 44 Now, in lieu of that express commerce nexus, a significant nexus can be established based on 46 The Colorado Lawyer September 2015 Vol. 44, No. 9

5 Category of Waters Waste treatment systems Prior converted cropland Preamble Waters Table 1. Non-Jurisdictional by Rule Effect of Rule Consistent with prior regulatory exclusion for waste treatment systems designed to meet CWA requirements. 1 Consistent with prior regulatory exclusion; rule clarifies that EPA makes the final call on an area s status as prior converted cropland. 2 Rule codifies recognition of non-jurisdictional status for certain waters and features over which the agencies have as a policy matter generally not asserted jurisdiction. These include: artificially irrigated areas that would revert to dry land should irrigation cease; artificial lakes and ponds created on dry land for stockwatering, irrigation, settling basins, or ornamental purposes; and water-filled depressions created in dry land incidental to mining or construction activities. 3 Stormwater control features Features constructed to convey, treat, or store stormwater that are created in dry land. 4 Wastewater recycling structures Erosional features Statutory exemptions from NPDES permitting requirements 404(f) exempt waters Ground water Ditches Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling. 5 Gullies and other ephemeral features that do not meet the definition of tributary. Prior practice has not asserted jurisdiction over erosional features. 6 Rule says it does not change the statutory and regulatory exemptions from NPDES permitting requirements, such as those for agricultural stormwater discharges, return flows from irrigated agriculture, or the status of water transfers. 7 Rule says it would not change the CWA 404(f) exemptions for normal agricultural activities, construction and maintenance of stock ponds and irrigation ditches, repair and maintenance of currently serviceable structures, and certain farm and forest roads. 8 Ground water is not itself jurisdictional; however, shallow subsurface flow can serve as a connection to make other waters jurisdictional. 9 The following are non-jurisdictional: (1) ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary; (2) ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands; and (3) ditches that do not flow, either directly or through another water, into TNWs, interstate waters, or territorial seas. 10 Notes Fed. Reg , (June 29, 2015) (to be codified at 33 CFR 328.3(b)(1)); 33 CFR 328.3(a)(8) (1993) Fed. Reg , (June 29, 2015) (to be codified at 33 CFR 328.3(b)(2)); 33 CFR 328.3(a)(8) (1993) Fed. Reg , (June 29, 2015) (to be codified at 33 CFR 328.3(b)(4)(i) to (v)). 4. Id. (to be codified at 33 CFR 328.3(b)(6)). 5. Id. (to be codified at 33 CFR 328.3(b)(7)). 6. Id. at 37059; id. at (to be codified at 33 CFR 328.3(b)(4)(vi)). 7. Id. at Id.; Clean Water Act 404(f); 33 USC 1344(f) Fed. Reg , (June 29, 2015) (to be codified at 33 CFR 328.3(b)(5)). See also 80 Fed. Reg. at Id. at (to be codified at 33 CFR 328.3(b)(3)). ecological connections alone. The rule states that a hydrologic connection is not necessary to establish a significant nexus. 45 By limiting the significant nexus test to the two sets of waters described above, the rule provides some geographic limits on what could otherwise be a very broad catch-all category of waters and wetlands needing a case-specific analysis to determine their jurisdictional status. However, the aggregate analysis of all similarly situated waters and wetlands in a watershed is likely to create issues for water providers in the Western United States whose systems frequently span multiple watersheds. As dredge and fill permit applications are filed, significant nexus determinations may be made for waters within the entire region without the benefit of other water providers knowledge or participation in jurisdictional determinations that may be of future regulatory consequence. The Colorado Lawyer September 2015 Vol. 44, No. 9 47

6 While the rule indicates that landowners may provide new information to inform subsequent jurisdictional determinations, 46 it is unclear how this is to be accomplished once the similarly situated waters in a watershed have been determined to be jurisdictional. Implications The new rule will have a variety of implications for the regulated community, potentially with a disproportionate effect in the Western United States. Key concerns include the treatment of tributaries (including ephemeral and intermittent drainages) as now jurisdictional by rule; the relatively large size of watersheds in the Western United States that may set the parameters for what waters and wetlands are in the region and similarly situated for purposes of an aggregate analysis under the significant nexus test for jurisdiction; and the ambiguity discussed above regarding the jurisdictional status of the extensive systems of canals and ditches that convey water in the Western U.S. Implementation Although the new rule was intended to provide greater clarity regarding the scope of waters that are subject to CWA jurisdiction, it has unfortunately raised many questions and uncertainties. These uncertainties may be addressed by future agency guidance on implementing the rule. In the Western United States, the following issues are among those in need of clarification: Do canals that convey water supply qualify under the ditch exclusion? How do the terms ephemeral and intermittent apply to canals and ditches that convey water supply? When considering the ditch exclusion and diversions from streams, what constitutes changing the stream s aquatic character? Over the history of the CWA Section 404 program, the Corps has developed regulatory guidance interpreting when Preamble Waters (Table 1) are or are not jurisdictional. Since the rule now codifies the non-jurisdictional status of these waters, what is its effect on previous guidance that served to limit the non-jurisdictional status of some of these waters? For example, the Corps has issued regulatory guidance in the past that limited the non-jurisdictional status of preamble sand and gravel pits created in dry land to those pits that were actively mined or being reclaimed under a state or local government permit. Once abandoned, such pits could become jurisdictional if they met the definition of a WOTUS. 47 Is that still the case? Similarly, the issue arises whether stormwater facilities excluded under the new rule retain their non-jurisdictional status if they develop wetland characteristics over time. Do dry land breaks in tributaries that prevent water from flowing directly or through another water to a TNW, interstate water, or territorial sea render the tributary non-jurisdictional? If so, how does that comport with the rule s statement that tributaries do not lose their jurisdictional status above and below breaks where the water flows underground? When applying the significant nexus evaluation, how does one demonstrate that a specific chemical, physical, or biologic function is provided (or not provided)? Is there latitude under the rule to conclude that a given water is non-jurisdictional where it may provide a function but only to a degree that does not significantly affect the nearest TNW, interstate water, or territorial sea? Many of the smaller dry ephemeral and intermittent tributaries in the Western United States that will now be jurisdictional by rule have not had their 100-year flood plains mapped. Now that the rule focuses on the 100-year flood plain when determining adjacency, guidance is needed on how the rule will be applied when information on the 100- year flood plain is not readily available. 48 One of the purposes of the new rule was to undertake noticeand-comment rulemaking pursuant to the Administrative Procedure Act to formally clarify the extent of CWA jurisdiction. Interpretations in agency guidance that are not codified in a rulemaking may be entitled to only limited deference from the courts and are subject to change. 49 Thus, while perhaps needed, issuance of subsequent interpretive guidance may have its own set of limitations for both the agencies and regulated community. Previously Approved Jurisdictional Determinations Grandfathered Under existing Corps regulations and guidance, approved jurisdictional determinations ( JDs) generally are valid for five years. According to the new rule, the agencies will not reopen existing approved JDs unless requested to do so by an applicant or, consistent with existing Corps guidance, unless new information warrants revision of the determination before the expiration period. 50 Similarly, consistent with existing regulations and guidance, approved JDs associated with issued permits and authorizations are valid until the expiration date of the permit or authorization. 51 Those holding previously approved JDs that found a water or wetland to be non-jurisdictional based on isolation or lack of a significant nexus to a TNW should carefully evaluate the likelihood of being able to receive an extension of that approved JD under the new rule. Project proponents should consider implementing their projects prior to the termination of their valid approved JDs if the wetlands or waters previously determined non-jurisdictional are likely to be determined jurisdictional under the new rule. New Terminology The rule brings a new set of terms into the CWA lexicon. These are shown in Table Conclusion Jurisdictional determinations under the CWA have historically proved controversial and challenging to the agencies, regulated public, and courts. The new rule will likely clarify some jurisdictional calls but add confusion to others. As the text of the rule is relatively short, how it is applied will be influenced by guidance in the extensive regulatory preamble and its further interpretation at the hands of the agencies. The rule is expected to increase the number of waters found subject to CWA jurisdiction, particularly in the Western United States. In so doing, it has served to heighten the controversy surrounding the scope of jurisdiction under the CWA. Multiple lawsuits were filed challenging this rule within the first week of its promulgation. As of the date of this article, Congress is also considering action to block its implementation. 48 The Colorado Lawyer September 2015 Vol. 44, No. 9

7 Table 2. New Terms Associated With the WOTUS Rule Term Tributary Neighboring Similarly situated In the region Significant nexus Relocated tributary Effect on how CWA Jurisdiction will be Determined Tributaries are jurisdictional by rule. A tributary is characterized by the presence of the physical indicators of a bed and banks and an OHWM and contributes flow, either directly or through another water (including an impoundment), to a downstream TNW, interstate water, or territorial sea. A tributary can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, ephemeral and intermittent drainages, canals, and ditches not excluded by the rule. 1 Used in defining adjacent waters that are jurisdictional by rule. Neighboring waters are all waters located within 100 feet of the OHWM of a TNW, interstate water, territorial sea, jurisdictional impoundment, or covered tributary; and within the 100-year floodplain of such waters to a maximum of 1,500 feet from the OHWM. 2 Many tributaries do not have the 100-year floodplain mapped. Waters are similarly situated when they function alike and are sufficiently close to function together in affecting downstream waters. 3 Similarly situated waters are considered in the aggregate when evaluating the presence or absence of a significant nexus. Waters are considered in the region if they fall within the same watershed that drains to the nearest single TNW, interstate water, or territorial sea. In the region is used for purposes of grouping similarly situated wetlands or waters for determining the presence or absence of a significant nexus. 4 A water has a significant nexus and is jurisdictional when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest TNW, interstate water, or territorial sea. The case-specific significant nexus analysis is used to determine the jurisdictional status of two sets of waters defined at 33 CFR 328.3(a)(7) and (8) that are not jurisdictional or non-jurisdictional by rule. Waters are to be assessed by evaluating nine aquatic functions. 5 The exclusion for ditches with ephemeral or intermittent flow does not cover ditches that are excavated in or relocate a covered tributary. A tributary is relocated when at least a portion of its original channel has been physically moved, or when the majority of its flow has been redirected. A ditch that is a relocated tributary is distinguishable from a ditch that withdraws water from a stream without changing the stream s aquatic character. The latter type of ditch is excluded from jurisdiction where it meets the listed characteristics of excluded ditches (Table 1). 6 Dry land Areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds, and the like. However, it is important to note that a WOTUS is not considered dry land just because it lacks water at a given time. Similarly, an area remains dry land even if it is wet after a rainfall event. Dry land should now be used when referring to areas that do not have the characteristics of waters or wetlands (previously commonly referred to as upland ). 7 Notes Fed. Reg , (to be codified at 33 CFR 328.3(c)(3)) Fed. Reg , (to be codified at 33 CFR 328.3(c)(2)). 3. Id. at 37092, (to be codified at 33 CFR 328.3(c)(5)). 4. Id. 5. Id. 6. Id. at 37078, 37098; id. at (to be codified at 33 CFR 328.3(b)(3)). 7. Id. at Notes 1. Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act), Pub.L. No , 86 Stat. 816, 33 USC 1251 et seq. 2. Clean Water Act 502(7); 33 USC 1362(7) Fed. Reg , ( July 19, 1977); 33 CFR 323.2(a) (1977). See 33 CFR 328.3(a) (1993) (regulatory definition of waters of the U.S. from September 24, 1993 to August 27, 2015). 4. Id. 5. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC); consolidated cases Rapanos v. United States and Carabell v. United States, 547 U.S. 715 (2006) (Rapanos). 6. Joint Memorandum regarding SWANCC decision issued by the General Counsels of U.S. Environmental Protection Agency (EPA) and the Department of the Army on January 10, 2003, 68 Fed. Reg (Jan. 15, 2003); Memorandum to EPA Regions and Corps Districts, Clean Water Act Jurisdiction Following the U.S. Supreme Court s Decision in Rapanos v. United States & Carabell v. United States (originally issued June The Colorado Lawyer September 2015 Vol. 44, No. 9 49

8 5, 2007 and revised Dec. 2, 2008); Memorandum for Director of Civil Works and U.S. EPA Regional Administrators, Coordination on Jurisdictional Determinations Under CWA Section 404 in Light of the SWANCC and Rapanos Supreme Court Decisions (June 5, 2007); Memorandum for Commander, Major Subordinate Commands and District Commands, Process for Coordinating Jurisdictional Determinations Conducted Pursuant to Section 404 of the CWA in Light of the Rapanos and SWANCC Supreme Court Decisions ( Jan. 28, 2008); U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook (including appendices) (May 30, 2007); U.S. Army Corps of Engineers Regulatory Guidance Letter No on Jurisdictional Determinations (June 26, 2008). 7. See, e.g., SWANCC, 531 U.S. at ; Rapanos, 547 U.S. at (Scalia, J., plurality opinion), (Kennedy, J., concurring in judgment). 8. Freeman and Dougherty, New Federal Guidance on Identifying Waters Protected by the Clean Water Act, 40 The Colorado Lawyer 65 (Dec. 2011) Fed. Reg , (June 29, 2015). 10. EPA, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (Final Report) (2015), cfpub. epa.gov/ncea/cfm/recordisplay.cfm?deid= Fed. Reg , (June 29, 2015). 12. Id. at Id. at (to be codified at 33 CFR 328.3(c)(3)). 14. Id. 15. Id. 16. Womble et al., America s Vulnerable Waters: Assessing the Nation s Portfolio of Vulnerable Aquatic Resources since Rapanos v. United States 72 (Environmental Law Institute, 2011), d21-06.pdf. 17. Graf, Fluvial Processes in Dryland Rivers 104 (1st ed., 1988). 18. Id. at Fed. Reg , (June 29, 2015) (to be codified at 33 CFR 328.3(c)(3)). 20. Joint Memorandum regarding SWANCC decision, supra note 6 at See generally Womble, supra note Fed. Reg , ( June 29, 2015) (to be codified at 33 CFR 328.3(c)(1)). 23. Id. (to be codified at 33 CFR 328.3(c)(2)). A third type of neighboring water, not relevant in Colorado, includes waters within 1,500 feet of the high tide line of a TNW or territorial sea, and waters within 1,500 feet of the OHWM of the Great Lakes. Id. 24. Id CFR 328.3(a)(7) Fed. Reg , ( June 29, 2015) (to be codified at 33 CFR 328.3(b)). 27. See generally id. at Id. at 37076, Id. 30. Id. 31. Id. at Id. at Id. at 37078, Id. at Id. at Id. at (to be codified at 33 CFR 328.3(a)(7) and (8)). 37. Id. (to be codified at 33 CFR 328.3(a)(7)). 38. Id. at (to be codified at 33 CFR 328.3(a)(8)). 39. Id. at (to be codified at 33 CFR 328.3(c)(5)). 40. Id. 41. Id. 42. The regulatory preamble recognizes there may be situations in the arid West where the single point of entry watershed is very large, and that it may be reasonable to demarcate catchments surrounding a water for purposes of the region used for conducting a significant nexus evaluation. 80 Fed. Reg. at Id. at (to be codified at 33 CFR 328.3(c)(5)) CFR 328.3(a)(3) (1993) Fed. Reg , (June 29, 2015). 46. Id. at U.S. Army Corps of Engineers, Omaha District, Regulatory Guidance Letter MRO 92-04: Sand and Gravel Pits When to Regulate (Aug. 18, 1992). 48. See 80 Fed. Reg , (June 29, 2015). 49. See Freeman and Dougherty, supra note 8 at Fed. Reg , (June 29, 2015). 51. Id. 52. See generally id. at (to be codified at 33 CFR 328.3(c)). n 50 The Colorado Lawyer September 2015 Vol. 44, No. 9