Tag: Waters of the US

Navigating New Waters: The U.S. Army Corps of Engineers’ Strategic Response to the Sackett Decision and the Future of Wetland Protections

wetland impacts

In the aftermath of the pivotal Supreme Court ruling in Sackett v. EPA, a seismic shift has occurred in the legal framework governing the protections of the United States’ waters and wetlands under the Clean Water Act (CWA). The U.S. Army Corps of Engineers, tasked with a significant portion of the Act’s implementation through its permitting program, has issued a detailed memorandum dated March 22, 2024, outlining a nuanced and multifaceted strategy to adapt to and mitigate the implications of this landmark decision.

The crux of the Sackett ruling lies in its narrow reinterpretation of the “Waters of the United States” (WOTUS), a critical term under the CWA that delineates the extent of federal jurisdiction over the nation’s aquatic resources. Historically, the scope of WOTUS has been subject to regulatory definitions since the 1970s, with the latest iteration promulgated on September 8, 2023. The Supreme Court’s decision, however, significantly contracted the ambit of federally protected wetlands, specifically those without a continuous surface connection to larger bodies of water, thereby excluding them from the protections afforded by the Act.

This memo from the Army Corps of Engineers charts a forward-looking course, underscoring the imperative to leverage existing legal authorities and resources to safeguard and enhance the resilience of these now more vulnerable aquatic ecosystems. It articulates a comprehensive strategy encompassing Civil Works Actions and Regulatory Program Actions, each with specific initiatives designed to address the challenges posed by the Sackett decision.

Civil Works Actions

The memo delineates several key actions within the Corps’ Civil Works mission to bolster aquatic ecosystem restoration, technical assistance, and the integration of nature-based solutions. These efforts are premised on a nuanced understanding of the ecosystem services rendered by waters and wetlands, emphasizing their critical role in flood mitigation, water quality enhancement, and habitat provision.

  1. Aquatic Ecosystem Restoration: The directive prioritizes projects that restore hydrologic connectivity and improve the physical and biological integrity of ecosystems impacted by the Sackett decision. This includes an emphasis on Section 206 of the Continuing Authorities Program (CAP), highlighting the strategic allocation of resources towards projects that align with the watershed-based needs elucidated by the ruling.
  2. Technical Assistance Programs: Recognizing the pivotal role of state, local, and tribal entities in aquatic resource management, the memo underscores the Corps’ commitment to providing expert guidance and planning assistance. This is particularly relevant for entities navigating the altered regulatory landscape post-Sackett, with a focus on fostering resilience in ecosystems stripped of federal protection under the narrowed WOTUS definition.
  3. Nature-Based Solutions: The memo advocates for the broader adoption of nature-based solutions in Civil Works projects, aligning with ongoing research and development initiatives. This approach is posited as a means to enhance project sustainability and ecological benefits, especially in light of the reduced jurisdictional scope for wetland protections.

Regulatory Program Actions

In addressing the regulatory implications of the Sackett decision, the memo places a strong emphasis on transparency and compensatory mitigation:

  1. Approved Jurisdictional Determinations: It mandates the continuation of transparent processes in issuing jurisdictional determinations, vital for providing stakeholders with clarity on the jurisdictional status of aquatic resources post-Sackett. This transparency is instrumental in enabling informed decision-making and strategic planning by affected parties.
  2. Compensatory Mitigation: Crucially, the memo reiterates that the jurisdictional status of waters and wetlands, as delineated by the WOTUS definition, does not preclude their eligibility for serving as compensatory mitigation under Corps permits. This policy stance is particularly significant, underscoring the Corps’ commitment to a functional and ecological assessment of aquatic resources for mitigation purposes, beyond the binary jurisdictional categorizations constrained by the Sackett ruling.

The memorandum issued by the U.S. Army Corps of Engineers post-Sackett decision is a testament to the agency’s commitment to navigating the complex interplay between environmental protection and legal mandates. Through a meticulous articulation of strategic actions, the Corps aims to fortify the resilience and ecological integrity of the nation’s waters and wetlands, navigating the nuanced legal terrain sculpted by the Supreme Court’s decision. This document not only outlines a path forward in the wake of reduced federal oversight but also reinforces the enduring value of aquatic ecosystems to the nation’s environmental, economic, and social well-being.

Get the USACOE Memo Here

Enhancing Nationwide Wetland Permitting: Integrating the Stream Duration Assessment Model (SDAM) with State-Specific Approaches Across the U.S

The U.S. Army Corps of Engineers (USACE) has developed the Stream Duration Assessment Model (SDAM), a groundbreaking tool that significantly enhances the regulatory oversight and protection of the nation’s water resources. This model plays a critical role in managing and safeguarding streams and wetlands, crucial for maintaining biodiversity, water quality, and flood mitigation. The SDAM is designed to classify streams based on their flow characteristics—perennial, intermittent, or ephemeral—crucial for determining the jurisdictional status of water bodies under the Clean Water Act (CWA). This article explores the integration of state-established models with the SDAM for regulatory purposes and highlights its nationwide applicability for wetland permits.

The SDAM employs a science-based approach, integrating hydrological data, GIS analyses, and field observations to assess stream flow characteristics accurately. This standardized method is vital for delineating the scope of regulatory oversight, ensuring environmental impacts are thoroughly evaluated and mitigated, particularly in the context of Section 404 of the CWA, which governs the discharge of dredged or fill material into waters of the United States.

State-established models of stream flow complement the SDAM by providing detailed insights into the flow regimes of streams within specific geographic areas. These models, developed based on localized data, enhance the precision of the SDAM by incorporating nuanced understandings of stream behavior, reflecting the unique ecological conditions of different regions. Integrating these models involves aligning methodological approaches, standardizing stream type definitions, and harmonizing data analysis techniques to ensure consistency across jurisdictions.

The combined use of the SDAM and state models offers a more nuanced assessment of streams for regulatory purposes. It facilitates more informed decisions regarding wetland permits by identifying streams with significant ecological functions or those critical to maintaining watershed health. This approach supports a more adaptive and responsive regulatory framework, allowing for updates with new data as environmental conditions change, ensuring the relevance and effectiveness of stream assessments.

Nationwide, the applicability of the SDAM, enhanced by state-specific models, encourages collaboration among federal, state, and local agencies. This collaborative approach improves the regulatory process’s efficiency and fosters a shared commitment to protecting water resources. It exemplifies the balance between economic development and environmental stewardship, promoting the sustainable management of aquatic ecosystems.

Furthermore, the integration of state models with the SDAM highlights the USACE’s commitment to using science and technology to improve environmental regulation. It reflects a shift towards data-driven decision-making, setting a precedent for future innovations in water resource management. As the model is refined and updated, its utility for regulatory purposes will continue to improve, ensuring that development and infrastructure projects proceed in an environmentally responsible manner.

The integration of the Stream Duration Assessment Model (SDAM) with state-specific methods, such as the North Carolina (NC) method for assessing stream flows, exemplifies a tailored approach to environmental regulation and water resource management. North Carolina has developed its own methodologies for classifying streams and assessing their ecological significance, which can complement the broader framework of the SDAM.

Example: North Carolina’s Stream Identification Method

North Carolina’s method for stream identification and classification is designed to meet the unique ecological and hydrological conditions of the state, which range from the Appalachian Mountains in the west to the coastal plains in the east. This method involves detailed field assessments, including the examination of physical, chemical, and biological indicators to determine stream types and their jurisdictional status under state and federal regulations.

Key aspects of the NC method include:

  1. Physical Indicators: These include the presence of a well-defined channel, bed and banks, and evidence of flow (e.g., water marks, sediment sorting) to distinguish between perennial, intermittent, and ephemeral streams.
  2. Biological Indicators: The presence of aquatic life, such as fish and macroinvertebrates, which are indicative of perennial or intermittent streams capable of supporting diverse biological communities.
  3. Hydrological Data: Use of historical precipitation, stream gauge data, and other hydrological models to predict flow durations and patterns throughout the state’s diverse landscapes.

Integrating the NC method with the SDAM allows for a comprehensive assessment that leverages local expertise and data while aligning with national standards for water resource management. This integration enhances the precision of stream classifications and the effectiveness of regulatory processes, including permitting for activities that impact water resources.

For example, when a developer proposes a project in North Carolina that may affect waterways, the combined use of the NC method and the SDAM ensures a thorough evaluation of potential impacts on stream flow and aquatic habitats. This dual approach facilitates informed decision-making regarding permit issuance, mitigation measures, and conservation efforts, balancing development needs with environmental protection.

Nationwide Implications

The example of North Carolina illustrates how state-specific methods can enhance the effectiveness of the SDAM in managing water resources across the U.S. By integrating localized approaches with the broader framework of the SDAM, states can ensure that regulatory processes are adapted to their unique environmental conditions, promoting sustainable water resource management and protection at both the state and national levels. This collaborative approach underscores the importance of tailored strategies in addressing the complex challenges of environmental stewardship and water resource regulation.

Wetland Mitigation Banking

Wetland mitigation banking is an environmental policy tool used to compensate for the loss of wetland functions and values that may occur due to permitted development activities. It represents a market-based approach that allows for the restoration, creation, enhancement, or in some cases, preservation of wetlands to offset impacts from development. Mitigation banks are sites where wetlands and other aquatic resources are restored, created, enhanced, or, in exceptional cases, preserved expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar ecosystem types.

History and Regulatory Framework

The concept of wetland mitigation banking emerged in the United States in the 1990s as a response to the loss of wetlands and the requirements of the Clean Water Act (CWA). Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. The U.S. Army Corps of Engineers (USACE) is tasked with permitting such activities, while the Environmental Protection Agency (EPA) provides oversight.

The goal of the CWA is to achieve “no net loss” of wetlands, a policy which has been supported by successive administrations since the late 1980s. Wetland mitigation banking became a practical tool to achieve this goal, providing a way to compensate for wetland losses with the restoration or creation of wetlands elsewhere, ideally leading to equal or greater ecological benefit.

Implementation of Wetland Mitigation Banking

Mitigation banking works on the principle of wetland credits and debits. When wetlands are impacted by development, a debit is incurred, which must then be compensated by purchasing credits from a wetland mitigation bank. These banks are sites where wetlands have been restored or created with the explicit purpose of providing such credits.

The banks themselves are usually operated by private entities, non-profit organizations, or government agencies. They must adhere to strict criteria regarding the ecological restoration and must have a long-term management plan to ensure the persistence of the wetland functions and values over time. Mitigation banks are required to establish financial assurances, such as trusts or letters of credit, to ensure that sufficient funds are available for long-term management.

Benefits of Wetland Mitigation Banking

Mitigation banking offers several advantages over traditional project-by-project mitigation. The scale of mitigation banking often allows for a more comprehensive approach to restoring wetland functions, such as hydrology, water quality, and habitat for wildlife. By consolidating mitigation efforts, banks can potentially restore larger, more ecologically valuable wetlands, rather than piecemeal, often less successful, on-site mitigation efforts.

Moreover, mitigation banking provides a more efficient permitting process for developers. Since the bank sites are pre-approved, developers can purchase credits quickly, allowing for timely project advancement while ensuring that mitigation requirements are met.

Economically, mitigation banking has fostered a new industry, creating jobs and opportunities for environmental restoration and management. It encourages private investment in natural resources and leverages market forces to achieve environmental objectives.

Challenges of Wetland Mitigation Banking

Despite its potential benefits, wetland mitigation banking faces several challenges. The success of a mitigation bank depends on the ecological success of the wetlands restored or created, which can take years or even decades to fully realize. The science of wetland restoration is complex, and outcomes are not guaranteed.

The regulatory framework around wetland mitigation banking can also be complex and variable across different USACE districts, leading to uncertainty for bank developers and customers. There’s also the challenge of ensuring that the mitigation banks provide a level of ecological function equivalent to the wetlands that were lost, known as “functional equivalency.”

Furthermore, there is the issue of “service area,” the geographic limit within which a bank can sell credits. It is essential to ensure that credits are used within an ecologically appropriate distance to maintain landscape-level ecological integrity.

Future Prospects

As recognition of the importance of wetlands to biodiversity, climate regulation, and water quality continues to grow, wetland mitigation banking may become even more prominent in environmental policy and conservation efforts. Innovations in restoration ecology, increased regulatory clarity, and new financing mechanisms could enhance the effectiveness and appeal of wetland mitigation banking.

In the face of climate change, wetlands play a critical role in carbon sequestration and in buffering against extreme weather events, such as storms and floods. Wetland mitigation banks can be strategically located to not only replace lost wetland functions but also to contribute to climate adaptation and resilience.

The use of advanced monitoring technologies, including remote sensing and ecological modeling, can improve the assessment and long-term management of mitigation banks. Additionally, there’s potential for integrating wetland mitigation banking with other market-based conservation tools, like conservation banking for endangered species, which could lead to more comprehensive ecosystem-based management approaches.

Wetland mitigation banking represents an innovative intersection of environmental science, policy, and market economics. It offers a pragmatic solution to the complex problem of wetland loss, aligning economic development with conservation objectives. While it presents challenges, its evolution and refinement could be instrumental in advancing the goal of no net loss of wetlands.

As society moves forward in developing sustainable strategies for land use, mitigation banking will likely continue to play a vital role in reconciling development pressures with the imperative to preserve vital wetland ecosystems. Its success will depend not only on sound science and effective regulation but also on the continued collaboration between developers, conservationists, regulators, and the public. With ongoing attention to these factors, wetland mitigation banking has the potential to serve as a model for balancing human needs with the ecological imperatives of our time.

A day in the life of a wetland scientist

In the field, the wetland scientist engages in a variety of specialized tasks, including soil sampling to identify hydric soils, conducting thorough vegetation surveys, and assessing wetland hydrology through both direct and indirect means. These activities require a keen eye for detail, extensive knowledge of wetland ecosystems, and the ability to work effectively in challenging outdoor conditions. Additionally, the role involves meaningful interactions with local communities, landowners, and regulatory bodies, emphasizing the importance of wetlands in ecological balance and sustainable land use.

The day of a wetland scientist is not just about fieldwork; it also involves critical analysis and documentation back at the office or lab. Here, the scientist delves into data interpretation, report writing, and consultation with environmental experts, ensuring that their findings contribute to broader conservation efforts and comply with environmental regulations. The narrative also emphasizes the importance of continuous learning and professional development in the field of wetland science. This commitment to staying abreast of the latest research, technological advancements, and regulatory changes is vital for effective wetland management and protection.

  • Early Morning Research and Preparation: The scientist’s day begins with reviewing satellite images, wetland delineation protocols, and local environmental regulations. They ensure that all their equipment, including soil coring tools and water quality kits, is ready for the day.
  • Travel to the Wetland Site: The journey to the wetland site might be an adventure, often traversing through less-traveled paths. The scientist plans their route, considering the day’s objectives and the logistics of reaching the site.
  • Initial Site Assessment: Upon arrival at the wetland, the scientist conducts an initial survey, looking for visible indicators of wetland boundaries and making preliminary notes.
  • Detailed Wetland Delineation Work: The morning is spent in intense fieldwork, including soil sampling, vegetation identification, and hydrology assessment, to accurately delineate the wetland boundaries.
  • Fun and Exploratory Lunch Break: By midday, it’s time for a well-deserved break. The scientist often takes this opportunity to explore local eateries, enjoying the chance to discover unique and interesting restaurants in the area. This lunch break becomes a mini-adventure, offering a delightful pause from the fieldwork and a chance to savor the local cuisine.
  • Post-Lunch Delineation and Data Collection: After lunch, the scientist returns to the field, possibly revisiting certain areas for additional verification or moving to new sections for further delineation.
  • Community Interaction and Educational Outreach: The afternoon may also include interactions with local communities, landowners, or educational groups, discussing the day’s findings and the importance of wetland conservation.
  • Return to Base for Analysis and Reporting: Back at their office or lab, the scientist analyzes the collected data, begins processing samples, and starts drafting reports based on the day’s delineation work.
  • Consultations and Collaborations: The scientist might consult with environmental agencies or collaborate with colleagues, ensuring that the delineation aligns with regulatory standards and contributes to broader environmental research.
  • Evening Review, Planning, and Networking: The day concludes with a review of the work done, updating project files, and perhaps participating in professional networking activities, staying connected with the wider scientific community.
  • Continued Learning and Research: The scientist spends time in the evening catching up on the latest research in wetland ecology and planning for future professional development opportunities.
  • Relaxation and Personal Time: Finally, the scientist unwinds, reflecting on the day’s work and the culinary adventure they enjoyed at lunch, recharging for the next day’s challenges.

Streamflow Duration Assessment Methods (SDAMs)

The U.S. Army Corps of Engineers (USACE) has developed the Streamflow Duration Assessment Methods (SDAMs), currently in their interim phase, to enhance the management and protection of water resources. This interim phase, reflecting a period of testing and refinement, is crucial for ensuring the accuracy and effectiveness of these methods.

Understanding the Interim Phase of SDAMs

The interim phase of the SDAMs, is a dynamic period where the methods are being field-tested, evaluated, and improved. This phase allows for the incorporation of feedback from various stakeholders, including environmental scientists, water resource managers, and policy makers.

The Role and Importance of SDAMs

Streamflow Duration Assessment Methods are essential for classifying streams based on the duration and frequency of their flow. This classification is vital for:

  1. Environmental Conservation: Assessing the impact of streamflow on aquatic ecosystems.
  2. Water Resource Management: Informing decisions related to water rights, usage, and allocation.
  3. Land Development: Guiding development projects to minimize adverse effects on water resources.
  4. Regulatory Compliance: Aiding in adherence to environmental regulations, such as the Clean Water Act in the U.S.

Implementation Strategies During the Interim Phase

During this interim phase, USACE employs various strategies:

  • Pilot Studies: Conducting field tests in diverse geographical locations to understand the method’s applicability.
  • Stakeholder Feedback: Actively seeking input from users to refine the methods.
  • Data Collection and Analysis: Gathering and analyzing extensive data to validate and improve the methods.
  • Technological Integration: Incorporating advanced technologies such as remote sensing and hydrological modeling.

Challenges and Future Outlook

The interim phase faces challenges like dealing with the impacts of climate change and the need for robust data. Looking ahead, the focus will likely be on:

  • Refining Models: Enhancing the precision and reliability of the methods.
  • Climate Adaptation: Incorporating climate change projections more comprehensively.
  • Expanding Collaboration: Increasing engagement with a broader range of stakeholders.

The U.S. Army Corps of Engineers’ (USACE) Streamflow Duration Assessment Methods (SDAMs) play a significant role in determinations related to the Waters of the United States (WOTUS). WOTUS is a term used in U.S. federal environmental regulations that defines the bodies of water that fall under the jurisdiction of the Clean Water Act (CWA). Understanding this relationship is crucial for environmental protection, water resource management, and compliance with federal laws.

The Role of SDAMs in WOTUS Determinations

  1. Defining Jurisdictional Waters: SDAMs are instrumental in determining whether a particular stream or water body falls under the category of WOTUS. By assessing the duration and frequency of streamflow, these methods help to classify streams as perennial, intermittent, or ephemeral, which is a key factor in WOTUS determinations.
  2. Environmental Regulation Compliance: The classification of water bodies as WOTUS has significant implications for environmental regulation, particularly in terms of permitting, pollution control, and habitat protection under the CWA.
  3. Impact on Land Use and Development: SDAMs influence decisions on land use and development. Projects near water bodies classified as WOTUS might require additional permits and environmental assessments to ensure compliance with the CWA.
  4. Protection of Aquatic Ecosystems: By aiding in the identification of WOTUS, SDAMs contribute to the protection of aquatic ecosystems, especially those dependent on certain streamflow conditions.

Challenges and Complexities in WOTUS Determinations

  1. Changing Definitions and Regulations: The definition of WOTUS has been subject to changes and legal challenges over the years, affecting how SDAMs are applied in regulatory contexts.
  2. Interagency Collaboration: WOTUS determinations often require collaboration between the USACE, the Environmental Protection Agency (EPA), and other federal and state agencies, necessitating a harmonized approach to streamflow assessment.
  3. Site-Specific Assessments: SDAMs need to be adaptable to various geographical and climatic conditions, as streamflow characteristics can vary significantly across different regions.
  4. Incorporating Climate Change Impacts: With changing climate patterns, the assessment of streamflow duration may become more complex, affecting WOTUS determinations over time.

Conclusion

The USACE’s Streamflow Duration Assessment Methods, in their critical interim phase, represent a significant step forward in sustainable water resource management. As these methods evolve, they will play an increasingly important role in protecting and managing water resources effectively for future generations. The ongoing development and refinement during this interim phase, while challenging, are essential for the creation of reliable and universally applicable streamflow assessment tools.

The Streamflow Duration Assessment Methods are deeply intertwined with the determinations of Waters of the United States. They provide a scientific and systematic approach to classifying water bodies, which is fundamental for regulatory compliance, environmental protection, and informed decision-making in land development. As environmental policies and climate conditions continue to evolve, the role of SDAMs in WOTUS determinations remains a key aspect of sustainable water resource management.

EPA and the Department of the Army issue Amended Final Rule Defining WOTUS

By Rick Savage – Carolina Wetlands Association

On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and the Department of the Army announced a final rule that amends the January 2023 definition of “waters of the United States” (WOTUS). The amendments conform the January 2023 definition to the U.S. Supreme Court’s decision in Sackett and will take effect immediately upon publishing in the Federal Register (likely to happen within two weeks). To read the pre-publication version of the revised final rule, go to Pre-publication Version of the Final Rule – Amendments to the Revised Definition of Waters of the United States (epa.gov). 

While exact details are yet to be digested, the gist of the ruling is becoming clear.  First, the significant nexus rule has been eliminated; so isolated wetlands are not jurisdictional wetlands, meaning they are not protected under the Clean Water Act.  Second, the new rule requires visual evidence of a continuous surface flow between a wetland and navigable water.  This part of the rule can get complicated as to what constitutes visual evidence of continuous surface flow.  I am sure that this will cause a lot of confusion and some developers will say there is no continuous surface flow and impact the wetland with a permit. 

Suffice it to say, this puts wetlands in North and South Carolina in jeopardy. The NC Department of Environmental Quality has estimated about 2.5 million acres of wetland have lost protection in North Carolina and I am sure a similar number in South Carolina.  The NC legislature could have continued to protect these wetlands; however, the recently passed Farm Bill eliminated state protection of isolated wetlands.   

We all need to brace ourselves for a lot of wetland loss and they are the very resource we need to protect our communities from flooding.  I think it is reasonable to expect more communities to get flooded, to have less clean water, and to have reduced climate resilience as well as miss the many other benefits that our wetlands provide. 

So go out an explore a wetland (before it gets developed?).

August 2023 Definition of Waters of the United States

On August 29, 2023 the US EPA and the US Army Corps of Engineers released a pre-publication version of the conforming amendment to the 2023 definition a Waters of the US. I cannot recall ever having seen a “conforming amendment” in all my years working with this issue. In fact, I am not sure it has ever been done before in any circumstance. I expect the next round of challenges to this rule will focus on this.

The final version of this rule is the weakest version of the Waters of the US we have ever had. The amount of wetlands no longer covered by Clean Water Act protections is the lowest it has ever been including the Navigable Waters Protection Rule era. It is also important to note that the Supreme Court Decision that prompted this new rule was a unanimous (9-0) one. All nine justices were in agreement despite popular media decrying it was the right side of the bench that dominated the Decision.

This is a final rule and becomes effective on the date it is published in the Federal Register. There is no public comment period. I am still unclear as to why the agencies are in such a hurry to not regulate wetlands.

Much of the new rule discusses why it is proper to issue a conforming amendment without a public comment period. The rule itself is fairly brief, in that it provides the edits to the existing Biden rule. The rule itself does not merge the two rules together into a single document. They leave that up to you. However, we have done this for you and the total new conforming rule follows. We will also be hosting a webinar on this new rule on September 28, 2023. Hope to see you there!

Title 33 —Navigation and Navigable Waters

Chapter II —Corps of Engineers, Department of the Army, Department of Defense

Part 328 —Definition of Waters of the United States

Authority: 33 U.S.C. 1251 et seq.

Source: 51 FR 41250, Nov. 13, 1986, unless otherwise noted.

§ 328.3 Definitions.

For the purpose of this regulation these terms are defined as follows:

(a) Waters of the United States means:

(1) Waters which are:

(i)  Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(ii) The territorial seas; or

(iii) Interstate waters,

(2)  Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;

(3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of water;

(4) Wetlands adjacent to the following waters:

(i) Waters identified in paragraph (a)(1) of this section; or

(ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to those waters.

(5) Intrastate lakes and ponds not identified in paragraphs (a)(1) through (4) of this section that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section.

(b)  The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(2) through (5) of this section:

(1)  Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act;

(2)  Prior converted cropland designated by the Secretary of Agriculture. The exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA;

(3)  Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water;

(4) Artificially irrigated areas that would revert to dry land if the irrigation ceased;

(5)  Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;

(6)  Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;

(7)  Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States; and

(8)  Swales and erosional features (e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.

(c) In this section, the following definitions apply:

(1)  Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

(2)  Adjacent means having a continuous surface connection.

(3)  High tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.

(4)  Ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.

(5)  Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.

Half Of The U.S. No Longer Subject To The New WOTUS Rule

On April 12, 2023, Daniel L. Hovland, a federal judge in North Dakota, temporarily blocked the implementation of the latest “Waters of the United States” (WOTUS) rule. This action affects 24 states and is on the heels of a previous ruling by Jeffrey Vincent Brown, another federal judge for the southern district of Texas, that now excludes Texas and Idaho from the new WOTUS rule. At issue is the codification of the significant nexus test. According to two judges, the new 2023 rule that the balance of harms weighs towards the States. It benefits the public to “ensure that federal agencies do not extend their power beyond the express delegation from Congress.”

Where is WOTUS not in use?

  • West Virginia
  • North Dakota
  • Georgia
  • Iowa
  • Alabama
  • Alaska
  • Arkansas
  • Florida
  • Indiana
  • Kansas
  • Louisiana
  • Mississippi
  • Missouri
  • Montana
  • Nebraska
  • New Hampshire
  • Ohio
  • Oklahoma
  • South Carolina
  • South Dakota
  • Tennessee
  • Utah
  • Virginia
  • Wyoming
  • Texas
  • Idaho

Implications for these states

The impact of the outcome of the Sackett case by the Supreme Court (SCOTUS) is the driver for these two decisions. At issue there is a need to have a new rule before the SCOTUS ruling. A revised rule will clarify whether the Rapanos version of the “significant nexus” test is an appropriate exercise of the EPA’s jurisdiction under the Clean Water Act.

Neither the federal government nor the States know what the controlling test is, and Supreme Court precedent to date has been of scant assistance.  Hopefully, the Supreme Court decision in Sackett will provide some clarity.  The outcome of the Sackett  case may have significant implications for the EPA’s authority to determine jurisdictional waters under the Clean Water Act.  It may also determine the EPA’s ability to enforce the 2023 WOTUS Rule.  Until then, every state will continue to swim in waters of uncertainty, ambiguity, and chaos.

Daniel L. Hovland, District Judge United States District Court

Which definition are they using?

Working in these states is a bit unclear as to which definition should be used. Presumably, the last standing definition was the WOTUS recodification rule of 2019. This rule preceded the infamous 2020 Navigable Waters Rule, which was remanded and vacated in 2021.

It will be difficult to obtain permits and authorizations if federal agencies can’t use the 2023 WOTUS rule in half of the U.S. There is no clarity as to what constitutes a jurisdictional water body, making permitting almost impossible.

We expect a decision on the Sackett case from SCOTUS by the end of the term in June. Even if the Court provides a decision, there is no doubt that the next set of court cases against EPA and the Corps will be to challenge that the 2023 rule is inconsistent with the SCOTUS decision, whatever it may be.

Sources

Fischler, J. (2023). Federal judge temporarily blocks new Biden WOTUS rule in two dozen states. Ohio Capital Journal. Retrieved from: https://ohiocapitaljournal.com/2023/04/18/federal-judge-temporarily-blocks-new-biden-wotus-rule-in-two-dozen-states/

2023 Waters of the United States

This week, the new Waters of the U.S. (WOTUS) rule was enacted. On December 30, 2022, the agencies announced the final “revised definition of ‘waters of the United States” rule. The rule was published in the Federal Register on January 18, 2023, and became effective on March 20, 2023.

The agencies developed this rule with consideration to the relevant provisions of the Clean Water Act and the statute as a whole, relevant Supreme Court case law, and the agencies’ technical expertise after more than 45 years of implementing the longstanding pre-2015 “waters of the United States” framework. This rule also considers the best available science and extensive public comment to establish a definition of “waters of the United States” that supports public health, environmental protection, agricultural activity, and economic growth.

There are numerous lawsuits and challenges to this rule. These come from both sides of the aisle and include several lobbying groups, environmental organizations, states, and tribes. In addition, we are still waiting to hear from the U.S. Supreme Court on the now-infamous Sackett case. This case directly challenges the new WOTUS rule.
The following is the new WOTUS rule. There are several pages associated with the rule, but this is the meat of it.

Part 328 Definition of Waters of the United States- Regulatory Text

  1. The authority citation for part 328 continues to read as follows:
    • Authority: 33 U.S.C. 1251 et seq.

Definitions

  1. Revise § 328.3 to read as follows:
    • For the purpose of this regulation these terms are defined as follows:
      • a) Waters of the United States means:
        • 1) Waters which are:
          • (i) Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
          • (ii) The territorial seas; or
          • (iii) Interstate waters, including interstate wetlands;
        • (2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;
        • (3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section:
          • (i) That are relatively permanent, standing or continuously flowing bodies of water; or
          • (ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;
        • (4) Wetlands adjacent to the following waters:
          • (i) Waters identified in paragraph (a)(1) of this section; or
          • (ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3)(i) of this section and with a continuous surface connection to those waters; or
          • (iii) Waters identified in paragraph (a)(2) or (3) of this section when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;
        • (5) Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) of this section:
          • (i) That are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3)(i) of this section; or
          • (ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section.
    • (b) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(2) through (5) of this section:
      • (1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act;
      • (2) Prior converted cropland designated by the Secretary of Agriculture. The exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA;
      • (3) Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water;
      • (4) Artificially irrigated areas that would revert to dry land if the irrigation ceased;
      • (5) Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;
      • (6) Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;
      • (7) Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States; and
      • (8) Swales and erosional features ( e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.
    • (c) In this section, the following definitions apply:
      • (1) Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.
      • (2) Adjacent means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are “adjacent wetlands.”
      • (3) High tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.
      • (4) Ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
      • (5) Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.
      • (6) Significantly affect means a material influence on the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section. To determine whether waters, either alone or in combination with similarly situated waters in the region, have a material influence on the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section, the functions identified in paragraph (c)(6)(i) of this section will be assessed and the factors identified in paragraph (c)(6)(ii) of this section will be considered:
        • (i) Functions to be assessed:
          • (A) Contribution of flow;
          • (B) Trapping, transformation, filtering, and transport of materials (including nutrients, sediment, and other pollutants);
          • (C) Retention and attenuation of floodwaters and runoff;
          • (D) Modulation of temperature in waters identified in paragraph (a)(1) of this section; or
          • (E) Provision of habitat and food resources for aquatic species located in waters identified in paragraph (a)(1) of this section;
        • (ii) Factors to be considered:
          • (A) The distance from a water identified in paragraph (a)(1) of this section;
          • (B) Hydrologic factors, such as the frequency, duration, magnitude, timing, and rate of hydrologic connections, including shallow subsurface flow;
          • (C) The size, density, or number of waters that have been determined to be similarly situated;
          • (D) Landscape position and geomorphology; and
          • (E) Climatological variables such as temperature, rainfall, and snowpack.

Army Corps Halts Coverage Under Nationwide Permits

Several weeks ago, landowners and permit applicants received an email notification regarding the Clean Water Act (CWA) Section 404 Nationwide Permits (NWPs). Namely, according to the notice, the Army Corps of Engineers (Army Corps) would not clarify any coverage requests under a variety of CWA Section 404 NWPs.

The Clean Water Act Section 404 NWPs are the general permits that authorize activities under the previously mentioned act, which “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.”

In the email from the Army Corps, it is stated: 

We were informed today that due to the decision of the United States District Court for the Northern District of California on October 21, 2021, to remand USEPA’s 2020 CWA 401 rule with vacatur, the U.S. Army Corps of Engineers is not finalizing any permit decisions that rely on a certification or waiver under the 2020 rule at this time. The Corps is working to provide more refined guidance that provides a way forward that allows us to finalize permit decisions. (Emphasis added) 

All interested parties can find this informal notification on at least one government website in the “Latest News” section.

However, following the current developments, the agency has not issued a formal notice or press release yet, which has halted coverage under its NWP program. The Army Corps finalized the NWPs list in January 2021, and the entire list went through formal notice and comment rulemaking. Before being issued, the NWPs were subject to the CWA Section 401 certification process. Nevertheless, this move affects the following 16 NWPs:

12. Oil or Natural Gas Pipeline Activities
21. Surface Coal Mining Activities
29. Residential Developments
39. Commercial and Institutional Developments
40. Agricultural Activities
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
48. Commercial Shellfish Mariculture Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
55. Seaweed Mariculture Activities
56. Finfish Mariculture Activities
57. Electric Utility Line and Telecommunications Activities
58. Utility Line Activities for Water and Other Substances

Information worth mentioning is the fact that the Army Corps’ notification was published weeks after EPA’s announcement that the Northern District of California court decision “requires a temporary return to EPA’s 1986 rule until EPA finalizes a new certification rule.” It is still unclear why the N.D. of California decision would result in a nationwide vacatur of the 401 Rule or why that court decision would affect NWPs. The NWPs were properly promulgated, and the procedure was based on the law that was in effect at the time. To date, there is no official explanation by any agency. In fact, there is no consideration or conclusion by any court that NWPs, or the Section 401 certifications issued for them, are unlawful.

Another circumstance that raises questions is the Senate vote 92-5 to confirm Michael Connor to serve as the assistant secretary of the Army for civil works. The notification was issued on the same date as the confirmation of Mr. Connor, so it is unknown whether he ordered the halt in permitting. Without any doubt, Mr. Connor has the power to make headway on the administration’s infrastructure, resilience, and climate goals, which in fact, will be hindered by the significant uncertainty left on its account. We can summarize that, until further notice, NWP coverage will not be granted for stormwater management projects, land- or water-based renewable energy projects; or electric, telecommunications, or water utility line activities, as well as residential, commercial, industrial, agricultural, and recreational activities.

In the meantime, until the government comes up with a solution and a decision on this matter, landowners and project proponents have an option to apply for an individual CWA Section 404 permit. The NWP process is designed to streamline the process for those activities with minimal environmental impact. As for comparison, the NWP process usually takes 60 days to be finished, while an individual permit can take up to one year or more. Annually, the Army Corps grants CWA Section 404 general permit coverage for more than 50,000 activities, and in the same period, issues on average 2,500 individual CWA 404 permits.     

This Army Corps’ notification raises many questions. First of all, it is unknown how long it will last the process of “providing more refined guidance”? Is there a need for changes and new programmatic Section 401 certifications for the NWPs mentioned above? Will the agency be on the lookout for those certifications before coverage can be granted? If the answer is YES, what changes will follow? There are two possibilities for the development: re-promulgation of NWPs, which would include new certification conditions; and the second option is the agency to strive for adding new conditions without going through the rulemaking process? Until the EPA comes up with a new certification rule, it remains unclear whether the agency will require each of the activities authorized under CWA Section 404 to receive an individual Section 401 certification.  

Property owners and project proponents are directly affected by this situation because of the potentially delayed certification process with individual permit applications. This, however, is quite a different sort of problem than halting coverage under already-issued NWPs. 

There has also been some unofficial information that the Corps has already reinstated the Nationwide permit review. However, as they have not confirmed that the Nationwide permits were put on hold they have not announced any further updates. There is a lot of confusion on this matter and it is highly recommended that you check with your local Corps District to confirm if the Nationwides in question are available for your region. There seems to be a high variability between districts as to the status of the the Nationwide program.