On August 16, 2018, after three years of litigation and court deliberations, the Final Rule on the definition of Waters of the United States (80 FR 124: 37054-37127), originally published by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) in June 2015, has been reinstated. The Final Rule was stayed nationwide in February 2016 due to several lawsuits filed against the Final Rule. In January 2018, the stay was dissolved, reinstating the Final Rule, but additional lawsuits resulted in suspending implementation of the Final Rule for two years. On August 16, 2018, the suspension was enjoined, meaning the 2015 Final Rule is now reinstated. The Final Rule replaces all prior rules and guidance on the definition of waters of the U.S. used in implementing the Clean Water Act.
What does the new rule say?
The Final Rule provides greater clarity and consistency regarding delineation of jurisdictional waters and reduces the need for case-specific evaluations. The Final Rule alters the approach of evaluating jurisdiction over associated waters, wetlands, tributaries to traditional navigable waters, interstate waters, and the territorial seas. Waters are considered adjacent, and therefore are included as waters of the U.S., if they are within 100 feet of a water of the U.S., within the 100-year floodplain and not more than 1,500 feet from a water of the U.S., or within 1,500 feet of the high tide line. The Final Rule requires case-specific application of the significant nexus test for any waters found within a 100-year floodplain or within 4,000 feet of a water of the U.S. For western vernal pools located outside of 4,000 feet of a water of the U.S., a significant nexus test must be completed for the entire watershed for these “similarly situated” wetlands. All vernal pools in that watershed will be treated similarly based on the analysis.
What waters are excluded from jurisdiction?
The Final Rule provides a long list of waters and other features that are explicitly excluded from jurisdiction regardless of their position on the landscape, although most of these were already excluded under previous Corps procedures. However, jurisdiction of “ditches” has been clarified more explicitly. The following are
not considered jurisdictional: 1) ditches with ephemeral flow that are not a relocated or excavated tributary;
2) ditches with intermittent flow that are not a relocated or excavated tributary and do not drain wetlands; and
3) ditches that do not flow into a traditional navigable water, interstate water, or the territorial seas (either directly or through another water).
What does this mean for Clean Water Act jurisdiction in California?
The Final Rule will not change how delineations are conducted in California but may change the extent of jurisdictional waters delineated. The Final Rule creates some clear boundaries (based on distance and floodplain) to use in the determination of jurisdictional waters. However, it will likely expand the effort necessary for evaluation of jurisdiction for waters outside the boundaries stated in the Final Rule, at least initially. Once such an evaluation is completed for a watershed, the analysis should be simpler.
The Final Rule makes clear that federal jurisdiction under the Clean Water Act does not affect the extent of state jurisdiction of waters, which is often larger than the extent of federal jurisdiction.
The reinstatement of the EPA and Corps Final Rule on waters of the U.S. and future implementation of the Clean Water Act does not necessitate re-evaluation of previously delineated properties, but re-evaluation of federal jurisdiction can be made at the property owner’s request.
If you need help with the delineation of waters or the permitting process for waters found on your property or would like to discuss the Final Rule and its ramifications further, please contact Keith Kwan
in the Rocklin office at (916) 782-9100; Margaret Bornyasz
in the San Diego office at (858) 279-4040; or Scott Taylor
in the Redlands office at (909) 307-0046.