Earlier this week, I hosted a webinar titled The New Clean Water Rule: Facts, Implications & Pitfalls with Carland Holstead, a Senior Biologist and the Natural/Cultural Resources Department Manager in Terracon’s Dallas, Texas office. Holstead scored high marks with our attendees for condensing thousands of pages of new regulations into a 60-minute presentation. He highlighted how these changes impact the work you do, particularly for properties on or adjacent to water bodies and wetland areas.
Below are Carland’s answers to the audience questions that were submitted during our live event. EDR Insight wishes to sincerely thank Carland for an insightful presentation.
Is there any movement to see the remainder of the public notice comments that the EPA deemed non-substantial?
Holstead: I have not heard of any update on this. It would be great to see the comments which were not determined to be substantial, especially since only 3,000 out of 1,000,000 were determined to be substantial. I’ll look into this and will follow up should I have more information.
Will dry (former) historical canals be considered a water of the U.S.?
Holstead: Dry former historical canals could be considered Waters of the U.S. under the new rule – especially if they are adjacent to rivers which may be classified as a traditional navigable water (TNW) which is jurisdictional category number 1. Review the definition of “neighboring” provided in the definition of category number 6 – if the canals fall within the distance limitations noted there, then there is a great probability that they would be jurisdictional under the new rule. A question I would ask is do these canals display ordinary high water marks and bed and bank features? Do they connect to the rivers? If so, then they meet the definition of a tributary (category 5) and would be jurisdictional by rule under the new rule. If the canals meet the conditions of the ditches that would NOT be considered Waters of the U.S., then they likely would not be considered jurisdictional.
What about wetlands around a “constructed pond” in dry land?
Holstead: If the pond has been constructed in uplands (in dry land), wetlands around it may have potential to be jurisdictional. It would depend on whether the wetlands are located within the distance limitations noted for the “neighboring” definition. If they meet any of the scenarios noted on the slides, then they will be considered jurisdictional by rule. I would not consider the constructed pond jurisdictional though – so it depends more on the closest jurisdictional water (categories 1 through 5). If the wetlands fall within the distance limitations noted in category 8, then the wetlands would be subject to case-specific significant nexus analysis to be done by the USACE and EPA which will take some time. Again – this information is under the new rule, not what is currently in effect.
Regarding the ditch exclusions, what about a ditch constructed in dry land that flows into an isolated pond that may be within the FEMA floodplain and within 4,000 ft of a mainstay?
Holstead: If the pond is located within the FEMA floodplain and beyond 1,500 feet of the ordinary high water mark or high tide line of a mainstay water or within 4,000 feet of a mainstay water, the pond would be subject to case-specific significant nexus analysis to be done by the USACE and EPA. If the pond is located within the FEMA floodplain and within 1,500 feet of the ordinary high water mark or high tide line of a mainstay water, it would be considered neighboring, and therefore adjacent, and therefore jurisdictional by rule. Through the significant nexus analysis if the pond is determined to be jurisdictional, it would not be considered jurisdictional by rule, meaning that the pond does not fall into categories 1 through 6. As long as the ditch has been constructed in dry land, is not a relocated tributary or excavated in a tributary, does not drain wetlands, and does not directly flow into a mainstay water, it would likely not be considered jurisdictional. It’s important to remember that ditches that flow into a mainstay water, either directly or through another water, could be jurisdictional. If the pond does not then have a spillway or ditch leading to the mainstay, then the ditch would likely not be considered jurisdictional.
Can you speak to irrigation ditches rather than drainage or stormwater ditches?
Holstead: Irrigation ditches would be subject to the same ditch exclusions as drainage and stormwater ditches. It really depends on what was there historically, if anything. If the irrigation ditch is a relocated tributary or excavated in a tributary, if it drains wetlands, or if it flows directly or through another water to a mainstay water, it would likely be jurisdictional. However, if none of these are true, then it would likely not be jurisdictional. It is also important to find out if the irrigation ditch would meet the definition of a “tributary” (category 5). If it does, then it is jurisdictional by rule and the ditch exclusions do not apply.
Are “artificial” or constructed wetlands jurisdictional?
Holstead: Artificial or constructed wetlands could be jurisdictional. A lot of it depends on whether the distance limitations of “neighboring” (category 6) are triggered or the distance limitations noted in category 8 are triggered. Typically, if wetlands are constructed as part of a USACE permit process to serve as mitigation, the USACE takes jurisdictional over those wetlands as part of the compensation. It would be important to assess if the constructed wetlands would meet any of the exclusions provided in the presentation. If they would, then they would not likely be considered jurisdictional. The rule is not specific in stating that if something is artificially created but it then lies within the distance limitations it is jurisdictional or not. You could be looking at case-specific significant nexus analysis.
Are blue line and dashed blue lines considered tributaries waters of the US?
Holstead: In the past, a good rule of thumb was to assume that if something was indicated on a topographic map, especially the historic topographic maps, then it would likely be considered jurisdictional. Under the new rule, this may not always be the case. Typically streams shown on topographic maps are fairly defined – which may translate to them displaying an ordinary high water mark and bed and bank features, but that is not for sure until assessed in the field.
It’s safe to say that if something is indicated on your site during preliminary desktop analysis/due diligence, it is a good idea to get some sort of professional opinion. I have seen drainages which are noted on the topographic maps not display ordinary high water marks or bed and bank features and they do not flow to a mainstay water – under the new rule, this is not a tributary and is not jurisdictional by rule.
If a wetland is outside the FEMA floodplain but within the 4000 foot mark, is it subject to a significant nexus determination?
Holstead: In short, yes. Category 8 states that waters located within the FEMA floodplain (and further than 1,500 feet away from the ordinary high water mark or high tide line of the mainstay water) or 4,000 feet from the high tide line or ordinary high water mark of categories 1 through 5, then it is subject to case-specific significant nexus analysis.
Is the new rule effective in any of the states?
Holstead: As of today, the new rule is not effective in any states as a result of the stay granted by the Sixth Circuit Court of Appeals on October 9, 2015. This could change any day at this point.
How can an ephemeral stream have an ordinary high water mark?
Holstead: Ephemeral streams have flowing water during/after rainfall events. Depending upon how much rainfall an area experiences, there can be fairly significant flow which can result in creating ordinary high water marks and bed and bank features. I have seen streams which obviously only have flow after rainfall events display a clearly identifiable ordinary high water mark and bed and bank features. I have also seen other aquatic resources (hesitant to call them streams) not display the ordinary high water mark and bed and bank features. I would call these drainages, drainage channels, upland drainages, conveyances, etc. It’s my opinion that if a linear aquatic resource does not display an ordinary high water mark or bed and bank features, it is not a stream.
You are stating the new definition as per the 2015 CWA rule. Hasn’t this definition been stayed and so shouldn’t folks go back to the prior definition?
Holstead: You are correct that the new rule has been stayed as of October 9, 2015. Currently, we should all be operating under the prior definition/rules/regulations as the new rule is not in effect. The purpose of this webinar was to inform everyone about what the new rule is. I truly believe that the new rule will become effective again and this is a way to be better prepared for when it is. Until that time, yes everyone should refer back to the prior definition. I did include a slide listing the categories of jurisdictional waters under the prior (current) definition prior to discussing the new rule.
How best can I stay aware of any changes to the rule’s implementation date in my states of operation?
Holstead: The main thing you can do to stay aware of the changes is search the internet for news updates. On November 4, a bill passed the Senate to block the new rule completely. After that it was headed to the House of Representatives. I have not seen an update on where that stands, but I search every other day or so to try and find information. Sometimes subscribing to regular mailing lists may help for environmental law firms and/or environmental training institutes/groups could help as they frequently will send email blasts when something comes out in the news. The Swamp School is a group that sends out pretty regular emails.
FOR MORE INFORMATION
- How does the new Clean Water Rule is redefining “waters of the U.S.?”
- What can you expect when the rule takes effect?
- What should you be telling your clients?
For answers to these questions and some illustrative examples of making determinations under the new rule, listen to a replay of the webinar here.
A pdf of Carland’s slides from the event, including some illustrative examples of making determinations under the new rule, are available for download here.
Carland Holstead is a Senior Biologist and the Natural/Cultural Resources Department Manager in Terracon’s Dallas, Texas office. He oversees practices including wetland and stream determinations and delineations, USACE permitting, mitigation plan development, threatened and endangered species habitat assessments, NEPA assessments including CEs, EAs, and EISs, Cultural Resources Assessments, and ecological risk assessments. Prior to joining Terracon, Carland served as a Regulatory Specialist for the U.S. Army Corps of Engineers, where he was responsible for evaluating permit applications and issuing permits for a multitude of projects, assisting with internal regulatory initiatives, and performing regulatory program educational outreach to the public.