The EPA’s new rule defining waters of the U.S. (the Clean Water Rule) was briefly the law of the land here in Texas. “Waters of the U.S.” is one of the most fundamental of environmental definitions because it effects an array of extensive legislation including Section 404 of the Clean Water Act and most developments that require filling a pond, wetland, or stream. From August 28 to October 8, 2015, the new waters of the U.S. definition was in force, but not clearly understood. It takes time and experience to find the true limits of a new legal definition. The rule has been blocked by two courts putting off implementation of the new definition for now. What is at stake in Texas?
Here are three of the biggest issues that remain undecided while Texas waits to hear from the courts:
Under the old rule, waters of the U.S. extended from a large navigable river such as the Sabine, up through the various branches that feed into it, all the way up the watershed to the smallest streams that are dry except after a good rain and the wetlands next to them. The focus for a consultant was to find the line between erosion channels, swales, and ditches that are not regulated and a stream or ditch that is regulated. In Texas, the local districts put an emphasis on regulating streams that have an ordinary high water mark. Unfortunately, defining a water of the U.S. by finding the ordinary high water mark is not as simple as it sounds. Wetland professionals had hoped that the new rule would and add clarity to the process.
Under the new rule, there are provisions that could extend or shrink the length of tributaries that meet the definition of water of the U.S. The definition of tributary could be narrower under the new rule because it requires a bed and bank to be present. There is hope for developers that this requirement could exclude smaller streams that are normally dry. Those waterways might have some evidence of an ordinary high water mark, but lack clear bed and bank, and under the Clean Water Rule, would not be regulated.
However, developers may be nervous about new provisions that regulate “tributaries” no matter how small their impact on water quality on downstream rivers and bays. The old rules require that a waterbody have a “significant” nexus to larger downstream waters, which seems to be a higher threshold for regulation than simply qualifying as a tributary. The Clean Water Rule states that all “tributaries” also have a significant nexus, but critics have trouble accepting that broad inclusion of tributaries as regulated.
Does the new rule circumvent the Supreme Court’s 2006 interpretation that a water of the U.S. must have a “significant nexus” to a downstream river or bay? Critics of the new rule are concerned that a dry creek qualifying as a tributary might not have a significant nexus to a large river or bay. To be regulated, a dry creek should have a measurable impact on the chemical, physical, or biological quality of those downstream waters. From the regulator’s point of view, one dry creek might not have a large impact, but if all of the little dry creeks in a watershed are filled in, that would have a huge effect. If both points of view are valid, you can see how far apart the two sides are.
2. Adjacent Waters
The definition of a tributary has an influence beyond streams alone. The definition of ponds and wetlands as waters of the U.S. is influenced by their proximity to a tributary. So if a swale is not a tributary, then a nearby wetland or pond might be excluded too. Of course the opposite is true as well and could have a major impact on the number of regulated waters in Texas.
The new definition of waters of the U.S. includes some specific “bright line” limits on what ponds and wetlands are regulated based on their distance from a tributary. Without getting into the gory details, there are bright lines that include wetlands as waters of the U.S. based on their distance; 100 feet, 1,500 feet, or 4,000 feet from a tributary based on the type of water and presence of flood plain. The bright line rules offer clarity to those identifying what is and may not be regulated. However, those bright lines are targets in the recent lawsuits. The connection between regulated ponds and wetlands to the water quality of large rivers and bays is supposed to be based on science. The fact is those lines are simply not scientific. Even if the regulators view them as simple tools to increase predictability, they could cause the inclusion of waters that may otherwise be excluded from regulation.
2. Texas Coastal Prairie Wetlands
Perhaps the biggest “if” lies in determining what Texas coastal prairie wetlands are regulated waters of the U.S. The new Clean Water Rule names “Texas coastal prairie wetlands” as a group of “similarly situated wetlands” that could be regulated waters of the U.S. Under previous interpretations, those wetlands were in many cases not regulated as “isolated” wetlands. The new rule identifies Texas coastal prairie wetlands as a group of similarly situated waters that should be evaluated as a group, rather than individually, for their significant nexus to downstream waters. In my view, this will make it easier for the Corps of Engineers to regulate wetlands located along the gulf coast. The new rule did not provide clear definition of the geographic area, but it did suggest a link to specific geologic formations. It likely includes prairies around Beaumont, Houston, Bay City, Victoria, Corpus Christi, and Kingsville.
At the moment, the new Clean Water Rule is on hold. If you think you may have a project that would be affected negatively by the new rules, it would be prudent to pursue an approved jurisdictional determination from the U.S. Army Corps of Engineers before the door closes. Such jurisdictional determinations are generally valid for 5 years from the date of issue and the new rule acknowledges their intent to not reopen existing decisions unless requested by the applicant.
If you have any questions, feel free to contact Aaron Brewer.
Aaron will be hosting a free webinar on Defining Waters of the U.S. and Wetland Permitting Basics on January 28, 2016. Register Now for the free webinar!