Do you need a permit to fill in that ditch on your property? How about that low spot that floods for a week or two every once in a while? To the layperson, it can be a surprise which “waters” the Corps of Engineers requires a permit to fill, excavate, or impound. Which “waters” does the Corps consider under their jurisdiction? That depends on the definition of “waters of the U.S.” and new proposed rules take a stab at clarifying the definition.
The current rules and guidance for defining “waters of the U.S.” require site-specific evaluation and risk being overturned by the Corps or EPA upon review. Environmental consultants and regulators are both aware of the uncertainty that exists. The Corps and EPA have issued draft rules to define “waters of the U.S.” in their attempt to add certainty and predictability to the regulatory process. The draft rule is out in the April 21, 2014, Federal Register and comments are due July 21, 2014.
The big question is: How will this new rule affect properties and projects in the U.S.? With the impending issuance of the new rule, will an area that is wet on occasion be instantly transformed into a jurisdictional “water of the U.S.” subject to new permitting requirements? To put it simply, no! Things will not change much. This author believes that the new rules are an attempt to canonize the way the Corps and EPA have been interpreting the existing rules and guidance. A jurisdictional determination made today will likely be the same as one made once the rules are passed – assuming the final rule is substantially similar to the draft rule.
Why is it so hard to define “waters of the U.S.”? It is fairly easy to see that the Corps may have jurisdiction over a project in the Trinity River, which is a “Traditional Navigable Water.” But as you work your way up the watershed, for example through the Trinity’s tributaries of Elm Branch, Denton Creek, Bakers Branch, and up to an unnamed tributary that first forms on your property or a wetland next to that unnamed tributary, where does that jurisdiction start and end? It is those ephemeral streams, ditches, and tanks in the upper end of the watershed where most of the uncertainty lies.
The existing and proposed rules are equally complex for determining when that little ditch or adjacent wet spot may be a jurisdictional “water of the U.S.” thus requiring a Section 404 permit for certain activities. The way the rules have been interpreted, and probably will be after the final rule is published, if a ditch is in an upland area and only drains uplands with less than perennial flow, then it is probably not a jurisdictional “water of the U.S.” Also not likely to change is the scenario where a ditch was excavated years ago to re-route the flow from a natural ephemeral stream; then that normally dry ditch may be a jurisdictional “water of the U.S.” The new draft rules promise increased certainty and predictability in the process, which could reduce cost, time, and risks associated with these determinations.
It is critical that streams and wetlands be accurately identified and delineated and their jurisdictional determination be carefully considered. W&M staff have decades of experience delineating streams and wetlands, providing preliminary jurisdictional determination, and assisting with the permit process. If you have any questions about this article or wetlands at your project, please contact Aaron Brewer.