The proposed new EPA wetlands rule aims to clarify regulatory authority over wetlands and other waters. It would make tributaries and adjacent wetlands "jurisdictional by rule" while other waters would require case-by-case evaluation. The rule proposes formal definitions of key terms and exempts certain lands like prior converted cropland and waste treatment systems. It is intended to provide more consistency and address uncertainties created by past Supreme Court cases. Stakeholders are encouraged to comment on the proposed rule by October 20, 2014. Case studies presented show how the new rule may impact projects near irrigation canals or isolated wetlands.
2. Presentation Outline:
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1. Intro and History
a. Key regulations
b. Regulatory authority (Corps + EPA, State)
2. How do we Delineate a Wetland?
3. Changes in Regulatory Authority Since Clean Water Act
a. SWANCC
b. Rapanos
4. Proposed Rule
a. What it is/What it isn’t, discuss comment period, and timing
b. What prompted proposed rule, discuss 9/13 EPA science document
c. Definitions
5. How Proposed Rule May Affect Project Sites
6. Case Studies
1. Irrigation channel-fed wetlands
2. Intermittent/ephemeral drainages
3. History of Wetlands Regulations
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16th century = 220 mil acres
current = 105 mil acres
1900s: advancing science increased understanding
about wetland function (habitat, water storage, water
filtering/purification, flood control, food production,
education/research, recreation)
4. Key Wetlands Regulations
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1899: Rivers and Harbors Act
1948: Federal Water Pollution Control Act
1972: Clean Water Action (CWA), Section 404
CWA mandates permits for the release of dredged or fill
materials into U.S. waters
Corps responsible to administering permits
1986: Emergency Wetland Resources Act (National
Wetlands Inventory)
1987: Corps of Engineers Wetland Delineation Manual
5. How Do We Delineate a Wetland?
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Hydric Soils
Gleying
Redoximorphic features
Hydrophytic Vegetation
Dominance test
Prevalence index
Wetland Hydrology
Surface water
High water table
Ordinary high water mark
9. Changes Since Clean Water Act
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2001: Isolated Wetlands (Supreme Court ruled, in
Solid Waste Agency of Northern Cook County
[SWANCC] v. U.S. Army Corps of Engineers, that
the Corps was not authorized to protect isolated
wetlands.
2006: Rapanos/Carabell v. U.S. extended
jurisdiction to non-navigable tributaries via
“significant nexus”.
10. Impact of Rapanos
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The Corps decides jurisdiction over the following
waters based on a fact-specific analysis (case-by-
case) to determine whether they have a significant
nexus with a traditional navigable water:
Non-navigable tributaries that are not relatively permanent
Wetlands adjacent to non-navigable tributaries that are not
relatively permanent
Wetlands adjacent to but that do not directly abut a relatively
permanent non-navigable tributary
11. Problem with Rapanos
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When the Corps takes jurisdiction over a potential
wetland is not a black and white process
Leads to uncertainty
Examples of problem sites: swales
(ephemeral/intermittant), ditches, agricultural areas,
mosaic wetlands (areas that contain both wetlands and
uplands mixed together), irrigated areas
For nearly a decade, people have asked for clarity with
the jurisdictional determination process
12. Proposed Rule
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Purpose: define scope of waters protected under
the Clean Water Act
Propose rule published in Federal Register on
April 21, 2014
Public comment period ends on October 20, 2014
13. New EPA Wetland Rule: What Prompted It?
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Three Explanations:
Inconsistent Jurisdictional Determinations
Unclear Definitions
Need to Improve Efficiency
14. EPA Science Report
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Precursor to proposed rule
Released in September 2013
Summarizes watershed-scale connectivity
Makes the case for “adjacent” and “neighboring”
wetlands
15. Proposed Rule – What’s In
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Jurisdictional by Rule
The big three:
Navigable waters
Interstate waters
Territorial seas
Tributaries
Adjacent waters and wetlands
Case-by-Case
“Other waters” via significant nexus evaluation
16. Proposed Rule – What’s Out
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Pre-existing situations (i.e., prior converted cropland,
ranching, farming activities)
Waste treatment systems
Gullies/rills/non-wetland swales
Most ditches (except tributary ditches)
Irrigated areas that would revert to uplands
Artificial lakes/ponds constructed in uplands
Groundwater
17. Definitions
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Adjacent: bordering, contiguous, or neighboring.
Waters, including 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 waters.’’
Neighboring: includes waters located within the
riparian area or floodplain of a water of the US, or
waters with a shallow subsurface hydrologic
connection or confined surface hydrologic connection
to such a jurisdictional water.
18. Definitions (con’t)
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Riparian Area: an area bordering a water where surface
or subsurface hydrology directly influence the ecological
processes and plant and animal community structure in
that area.
Floodplain: an area bordering inland or coastal waters
that was formed by sediment deposition from such
water under present climatic conditions and is inundated
during periods of moderate to high water flows.
19. Definitions (con’t)
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Tributary: water physically characterized by the
presence of a bed/bank and ordinary high water
mark which contributes flow, either directly or
through another water, to a water of the US.
20. EPA Science Report (con’t)
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EORI Conference
Source: Modified from EPA 2013
Other Waters (isolated wetlands) Tributaries/Adjacent Wetlands
21. How Does the New Rule Affect Projects?
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Pipelines/utilities should be evaluated in
intermittent/ephemeral drainages
Projects located in floodplains/riparian areas may
need a permit
Additional site-specific data may be needed to
facilitate a significant nexus decision
22. Case Study #1: Irrigated Wetland
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Located in Laramie, Wyoming
Property Owner wanted to develop property
Close to Laramie River
Wetlands found on the property, but were formed
from irrigation water, not the river
Status: Jurisdictional
24. Case Study #2: Isolated Wetland
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Located in Cheyenne, Wyoming
Isolated reservoir located in an ephemeral drainage
Large wetland footprint
Corps determined that no significant nexus exists
Status: Not Jurisdictional
26. Significant Changes- Summary
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Tributaries and Adjacent Wetlands will be
“Jurisdictional by Rule”
“Other waters” to be evaluated on a case-by-case
basis
Formal definitions of adjacent, neighboring, riparian
area, floodplain, tributary, wetland, and significant
nexus