November 25, 2017, 1:58 am
Upcoming Changes to the Definition of Waters of the U.S.

The Clean Water Act (CWA) was created with the purpose of protecting the biological, chemical and physical properties of the waterways of the United States. Currently, the Environmental Protection Agency (EPA) oversees the primary responsibilities of implementing these goals. Through the authority of Section 404 of the CWA, the EPA grants the U.S. Army Corps of Engineers (USACE) the authorization to oversee the implementation of regulatory policy concerning the deposition of fill material in Waters of the U.S. New guidance has been proposed to clarify the definition of Waters of the U.S. It was developed to help alleviate confusion following two recent Supreme Court cases that have dealt with the scope of regulatory oversight of the EPA and the USACE. The proposed regulation will expand what waters, including wetlands, are considered Waters of the U.S., or jurisdictional waters.

 

 

 

 

The 1985 Supreme Court case, United States v. Riverside Bayview, offered an initial glance at the ability of the federal government to regulate certain wetlands as jurisdictional waters. Since then, two more Supreme Court cases, Solid Waste Agency of Northern Cook County (SWANCC) v. USACE (2001) and Rapanos v. United States (2006), have further sought to clarify the regulatory oversight of the EPA and the USACE. The USACE asserted jurisdiction over federal waters by stating that waterfowl and other migratory birds utilize traditionally navigable waters, such as rivers, tidal creeks, and maritime seas, and other water bodies, including wetlands, ponds, and lakes, for aspects of their survival, including foraging, nesting, and cover. Therefore, these bodies of water play a vital role in the survivability of migratory birds, correlating the ecological benefits of these waters to the interstate commerce of the bird (deemed the “migratory bird rule”). A consortium of towns in Cook County, Illinois, wanted to convert abandoned mine quarries into a sewage treatment facility; however, the USACE asserted jurisdiction over the isolated mine quarry ponds, based on their interpretation of the “migratory bird rule.” The Supreme Court rejected the agency’s use of the migratory bird rule, determining the USACE could not use the ecological value of the mine quarry ponds in conjunction with the economic value of the birds. In 2006, further clarification on the jurisdictional status of wetlands was challenged in the Rapanos case. The case arose when John A. Rapanos was charged both civilly and criminally for depositing fill material in a wetland. The resulting Supreme Court plurality determined that the USACE did not possess jurisdiction over all waterbodies. Furthermore, wetlands and other waters that do not contain permanent surface water connections to traditionally navigable waters can be considered jurisdictional only if there is a “significant nexus” connecting them. Since then, this rationale has been utilized by the regulatory agencies in determining the limits of federal jurisdiction of wetlands.

In conjunction with past Supreme Court rulings, the EPA and the USACE have established methods that assist wetland scientists in determining what are considered Waters of the U.S. The 1987 USACE Wetland Delineation Manual was the USACE’s first attempt at determining what parameters should be utilized when identifying wetlands. Three wetland parameters were established: hydrology, vegetation, and soils. In 2010, Regional Supplements were published in order to better assist field determinations for identifying wetland areas. The Regional Supplements were designed for different Land Use Regions throughout the country, as determined by the United States Department of Agriculture (USDA) and Natural Resource Conservation Service (NRCS). The Regional Supplements relied more heavily on hydric soil indicators, thus altering the USACE’s determination of whether an investigation area is a wetland.

In addition to the creation of the Regional Supplements, the new proposed definition of Waters of the U.S. would expand areas claimed as jurisdictional waters and/or wetlands. The new definition, according to the federal agencies, is designed to alleviate confusion when determining what hydrological features are federal waters. In some Land Use Regions, most hydrological features will be deemed federal waters due to their geological position in the landscape. The nexus between these previous non-jurisdictional wetlands will be established through subsurface hydrologic connections. The agencies will be establishing a significant nexus between upstream hydrological features and downstream waterbodies through their biological, chemical, and physical relationships.

The definition of Waters of the U.S. and characterization of wetland areas are ever changing. The SWANCC and Rapanos cases both sought to clarify the reach of the federal government concerning Waters of the U.S. The new definition of federal waters is a result of collaborative efforts between the scientific community and the federal agencies responsible for overseeing the integrity of hydrological systems in the U.S. It remains to be seen what additional revisions will be made before the regulation language is finalized.