 | Much has been said in the news lately about the Clean Water Rule. Some of what is said in the media, appears to me, to be misinformed and I thought in this blog article I would try to clarify some of the details of the Clean Water Rule, as succinctly as possible. The original 297 page proposed Clean Water Rule was issued in April 2014. Since that time, the EPA and Corps of Engineers have received over one million public comments. Reflecting public comments, the Final Rule was informally issued |
May 27, 2015, and then published in the Federal Register on June 28, 2015, to become effective on August 28, 2015. Numerous court cases were filed against the EPA and Corps of Engineers. A nationwide court-ordered stay was given on October 9, 2015, by U.S. Court of Appeals for the 6th Circuit (circuit court with jurisdiction over Michigan, Ohio, Kentucky, and Tennessee). The nationwide stay means that the prior regulations are in effect for making jurisdictional determinations or taking other actions based on definitions of “waters of the U.S” (WOTUS).
In a “nutshell”, the Clean Water Rule defines eight waters of the United States categories, and clarifies the definitions of categories 5 through 8.
Clean Water Rule’s 8 WOTUS Categories:
1. Traditional Navigable Waters*
2. Interstate Waters and Wetlands*
3. Territorial Seas*
4. Impoundments of WOTUS*
5. Tributaries to 1-3 (requires both OHWM** & bed/banks)
6. Adjacent Waters to 1-5
7. Similarly Situated Waters with significant nexus
i. Prairie potholes (upper Midwest)
ii. Carolina Bays and Delmarva bays (Atlantic coastal plain)
iii. Pocosins (Central Atlantic coastal plain)
iv. Western vernal pools (California)
v. Texas coastal prairie wetlands (Texas gulf coast)
8. Case-Specific Waters with significant nexus
i. Within 100-year floodplain, but > 1,500’ from OHWM
ii. Within 4,000’ of OHWM or High Tide Line
The Clean Water Rule attempts to reflect the best current science; align with the past Supreme Court decisions; rely on agency experience and expertise; reflect public input and comments; and protect public health, the economy, and the environment. Another potential benefit from this rule is the standardization among Corps of Engineers district offices in the administration of the Clean Water Act, with the additional clarification of these waters of the U.S. definitions.
What is NOT considered “waters of the United States” are waste treatment systems; prior converted cropland; artificially irrigated areas, swimming pools, reflecting pools, & ornamental waters constructed in dry land; man-made lakes/ponds constructed in dry land; water-filled depressions incidental to construction & mining; erosional features – gullies, rills, non-wetland swales; lawfully constructed grassed waterways; puddles; groundwater; stormwater control features constructed in dry land; wastewater recycling structures constructed in dry land; and certain flow-defined ditches.
Now, we wait on the court system… There is some debate if the 6th Circuit has the authority to declare a NATIONWIDE stay of this rule.
-JMB
*No change from previous regulations.
** Ordinary High Water Mark – that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, presence of litter and debris or other appropriate means
Source:
Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules, Effective August 28, 2015
In a “nutshell”, the Clean Water Rule defines eight waters of the United States categories, and clarifies the definitions of categories 5 through 8.
Clean Water Rule’s 8 WOTUS Categories:
1. Traditional Navigable Waters*
2. Interstate Waters and Wetlands*
3. Territorial Seas*
4. Impoundments of WOTUS*
5. Tributaries to 1-3 (requires both OHWM** & bed/banks)
6. Adjacent Waters to 1-5
7. Similarly Situated Waters with significant nexus
i. Prairie potholes (upper Midwest)
ii. Carolina Bays and Delmarva bays (Atlantic coastal plain)
iii. Pocosins (Central Atlantic coastal plain)
iv. Western vernal pools (California)
v. Texas coastal prairie wetlands (Texas gulf coast)
8. Case-Specific Waters with significant nexus
i. Within 100-year floodplain, but > 1,500’ from OHWM
ii. Within 4,000’ of OHWM or High Tide Line
The Clean Water Rule attempts to reflect the best current science; align with the past Supreme Court decisions; rely on agency experience and expertise; reflect public input and comments; and protect public health, the economy, and the environment. Another potential benefit from this rule is the standardization among Corps of Engineers district offices in the administration of the Clean Water Act, with the additional clarification of these waters of the U.S. definitions.
What is NOT considered “waters of the United States” are waste treatment systems; prior converted cropland; artificially irrigated areas, swimming pools, reflecting pools, & ornamental waters constructed in dry land; man-made lakes/ponds constructed in dry land; water-filled depressions incidental to construction & mining; erosional features – gullies, rills, non-wetland swales; lawfully constructed grassed waterways; puddles; groundwater; stormwater control features constructed in dry land; wastewater recycling structures constructed in dry land; and certain flow-defined ditches.
Now, we wait on the court system… There is some debate if the 6th Circuit has the authority to declare a NATIONWIDE stay of this rule.
-JMB
*No change from previous regulations.
** Ordinary High Water Mark – that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, presence of litter and debris or other appropriate means
Source:
Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules, Effective August 28, 2015
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