By Nicole Cook
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There’s a new “waters of the U.S.” (WOTUS) rule. On January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers published the “Navigable Waters Protection Rule” defining the scope of water features that are federally regulated under the Federal Water Pollution Control Act, or the “Clean Water Act” (CWA) as it is more commonly called. Exactly how the new WOTUS rule will impact farming operations remains to be seen. What is known is that, under the new rule, the agencies have narrowed the definition of which water-related features are deemed to be federally protected and, thus, subject to permitting requirements under the CWA. For example, groundwater is not protected under the new WOTUS definition, and features that channel or pool with surface water are not protected if the water only flows or pools after a single precipitating event. Keep reading for more information about what we know about the new rule so far.
WHAT ARE PROTECTED WOTUS?
The new rule lists four specific categories of waters that are deemed to be protected under the CWA as WOTUS. The new rule also makes it clear that any water feature that is not explicitly listed as one of those four “jurisdictional waters” is deemed to be outside the protection of the CWA. The four protected jurisdictional waters are:
Territorial seas and traditional navigable waters;
Perennial and intermittent tributaries that contribute surface water flow to territorial seas and traditional navigable waters;
Certain lakes, ponds, and impoundments of jurisdictional waters; and
Wetlands adjacent to other jurisdictional water.
Territorial seas and traditional navigable waters are things like large rivers and lakes like the Mississippi River and the Great Lakes, and tidally-influenced waterbodies used in interstate or foreign commerce, like the Chesapeake Bay.
A tributary is defined in the new rule as a river, stream or similarly naturally occurring surface water channel that contributes surface water flow to a territorial sea or traditional navigable water in a typical year either directly or indirectly through other tributaries, jurisdictional lakes, ponds, or impoundments, or adjacent wetlands. A typical year is the normal periodic range of precipitation and other climactic variables for that waterbody. What might be most important to know is that, under the new rule, a protected tributary must typically flow more often than only after a single rain or snow melt. This means that ditches, which are defined as constructed or excavated channels used to convey water, are only considered tributaries if flow from them occurs more often than only after it rains (and they were either constructed in or they relocate a tributary, or they were constructed in an adjacent wetland). Or, another way to think about it is that a protected tributary includes a ditch that either relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch is perennial or intermittent (and thus water doesn’t only flow after a single precipitation event) and contributes surface water flow to a traditional navigable water or territorial sea in a typical year.
The new rule defines “lakes and ponds, and impoundments of jurisdictional waters” as standing bodies of open water that contribute surface water flow in a typical year to a territorial sea or traditional navigable water either directly or through a tributary, another jurisdictional lake, pond, or impoundment, or an adjacent wetland. They are also deemed to be jurisdictional waters if they contribute surface water flow through channelized nonjurisdictional surface waters, through artificial features (including culverts and spillways), or through natural features (including debris piles and boulder fields). A lake, pond, or impoundment of a jurisdictional water is also jurisdictional if, in a typical year, it is inundated by flooding from a territorial sea or traditional navigable water, or tributary, or from another jurisdictional lake, pond, or impoundment.
Under the new rule, “adjacent wetlands” are wetlands that physically touch other jurisdictional waters at one point or side. That is, they touch a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water. An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year. Wetlands separated from a WOTUS by only a natural berm, bank, dune or other similar natural feature are considered to be “adjacent” as are wetlands inundated by flooding from a WOTUS in a typical year. Wetlands that are physically separated from a jurisdictional water by an artificial dike, barrier, or similar artificial structure will be deemed to be “adjacent” if that structure allows for a direct hydrologic surface connection between the wetlands and the jurisdictional water in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature.
WHAT ARE NOT PROTECTED WOTUS?
The new rule also specifically excludes certain water-related features from the definition of WOTUS. The agencies have deemed these excluded water features to be “non-jurisdictional,” and, thus, not protected as WOTUS under the CWA. The water features that are identified as non-jurisdictional are:
Groundwater, including groundwater drained through subsurface drainage systems such as drains used in agricultural lands;
“Ephemeral features” (features that only have flowing water for short periods of time in response to rainfall or ice melt), including ephemeral streams, swales, gullies, rills, and pools;
Diffuse stormwater runoff and directional sheet flow over upland;
Ditches like many farm and roadside ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands, subject to certain limitations;
Prior converted cropland, unless the cropland is abandoned/not used for agricultural production, enrolled in long-term and other government conservation programs, or left idle or fallow for nutrient retention or soil recovery following natural disasters like hurricanes or drought for the preceding five years and has reverted to wetlands;
Artificially irrigated areas, including fields flooded for agricultural purposes, that would revert to upland if not artificially irrigated;
Artificial lakes and ponds , including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in nonjurisdictional waters (even where they may have a surface water connection to a downstream jurisdictional water in a typical year);
Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
Groundwater recharge, water reuse, and wastewater recycling structures , including detention, retention and infiltration basins and ponds, that are constructed in upland or in non-jurisdictional waters; and
Waste treatment systems.
Waste treatment systems are defined in the new rule as including all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater or stormwater prior to discharge (or eliminating any such discharge).
WHAT ELSE IS NEW UNDER THE NEW RULE?
The new rule clarifies that groundwater, including groundwater drained through subsurface drainage systems like tile drains used in agricultural land is excluded under the rule.
It also clarifies the distinctions between waters subject to federal authority and waters subject to the sole control of the states and tribes. Remember, although no longer subject to federal regulation under the CWA, “ephemeral” water flow may still be regulated at the state level.
WHAT’S NOT NEW?
The new rule does not change the exemptions under the CWA section 404(f) that relieve farmers and ranchers of the need for authorization for many types of agricultural discharges into WOTUS.
WHERE CAN I FIND MORE INFO.?
The new rule will become effective 60 days after it’s published in the federal register. Legal challenges to the new rule are expected, so be sure to watch this blog for updates.
You can learn more about how the agencies developed the new rule and how the agencies intend to implement the new rule, including how they will determine what are surface water features, or what is a perennial or intermittent flow, and how they’ll determine what is a typical year, by clicking on the links below.
The EPA has also posted photographs of examples of what is and is not deemed to be WOTUS under the new rule. You can find those by clicking here.
For more information about the history of the WOTUS law, search this blog for “WOTUS.”