In the world of all things water, there has been a persistently murky issue for landowners: Which surface water features on their property are subject to federal regulation? After decades of such uncertainty, a final rule proposed by the U.S. Environmental Protection Agency (EPA) is providing a definition of which waters are subject to Clean Water Act Section 404 permitting that will guide business owners who are exploring infrastructure development.
Clarifying what defines “waters of the United States” (WOTUS), the EPA in January 2020 announced its final version of a rule governing what waterways would be within its Clean Water Act of 1972 purview. The “Navigable Waters Protection Rule” outlines federal restraint regarding control over surface water features in the U.S. and its territories. The final rule, printed in the Federal Register on April 21, 2020, will become effective 60 days after publication, though likely litigation challenging the final rule may result in continuing regulation of WOTUS under the current definitions for some time.
The latest rule deregulates hundreds of thousands – perhaps millions – of miles of ephemeral streambeds and thousands of acres of man-made farm ponds and adjacent wetlands. To EPA Administrator Andrew Wheeler, it “strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters.”
For developers and stakeholders, this means that environmental compliance requirements for projects could be completely different. Project costs could potentially decrease, but how will that affect sustainable infrastructure goals?
Defining Waters of the United States
For years under the Clean Water Act, the EPA defined WOTUS as including ephemeral streams. These waterways only flow during or shortly after a wet weather event and act as nature’s initial conduit to divert the water to more permanent aquatic habitats. The regulation of ephemeral surface water resources – and how to justly define them in their varying forms, from man-made drainage ditches to natural channels and erosive gullies – has been subjective historically, with regulators unsure “how far up the hill are we going with the CWA?”. This has resulted in confusion for business owners tasked with complying with Clean Water Act regulations.
Previous environmental laws have built upon asserting jurisdiction to surface water features that had a nexus to traditional navigable waters (TNWs). Examples of TNWs, of which the EPA maintains a list, include the Mississippi River, the Great Lakes, Chesapeake Bay and the Erie Canal, to name only a few. Over time, federal jurisdiction applied to surface waters continued to progress up watersheds, ultimately to the origin of all surface water features. The proposed rule focuses CWA purview over surface water features whose regulation/preservation is key to maintaining/protection TNWs, hence the name “Navigable Waters Protection Rule.”
As part of the new rule, land owners will need to re-evaluate what now qualifies as WOTUS on property slated for project development and construction. The EPA notes there are no current or planned desktop mapping efforts or sources that can exclusively identify the exact geography and flow patterns of surface water features. While desktop resources such as National Wetlands Inventory maps, USGS maps, and the National Hydrography Dataset flowline exist, such mapping was done using remote sensing or modeling and doesn’t reflect onsite conditions. Field surveys remain the best way to inventory surface water features in a project area, though can be guided by a thorough desktop review to make the field surveys more efficient.
Integrating the Final Rule into Project Strategy
Under the new rule, project developers will need to approach EPA compliance strategically and programmatically to meet goals while reducing environmental impacts. Partnering with a specialized environmental and sustainability consultant can ensure optimal project planning, design and resource management.
Sustainable projects should follow a simple series of steps:
- Assess your proposed project via desktop review and if warranted, initial field reconnaissance. Feedback can determine potential red flags, obvious avoidance measures that can be taken early in project design, and scenarios regarding potential permitting timelines and cost.
- Develop a geo-referenced dataset of surface water features subject to Clean Water Act regulation. Collected by onsite field surveys within project boundaries, these datasets can aide project engineers by incorporating them into computer-aided drafting software. Engineers in real-time can quantify impacts for design scenarios, and environmental service professionals can provide guidance, depending on permit strategy.
- Discuss permit strategies. Project stakeholder collaboration may identify a cost-effective, risk-adverse approach. Traditionally, projects were designed on paper and permits were obtained to support the design. Times have changed, and project designs are integrating environmental considerations into initial design and operational aspects.
- Working with Nature. The proposed rule will result in deregulation of ephemeral streambeds, though consideration should be given to the functions/values such ephemeral streambeds may be providing within any given project area. For example, utilizing ephemeral streambeds to receive detention basin overflows, or buffering ephemeral streambeds as green space riparian corridor may fit well with project objectives, decreasing project costs (using nature in-lieu of engineering drainage ditches or pipes) and allowing existing “natural features” to green up the project.