Last week the Obama Administration released a final rule setting new bounds on the reach of federal water jurisdiction. The “Waters of the U.S.” (WOTUS) rule is more than 20 years in the making. Uncertainty stemming from three Supreme Court decisions left the two primary agencies responsible for implementing the rule—the Environmental Protection Agency and Army Corp of Engineers—with no choice but to write new guidance on when the federal government could require a permit for projects that impact water they may eventually reach traditional jurisdictional waters. After years of reviewing and developing science to support the underlying rule the two agencies released a draft for public comment in April of 2014. Following significant backlash against the rule, the agencies twice extended the public comment period, eventually receiving more than one million public comments. ASCE held a special webinar on the proposed rule with top administration officials; one of nearly 300 stakeholder meetings the agencies undertook. ASCE submitted public comments urging key changes to the rule with input from technical committees. After nine months of reviewing comments and rewriting the rule, EPA and the Corps published a final rule last week.
How the New Rule Stacks Up
EPA and the Corps received a lot of feedback (and criticism) on the draft rule. ASCE was among the commenters, striving to provide constructive feedback that would lead to a clearer rule for engineers working on water resources projects. The final rule addresses eight of the nine areas ASCE made recommendations, making significant and substantive changes urged by ASCE and other stakeholder groups. Here are a few of the changes:
- The draft rule regulates all tributaries “without qualification,” in the agencies own words. ASCE urged a more refined definition of tributary that provides clarity on descriptive characteristics of upstream tributary features. The new rule underscores that jurisdictional water must demonstrate “volume, frequency, and duration of flow sufficient to create” a bed, bank and ordinary high water mark. References to flow were previously not included in the draft rule.
- Under the draft rule “adjacent” waters were defined as those “bordering, contiguous or neighboring” traditional navigable waters. ASCE and other stakeholders expressed concern with the potentially broad definition of neighboring. The new rule sets bright-line rules on when an adjacent body of water is considered neighboring. The final rule provides that neighboring waters are those that are:
- Within 100 feet of the ordinary high water mark
- Located in the 100-year floodplain and not more than 1,500 feet from the ordinary high water mark
- Located within 1,500 feet of the high tide line
- Riparian Areas and Floodplains. The final rule spends multiple page recognizing concerns comments expressed over the terminology associated with riparian areas and floodplains. To clarify the final rule accepts the recommendation of ASCE to adopt the standard FEMA 100 year flood plain map widely used and recognized in the civil engineering practice.
- ASCE expressed concern with the term “uplands” used in the draft rule when referring to construction of ditches. The final rule eliminates the term “uplands.”
- Stormwater control features. Many ASCE members expressed concern that the new rule would bring under jurisdiction stormwater control features, such as municipal separate storm systems or green infrastructure features. The rule addresses at length the concern ASCE raised with regard to stormwater control features such retention ponds, gutters and rain gardens. The final rule specifically excludes “stormwater control features constructed to convey, treat or store stormwater that are created in dry land.” ASCE will continue to urge that EPA and the Corps continue to encourage the use green infrastructure.
ASCE supports many of the brightline tests, exclusions and clarifications adopted in the final rule at the urging of the stakeholder community. Looking forward we will monitor and review forthcoming implementation guidelines stemming from the rule. Finally, ASCE plans to provide member education opportunities in the coming week focused on the practical implication of the rule for project managers on the ground.