The Final Rule on Waters of the U.S. was released on May 27, 2015. While the Environmental Protection Agency (EPA) made several changes to the proposed rule in response to public comments, the final rule still expands federal jurisdiction over more U.S. waters beyond current practice, guidance and the limitations affirmed by two Supreme Court decisions.
Property owners still have a lack of clarity about what is regulated by the Army Corps of Engineers or the EPA under the Clean Water Act (CWA). For that reason, the Realtor Land Institute will pursue legislative opportunities that would require the EPA to withdraw the rule and start from scratch.
The three main areas of the rule include:
Increase in jurisdiction over ephemeral streams — The tributary definition relies on presence of bed, banks, and ordinary high water mark, which can be seen even in features without ordinary flow. Ephemeral drainages (which may flow only for a few hours or days following a rain event) that were historically outside of CWA jurisdiction will now be regulated as tributaries. Because ephemeral features are pervasive on the landscape, particularly in the arid southwest, deeming these typically dry land features “waters of the U.S.” will result in a drastic increase in federal jurisdiction.
New expansive jurisdiction over adjacent waters — The rule allows for jurisdiction over all waters (not just wetlands) based on adjacency, including ponds, lakes, oxbows, and other similar water features. And the rule’s expansive definition of “neighboring” to include floodplain areas allows the agencies to assert CWA jurisdiction over many isolated features that were not previously regulated, such as isolated industrial ponds, because they are simply located near other “waters of the U.S.”
Many ditches subject to federal regulation — The broad tributary definition allows for jurisdiction over many ditches as “waters of the U.S.” The ditch exclusions are still narrow and it will be onerous for applicants to prove (through topographic maps, historic photographs, etc.) that their ditch meets the exclusion criteria.