Non-Jurisdictional Waters in the EPA’s Draft “Waters of the US” Rule; Clean Water Act

In the newly proposed rule to re-define “waters of the United States” for purposes of determining which waters (and land areas) are within the jurisdiction of the Clean Water Act, the EPA also proposes to exclude certain waters defined in the draft rule. This post will summarize these non-jurisdictional waters.

These exemptions will become very valuable, and I can foresee fierce disputes over whether a water feature comes within one of these exemptions, because the EPA proposes to let the exclusions trump any language of inclusion elsewhere in the proposed rule. The non-jurisdictional waters are:

(i) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the CWA.

(ii) Prior converted cropland, although the final authority regarding CWA jurisdiction would remain with EPA notwithstanding any other Federal agency’s determination of an area’s status as prior converted cropland.

(iii) Ditches that are excavated wholly in uplands. This means ditches that: (1) at no point along their length are excavated in a jurisdictional wetland (or other water); (2) drain only uplands; and (3) have less than perennial flow. To meet this exclusion the ditch must meet all three sub-parts at all times.

(iv) Ditches that do not contribute flow, either directly or through another water, to a water used or susceptible to being used in interstate or foreign commerce, or interstate waters and wetlands, or the territorial seas, or any impoundments of any of these waters.

(v) The following “features”:

(A) Artificially irrigated areas that would revert to upland should application of irrigation water to that area cease;

(B) Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;

(C) Artificial reflecting pools or swimming pools created by excavating and/or diking dry land;

(D) Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons;

(E) Water-filled depressions created incidental to construction activity;

(F) Groundwater, including groundwater drained through subsurface drainage systems; and

(G) Gullies and rills and non-wetland swales.

Now let’s look at some statements included in this draft rule that define “gullies”, “rills” and “swales.” Put aside for the moment any preconceived notions of these terms, or how they may be defined in other contexts.

Gullies. Gullies are relatively deep channels that are ordinarily formed on valley sides and floors where no channel previously existed. The two main processes that result in the formation of gullies are downcutting and headcutting, which are forms of longitudinal (incising) erosion. These actions ordinarily result in erosional cuts that are often deeper than they are wide, with very steep banks, often small beds, which typically only carry water during precipitation events. Gullies are younger than streams in geologic age and typically lack an ordinary high water mark (OHWM). They are commonly found in areas with low-density vegetative cover or with soils that are highly erodible. EPA notes that some ephemeral streams are called ‘‘gullies’’ when they are not gullies in the technical sense.

Rills. Rills are formed by overland water flows eroding the soil surface during rain storms. Rills are less permanent on the landscape than streams and typically lack an OHWM.

Swales. Swales are non-channelized, shallow trough-like depressions that carry water mainly during rainstorms or snowmelt. Swales typically lack the OHWM that is characteristic of jurisdictional streams. Swales may also be considered wetlands if they fit that definition. Wetland swales would also be analyzed either as adjacent waters or as “other waters”, depending on whether they meet the proposed definition of “adjacent.”

Finally we come to “puddles” which, you will note, is not included in the list of excluded waters. Supposedly this is not because EPA considers puddles jurisdictional, it is because EPA now thinks ‘puddles’ is an insufficiently precise hydrologic term. So while you may still call your favorite Poodle Puddles, using the term in this rule would be contrary to the stated goals of increased clarity, predictability, and certainty. The EPA was also concerned that listing puddles could have created the misunderstanding that anything larger than a puddle was jurisdictional, which is not the intent of this rule.

Now, remember that the overall concept behind this draft rule is that all waters in a basin that have a “significant nexus” or connection with a traditional “waters of the US”, are also waters of the US. While this section defines non-jurisdictional waters, the EPA still plans to use non-jurisdictional waters to connect other waters together.

Exclusion as a “waters of the US” is not a complete pass under the CWA. Some of these geographic features (ditches, rills, gullies) may function as ‘‘point sources’’ under CWA section 502(14), such that discharges of pollutants to waters through these features may be subject to other CWA regulations (e.g., CWA section 402).
The EPA is specifically requesting comments to more clearly define the differences between jurisdictional waters and non-jurisdictional waters, including these proposed defined terms. Please see my separate blog post compiling the issues on which the EPA is specifically requesting comments throughout the entire draft rule.

So here’s where the water really turns to mud on these non-jurisdictional waters. Can you and nine other people of normal but different intelligence and experience, exercising normal discernment, look at the same property and come to the exact same conclusion about which parts of the property are jurisdictional? And remember, the fine for being wrong could be a cool $75,000 per day. If not, then maybe there are some changes you could suggest to the EPA in the form of written comments to this rule.

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