The Waters of the U.S. Rule

Published: June 5, 2015

Genesis 1 records day 3 of creation in this way ““Let the water under the sky be gathered to one place, and let dry ground appear.” And it was so.” And then the EPA found a “significant nexus” between water on land and water in navigable waters.

The Clean Water Act passed by Congress in 1972 gave authority to the EPA to regulate water pollution on waters of the U.S., specifically navigable waters. Resulting regulations targeted not just navigable waters but waters flowing into waters that flow in to navigable waters. In several Supreme Court cases, the majority of justices said the EPA was stretching the definition of waters of the U.S. further than the law allowed.

The EPA recently released a final Clean Water Rule, often referred to as the Waters of the U.S. (or WOTUS) rule. WOTUS seeks to define which waters are subject to EPA and Army Corp of Engineer authority.

A few definitions in the Rule may be helpful. Navigable waters are easily recognized, clearly protected and not a point of contention in the Rule. Tributaries to navigable waters, by definition, must show physical features of flowing water – a bed, bank and ordinary high water mark.  WOTUS states “Tributary streams, including perennial, intermittent, and ephemeral streams, are chemically, physically, and biologically connected to downstream waters” and “are the dominant source of water in most rivers.” This means that these perennial, intermittent and ephemeral streams are waters of the US and subject to Clean Water Act regulations.

Nearby waters covered by the WOTUS Rule are waters more difficult to define. Nearby waters include, but are not limited to, waters within a minimum of 100 feet of jurisdictional waters or within a 100-year floodplain. This definition of nearby waters expands the quantity of streams, ponds, wetlands, etc. beyond what most farmers previously recognized as regulated.

Trying to get a handle on whether water sitting on or flowing across a particular parcel of land is subject to EPA jurisdiction can be daunting. A tool found at http://geosyntec-can.maps.arcgis.com/apps/OnePane/basicviewer/index.html?appid=9952781243db4c069d0556d04d7d8339 provides some help. Using the USGS National Hydrography Dataset the tool allows users to zoom in to particular parcels of land and observe waters that may be subject to the WOTUS rule.

A cursory glance at Missouri farmland indicates that most parcels of land have perennial or intermittent streams flowing across or by them. Many of what the National Hydrograph Dataset lists as stream (and hence a tributary according the WOTUS rule) are named creeks or branches. Many of these creeks and branches have designated ponds or wetlands within 100 feet of them.

The EPA states that the “Clean Water Rule will provide greater clarity and certainty to farmers, will not create any new permitting requirements, and will not add economic burden on agriculture.” This claim is a point of disagreement between many readers of the Rule.

Addendum: The map referenced above was generated by the Agriculture’s WOTUS Mapping Initiative, funded by the American Farm Bureau and other agricultural groups. It simply maps all features available in several national databases such as the National Hydrography Dataset, National Wetlands Inventory and FEMA 100/500 Year Floodplain data. The WOTUS rule specifically states “Among the types of remote sensing or mapping information that can assist in establishing the presence of water are USGS topographic data, the USGS National Hydrography Dataset (NHD), Natural Resources Conservation Service (NRCS) Soil Surveys, and State or local stream maps, as well as the analysis of aerial photographs, and light detection and ranging (also known as LIDAR) data,…”

Despite the EPA’s stated objective of “providing greater clarity,” it is uncertain how well these databases provide quick information in knowing what water on individual parcels of land is covered by the WOTUS rule. Some contend that these databases overestimate the amount of water subject to WOTUS because such items as ponds identified in the maps may not actually be covered. Others contend that the databases underestimate the amount of water subject to WOTUS because they do not designate all areas showing “physical features of flowing water” which WOTUS defines as a regulated tributary.