We know POTUS, FLOTUS and SCOTUS. Some people have not yet met their nature-loving cousin WOTUS, “Waters of the United States”. The definition of a WOTUS was recently subjected to a rule “makeover” in an attempt to clarify regulation as to what is a WOTUS and what is not a WOTUS. I attended a talk given by Erica Sachs Lambert of the EPA, in which Erica shared the EPA’s view of the made-over WOTUS. For your edification and education we will attempt to clarify the EPA’s clarification.
In January of this year, Jim wrote an article critical of the new rule because it was seemingly incongruent with the original purpose of the Clean Water Act (CWA), which was to protect our clean waters. The new rule’s stated purpose was changed to protecting “wildlife”.
The rule was effective August 28, 2015, so is currently active in most states. Thirteen states have challenged the rule, and a judge in North Dakota issued an injunction against it, stopping enforcement of the new rule. New Hampshire, however, isn’t one of the thirteen, so until the rule is challenged in our jurisdiction, the rule is going to be enforced, and we must figure it out. Note: As of October 9 according to the National Association of Homebuilders, the injunction has been extended to the entire U.S. However, the issue of whether the injunction will continue still lies in the balance as the 6th Circuit’s next question to be briefed in the case is whether the Court even has jurisdiction to make that decision.
One of the waters subject to the jurisdiction of the EPA are “tributaries”. The definition of “tributary” is new, and is said by the agency to limit the tributaries that are regulated. Prior to the rule, potentially all tributaries were regulated.
Tributaries are defined as:
· Contributing flow to a jurisdictional water
· Having the presence of bed and banks
· Having an indicator of an ordinary high water mark (“OHWM”)
To flesh this definition out, Ms. Lambert indicated:
· A tributary can be manmade
· A tributary doesn’t lose its designation if there is a natural break (like it goes underground) for any length, or flattens out temporarily, and it can flatten out multiple times. There must be the same contribution of flow, but there can be a constructed interruption of flow, like a dike.
· A bed can be fully vegetated, but it must have a bank
· If it is an erosional feature, it may be excluded from jurisdiction.
· A bank is a break in slope. Look for a topographical change. A wetland is not a tributary because it does not have a bed and bank.
· An ephemeral flowing water can still be a tributary if it flows enough to create a bed and banks.
· The rule now explicitly excludes certain types of ditches, such as ditches that flow only after precipitation.
If a water is “adjacent” to a defined water (like a tributary), it falls under the EPA’s jurisdiction. “Adjacent” means bordering, contiguous, or “neighboring”. “Neighboring” is now defined in the 2015 rule. The distance limits are new.
100 Feet: The first definition of “neighboring” means all waters within 100’ of the OHWM even if only a portion is in the 100’.
Floodplain: “neighboring” means all waters within a 100 year floodplain if a portion is within 1500 feet of the OHWM.
For tidal waters, it is 1500’ from the high tide line. Anything within the 1500’ is jurisdictional.
Also, waters within the 100 year floodplain are jurisdictional if they have a “significant nexus” to the water even if outside the 1500’.
Case by case basis: certain waters are also jurisdictional on a case by case basis IF they are within 4000’ of a tributary. These waters are subject to a significant nexus analysis.
“Significant nexus” is a legal term which means more than just speculative or insubstantial. There are three steps to the analysis:
1. Identify the region – a watershed that drains to the nearest “water” which ultimately drains to a “traditional navigable water”
2. Identify similarly situated waters. Similarly situated means when they function alike and are sufficiently close to function together. Here’s a sketch:
3. Evaluate the impact on the downstream water
a. Would any single function or combination of functions, if a water in the region were excluded, would affect the downstream water for things like sediment, nutrient recycling, runoff storage, biological activity and the like. If so, then there is a significant nexus and the waters are jurisdictional.
Much credit and many thanks go out to Ms. Lambert for educating us as to what the EPA’s view of the rule is. Ms. Lambert indicated what we all know: that many developers, rather than risk the wait that is endemic in the EPA’s determination of whether a water is exempt or not, or whether there is a significant nexus or not, simply file for the permit in order to move the project forward. Pretty practical, but that’s New Hampshire yankee ingenuity at work.
Of course, the rule and analyses are much more complex than my summary. My hope is that this gives you a flavor of the new rule.
 It should be noted that for the purposes of adjacency, a water that is adjacent to an adjacent water is not in jurisdiction. Yep, you read that right. You can’t be adjacent to adjacent and still be adjacent. Where’s my coffee?
 It should be noted that her remarks were not officially sanctioned by the EPA, but rather represent her insider and educated view of the new rule. How this affects our interpretation of the rule out here in the trenches is therefore a bit confusing.