January 14, 2019
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have proposed a new regulation defining waters of the United States (WOTUS). For the next few weeks, I will focus on Trump administration proposal.
The December 11, 2018 proposal defines a tributary, impoundment, wetland, and ditch, which I explained in this blog. Many pages are devoted to explaining what EPA and the Corps are proposing to regulate as a tributary and other water features. The agencies explain what they are proposing, why the definition is being proposed, how the agencies intend to implement the proposal, and finally, what issues the agencies are seeking to solicit comments.
The proposed regulation curbs EPA’s and the Corps’ jurisdiction regarding what is an existing tributary. The agencies describe their tributary proposal this way: “[It]…is…intended to limit federal jurisdiction over ephemeral flows and other ordinarily dry land features in order to preserve and protect the primary responsibilities and rights of states…”
The Supreme Court’s Rapanos case is quoted, which chastises the Corps and EPA because their present definition “seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact and carrying only minor water volumes toward it…”
The new proposed rule defines a tributary as such: “…a river, stream or similar naturally occurring surface water channel that contributes ‘perennial or intermittent’ flow to a traditional navigable water or territorial sea in a typical year (defined later) either directly or indirectly through other jurisdictional waters such as tributaries, impoundments, and adjacent wetlands…”
The two words “perennial” and “intermittent” are critical.
The proposed regulation also defines excluded waters as not being a tributary. It states “…excluded waters and features are incapable of providing perennial or intermittent flow…” The Trump administration’s EPA and Corps state tributaries “…do not include surface features that flow only in direct response to precipitation, such as ephemeral flows, dry washes, and similar features.”
Perennial, intermittent and ephemeral are also defined in the proposal:
Perennial means “…surface water flowing continuously year-round during a typical year.”
Intermittent means “…surface water flowing continuously during certain times of a typical year, not merely in direct response to precipitation, but when the groundwater table is elevated…or when snowpack melts.”
Ephemeral means a “…surface water flowing or pooling only in direct response to precipitation such as rain or snowfall.”
Even this language will likely be the subject of much continued litigation.
The good news from these new definitions is that a tributary must now contribute a “perennial or intermittent” flow to a traditional navigable water in a typical year. Even the term “typical year” is defined. It means a year is “…within the normal range of precipitation over a rolling thirty-year period for a particular geographic area.” A typical year does not include periods of drought or extreme flooding.
The Trump administration is clearly attempting to restrict agency officials who believe any water running downhill gives the respective agency jurisdiction.
EPA and the Corps, under the Trump administration, are proposing a definition of ‘tributary” which is “…consistent with the Rapanos opinion that the waters of the United States [are to] include only relatively permanent, standing, or flowing bodies of waters…as opposed to ordinarily dry channels…or ephemeral flows of water.” It is attempting to draw a clear line on what is or what is not a tributary.
The good news from the proposal is that ordinarily dry channels where water flows occasionally or intermittently do not constitute a tributary.
The U.S Supreme Court, in the Rapanos case, hammered EPA and the Corps by saying WOTUS “…cannot bear the expansive meaning that the Corps would give it, …”. The Trump administration’s EPA and the Corps are no longer taking the position that any insubstantial hydrologic water flow may be determined to be a tributary.
The opinions of the author are not necessarily those of Farm Futures or Farm Progress.
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