Waters, Waters Everywhere


By: Andrew T. Der

While walking in the woods near a stream, I notice I am not standing in water – but this field evaluation reveals that the U.S. Environmental Protection Agency (EPA) may have another opinion. Many are familiar with the need to establish limits of open water, streams, and wetlands for potential construction impact compliance.

But what is not clear, is whatever that limit may be, it has a greater ripple effect beyond wetland permits. Defined federal waters limits can also affect the outcome of other local, state, and federal water regulatory processes.

How? Keep reading.

Current impacts to “waters of the United States” are regulated by the local U. S. Army Corps of Engineers (Corps) District under, primarily, Clean Water Act (CWA) Section 404. In Maryland this is administered concurrently with the state program in a joint federal/state permitting process. The Corps’ definitions include navigable waters, headwaters, and wetlands – and their determinations can also be a basis for the Maryland Department of the Environment (MDE) Nontidal Wetland and Waterway Permit, as well as its Tidal Wetlands Permits and License.

Maryland additionally adds the 100-year nontidal floodplain, 25-foot nontidal wetland buffer, isolated wetlands, and tidally mapped waters to its state regulation. For tidal waters in the Chesapeake Bay Critical Area (CBCA), the CBCA Commission also emplaces their own additional 100-foot buffer.

Local county natural resources inventory and forest conservation ordinances frequently add their own water and stream setback buffers of usually 100 feet or more. These are further expanded by steep slopes and erodible soils. Everyone following along? And now you know why existing site plan sheets look so cluttered.

But wait, there’s more – and a severe acronym alert and warning.

Regardless of how waters are federally defined, they can also cross over to other CWA provisions including the state-issued Section 401 Water Quality Certification (WQC), which accompanies any Section 404 permit, and includes the EPA’s Antidegradation Policy along with MDE’s higher quality Tier II water setback buffers.

Certainly not least, is also the Section 402 Natural Pollutant Discharge Elimination System (NPDES) program. As the basis of the state’s and local jurisdiction’s MS4 permits, as well as the NPDES Construction General Permit Notice of Intent (NOI) process, it can also drive acceptable Erosion and Sediment (E/S) control compliance.

Such plans require Best Management Practice (BMP) E/S designs – and for subsequent stormwater management (SWM) plans, Environmental Site Design (ESD) to the Maximum Extent Practicable (MEP) per the MDE SWM law. Lest we forget, in the end BMPs need to control flows prior to release into waters – wherever they are defined to be.

While physical limits of waters of the U. S. may be subjective, uniform rule making in concept is not a bad thing. But not achieving consensus on what those are on the ground is the critical issue. Both the Corps and EPA regulate “discharges,” or impacts, to waters of the U.S. – but what are they? Long debated, this definition is coming to a head after EPA proposed draft federal rules last year intending to achieve consistency and clarity.

But does it?

Despite the recent public relations cheat sheets, the jury is out on that, while the rule’s merits continue to be deliberated among legislators and stakeholders alike. In the end, any final rules will still need to be interpreted by people in the field based on physical character and the industry needs to continue to proactively work with the legislative process to assure equitable and technically defensible regulations.

In the absence of comprehensive rules, the federal agencies historically have struggled to make practicable determinations of waters of the U.S. limits based on policy, the ordinary high water (OHW) mark, and a 1987 wetland delineation manual, leaving some arguments settled by the U. S. Supreme Court – somewhat reducing the Corp’s jurisdiction. Notable rulings include that jurisdiction cannot be based on a connection alone (“Rapanos”), nor can it extend to isolated waters (“SWANCC”).

Opponents assert that, despite the proponents’ view, the draft rules may themselves create new confusion and expand federal jurisdiction beyond what may be viewed as technically substantiated – and even contradict what the Supreme Court intended.

New definitions of terms such as tributary, neighboring, floodplain, and riparian area may allow more waters to come under federal authority. These vaguely defined terms may establish the “nexus” for the Corps to impose oversight of more upland activities and projects.

Although certain ditches are non-jurisdictional under the Rapanos decision, the proposed rule’s definition of tributary may include more ditches subject to regulation. Further, the primary scientific analysis effort used to technically document the basis for the rule changes, is still considered by some to be incomplete and inadequate.

Runoff treatment systems and non-wetland swales, not currently regulated when associated with BMPs and SWM plans, may now be subject to regulation bringing SWM and land use into the purview of a federal water permitting program. If so, more jurisdictional waters may increase activities subject to CWA permitting, including subsequent NEPA analyses and mitigation requirements – increasing the costs of obtaining a Corps (and MDE) permit with the greatest burden on small landowners.

What is unique to Maryland, is its need to consider the effects of any rule making in the context of their Chesapeake Bay Total Maximum Daily Load (TMDL) – an acronym associated with the “Rain Tax” among other things. This portion of Section 303(d) of the CWA puts the Bay on a pollution diet by mandating state and county Watershed Implementation Plans (WIP).

Its modeling assumptions may not adequately account for Maryland’s other progressive and advanced layers of regulation already in place prior to the WIP – so assuming that any new growth will need to be offset as if no other mitigative criteria exist, may even be redundant as well as an overly intrusive de facto federal land use policy.

The global concern would be that – in light of “pre-TMDL” water quality management and restoration requirements coupled with a robust SWM law of ESD to the MEP – any further regulation of waters of the U. S. under the CWA could be an additional and unwarranted burden further shifting water resource regulation from the state to the federal government.

Legislators and stakeholders continue to clash over the clarity of water rules that may not be so clear, and recent legislative actions to reconsider may offer some relief. An April House Bill proposes to withdraw the rules and re-engage the process.

A more recent Senate Bill counterpart in May would require the agencies to withdraw their proposal to revise waters of the U. S. parameters to complete further consultation with state and local governments, business stakeholders, and produce an accurate cost-benefit analysis among other things.

How this plays out alongside the new rules is worthy of attention – stay tuned.