New EPA Wetlands Rule

New EPA Wetlands Rule

Juli Anna McNuttSenior BiologistJuly 8, 2014

Presentation Outline:

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1. Intro and Historya. Key regulationsb. Regulatory authority (Corps + EPA, State)

2. How do we Delineate a Wetland?3. Changes in Regulatory Authority Since Clean Water Act

a. SWANCCb. Rapanos

4. Proposed Rulea. What it is/What it isn’t, discuss comment period, and timingb. What prompted proposed rule, discuss 9/13 EPA science documentc. Definitions

5. How Proposed Rule May Affect Project Sites6. Case Studies

1. Irrigation channel-fed wetlands2. Intermittent/ephemeral drainages

History of Wetlands Regulations

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16th century = 220 mil acrescurrent = 105 mil acres

1900s: advancing science increased understanding about wetland function (habitat, water storage, water filtering/purification, flood control, food production, education/research, recreation)

Key Wetlands Regulations

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1899: Rivers and Harbors Act 1948: Federal Water Pollution Control Act 1972: Clean Water Action (CWA), Section 404 CWA mandates permits for the release of dredged or fill

materials into U.S. waters Corps responsible to administering permits 1986: Emergency Wetland Resources Act (National

Wetlands Inventory) 1987: Corps of Engineers Wetland Delineation Manual

How Do We Delineate a Wetland?

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Hydric Soils Gleying Redoximorphic features

Hydrophytic Vegetation Dominance test Prevalence index

Wetland Hydrology Surface water High water table Ordinary high water mark

U.S. Wetlands

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Source: USGS

Wyoming Waters

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Source: WY State Geological Survey

Wyoming Wetland Habitat

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Source: The Nature Conservancy, USGS

1.2 million acres (2%)

Agriculture/Irrigated meadows have enhanced WY wetlands

Changes Since Clean Water Act

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2001: Isolated Wetlands (Supreme Court ruled, in Solid Waste Agency of Northern Cook County [SWANCC] v. U.S. Army Corps of Engineers, that the Corps was not authorized to protect isolated wetlands.

2006: Rapanos/Carabell v. U.S. extended jurisdiction to non-navigable tributaries via “significant nexus”.

Impact of Rapanos

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The Corps decides jurisdiction over the following waters based on a fact-specific analysis (case-by-case) to determine whether they have a significant nexus with a traditional navigable water: Non-navigable tributaries that are not relatively permanent Wetlands adjacent to non-navigable tributaries that are not

relatively permanent Wetlands adjacent to but that do not directly abut a relatively

permanent non-navigable tributary

Problem with Rapanos

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When the Corps takes jurisdiction over a potential wetland is not a black and white process

Leads to uncertainty Examples of problem sites: swales

(ephemeral/intermittant), ditches, agricultural areas, mosaic wetlands (areas that contain both wetlands and uplands mixed together), irrigated areas

For nearly a decade, people have asked for clarity with the jurisdictional determination process

Proposed Rule

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Purpose: define scope of waters protected under the Clean Water Act

Propose rule published in Federal Register on April 21, 2014

Public comment period ends on October 20, 2014

New EPA Wetland Rule: What Prompted It?

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Three Explanations: Inconsistent Jurisdictional Determinations Unclear Definitions Need to Improve Efficiency

EPA Science Report

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Precursor to proposed rule Released in September 2013 Summarizes watershed-scale connectivity Makes the case for “adjacent” and “neighboring”

wetlands

Proposed Rule – What’s In

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Jurisdictional by Rule The big three:

Navigable waters Interstate waters Territorial seas

Tributaries Adjacent waters and wetlands

Case-by-Case “Other waters” via significant nexus evaluation

Proposed Rule – What’s Out

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Pre-existing situations (i.e., prior converted cropland, ranching, farming activities)

Waste treatment systems Gullies/rills/non-wetland swales Most ditches (except tributary ditches) Irrigated areas that would revert to uplands Artificial lakes/ponds constructed in uplands Groundwater

Definitions

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Adjacent: bordering, contiguous, or neighboring. Waters, including wetlands, separated from other waters of the

United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘‘adjacent waters.’’

Neighboring: includes waters located within the riparian area or floodplain of a water of the US, or waters with a shallow subsurface hydrologic connection or confined surface hydrologic connection to such a jurisdictional water.

Definitions (con’t)

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Riparian Area: an area bordering a water where surface or subsurface hydrology directly influence the ecological processes and plant and animal community structure in that area.

Floodplain: an area bordering inland or coastal waters that was formed by sediment deposition from such water under present climatic conditions and is inundated during periods of moderate to high water flows.

Definitions (con’t)

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Tributary: water physically characterized by the presence of a bed/bank and ordinary high water mark which contributes flow, either directly or through another water, to a water of the US.

EPA Science Report (con’t)

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EORI Conference

Source: Modified from EPA 2013

Other Waters (isolated wetlands) Tributaries/Adjacent Wetlands

How Does the New Rule Affect Projects?

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Pipelines/utilities should be evaluated in intermittent/ephemeral drainages

Projects located in floodplains/riparian areas may need a permit

Additional site-specific data may be needed to facilitate a significant nexus decision

Case Study #1: Irrigated Wetland

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Located in Laramie, Wyoming Property Owner wanted to develop property Close to Laramie River Wetlands found on the property, but were formed

from irrigation water, not the river Status: Jurisdictional

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Property to be Developed

Laramie River

Irrigated Areas

Significant Nexus

Case Study #2: Isolated Wetland

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Located in Cheyenne, Wyoming Isolated reservoir located in an ephemeral drainage Large wetland footprint Corps determined that no significant nexus exists Status: Not Jurisdictional

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Reservoir in Question

Ephemeral Drainage

15 mi to a perennial stream

Significant Changes- Summary

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Tributaries and Adjacent Wetlands will be “Jurisdictional by Rule”

“Other waters” to be evaluated on a case-by-case basis

Formal definitions of adjacent, neighboring, riparian area, floodplain, tributary, wetland, and significant nexus

Questions?

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Photo Source: Corps of Engineers

Juli Anna McNuttSenior [email protected]/745‐7474