Planning & Construction

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Some commenters expressed concern that it would be too difficult to determine the flow regime of features connecting lakes and ponds to waters of the United States. The agencies disagree that it would be too difficult to determine flow regime to establish jurisdiction for lakes and ponds as proposed, as the agencies have been using flow classifications to make jurisdictional determinations since the 2008 Rapanos Guidance was issued. However, upon further consideration, the agencies conclude that the proposed rule’s requirement for perennial or intermittent flow from a lake or pond to a downstream paragraph water would have severed jurisdiction for certain relatively permanent lakes and ponds that are regularly “connected to” traditional navigable waters via surface water flow.

  • This assessment is further supported if the majority of wet season aerial and satellite images taken during normal climatic conditions depict a dry channel.
  • Indeed, this description more accurately captures the hydrological definition of “ephemeral streams” which only flow during or in immediate response to rainfall.
  • She also has significant financial, accounting and risk management experience, qualifying her as an “Audit Committee Financial Expert” under the Securities and Exchange Commission’s rules.
  • Other commenters stated that permit requirements may need to be modified by sampling at the downstream end of the ditch to demonstrate that pollutants are being added to a water of the United States.
  • Worker exposures to many types of hazards can be prevented or minimized by using engineering controls, administrative controls, and safe work practices.

Under the agencies’ Rapanos Guidance, this evaluation required individual analyses of the relationship between a particular wetland with traditional navigable waters. Importantly, Justice Kennedy’s “significant nexus” test for wetlands adjacent to non-navigable tributaries was only needed “absent more specific regulations,” id. at 782 (Kennedy, J., concurring in the judgment), because “the breadth of [the then-existing tributary] standard . The agencies also recognize that several courts have adopted the significant nexus standard as a test for jurisdiction for both adjacent wetlands and tributaries.

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However, these wetlands must meet one of the four criteria established in paragraph to be “adjacent wetlands” and are not adjacent based simply on a subsurface hydrologic connection to jurisdictional waters. Physically remote wetlands and other wetlands that do not meet the final rule’s definition of “adjacent wetlands” are reserved to regulation by States and Tribes as land and water resources of those States and Tribes. Some commenters agreed with the agencies’ proposal that ephemeral reaches should sever jurisdiction of upstream waters because those waters no longer have a continuous hydrologic surface connection of relatively permanent flow to a downstream jurisdictional water.

The agencies will continue to rely on local knowledge, information provided by the landowner, and local, State, and tribal agencies, and a variety of additional tools and resources to evaluate flow classification in such systems. The final rule language on flow classifications allows for consistent implementation approaches for modified systems and more natural systems. One of the first steps in determining whether a feature is a tributary is to identify relevant features on the landscape, such as rivers, streams, or similar naturally occurring surface water channels, as well as ditches. Field work to include direct observation and other reliable methods can indicate the existence of a tributary, such as stream gage data, elevation data, historic or current water flow records, flood predictions, statistical evidence, aerial imagery, and USGS maps. The agencies will also rely on science to implement the final rule, such as with the development of tools and scientific-based approaches to identify flow classification and typical year conditions.

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Many commenters expressed support for the proposed rule’s exclusion for wastewater recycling structures. Some commenters stated that the exclusion would encourage water reuse and other innovative approaches to water management. A few commenters supported the exclusion because they said wastewater recycling structures should be regulated at the State level. Some commenters stated that considering a wastewater recycling structure a water of the United States could create unnecessary regulatory and economic burdens, while providing no additional water quality protection.

Other commenters recommended the use of physical indicators of flow, such as ordinary high water mark and bed and banks, which could be regionalized for a field-based approach. These commenters stated that physical indicators can be more readily observable and can indicate flows of sufficient magnitude and duration to qualify as a tributary. The agencies disagree with these comments and conclude that physical indicators of flow, absent verification of the actual occurrence of flow, may not accurately represent the flow classifications required for tributaries under this rule. For example, ephemeral streams can have an ordinary high water mark and bed and banks, which would not allow for the agencies or the public to distinguish between a non-jurisdictional ephemeral stream and a jurisdictional intermittent or perennial tributary using those physical indicators. Ephemeral streams in the arid West, for example, may have ordinary high water marks that were incised years ago following a single large storm.

V. Overview of the Effects of the Rule and Supporting Analyses

The phrase “constructed in an adjacent wetland” refers to ditches originating in or constructed entirely within an adjacent wetland. The phrase also includes ditches that are constructed through adjacent wetlands, but jurisdiction over those ditches only includes those portions in adjacent wetlands and downstream to other jurisdictional waters, as long as those portions satisfy the flow conditions of paragraph . Jurisdiction does not extend to upland portions of the ditch prior to entry into an adjacent wetland. Consistent with the exclusion in paragraph , a ditch or portions thereof may also be considered an adjacent wetland where it was constructed in an adjacent wetland and the portion in that wetland meets the conditions of paragraph . Many commenters provided edits and additions to the list of water features included in paragraph . However, the agencies did not intend to provide an exhaustive list of features that are excluded under paragraph and have determined that any feature that meets the conditions of paragraph will be non-jurisdictional under this rule.

Where wetlands in a complex of wetlands have a continuous physical surface connection to one another such that upland boundaries or dikes, barriers, or other structures cannot distinguish or delineate them as physically separated, the entire area is viewed as one wetland for consideration as to whether the wetland meets the terms of adjacency. If any portion of a wetland, including these physically interconnected wetlands, is adjacent to a paragraph through water, the entire wetland is adjacent. See Riverside Bayview, 474 U.S. at 135 (“Because respondent’s property is part of a wetland construction bookkeeping that actually abuts on a navigable waterway, respondent was required to have a permit in this case.”) . Lakes and ponds are naturally formed through a variety of events, including glacial, tectonic, and volcanic activity. Natural lakes and ponds can also be subsequently modified to change surface elevation, depth, and size. In some parts of the country these modified lakes and ponds are referred to as impoundments, whether they impound or enlarge an existing water of the United States or modify a non-jurisdictional water; in other areas, these may retain lake or pond nomenclature.

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Other considerations should include data availability, topography, and distance of climatic data collection in relation to the aquatic resource location. The plurality also noted that its standard includes a “physical-connection requirement,” not hydrological, between wetlands and covered waters. In other words, the plurality appeared to be more focused on the abutting nature rather than the source of water creating the wetlands at issue in Riverside Bayview to describe the legal constructs applicable to adjacent wetlands. See id. at 747; see also Webster’s II, New Riverside University Dictionary (defining “abut” to mean “to border on” or “to touch at one end or side of something”). The plurality agreed with Justice Kennedy and the Riverside Bayview Court that “s long as the wetland is `adjacent’ to covered waters . Its creation vel non by inundation is irrelevant.” Rapanos, 547 U.S. at 751 n.13 (Scalia, J., plurality).

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