The implementation of the newly proposed Water of the United States Rule will take affect later this month unless stayed in the courts as a result of numerous filed lawsuits. This rule would constitute a significant regulatory expansion by the USEPA with respect to claiming jurisdiction over wetland systems previously exempt. The USEPA sets the criteria for implementation of the Clean Water Act that the Corps must implement for wetland permitting. The ability to quickly determine if a wetland is Corps jurisdictional will now become more difficult and time consuming for a permittee. The fear is while the Corps permitting staff are trying to review the amount of material necessary to make a jurisdictional wetland determination, other responsibilities such as issuing permits for site development will be substantially delayed.
To say the least, the proposed rule is confusing and lacks any definition to make intelligent judgements regarding jurisdictional limits of wetland systems. The USEPA attempted to make it simple by drawing clearer demarcations between what is a tributary and an adjacent water body. However, the criteria established is so vague and without clear distinctions, that no two professionals can draw the same conclusion regarding the actual jurisdictional boundary.
Following is a summary of the jurisdictional test criteria:
A wetland will now be claimed Corps jurisdictional if it is a tributary stream that is perennial, ephemeral or intermittent; or is “adjacent” or neighboring to a jurisdictional tributary.
Adjacent is defined as:
• Bordering, Contiguous or Neighboring a NW, IW or Territorial Sea, Impoundment or Tributary, & abutting it’s Ordinary High Water Level (OHW)
• All Waters that Connect Segments of a Water, or located at a head of a water
• Neighboring: 100ft of OHW or within 100-yr Floodplain not more than 1500 feet from OHW or Mean High Water Level (MHW) of a NW, IW or Territorial Sea
• Water bodies Separated by manmade or natural barriers still adjacent
The initial problems with this proposed “easy to define” adjacency definition is the interpretation of the OHW, MHW and 100 year floodplain. OHW and MHW in Florida are variable features based on a host of criteria that can vary greatly. The 100-yr, as defined by FEMA, is historically inaccurate and yet that is the only standard that the rule will allow. In Florida, the water management districts and local governments spend millions of dollars per year to accurately delineate the 100 year flood elevation and yet that information will not be allowed for determine of adjacency.