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June 12, 2015
Wading through the WOTUS waters
By Emily Remmel, JD, Legal Editor

Are you wading through the reeds of “waters of the United States” (WOTUS) trying to figure out current 402/404 permitting requirements or how the revisions may affect your pending permit or jurisdictional determination (JD)? The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers’ (Corps) recent 297-page prefinal Clean Water Rule (rule) redefining WOTUS is enough to bog anyone down in the details.

Two immediate questions have surfaced: Will pending JDs and permits be determined on the new rule or the existing rule, and how is the ordinary high-water mark (OHWM) determined?

How will the rule impact my permit application?

An approved JD is an official Corps determination that jurisdictional “WOTUS” or “navigable waters of the U.S.” or both are either present or absent on a particular site. An approved JD will identify the jurisdictional limits of those waters.

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The revised rule is not necessarily retroactive to existing permits. As discussed in the preamble, existing approved JDs and permits will not be reopened by the Corps or the EPA, unless the applicant specifically requests or the agencies uncover new information that warrants revision of the determination before the 5-year period expires.

The agencies’ actions are governed by the rule in effect at the time the jurisdictional determination or permit authorization is issued—not by the date of the permit application. Therefore, JD applications and permits issued before the effective date of the rule that are deemed complete on the date the rule is published in the Federal Register will be made consistent with the current existing rule. The applicant may request the decision be decided after the effective date of the new rule.

The preamble indicates that neither the Corps nor the EPA are likely to complete any new JDs or permits within the 60 days before the rule becomes effective.

How to determine the OHWM?

The EPA and Corps’s final rule attempts to minimize the number of case-specific determinations and maximize clarity. The WOTUS definition no longer regulates all tributaries but rather narrows tributaries to include only waters with a bed and banks and an OHWM. The rule defines an “OHWM” as a line on the shore established by the fluctuations of water and indicated by physical characteristics.

Confused? That’s because an OHWM is a scientific term, not a legal term.

In simplified terms, the OHWM is where the water ends and the land begins. It has three core components:

  • It is the ordinary or normal reach of water on the bank.
  • It does not include abnormal or extreme fluctuations in water level.
  • A visible or discernable mark is present.

However, to further complicate the matter, OHWM’s are not static and can change over time. For example, irregular patterns of daily, seasonal, and annual fluctuations in water levels can alter the presence and location of the OHWM. There is also considerable variability in OHWM indicators across the United States.

So how can you determine whether the water has an OHWM? First, look for a natural impressed line on the bank. Second, look for shelving, changes in soil and vegetation, or the presence of litter and debris on the banks. Last, mapping and advanced tools can further assist with defining a tributary. Tools include:

  • U.S. Geological Survey (USGS) topographic data and maps
  • USGS National Hydrography data set
  • National Resources Conservation Service soil surveys
  • State and local stream maps
  • Aerial photography
  • Light detection and ranging (LIDAR) software
  • Stream gauging

The EPA and Corps, in addition to expertise and experience, will use all of the above tools to assist making a tributary determination. Many of these tools are available publicly.
If you find yourself still floundering, you are not alone. Countless legal and regulatory scholars have struggled over the OHWM in settling property disputes and environmental compliance issues for the greater part of 2 centuries. Thomas Jefferson even acknowledged the high-water mark property conundrum in 1810.

Even with the EPA and Corps’s auspice of clarity with the revised rule, it is likely that the confusion will continue for those regulated until further guidance is available.

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