On September 12, 2019, the EPA and US Army Corps of
Engineers signed a final rule to repeal the 2015 Clean Water Rule (2015 Rule)
and re-codify the regulatory text defining federal “waters of the United States”
(WOTUS) that existed prior to the 2015 rule. The 2015 rule which became
effective in California on August 16, 2018, broadened the definition of WOTUS
and gave regulators authority to speculate regarding the historic presence of
wetlands based on aerial photo interpretation. In effect the 2015 rule extended
federal jurisdiction into more waters than at any time in the history of the
Clean Water Act.
In February 2017, President Trump issued an executive order
to review the 2015 rule and replace it with a rule that included, in part, a
definition of WOTUS that was consistent with Supreme Court Justice Scalia’s
opinion in the 2006 Rapanos Court
case. The agencies proposed a two-step rulemaking process to comply with the executive
order with step one being the repeal of the 2015 rule and re-codification of
the previous definition of WOTUS. The September 12, 2019 rulemaking
represents the completion of step one, which will go into effect 60 days after
it is published in the Federal Register.
The second step will be to issue a final rule regarding the
revised definition of WOTUS. The proposed rule, Revised Definition of “Waters
of the United States”, was published in the Federal Register on February 14,
2019 and is currently under review.
What does this mean for landowners in California? Essentially,
the definition of WOTUS reverts back to the previous definition of WOTUS which
is guided by Supreme Court cases and rule making (1986, Final Rule for
Regulatory Programs of the Corps of Engineers).
The 2015 rule requirement to include nearly all waters as jurisdictional,
regardless of hydrological connection, based on brightline distances is
However, in its infinite wisdom, the State of California has
developed a State only definition of Waters of the State and a new wetlands
permitting program that will assume jurisdiction of most non-federal waters,
thus in the State of California, landowners will see little to no regulatory
relief. The States new policy
is scheduled to go into effect spring 2020.
There has been an increase in awareness of declining bat populations across the U.S. Many of California’s agencies are increasing and standardizing their requirements for protecting bats and their roosts. Gallaway Enterprises has been closely following these changes and responding by implementing scientifically appropriate and creative solutions for bat avoidance, exclusion, and mitigation techniques. Gallaway Enterprises is using the latest version of SonoBat acoustic bat detection software to aid in the process of identifying which bat species are present at many of our project sites. SonoBat software can determine species by analyzing calls that have been recorded by our biologists.
Gallaway Enterprises bat specialists stayed busy in 2018 with several bridge replacement and retrofit projects that had large bat maternity colonies roosting within the bridges. Two particularly challenging projects this year were the East Hill Road over Davis Creek Bridge Replacement project in Mendocino County and the Mockingbird Road over Robinson Creek Bridge Replacement project in Lake County. Structure- or bridge-roosting bats were not identified as a species with potential to occur on either project, but were discovered incidentally by Gallaway Enterprises during pre-construction surveys. One bridge was home to a large maternity colony and the other was a bat bachelor roost. Working closely with the contractors, local agencies, and the California Department of Fish and Wildlife (CDFW), Gallaway Enterprises developed avoidance and minimization measures and a plan for temporary and permanent roost mitigation. For these projects, time was of the essence. Gallaway Enterprises worked quickly to develop the mitigation measures and start consultation with CDFW to ensure minimal construction delays. Measures developed were project-specific and included construction of noise attenuation devices, acoustic and visual monitoring during pile driving, visual disturbance buffers, and the installation of bat exclusion devices to safely and humanely evict bats outside of the maternity season. Gallaway Enterprises bats specialists conducted compliance monitoring and installed exclusion devices at the bridges during the appropriate exclusion windows.
Lastly, Gallaway Enterprises worked with stakeholders to design and construct bat roosting habitat that mimics the pre-project roost temperatures in order to attract a wide arrange of bat species to mitigate the loss of roosting habitat. Boxes were a mix of wooden and concrete design and were strategically mounted to the new bridge structures, as well as, poles around the sites.
Construction activities are in full swing on Phase 1 of the Caltrans Interstate 80 and State Route 65 Interchange Project (Project). The Project is located within Placer County in the cities of Roseville and Rocklin, near the Roseville Galleria. Flatiron Construction is the primary contractor responsible for widening the northbound viaduct of State Route 65, as well as the Galleria Boulevard/Stanford Ranch Road ramps. The scale of this Project is impressive with 13-foot wide and 100-foot deep holes being drilled for the viaduct column footings. In order to construct the columns, Flatiron Construction is temporarily diverting Antelope Creek that flows under the viaduct.
Gallaway Enterprises is providing environmental compliance services for Flatiron Construction as this project involves several environmental issues involving multiple state and federal agencies. Gallaway Enterprises is conducting migratory bird and bat surveys, providing relocation of sensitive native fish species and western pond turtles, and providing recommendations during the installation of the temporary stream diversion and water quality monitoring. A Biological Resource Information Program, Natural Resource Protection Plan, Species Protection Survey Protocol, Bat Avoidance Plan, and Bird Exclusion Plan have been prepared for the Project by Gallaway Enterprises to help ensure this Project is successfully completed while maintaining compliance.
Harbin Hot Springs Resort, once home to nearly 300 residents and employees, has been closed since the Valley Fire evacuation orders in September 2015. The resort community, just minutes outside of Middletown, found itself in the path of the fire and suffered major losses as the majority of the structures present onsite were destroyed.
The timber bridge over Harbin Creek that connects the Harbin Hot Springs Resort to Middletown was burned in the fire, and a temporary bridge was constructed in its place. A new bridge was slated for construction by Bridgeway Civil Constructors in July of 2017. Just before construction was to begin, the foothill yellow-legged frog was listed as a candidate threatened species under the California Endangered Species Act (CESA), giving it full protected status for the duration of its review period and halting construction. Harbin Creek contains a healthy and sustainable population of foothill yellow-legged frog. Though foothill yellow-legged frog populations in Lake County are not in danger of extirpation, the foothill yellow-legged frogs present in Harbin Creek now needed the added protections of a threatened species.
Gallaway Enterprises worked fast to create a frog relocation plan and obtain an emergency Incidental Take Permit in order to get the project underway as soon as possible. The delayed construction led to long hours and weekends building the new bridge, and Gallaway Enterprises biologists were onsite daily to relocate frogs, monitor for environmental compliance, and conduct water quality testing within Harbin Creek. The completed Harbin Springs Road Bridge will contribute to the economic recovery of the area as Harbin Hot Springs Resort continues to rebuild its facilities.
The U.S. Environmental Protection Agency and the US Army Corps of Engineers (Corps) have proposed to withdraw the 2015 waters of the U.S. rule, also referred to as the 2015 WOTUS rule. The intent of the 2015 WOTUS rule was to provide clarity as to which wetlands and waterways were covered by the Clean Water Act. Unfortunately the new rule was so ambiguous with unquantifiable terms such as “adjacent”, “significant nexus” and “tributary” that both professional wetland delineators and the Corps regulatory agents would interpret the new rules differently. While the 2015 WOTUS rule was halted due to the U.S. Circuit Court of Appeals issuing a nationwide stay in October 2015, some Corps offices were reviewing delineations under the premise that the stay would be lifted, further adding to the confusion.
The group most impacted by the new rules would have been farmers as the 2015 WOTUS rule effectively put a significant amount of upland farming area into the confines of the Clean Water Act, undermining their ability to farm as usual.
The next step for the administration and regulatory agencies will be to develop a WOTUS definition that protects water quality without asserting federal regulatory power over puddles and sheet flow in farm fields. If the past interpretations of a WOTUS definition are any indicator of the future, finding consensus on this issue between, farmers, environmentalists and regulatory agencies won’t be an easy task.
The agencies are utilizing a notice and comment rulemaking process in which they are soliciting input from constituents. Information regarding this outreach process can be found on the EPA website at www.epa.gov/wotus-rule/outreach-meetings
While there is a current trend in lessening federal environmental regulations under the new administration, state agencies, such as the California Department of Fish and Wildlife, are prepared to step in and fill the regulatory gap. Furthermore, it is likely that these state agencies will put in place significantly more expansive sets of rules to counter major changes at the federal level.
Local agencies and the regulated public have found themselves subject to CDFW jurisdiction via the Lake and Streambed Alteration Program (LSA) on projects outside of the traditional scope of the LSA. The most significant and often abused component of the Section 1600 code by the CDFW is the ability to regulate project activities when an action could “deposit/dispose of debris, waste, pavement where it may pass into a river, stream or lake”.
CDFW has recently claimed jurisdiction over portions of City stormwater collection systems, wetlands more than 4000 feet away from creeks and vernal wetlands located in uplands. Its not uncommon for CDFW regulators to demand landowners apply for a LSA agreement for activities in agricultural ditches and within flood plains outside of stream zones. The application fees are steep and have been consistently rising creating a revenue stream for CDFW. Through interpretation of their role in enforcing Section 1600 of the Fish and Game code CDFW has taken an aggressive stance resulting in significant scope creep. Assemblyman James Gallagher has responded to the scope creep by proposing AB 947 to more clearly define the limits of CDFW jurisdiction via the LSA program.
Cox Castle & Nicholson (www.coxcastle.com) developed an informative assessment of CDFW Permitting under Fish and Game Code Section 1600 (link to pdf) which describes the agency’s regulatory authority, limitations and “gray areas”.
On February 28, 2017, President Trump honored his campaign promise to enact policy with the intent of providing regulatory relief by issuing an Executive Order that requires the EPA and Army Corps of Engineers (Corps) to review the Clean Water Rule (Rule). There is no denying that regulators within the EPA and Corps have engaged in regulatory and jurisdictional scope creep for many years. The Clean Water Rule, which sought to more clearly define Waters of the US (WOTUS) legitimized the scope creep with the EPA conceding that the Rule would, on average, increase federal jurisdiction of WOTUS by 3-5%, bringing in over 1 million additional waters, primarily drainages, ephemeral creeks, dry arroyos and ditches redefined as tributaries.
The Executive Order directs the EPA and Corps to review the Rule in the context of developing a revised rule that protects WOTUS while minimizing regulatory uncertainty. More importantly, the Executive Order directs the EPA and Corps to review the Rule “in a manner consistent with the plurality opinion of Justice Scalia in the Rapanos v United States Supreme County case”. The agencies, in their interpretation of jurisdiction following Rapanos, have largely ignored the plurality opinion and instead have focused on the concurrence opinion offered by Justice Kennedy. There are major difference between the opinions. Justice Scalia wrote that “the Corps has stretched the term “waters of the United States” beyond parody” and strongly concluded that ephemeral streams, dry arroyos, man-made drainage ditches, and storm water systems are not WOTUS and subject to the Clean Water Act. Justice Kennedy wrote that features on the landscape that are man-made, not hydrologically linked, ephemeral, etc., could be jurisdictional if there was a “significant nexus” to a navigable WOTUS. The determination by regulators of what constitutes a “significant nexus” is so broad, unpredictable, and constantly evolving that its often abused to the point where everything is potentially jurisdictional.
With over 20 years experience applying federal protocols, regulations, and policy in the field to identify WOTUS and then seek federal Clean Water Act permits we can attest to the incredible frustration from the regulated public with regards to regulatory uncertainty and inconsistent interpretation of jurisdiction. While we applaud efforts to create a more reliable and predictable regulatory process, there must be a balance between the protection of resources and refining the definition of WOTUS. The definition of WOTUS through a rule-making process will take years to accomplish, so currently Senior Regulatory Biologist, Jody Gallaway is working to propose regulatory reforms that could be enacted much sooner resulting in significant regulatory relief.
In a 2-1 decision the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay against enforcement of the Waters of the U.S. rule issued by the Environmental Protection Agency (EPA) and the U.S. Army Corp of Engineers (USACE).
The court concluded that the rule has already been stayed in 13 states and that a nationwide stay would help maintain nationwide uniformity while the rule is litigated in court. Senator James Inhofe (R-OK), Chairman of the U.S. Senate Environment and Public Works Committee called the Sixth Circuits order to suspend “a victory for all states, local governments, farmers, ranchers, and landowners. The EPA and Army Corps admitted in February before Congress that the proposed rule was flawed and ambiguous, yet the agencies continued forward and finalized the rule in May. Instead of fixing the overreach, EPA made it broader.” Inhofe went on to say that the litigation over the WOTUS rule will likely take several years to conclude.
The WOTUS rule would have significantly impacted agriculture in Sacramento County, with 100% of lands being considered jurisdictional, farmers and ranchers would have been in violation for simple routine farming practices like weed spraying.
While this not over, the stay provides opportunity for the court system to get answers about over reaching authority of EPA and Army Corp of Engineers.
If you have been following the proposed “New Rules” from the Environmental Protection Agency regarding the Clean Water Act you may have seen the release of the “Litigation Sensitive” memos. These memos detail how the proposed “New Rules” ignore sound science, lack legal authority, and are not supported by the Army Corps of Engineers.
Read Corps gives plaintiffs a hand on WOTUS from Capital Press: