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.
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.
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:
The American Farm Bureau Federation (AFBF) released documents outlining how EPA’s Waters of the U.S. rule will give the agency sweeping powers to regulate land use despite a body of law clearly prohibiting such overreach. “Our analysis shows yet again how unwise, extreme and unlawful this rule is,” AFBF President Bob Stallman said. “Our public affairs specialists and legal team have assembled the best analysis available, and their conclusions are sobering: Despite months of comments and innumerable complaints, the Waters of the U.S. (WOTUS) proposal is even worse than before.”
The WOTUS rule, first released in draft form in April, 2014, has garnered fierce opposition from farmers, ranchers, and land owners of all kinds. Dozens of states and countless municipalities oppose the measure.
One of the most concerning aspects of the new rule is the ability of CWA regulators to ignore scientific indicators of jurisdictional waters and instead rely purely on aerial photos, opinions and past conditions.
The redefinition of “waters of the U.S.” under the Clean Water Act will severely impact farming activities making it more difficult farm by creating a broader regulatory scheme, no certainty to farmers and few exemptions.
Washington, DC – Rep. Doug LaMalfa (R-CA) voted for a measure last evening that rolls back the Environmental Protection Agency’s controversial “Waters of the United States” regulatory proposal. HR 1732, which passed by a vote of 261-155, prevents the EPA from implementing the rule and directs it to work with stakeholders on a new rule. The EPA has refused to make any significant changes to its proposal, despite receiving approximately a million comments from across the country identifying the negative impacts the rule would have on farms, small businesses, and local governments.
“The EPA and other federal bureaucracies already ignore clear exemptions in order to attack farmers and ranchers, and they now want even more authority? The Waters of the US regulation would expand the federal government’s jurisdiction over vast swathes of Northern California, including gullies which contain water only during rainstorms and wet depressions in fields,” said LaMalfa. “Congress has made it clear that it never intended to provide these powers to the EPA, has demonstrated bipartisan opposition to the proposal, and has acted to defund it. It’s time that the EPA remembers that Congress writes our nation’s laws, not federal bureaucrats.”
LaMalfa referred to the EPA’s existing interpretation of the Clean Water Act, in which it ignores clear, explicit exemptions of agricultural activities in order to penalize farmers for changing crops or replanting fallowed fields. LaMalfa has successfully passed several measures to limit and defund this interpretation, most recently in the Energy & Water Appropriations bill the House passed earlier this month.
For those who conduct wetland delineations, you may have noticed that the Wetland Determination Data Form “Arid West 2.0” doesn’t include the automated features of the previous “Arid West 1.6”. While the 2.0 version was produced in 2008, we haven’t been able to find an automated version, so we took it upon ourselves to utilize the old version and update it to reflect the content changes in the newer 2.0 version.
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