Tuesday, December 18, 2018
Episode 451 (12-17-18): The Continuing Story of Defining the “Waters of the United States”
Click to listen to episode (4:29).
Sections below are the following:
Transcript of Audio
Audio Notes and Acknowledgments
Extra Facts about the Nervous System
Related Water Radio Episodes
For Virginia Teachers (Relevant SOLs, etc.)
Except as otherwise noted, all Web addresses mentioned were functional as of 12-14-18.
TRANSCRIPT OF AUDIO
From the Cumberland Gap to the Atlantic Ocean, this is Virginia Water Radio for the week of December 17, 2018.
SOUND – ~6 sec
This week, that sound of a Red-winged Blackbird and other birds in a wetland in Blacksburg, Virginia, opens an episode about the legal status of wetlands and other kinds of waters under the federal Clean Water Act. We’re revisiting a June 2015 episode on that topic, because a proposed change in relevant federal regulations was announced just last week.
First passed in 1972, the Clean Water Act’s main goal is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The Act states that it applies to “navigable waters,” defined as “waters of the United States, including the territorial seas,” and Section 404 includes wetlands in the waters where fill activities are to be regulated.
All waters covered by the Act are known as “jurisdictional waters,” and any polluting activities in such waters require a federal permit. In 1986, the Army Corps of Engineers and the U.S. Environmental Protection Agency, or EPA, published regulations that applied the Act to several kinds of non-navigable waters—including tributaries and wetlands—that may affect traditional navigable waterways. Many questions and legal challenges were raised over implementation of that definition and later regulations, and U.S. Supreme Court rulings in 2001 and 2006 generated more questions and issues of implementation.
In 2015, the Corps and the EPA under the Obama Administration published a new regulation with a revised definition of the waters of the United States. Several states and interest groups challenged that regulation in court, claiming it went beyond what Congress authorized in the Clean Water Act. As of early December 2018, that regulation was in effect in only 22 states, the District of Columbia, and U.S. Territories, while under preliminary court injunctions in the other 28 states [according to the background information included in the 2018 rule proposed by the Trump administration].
On December 11, 2018, the Corps and the EPA under the Trump Administration announced a proposed new regulation to revise again the definition of waters of the United States. Essentially, the new proposal would add restrictions to the types of wetlands and other non-navigable waters covered by the Act, while aiming to make it easier for landowners to determine whether their property contains a jurisdictional water or not.
As was true with the 2015 regulation, one can reasonably expect that the 2018 proposal will generate more chapters of interpretation, discussion, disagreement, and litigation in the story of the waters of the United States.
We close with some music about rainfall, because rain is an obvious driver of where and when the landscape has water that may, or may not, be covered by the Clean Water Act. Here’s about 20 seconds from “Driving Rain,” by the Nelson County, Va.-based group Chamomile and Whiskey.
Music - ~ 21 seconds
Virginia Water Radio is produced by the Virginia Water Resources Research Center, part of Virginia Tech’s College of Natural Resources and Environment. For more Virginia water sounds, music, or information, visit us online at virginiawaterradio.org, or call the Water Center at (540) 231-5624. Thanks to Stewart Scales for his banjo version of Cripple Creek to open and close this show. In Blacksburg, I’m Alan Raflo, thanking you for listening, and wishing you health, wisdom, and good water.
AUDIO NOTES AND ACKNOWLEDGEMENTS
This Virginia Water Radio episode updates and adds to Episode 269, 6-8-15.
The bird sounds heard in this episode were recorded at near a seasonal pond in Heritage Park in Blacksburg, Va., April 9, 2017.
“Baldcypress Swamp,” from the 2004 album “Virginia Wildlife,” is copyright by Timothy Seaman and Pine Wind Music, used with permission. The “Virginia Wildlife” album was a collaboration between Mr. Seaman and the Virginia Department of Game and Inland Fisheries. More information about Timothy Seaman is available online at http://www.timothyseaman.com/. “Baldcypress Swamp” was also used in Virginia Water Radio episodes 151 (3-4-13) and 319 (6-6-16).
“Driving Rain,” from the 2012 album “The Barn Sessions,” is copyright by Chamomile and Whiskey and by County Wide Records, used with permission. More information about Chamomile and Whiskey is available online at http://www.chamomileandwhiskey.com/, and information about Charlottesville-based County Wide records is available online at http://countywidemusic.worldsecuresystems.com/. “Driving Rain” was featured in Virginia Water Radio episode 401 (1-1-18).
Click here if you’d like to hear the full version (1 min./11 sec.) of the “Cripple Creek” arrangement/performance by Stewart Scales that opens and closes this episode. More information about Mr. Scales and the group New Standard, with which Mr. Scales plays, is available online at http://newstandardbluegrass.com.
What does the definition of “waters of the United States" say about the following areas?
A seasonal pond near Toms Creek, a New River tributary, in Heritage Park in Blacksburg, Va. (Montgomery County), April 9, 2017.
Salt marsh at Wachapreague, Va. (Accomack County), October 6, 2007.
Dry (at the time) area of cattails and other wetland plants in Frog Level, Va. (Tazewell County), July 13, 2018.
Mountain Lake (much reduced from traditional lake level) in Giles County, Va., May 17, 2008.
Stormwater runoff in a residential field in Blacksburg, Va. (Montgomery County), September 26, 2016.
EXTRA FACTS ABOUT DEFINITIONS OF “WATERS OF THE UNITED STATES”
Below are some key differences between the 2015 “Waters of the United States” rule (or regulation) and definition published under the Obama administration and the December 2018 proposed rule by the Trump administration, according to information accessed on December 12, 2018. I n the notes below, “jurisdictional water” refers to traditional navigable waters or waters otherwise defined in regulations as covered by the Clean Water Act.
Source for 2015 regulation under the Obama administration:
Federal Register, “Clean Water Rule: Definition of the ‘Waters of the United States,’” 6/29/15, online at https://www.federalregister.gov/documents/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states. A PDF of the published rule is available at this link: https://www.gpo.gov/fdsys/pkg/FR-2015-06-29/pdf/2015-13435.pdf; the definition language of Part 328.3 starts on page 37104 of the Federal Register item, which is page 52 of the PDF version.
Source for December 2018 proposed new regulation under the Trump administration:
U.S. Environmental Protection Agency (EPA), “Revised Definition of ‘waters of the United States’—Proposed Rule,” online at https://www.epa.gov/wotus-rule/revised-definition-waters-united-states-proposed-rule. A PDF of the proposed rule is available at this link: https://www.epa.gov/sites/production/files/2018-12/documents/wotus_2040-af75_nprm_frn_2018-12-11_prepublication2_1.pdf; the definition language of Part 328.3 starts on page 185 of the PDF. The Trump administration will publish this rule in the Federal Register in late 2018 or early 2019, after which the proposed rule will undergo a public comment period. Following public comment, the rule would again need to be published in the Federal Register as a final rule.
Brief Summary of Four Key Changes in the 2018 Proposed Regulation
1) Would remove from coverage streams that flow only in direct response to precipitation, known as ephemeral streams.
2) Would remove provisions for specific waters being determined to be covered on a case-by-case basis if the waters have a “significant nexus” to a jurisdictional water, under a term and concept stated in concurring opinion by U.S. Supreme Court Justice Anthony Kennedy in the 2006 Rapanos v. United States case.
3) Would restrict the waters that can be covered on the basis of being considered “adjacent” to jurisdictional waters.
4) Would remove from coverage wetlands that are separated from a jurisdictional water.
A. Both the 2015 rule and the 2018 proposed rule define “navigable waters” as “waters of the United States, including the territorial seas.”
B. The 2015 rule’s list of waters includes waters used now, in the past, or potentially for commerce; interstate waters including interstate wetlands; territorial seas; impoundments of waters of the United States; tributaries (as defined in the rule) of waters of the United States; waters “adjacent” (as defined in the regulation) to waters of the United States’ five specifically identified kinds of water features if they are identified on a case-by-case basis to have a “significant nexus” to waters of the United States; and waters within the 100-year floodplain of certain jurisdictional waters, or within 4000 feet of certain jurisdictional waters, if they are identified to have a significant nexus to certain jurisdictional waters.
C. The proposed 2018 rule’s list includes waters used now, in the past, or potentially in commerce; tributaries (as defined in the rule) of waters used for commerce; certain defined ditches (for example, Eire Canal); lakes and ponds that contribute perennial or intermittent flow to water used for commerce; impoundments of jurisdictional waters; and wetlands “adjacent” (as defined in the rule) to jurisdictional.
D. The 2015 rule defines tributary to a jurisdictional water as “characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.” The 2018 proposal defines tributary as having “perennial or intermittent flow” in a “typical year” (“normal range of precipitation over a rolling thirty-year period” for the area). The 2018 proposal specifically excludes “ephemeral” waters, that is, “surface water flowing or pooling only in direct response to precipitation.”
E. The 2015 rule defines “adjacent” as “bordering, contiguous, or neighboring” jurisdictional waters, waters connecting jurisdictional waters, and adjacent waters at the head of a jurisdictional water. “Neighboring” was defined to mean “within 100 feet of the ordinary high water mark,” or “within the 100-year floodplain and not more than 1500 feet from the ordinary high water mark” of jurisdictional waters, and an entire water is included if any part of it meets the “neighboring” definition. The 2015 rule specifically includes waters physically separated from a jurisdictional water by constructed dikes, natural river berms, beach dunes, and “the like,” if the water otherwise fits the definition of adjacent (bordering, contiguous, or neighboring).
F. The 2018 proposed rule includes only “adjacent wetlands.” The definition of “adjacent” does not include “neighboring.” The proposal specifically excludes wetlands “physically separated” from other jurisdictional waters by a dike or similar structure and lacking a direct hydrologic surface connection to a jurisdictional water..
G. As noted above in point B., the 2015 regulation’s definition includes waters “determined on a case-by-case basis to have a significant nexus” to a jurisdictional water, if so identified by a “significant nexus analysis.” The “significant nexus” term was coined and applied by U.S. Supreme Court Justice Anthony Kennedy in a concurring opinion in the 2006 Rapanos v. United States case. The 2015 rule applies “significant nexus” to five specific types of wetlands or pools and to waters in the 100-year floodplain of a jurisdictional water and to waters within 4000 feet of the high tide line or ordinary high water mark of a jurisdictional water. The 2015 rule defines “significant nexus” as that a water or wetlands “either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of” certain jurisdictional waters. The 2018 proposal includes no mention of “significant nexus” or of any case-by-case analysis.
*Both the 2015 rule and the 2018 proposal specifically exclude from the definition of “waters of the United States” the following: waste-treatment systems, groundwater, prior converted cropland (unless the area is allowed to revert to a wetland), stormwater-control features, wastewater-recycling structures on dry land, artificially irrigated areas that would be dry without irrigation, constructed lakes and ponds created in dry land, and water-filled depressions in dry land incidental to mining or construction.
Used for Audio
Megan Boian for American Rivers, “Jurisdictional Waters under the Clean Water Act,” 8/28/15, online at https://www.americanrivers.org/2015/08/jurisdictional-waters-under-the-clean-water-act/.
Coral Davenport, Trump Prepares to Unveil a Vast Reworking of Clean Water Protections, New York Times, 12/10/18.
Federal Register, “Clean Water Rule: Definition of the ‘Waters of the United States,’” 6/29/15, online at https://www.federalregister.gov/documents/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states. This site has the text of the final rule published by the Obama Administration. For the actual language of what was included in the “Waters of the United States” definition, see Part 328, starting on Federal Register page 37104. A PDF of the published rule is available at this link: https://www.gpo.gov/fdsys/pkg/FR-2015-06-29/pdf/2015-13435.pdf; the definition language of Part 328.3 starts on page 52 of the PDF version.
U.S. Environmental Protection Agency (EPA), EPA and Army Propose New “Waters of the United States” Definition, 12/11/18 news release.
U.S. Environmental Protection Agency (EPA), “Proposed Revised Definition of WOTUS [Waters of the United States]—Factsheets,” online at https://www.epa.gov/wotus-rule/proposed-revised-definition-wotus-factsheets.
U.S. Environmental Protection Agency (EPA), “Summary of the Clean Water Act,” online at https://www.epa.gov/laws-regulations/summary-clean-water-act.
U.S. Environmental Protection Agency (EPA), “Waters of the United States (WOTUS) Rulemaking,” online at https://www.epa.gov/wotus-rule. This site has a link to a PDF of the rule being proposed by the Trump administration (as announced on December 11, 2018), online at https://www.epa.gov/sites/production/files/2018-12/documents/wotus_2040-af75_nprm_frn_2018-12-11_prepublication2_1.pdf; the definition language of Part 328.3 starts on page 185 of the PDF.
Virginia Department of Conservation and Recreation/Natural Heritage Program, “Natural Communities of Virginia,” November 2018, online at http://www.dcr.virginia.gov/natural-heritage/natural-communities/.
Ariel Wittenberg, EPA to scale back WOTUS definition, Greenwire, 12/6/18; Trump administration redefines WOTUS, Greenwire, 12/11/18; Reactions swift to WOTUS rewrite, E&E Daily, 12/12/18; and Legal analysis, not science, drives WOTUS stream protections, E&E News PM, 12/11/18. Greenwire, E&E Daily, and E&E News PM are publications of Environment and Energy Publishing, http://www.eenews.net/; a subscription is required for online access to these publications.
Virginia Water Resources Research Center/Water Central News Grouper, Clean Water Act Jurisdiction and the “Waters of the United States” is Focus of “Clean Water Rule” Announced May 27, 2015, by U.S. EPA and Army Corps of Engineers, and Proposed for Repeal by Trump Administration in June 2017; last updated November 2017. This post has background and details on the Obama administration rule that the Trump administration’s proposed rule would replace.
For More Information about the Clean Water Act or the 2015 Rule
Annie Snider, In major shift, new rule excludes some wetlands, ponds, Greenwire, 5/28/15. Greenwire is a publication of Environment and Energy Publishing, http://www.eenews.net/; a subscription is required for online access.
New York Times, Obama Announces New Rule Limiting Water Pollution, 5/27/15.
PBS NewsHour, “Why farmers are concerned about EPA’s new rules on protected water,” 5/29/15, 7 min./4 sec. video, online at http://www.pbs.org/newshour/bb/farmers-concerned-epas-new-rules-protected-water/.
U.S. Army Corps of Engineers/Regulatory Programs and Permits, online at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.
Wetland Studies and Solutions (Gainesville, Va.,), “Waters of the U.S.: New Definition Proposed,” 12/11/18, online at https://www.wetlands.com/vol26no9-wotus-definition; and “EPA & COE Redefine Which Wetlands and Streams are Federally Regulated,” Field Notes, 6/2/15, online at http://archive.wetlandstudies.com/newsletters/2015/june/WOTUS.html.
RELATED VIRGINIA WATER RADIO EPISODES
All Water Radio episodes are listed by category at the Index link above (http://www.virginiawaterradio.org/p/index.html). See particularly the “Community/Organizations” subject category.
Following are links to other episodes on the Clean Water Act.
Episode 269, 6/8/15 – a previous look at “waters of the United States.”
Episode 380, 8/7/17 – Natural Gas Pipelines, Water Resources, and the Clean Water Act.
FOR VIRGINIA TEACHERS – RELATED STANDARDS OF LEARNING (SOLs) AND OTHER INFORMATION
The episode—the audio, extra information, or sources—may help with the following Virginia Standards of Learning (SOLs).
2013 Music SOLs
SOLs at various grade levels that call for “examining the relationship of music to the other fine arts and other fields of knowledge.”
2010 Science SOLs
Grades K-6 Earth Resources Theme
6.9 – public policy decisions related to the environment (including resource management and conservation, land use decision, hazard mitigation, cost/benefit assessments).
Earth Science Course
ES.8 – influences by geologic processes and the activities of humans on freshwater resources, including identification of groundwater and major watershed systems in Virginia.
ES.10 – ocean processes, interactions, and policies affecting coastal zones, including Chesapeake Bay.
BIO.8 – dynamic equilibria and interactions within populations, communities, and ecosystems; including nutrient cycling, succession, effects of natural events and human activities, and analysis of the flora, fauna, and microorganisms of Virginia ecosystems.
2015 Social Studies SOLs
Virginia Studies Course
VS.10 – knowledge of government, geography, and economics in present-day Virginia.
Civics and Economics Course
CE.6 – government at the national level.
CE.10 – public policy at local, state, and national levels.
World Geography Course
WG.2 – how selected physical and ecological processes shape the Earth’s surface, including climate, weather, and how humans influence their environment and are influenced by it.
GOVT.7 – national government organization and powers.
GOVT.9 – public policy process at local, state, and national levels.
GOVT.15 – role of government in Va. and U.S. economies, including examining environmental issues and property rights.
Virginia’s SOLs are available from the Virginia Department of Education, online at http://www.doe.virginia.gov/testing/.
Following are links to Water Radio episodes (various topics) designed especially for certain K-12 grade levels.
Episode 250, 1-26-15 – on boiling, for kindergarten through 3rd grade.
Episode 255, 3-2-15 – on density, for 5th and 6th grade.
Episode 282, 9-21-15 – on living vs. non-living, for kindergarten.
Episode 309, 3-28-16 – on temperature regulation in animals, for kindergarten through 12th grade.
Episode 333, 9-12-16 – on dissolved gases, especially dissolved oxygen in aquatic habitats, for 5th grade.
Episode 403, 1-15-18 – on freezing and ice, for kindergarten through 3rd grade.
Episode 404, 1-22-18 – on ice on ponds and lakes, for 4th through 8th grade.
Episode 406, 2-5-18 – on ice on rivers, for middle school.
Episode 407, 2-12-18 – on snow chemistry and physics, for high school.