Technical Questions and Answers For Implementation of the Clean Water Rule
The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency have jointly prepared the following Questions and Answers regarding implementation of the Clean Water Rule. The final rule became effective on August 28, 2015. Click here for EPA and the Department of Army's statement on the relevance of recent court rulings. The agencies will periodically update these Questions and Answers as experience with the rule grows. If there are slight differences, the language in the final preamble and rule controls and should be used for purposes of understanding the scope and requirements of the final rule.
Implementation – Grandfathering
Q: Are preliminary jurisdictional determinations affected by the new rule?
Preliminary jurisdictional determinations (PJDs) from the Corps for Clean Water Act Section 404 purposes are not affected by the new rule. A PJD is a non-binding “. . . written indication that there may be waters of the United States, including wetlands, on a parcel” and may be used to voluntarily waive or set aside questions regarding jurisdiction over a particular site, usually in the interest of allowing the landowner or other “affected party” to move ahead expeditiously to obtain a Corps permit. Landowners may rely on existing PJDs regarding a specific authorization/verification even after the new rule is in effect. Landowners may continue to request a PJD in lieu of an approved jurisdictional determination under the new rule. In addition, landowners with an existing PJD may request an approved jurisdictional determination under the new rule if they choose, which would be finalized after the effective date of the new rule.
Q: What is the status of an approved jurisdictional determination associated with a pending complete nationwide permit pre-construction notification (PCN)?
For an approved jurisdictional determination associated with a complete Section 404 pre-construction notification (per Nationwide Permit General Condition #31 and any related Corps district-specific regional conditions) pending on or before publication date of the new rule (i.e., June 29, 2015), the approved jurisdictional determination will be finalized consistent with the former rule, regardless of the date of the NWP verification decision. However, the applicant has discretion to request that the Corps apply the new rule, in which case the Corps would finalize the approved jurisdictional determination after the effective date under the new rule. Pending PCNs must not be withdrawn and resubmitted for the old rules to apply.
Q: For how long are Approved Jurisdictional Determinations valid and under what circumstances would they be revised prior to expiration?
Approved JDs are valid for five years, unless new site-specific information warrants a revision. The Corps has determined this new rule does not constitute new site-specific information. Once the new rule takes effect, if new site-specific information warrants a revision to the Approved JD before it expires, the Approved JD will be reconsidered and finalized under the new rule. Approved JDs may be reconsidered under the new rule prior to expiration at the landowner’s request. However, finalization of that reconsidered Approved JD will occur after the effective date of the new rule.
Q: What is the status of an Approved JD associated with existing issued permits and verifications?
Approved JDs associated with issued permits and verifications are valid until the expiration date of the permit or verification, including time extensions for permits.
Q: If a stand-alone Approved JD is finalized after the effective date of the new rule, is it issued under the former rule or the Clean Water Rule?
Stand-alone Approved JDs completed after the effective date are finalized under the new rule.
Q: What is the status of an Approved JD associated with a pending individual permit application where the application was determined complete on or before publication date of the new rule?
For an Approved JD associated with complete individual permit applications (per regulation at 33 CFR 325.1) pending on or before publication date of the new rule, the Approved JD will be verified consistent with the former rule, regardless of the date of the permit decision, unless the applicant requests the Corps apply the new rule, in which case the Corps would finalize the Approved JD after the effective date under the new rule. Note that a finalized JD is not among the required contents of a complete application described at 33 CFR 325.1.
Q: What waters may be covered under the adjacent category of waters?
The Rule includes all waters adjacent to a water identified in paragraphs (a)(1) through (a)(5) – the traditional navigable waters interstate waters, territorial seas, impoundments, and tributaries. These adjacent waters may include wetlands, ponds, lakes, oxbows, impoundments, and similar waters. Adjacent waters do not include waters that are subject to established normal farming, silviculture, and ranching activities as those terms are used in Section 404(f) of the CWA. However, such waters may be subject to a case-specific significant nexus analysis under paragraph (a)(7) or (a)(8).
Q: How is the 100-year floodplain determined when Federal Emergency Management Agency (FEMA) maps are either unavailable or inaccurate?
The 100-year floodplain is the area that will be inundated by the flood event having a one percent chance of being equaled or exceeded in any given year, which is consistent with the FEMA definition of the “100-year flood.” When FEMA maps are unavailable or inaccurate, the agencies will rely on other available tools to identify the 100-year floodplain, including other federal, state, or local floodplain maps, Natural Resources Conservation Service (NRCS) Soil Surveys (Flooding Frequency Classes), tidal gage data, and site-specific modeling. Additional supporting information can include historical evidence such as photographs, prior delineations, topographic maps, and existing site characteristics. The Corps and EPA will coordinate with other federal and state agencies to develop additional information to further improve tools for identifying the 100-year floodplain.
Q: Is distance thresholds measured as straight-line distances or do they account for vertical changes?
Distance thresholds should be measured perpendicular to the ordinary high water mark or high tide line, whichever is applicable, in straight-line distance extending landward. Such distance measurements do not account for vertical changes.
Q: To be considered “normal farming,” does the farming activity have to have started prior to 1977?
No. To be considered “normal farming,” a practice needs to be part of a legally established ongoing farming, silviculture, or ranching operation, and there is no requirement that the operation has been underway prior to 1977. Activities on areas lying fallow as part of a conventional rotational cycle are part of an established operation. Activities which bring an area into farming, silviculture or ranching use, or convert from one use to another, are not part of an established operation. Regulations at 33 CFR 323.4 and 40 CFR 232.3(c)(1) provide more information.
(a)(7) Case-Specific Waters Similarly Situated by Rule
Q: What analyses are required to find a water jurisdictional under (a) (7)?
Field staff should first determine if a water is one of the five types listed under (a)(7), if so, then field staff would identify additional waters in the same single point of entry watershed that are of the same type as the water being evaluated. Field staff will perform a significant nexus analysis on all the waters of the same type in the same single point of entry watershed, except those that are already jurisdictional categorically under the Clean Water Rule.
(a)(8) Case-Specific Waters
Q: What waters may be covered under the site-specific significant nexus categories of waters under paragraph (a)(8)?
A water that is determined not to be adjacent under the Rule but that is within the 100-year floodplain of a traditional navigable water, interstate water, or territorial sea is jurisdictional where it has a significant nexus to a traditional navigable water, interstate water, or territorial sea either alone or in combination with similarly situated waters.
A water that is determined not to be adjacent under the Rule but is within 4,000 feet of the high tide line or ordinary high water mark of a traditional navigable water, interstate water, territorial sea, impoundment, or tributary is jurisdictional where it has a significant nexus to a traditional navigable water, interstate water, or territorial sea either alone or in combination with similarly situated waters.
All significant nexus findings must be effectively documented with relevant site-specific factors that support the jurisdictional finding.
Q: What are considered wetland waters under the Rule?
The definition of “wetland” does not change under the Rule: “The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.” Wetlands are delineated using the 1987 Corps Wetland Delineation Manual including its Regional Supplements.
Q: What types of non-wetland waters are included as adjacent waters or as site-specific significant nexus waters?
Ponds, lakes, oxbows, impoundments, and similar waters are considered non-wetland waters that can be found to be jurisdictional as either adjacent or as site-specific significant nexus waters.
Q: What analyses are required to find a water jurisdictional under (a)(8)?
Field staff should first determine the single point of entry watershed for the water being evaluated and then determine if that water should be considered alone or in combination with similarly situated waters. Field staff will perform a significant nexus analysis on those water(s). In determining if waters are similarly situated, field staff can only consider other potential (a)(8) waters within the distance thresholds. For determining whether waters are similarly situated, considerations could include, for example, whether waters are sufficiently close to each other, and whether they perform similar functions, such as habitat, water storage, sediment retention and pollution sequestration.
Characteristics of Tributaries and Erosional Features
Q: What is the difference between tributaries under the Clean Water Rule and erosional features which are not considered “waters of the U.S.” under the Rule?
For the purposes of the Rule, a tributary is a water that contributes flow, either directly or through another water, to a traditional navigable water, interstate water, or the territorial seas that exhibits physical indicators of flow through a bed and banks and an ordinary high water mark (OHWM). Ephemeral erosional features, such as gullies, rills, and non-wetland swales, do not have the physical features of tributaries and are specifically excluded from the definition of waters of the U.S. Concentrated surface runoff may occur within an erosional feature, but without creating the physical characteristics associated with bed and banks and an ordinary high water mark, the feature will not be jurisdictional.
It should be noted that some ephemeral streams are colloquially called “gullies” or the like even where they exhibit a bed and banks and an ordinary high water mark; regardless of the name they are given locally, waters that meet the definition of tributary are not excluded erosional features.
Q: What is a “bed and banks”?
The bed and banks is the substrate (the bottom) and sides of a channel between which flow is confined. The banks constitute a break in slope between the edge of the bed and the surrounding terrain. This break in slope may vary from gradual to steep, depending on the landscape position of the channel. The bed may be devoid of vegetation or may be fully vegetated depending on precipitation levels, volume, frequency, and duration of flow.
Q: What is an “ordinary high water mark” (OHWM) and what are its indicators?
The OHWM is that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. The OHWMs can take on a variety of appearances and have a wide range of indicators depending on location, recent flow conditions, and other factors. These factors and other relevant indicators are discussed in detail in applicable Corps guidance documents and manuals on OHWM identification. The OHWM manuals can be found at: http://www.erdc.usace.army.mil/OHWM/.
Q: Where do erosional features occur?
Erosional features occur where there is enough concentrated surface runoff to form a channel, but that channel has insufficient volume, frequency, and duration of flow to exhibit the physical characteristics of a bed and banks and/or OHWM. In some circumstances a tributary may demonstrate breaks in the presence of bed and banks and/or OHWM along the connection to the downstream traditional navigable water, interstate water, or territorial sea while hydrologic connectivity remains. Such breaks in bed, banks and or OHWM may include an erosional feature. Flow through a non-jurisdictional erosional feature does not preclude the water from remaining a tributary so long as the bed and banks and an OHWM are present upstream of the break.
Q: How can I determine the difference between a tributary and an erosional feature in the field?
If the feature is a tributary you will generally be able to identify bed and banks and another indicator of an OHWM unless disturbed conditions exist, such as during or shortly after extreme flow events or due to man-made alterations. As explained above, erosional features lack a bed and banks and/or an OHWM.
Q: What is “dry land?”
Dry land is those areas that are not water features, such as streams, wetlands, lakes, ponds, and the like. It is important to note that a “water of the United States” is not considered dry land just because it lacks water at a given time. An area remains dry land even if it is wet after a rainfall event so long as it is not a stream, lake, pond, or wetland and the like. So features such as puddles, wet spots and gullies are still considered dry land.
Exclusions – Ditches
Q: Can a ditch be considered adjacent?
No. Ditches are jurisdictional under the rule only if they both meet the definition of “tributary” and are not excluded under paragraph (b)(3) of the rule.
Q: Can parts of a Municipal Separate Storm Sewer System (MS4) be a water of the US, and other parts be excluded?
Yes. It is a longstanding EPA position that MS4s can contain jurisdictional waters. MS4s often rely on a drainage network consisting of jurisdictional waters as well as constructed conveyance structures to transport stormwater. Where MS4s incorporate creeks and streams, which may be channelized, piped or otherwise modified within their drainage network, the creeks and streams remain jurisdictional waters even if they are considered to be a part of the MS4.
Q: Are stormwater control features constructed in uplands that have developed into wetlands (meeting the three parameters of soils, vegetation, and hydrology under the 1987 Corps Wetlands Delineation Manual) jurisdictional under the Clean Water Rule?
No. The new stormwater exclusion covers all stormwater control features that are built in dry land. The exclusion is broadly defined to cover stormwater control measures that are constructed to convey, treat, or store stormwater built in dry land, and does not specify particular control measures that qualify for the exclusion. Stormwater professionals and NPDES regulations refer to stormwater control features as Best Management Practices or BMPs. The Agencies decided not to list specific measures or features because the lack of uniform definitions for many of the features could miss some features and fail to anticipate future control features that should be captured by the exclusion.