‘Waters of the United States’ Defined – and Your Next Pipeline

December 2015 Vol. 242, No. 12

Edward Murawski, Consultant, Kleinfelder

Editor’s note: The EPA’s proposed rule changes could considerably expand the jurisdiction of the federal government. Here are some proactive steps that pipeline owners and operators should consider to prepare for unprecedented expansion of the Clean Water Act.

The proposed Rule 33 CFR, Part 328, developed by the federal Environmental Protection Agency (EPA) and U.S. Army Corp of Engineers (USACE) and in review with the White House, will redefine and clarify the reach of EPA’s jurisdiction under the Clean Water Act (CWA).

If passed, it will expand portions of the EPA’s jurisdiction concerning small streams and other surface waters connecting to downstream waters. It would also limit the EPA’s jurisdiction concerning small waters not connected to downstream water bodies.

The new rule will likely affect owners and operators across many business sectors, including utilities, mining, agriculture … and, yes, oil and gas. Oil and gas professionals operating in areas or having assets in areas that could be redefined under this proposed rule may face significant challenges related to environmental permitting.

For instance, the new rule would create regulatory jurisdiction over wet weather conveyances that are tributaries, requiring alterations of pipelines to be subject to CWA 404 permitting and perhaps more stringent requirements for discharge under CWA Section 402 permits since many wet weather conveyance will now be federally-defined streams.

Also, what effects could 33 CFR, Part 328 have on everyday pipeline operations? What are the long-term costs of CWA compliance? Is my operation at risk of noncompliance under the new Rule? What is a significant nexus?

Ultimately, the key to in moving forward is education, awareness and preparation.

Navigating the Courts

To better understand the implications of Proposed Rule 33 CFR, Part 328 one must understand its history.

The CWA prohibits certain discharges to “navigable waters” without a federal permit, and defines “navigable waters” as “waters of the United States” which USACE and EPA originally interpreted to mean traditional navigable waters that could be used in interstate commerce. Therefore, regulations of waters under the act must be necessary to and in furtherance of interstate commerce.

Over time, the CWA was amended to cover wetlands and other non-navigable waters, which ultimately led to confusion regarding the reach of EPA’s jurisdiction. In 2001, the U.S Supreme Court ruling on Solid Waste Agency of Northern Cook County (SWANCC) v. USACE determined that the USACE could not regulate wetlands isolated from waters of the U.S. solely on the potential for use by migratory birds. In 2006, two more suits – Rapanos v. U.S. and Carabell v. U.S. – determined that the USACE could not claim all surface water and wetlands as jurisdictional solely based upon connections or adjacency to “waters” without undergoing a significant nexus evaluation.

In April 2014, the EPA and USACE attempted to clarify and redefine “waters of the United States” to include isolated water bodies and other water bodies with a hydrological connection to traditional navigable waters. To support this definition, EPA’s Office of Research and Development prepared the Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (the Connectivity Report), a synthesis of the available scientific literature regarding the connectivity and isolation of streams and wetlands to downstream waters.

The Connectivity Report specifically noted that all tributaries benefit and are connected to downstream waters due to their potential to transport water and materials (nutrients, wood, and contaminants). Another key conclusion in this report is that isolated wetlands benefit downstream waters by retaining water, nutrients, chemicals, organisms, etc. Therefore, an isolated waterbody could fall under the definition of jurisdictional waters.

On April 21, 2014, the EPA and USACE used the report to revise the definition of Waters of the U.S. in Proposed Rule 33 CFR Part 328. Under the proposed rule, the following would be jurisdictional:

1. Waters used, were used in the past, and/or could be used for interstate or foreign commerce

2. Interstate waters, including wetlands

3. Territorial seas

Exclusions to 1-3 include wastewater treatment facilities, prior converted cropland, artificial lakes and ponds within dry lands and now ditches in uplands and ditches that do not contribute flow to a traditional navigable water (TNW).

4. Impoundments of waters (identified in 1-3 above),

5. All tributaries of waters

6. Adjacent waters/wetlands to 1-5 above

The proposed rule defines with some level of certainty which waters are or are not jurisdictional — and that many wetlands and waters can be categorized as jurisdictional. It also means that methods of evaluating waters of the United States could change significantly as the EPA broadens its view of “waters” flowing to drainage basins.

Within the proposed rule, two words have critical importance for the industry: significant nexus. The definition of nexus is “a connected group.” In jurisdictional waters, it’s those waters connected to interstate or foreign commerce, interstate waters, territorial seas, etc.

Watery Definitions

EPA evaluates significant nexus waters on a case-by-case basis. To better understand how jurisdictional waters will be defined in cases, the proposed rule expands the definition of key words, such as “adjacent” regarding neighboring riparian or floodplain areas.

• Adjacent – Bordering, contiguous or neighboring and the proposed rule says these are waters or wetlands separated from waters by a man-made dike, natural river berm, and beach dunes.

• Neighboring – Waters within a riparian area or floodplain.

• Riparian – An area bordering a water where surface and subsurface hydrology directly influences the plant and animal community and structure.

• Floodplain – An area bordering inland or coastal waters formed by sediment deposition under normal climatic conditions and is inundated during moderate to high water flows.

• Tributaries – Waters that have a bed, bank, and an ordinary high water mark (OHWM) which contribute flow, either directly or through another water, to interstate waters, territorial seas, or impoundments. A break in channel does not sever jurisdiction. Also man-made, altered stream and ditches are included as part of the tributary.

With these definitions in mind, EPA will evaluate waters for significant nexus. For instance, filling a small isolated wetland or ditch may be inconsequential by itself, but when viewed in combination with a variety of other waters, the effect may be substantial enough to create federal jurisdiction over all the waters under the significant nexus test.

Finally, waters under federal jurisdiction include navigable waters and wetlands. The draft definition of jurisdictional waters differs from the current definition in several ways:

• The draft rule claims jurisdiction over any isolated wetland within the floodplain of a water body. In the past, isolated wetlands would not have been covered under the CWA as they are not connected to a larger body of water nor are they navigable.

• Subsurface groundwater connections that could connect to an isolated wetland not within a floodplain could fall under the jurisdiction of the federal government. This is a significant concern for regions of the country that have high groundwater.

• The proposed rule also includes a significant analysis for waters/wetlands termed “other waters.” These are wetlands/waters not within the flood plain and have no surface or subsurface connection. In these cases, all similar wetlands/waters within the drainage basin must be evaluated in aggregate, leading to significant time, effort and risk.

Proactive Steps

While the proposed rule is expected to have significant implications for several industries, the effects on pipeline operators haven’t been a major point of discussion. It seems that policymakers or industry executive, focused primarily on production, have largely ignored the issue because avoiding and minimizing impacts to wetlands and other bodies of water is already standard operating procedure.

However, those operating or having assets in areas that could be redefined under this proposed rule may face significant challenges. The new rule may create regulatory jurisdiction over wet weather conveyances that are tributaries. Environmental permitting may become more laborious. Any changes to conveyances may be subject to CWA 404 permitting. And requirements for discharge under CWA Section 402 permits may become more stringent because wet weather conveyances would become federally-defined streams.

Here are a few steps to consider before the upcoming changes:

Resurvey Conveyances: Owners and operators seeking to expand or make significant renovations may also run into problems. Land earmarked for expansion should be resurveyed to ensure that conveyances – dry or otherwise – are properly located.

Implement a data management system: If your operation has no data management systems, this may be the time to invest in one. Technology – including GIS-based data management programs – can be easily programmed to compile, organize, and analyze the data identified in Step 1.

Amend data management systems: Consider amending data management systems to include areas which become sodden during rain events. Detailed information should be maintained, including the location of the potential waterway, historical instances of flow being observed and rainfall events. Other information, including depth of water, flow, or dry/wet periods, should be collected on a semi-regular basis to ensure accurate and time-sensitive data.

Manage for avoidance: Operations should also manage for avoidance. Understanding how surface waters flow or pool on a site may be an important component of surface water management. Those who have a history of “soggy” locations may want to work fast to develop surface and stormwater solutions. Stormwater management rules should be reconsidered when making changes or modifications to any stormwater management systems, if applicable.

Revise asset management plans: While some operators may want to take on a “piecemeal” approach – re-grading a concrete pad here, adding a sewer line there – the most effective and resource-friendly approach would be to revise existing asset and risk management plans to include Proposed Rule 33 CFR Part 328. With an asset management and process engineering-based approach to environmental management, operators can identify, reduce or remove surface water from project sites.

An asset-management and process engineering-based approach to environmental management begins by conducting thorough surveys and assessments of an entire operation, including parking lots, pipeline footings and concrete pads.

The data is then compiled into a data management program which compares and ranks all assets across the entire system. Using the results, operators can rank and prioritize needs based on the risk it poses on the entire operations. A facility survey may find multiple large puddles and newly-eroded drainages after a large storm event. While some operators may mitigate all surface water at once, those using an integrated asset and risk management systems may reduce overall cost and risk by implementing a single solution that effects all standing water like a drainage ditch or stormwater basin.

The proposed rule was sent to the White House on April 6 and is currently under review by the White House Office of Management and Budget.

Author: Edward Murawski has over 15 years of experience in the environmental consulting field in the areas of wetlands, protected species and environmental land use permitting. Murawski has managed projects throughout the United States for an assortment of industry sectors including mining, commercial and industrial development, transportation and local governments. He is a project manager at Kleinfelder. You can reach him at EMurawski@kleinfelder.com or by calling +1 813-887-3900 ext. 2001.

Capital improvement projects, including re-grading parking lots, should be prioritized.

Even vernal pools may come under the jurisdiction of the EPA or USACE if the proposed rule passes.

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