The proposed new EPA wetlands rule aims to clarify regulatory authority over wetlands and other waters. It would make tributaries and adjacent wetlands "jurisdictional by rule" while other waters would require case-by-case evaluation. The rule proposes formal definitions of key terms and exempts certain lands like prior converted cropland and waste treatment systems. It is intended to provide more consistency and address uncertainties created by past Supreme Court cases. Stakeholders are encouraged to comment on the proposed rule by October 20, 2014. Case studies presented show how the new rule may impact projects near irrigation canals or isolated wetlands.

1. New EPAWetlands Rule
JuliAnna McNutt
Senior Biologist
July 8, 2014

2. Presentation Outline:
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1. Intro and History
a. Key regulations
b. Regulatory authority (Corps + EPA, State)
2. How do we Delineate a Wetland?
3. Changes in Regulatory Authority Since Clean Water Act
a. SWANCC
b. Rapanos
4. Proposed Rule
a. What it is/What it isn’t, discuss comment period, and timing
b. What prompted proposed rule, discuss 9/13 EPA science document
c. Definitions
5. How Proposed Rule May Affect Project Sites
6. Case Studies
1. Irrigation channel-fed wetlands
2. Intermittent/ephemeral drainages

3. History of Wetlands Regulations
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 16th century = 220 mil acres
current = 105 mil acres
 1900s: advancing science increased understanding
about wetland function (habitat, water storage, water
filtering/purification, flood control, food production,
education/research, recreation)

4. Key Wetlands Regulations
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 1899: Rivers and Harbors Act
 1948: Federal Water Pollution Control Act
 1972: Clean Water Action (CWA), Section 404
 CWA mandates permits for the release of dredged or fill
materials into U.S. waters
 Corps responsible to administering permits
 1986: Emergency Wetland Resources Act (National
Wetlands Inventory)
 1987: Corps of Engineers Wetland Delineation Manual

5. How Do We Delineate a Wetland?
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 Hydric Soils
 Gleying
 Redoximorphic features
 Hydrophytic Vegetation
 Dominance test
 Prevalence index
 Wetland Hydrology
 Surface water
 High water table
 Ordinary high water mark

6. U.S. Wetlands
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Source: USGS

7. Wyoming Waters
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Source: WY State Geological Survey

8. Wyoming Wetland Habitat
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Source: The Nature Conservancy, USGS
 1.2 million acres
(2%)
 Agriculture/Irrigated
meadows have
enhanced WY
wetlands

9. Changes Since Clean Water Act
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 2001: Isolated Wetlands (Supreme Court ruled, in
Solid Waste Agency of Northern Cook County
[SWANCC] v. U.S. Army Corps of Engineers, that
the Corps was not authorized to protect isolated
wetlands.
 2006: Rapanos/Carabell v. U.S. extended
jurisdiction to non-navigable tributaries via
“significant nexus”.

10. Impact of Rapanos
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 The Corps decides jurisdiction over the following
waters based on a fact-specific analysis (case-by-
case) to determine whether they have a significant
nexus with a traditional navigable water:
 Non-navigable tributaries that are not relatively permanent
 Wetlands adjacent to non-navigable tributaries that are not
relatively permanent
 Wetlands adjacent to but that do not directly abut a relatively
permanent non-navigable tributary

11. Problem with Rapanos
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 When the Corps takes jurisdiction over a potential
wetland is not a black and white process
 Leads to uncertainty
 Examples of problem sites: swales
(ephemeral/intermittant), ditches, agricultural areas,
mosaic wetlands (areas that contain both wetlands and
uplands mixed together), irrigated areas
 For nearly a decade, people have asked for clarity with
the jurisdictional determination process

12. Proposed Rule
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 Purpose: define scope of waters protected under
the Clean Water Act
 Propose rule published in Federal Register on
April 21, 2014
 Public comment period ends on October 20, 2014

13. New EPA Wetland Rule: What Prompted It?
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 Three Explanations:
 Inconsistent Jurisdictional Determinations
 Unclear Definitions
 Need to Improve Efficiency

14. EPA Science Report
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 Precursor to proposed rule
 Released in September 2013
 Summarizes watershed-scale connectivity
 Makes the case for “adjacent” and “neighboring”
wetlands

15. Proposed Rule – What’s In
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 Jurisdictional by Rule
 The big three:
 Navigable waters
 Interstate waters
 Territorial seas
 Tributaries
 Adjacent waters and wetlands
 Case-by-Case
 “Other waters” via significant nexus evaluation

16. Proposed Rule – What’s Out
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 Pre-existing situations (i.e., prior converted cropland,
ranching, farming activities)
 Waste treatment systems
 Gullies/rills/non-wetland swales
 Most ditches (except tributary ditches)
 Irrigated areas that would revert to uplands
 Artificial lakes/ponds constructed in uplands
 Groundwater

17. Definitions
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 Adjacent: bordering, contiguous, or neighboring.
 Waters, including wetlands, separated from other waters of the
United States by man-made dikes or barriers, natural river
berms, beach dunes and the like are ‘‘adjacent waters.’’
 Neighboring: includes waters located within the
riparian area or floodplain of a water of the US, or
waters with a shallow subsurface hydrologic
connection or confined surface hydrologic connection
to such a jurisdictional water.

18. Definitions (con’t)
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 Riparian Area: an area bordering a water where surface
or subsurface hydrology directly influence the ecological
processes and plant and animal community structure in
that area.
 Floodplain: an area bordering inland or coastal waters
that was formed by sediment deposition from such
water under present climatic conditions and is inundated
during periods of moderate to high water flows.

19. Definitions (con’t)
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 Tributary: water physically characterized by the
presence of a bed/bank and ordinary high water
mark which contributes flow, either directly or
through another water, to a water of the US.

20. EPA Science Report (con’t)
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EORI Conference
Source: Modified from EPA 2013
Other Waters (isolated wetlands) Tributaries/Adjacent Wetlands

21. How Does the New Rule Affect Projects?
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 Pipelines/utilities should be evaluated in
intermittent/ephemeral drainages
 Projects located in floodplains/riparian areas may
need a permit
 Additional site-specific data may be needed to
facilitate a significant nexus decision

22. Case Study #1: Irrigated Wetland
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 Located in Laramie, Wyoming
 Property Owner wanted to develop property
 Close to Laramie River
 Wetlands found on the property, but were formed
from irrigation water, not the river
 Status: Jurisdictional

23. 23
Property to be Developed
Laramie River
Irrigated Areas
Significant Nexus

24. Case Study #2: Isolated Wetland
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 Located in Cheyenne, Wyoming
 Isolated reservoir located in an ephemeral drainage
 Large wetland footprint
 Corps determined that no significant nexus exists
 Status: Not Jurisdictional

25. 25
Reservoir in Question
Ephemeral Drainage
15 mi to a perennial stream

26. Significant Changes- Summary
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 Tributaries and Adjacent Wetlands will be
“Jurisdictional by Rule”
 “Other waters” to be evaluated on a case-by-case
basis
 Formal definitions of adjacent, neighboring, riparian
area, floodplain, tributary, wetland, and significant
nexus

27. Questions?
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Photo Source: Corps of Engineers
Juli Anna McNutt
Senior Biologist
jmcnutt@trihydro.com
307/745‐7474