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What Is (and What Isn’t) a “Wetland"

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(Editor’s Note:  With hundreds of rivers and tributaries (not to mention the Chesapeake Bay), rules defining “what is a wetland” are critically important for the state’s Agriculture industry.  Here, Gary Baise explores what is (and what isn’t) a wetland under new rules proposed by the Trump Administration – and what they can mean for Virginia’s farmers.)

What Is a Tributary
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have proposed a new regulation defining waters of the United States (WOTUS).
The December 11, 2018 proposal defines a tributary, impoundment, wetland, and ditch, which I explained in this blog. Many pages are devoted to explaining what EPA and the Corps are proposing to regulate as a tributary and other water features. The agencies explain what they are proposing, why the definition is being proposed, how the agencies intend to implement the proposal, and finally, what issues the agencies are seeking to solicit comments.

The proposed regulation curbs EPA’s and the Corps’ jurisdiction regarding what is an existing tributary. The agencies describe their tributary proposal this way:  “[It]…is…intended to limit federal jurisdiction over ephemeral flows and other ordinarily dry land features in order to preserve and protect the primary responsibilities and rights of states…”
The Supreme Court’s Rapanos case is quoted, which chastises the Corps and EPA because their present definition “seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact and carrying only minor water volumes toward it…”

The new proposed rule defines a tributary as such: “…a river, stream or similar naturally occurring surface water channel that contributes ‘perennial or intermittent’ flow to a traditional navigable water or territorial sea in a typical year (defined later) either directly or indirectly through other jurisdictional waters such as tributaries, impoundments, and adjacent wetlands…”

Critical words
The two words “perennial” and “intermittent” are critical.

The proposed regulation also defines excluded waters as not being a tributary. It states “…excluded waters and features are incapable of providing perennial or intermittent flow…” The Trump administration’s EPA and Corps state tributaries “…do not include surface features that flow only in direct response to precipitation, such as ephemeral flows, dry washes, and similar features.”

Perennial, intermittent and ephemeral are also defined in the proposal:

  • Perennial means “…surface water flowing continuously year-round during a typical year.”
  • Intermittent means “…surface water flowing continuously during certain times of a typical year, not merely in direct response to precipitation, but when the groundwater table is elevated…or when snowpack melts.”
  • Ephemeral means a “…surface water flowing or pooling only in direct response to precipitation such as rain or snowfall.”

Even this language will likely be the subject of much continued litigation.
The good news from these new definitions is that a tributary must now contribute a “perennial or intermittent” flow to a traditional navigable water in a typical year. Even the term “typical year” is defined. It means a year is “…within the normal range of precipitation over a rolling thirty-year period for a particular geographic area.” A typical year does not include periods of drought or extreme flooding.

The Trump administration is clearly attempting to restrict agency officials who believe any water running downhill gives the respective agency jurisdiction.
EPA and the Corps, under the Trump administration, are proposing a definition of ‘tributary” which is “…consistent with the Rapanos opinion that the waters of the United States [are to] include only relatively permanent, standing, or flowing bodies of waters…as opposed to ordinarily dry channels…or ephemeral flows of water.” It is attempting to draw a clear line on what is or what is not a tributary.

The good news from the proposal is that ordinarily dry channels where water flows occasionally or intermittently do not constitute a tributary.

The U.S Supreme Court, in the Rapanos case, hammered EPA and the Corps by saying WOTUS “…cannot bear the expansive meaning that the Corps would give it, …”. The Trump administration’s EPA and the Corps are no longer taking the position that any insubstantial hydrologic water flow may be determined to be a tributary.

What Is Not a Wetland
EPA and the Army Corps of Engineers (Corps) clarify in a new proposal for Waters of the United States what is NOT a wetland. Groundwater, including groundwater which is drained through a tile system, is one of these exclusions!

This exclusion is aimed at the Des Moines Water Works case and others who want to claim farm tile or any agricultural drainage through a tile should be a point source.
Ephemeral surface features and diffuse stormwater runoff such as sheet flow over uplands is excluded as a WOTUS.

Ditches, too
EPA and the Corps “…would exclude all ditches from the definition of waters of the United States except those ditches identified in paragraph (a)(3) of the proposed rule.” The ditches which would be WOTUS are those connected to a tributary which would satisfy the conditions of being a tributary.

Another exclusion helpful to agriculture is prior converted cropland. This exclusion has been in prior definitions of what is or is not a wetland.

What continues to be dangerous to farmers regarding this exemption is USDA’s definition of the swamp buster provision administered by NRCS. For example, if land has been productive and used decades ago and then allowed to go fallow and farming begins again on the land after December 23, 1985, a farmer or rancher may get attacked by USDA.
Even so, there’s more good news in the new proposal.

“The agencies also propose to exclude artificially irrigated areas, including fields flooded for rice or cranberry growing, that would revert to upland should application of irrigation water to that area cease.” This exemption appears to be aimed at a case in Massachusetts where EPA has pursued one cranberry farmer and his family for approximately 28 years.
It would appear relief has come too late.

The Trump administration, to be very clear, proposed to “…exclude artificial lakes and ponds constructed in upland, such as water storage reservoirs, farm and stock watering ponds, settling basins, and log cleaning ponds, as long as they are not subject to jurisdiction under either paragraph (a)(4) or (a)(5) of the proposed rule.”
EPA and the Corps under the Trump administration will exclude water-filled locations in uplands which are created by mining, construction activity, from obtaining fill, sand, or gravel. Under the Obama administration there was a possibility of these water-filled depressions being declared a WOTUS.

Environmentalists howling
Environmental groups, of course, are howling over the fact that many water features are no longer subject to the long arm of EPA and the Corps. The agencies do make it clear these water-filled depressions must be in “uplands”. For example, stormwater control features which are excavated or constructed in uplands to treat or store stormwater are excluded from WOTUS. Note that these features are not excluded from WOTUS if they are constructed in a wetland.

To make it clear, the agencies exclude any structure such as “…detention, retention, and infiltration basins and ponds and groundwater recharge basins.” Again, all these must be constructed in uplands. EPA and the Corps rely on the U.S. Supreme Court case of Rapanos. That case made it clear that the waters just discussed “…were not primarily the focus of the CWA (Clean Water Act) such as channels that periodically provide drainage for rainfall.”

The proposed Trump administration rule from EPA and the Corps claims that it wants to be very specific about excluding waters and water features from being a WOTUS. The two agencies believe they have comprehensively excluded certain waters and features which are not WOTUS.

This proposal is a clear example of the President and his administration attempting to keep government agencies from taking private property.

A version of this column originally appeared in the January and February issues of Farm Futures.

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