Redefining Federal Control Over Waters of the United States

The federal Environmental Protection Agency (EPA) and the Department of the Army, Corps of Engineers (Army Corps) recently finalized anticipated revisions to the Navigable Waters Protection Rule redefining the scope of surface waters subject to federal regulation under the federal Clean Water Act. 

This article provides a short primer on water quality regulation, generally, but it is far too limited to address all of the difficult issues surrounding these new rules and will only focus on one of the more significant impacts to Colorado, i.e., the discharge of “dredge and fill” materials into waters of the state.  

Quick Background on Permits for Protection of Water Quality.

Before 1970, each of the 50 states exercised varying degrees of control over pollution to surface and ground water. Congress passed the Clean Water Act in 1970, and the law wrested control of water quality from the states and established a uniform, nationwide regulatory program to control pollution to “waters of the United States” (WOTUS). If they passed similar laws, the states were allowed to get federal government permission to run their own clean water programs.

NPDES Permits

The EPA set up a permitting scheme that required either: One, the issuance of a federal permit (national pollutant discharge elimination system, or NPDES permit); or two, a state permit that met the same or more stringent requirements of the federal program.  Colorado has run its “delegated” program (the Colorado Pollutant Discharge Elimination System, or a CPDES program) for decades.

404 (Dredge and Fill) Permits

Pursuant to section 404 of the federal statute, a permit can be issued which regulates the “discharge of dredge and fill” materials to water. While all 50 states have a “delegated” NPDES permit program, only two states (Michigan and New Jersey) run the 404 program.  All of the other 48 states, including Colorado, decided to leave the dredge and fill permit program to EPA and the Army Corps.

Federal Clean Water Act

The states control subsurface (ground) water.  The EPA and the Army Corps regulate surface waters, only.  The federal statute calls them “navigable waters,” a statutory phrase interpreted by the courts over the last 50 years and which limit which segments of the oceans, rivers, lakes, streams, tributaries, ponds, impoundments and wetlands are subject to federal permitting.

Four Categories of Waters Subject to Federal Jurisdiction

The Federal Register notice for the new rule includes 322 pages of explanatory “preamble” but only 17 pages of rules including the new definition of WOTUS.

• Click here for a link to the official notice.
• Click here for a link to the Federal Register Notice.

The rule identifies four categories of jurisdictional waters that are “waters of the United States” subject to federal control including:

• The territorial seas and traditional navigable waters;
• Perennial and intermittent tributaries that contribute surface water flow to such waters;
• Certain lakes, ponds, and impoundments of jurisdictional waters; and
• Wetlands adjacent to other jurisdictional waters.

Waters That Are Not Subject to Federal Jurisdiction

The rules provide a long list (with detailed qualifications not summarized here) of 12 types of waters that are not waters of the United States:

• A catchall that includes waters or water features that are not identified in the four “jurisdictional” categories above;
• Groundwater;
• Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools;
• Diffuse Stormwater run-off and directional sheet flow over “upland” areas;
• Some but not all ditches;
• Prior “converted cropland”;
• Artificially irrigated areas;
• Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds;
• Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
• Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
• Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and
• Waste treatment systems.

One major area of uncertainty–dredge and fill materials discharged to waters of the state

There are several unknowns for Colorado. One area of concern—out of more than a dozen that deserve attention—that Colorado agencies and the regulated community are particularly concerned about is: How do the revised rules impact control of pollution from the discharge of dredge and fill material to streams and wetlands?

The Colorado Water Quality Control Act defines state waters broadly to include “any and all surface and subsurface waters which are contained in or flow in or through this state.”  But Colorado does not issue section 404 permits for “dredge and fill” material, that is left to the federal EPA and the Army Corps.  

One might need a 404 permit, for example, for construction of a road/bridge over/near a river or construction of holding ponds/reservoirs.  If that construction results in the discharge of fill material into the water (e.g., dirt during excavation), the federal agencies would determine whether they could issue a permit for that activity.  But, a 404 permit is only required for discharges to waters of the U.S. 

Under the new federal rule, essentially all ephemeral streams, intermittent streams, and many wetlands might be excluded from federal jurisdiction (not “waters of the U.S.”) and thus could be ineligible for federal 404 permits. Without a federal 404 permit, the Colorado Water Quality Control Act would treat discharges of fill material to state waters the same as any other discharge of pollutants.  And that means that the discharges cannot result in exceedances of water quality standards or compromise the classified uses of those waters.

Is This a Big Deal?

A 2019 study concluded that the new rules might exclude between 10,334 and 36,836 acres of wetland areas in Colorado from federal jurisdiction (15% and 54% respectively of all Colorado wetland acreage). If those areas are not waters of the U.S. subject to federal 404 permitting requirements, they are automatically state waters, which might require the issuance of a state-issued CPDES discharge permit to prevent exceedances of water quality standards or to avoid compromising the classified uses of those waters.

As Gov. Polis and Attorney General Weiser stated in their April 15, 2019 comments on the new rules, “discharges of large quantities of fill, by their nature, are likely to result in exceedances of state water quality standards and compromise the classified uses of these waters.” Thus, “Colorado could not permit them” under the state statute. Without a permit, any project with that type of discharge would not be able to proceed.

This is but one of at least a dozen controversial issues triggered by the rule changes.  Uncertainty? You bet!  Litigation?  A certainty! Stay tuned, Colorado.

John L. Watson is an attorney in the Denver office of Spencer Fane LLP. For more information, visit spencerfane.com.