Don’t walk in the rows during a rainstorm

Before someone decides to remove or alter “Waters of the United States” (“WOTUS”) through construction, plowing, grading or other similarly activities a 404(b) permit must be obtained. Part of the permitting process involves proving that the  “Least Damaging Practicable Alternative” has been chosen and also mitigating any loss of WOTUS.

On June 22, 2017, the U.S. Army Corps of Engineers adopted the “Iowa Stream Mitigation Method” to govern its review of 404(b) permits and to guide engineers, biologists, and environmental consultants on how to best mitigate destruction or damage to WOTUS.   This Iowa Method was approved despite the litigation surrounding the 2015 WOTUS rule. We must now apparently include stepping in puddles during rainstorms as an activity that may trigger felony arrest by the FBI (I’m stretching the argument just a bit to make my point).

There are both good and bad aspects to the rule.  A good aspect of the Method is that  it at least sets forth a clearer path that can be used to calculate mitigation efforts.  The bad aspect of the Method is that it adopts definitions that are currently stayed by a Federal Appeals Court. The 2015 regulation at 33 CFR section 328.3 defines WOTUS as “characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.” However, that definition has been stayed by a Federal Court in In re EPA, 803 F.3d 804 (6th Cir. 2015). In addition, the Trump Administration has proposed to abolish the new 2015 rule altogether. The old rule as enacted in 1986 is therefore in effect pending either abolition of the 2015 rule or further court action. That 1986 version of the rule does not contain the “bed and bank” language in the 2015 version and has a narrower definition of WOTUS streams, at least as it pertains to ephemeral streams.

What does this mean? Because the Iowa Mitigation Method adopts (see page 1) the stayed 2015 version of the regulation, it pushes federal jurisdiction past the currently enforceable limit to include any ephemeral stream with a defined bed and bank.  The 2015 rule that has been stayed further defines an ephemeral stream as any place where water runoff from precipitation occurs, even it that water is only visible in response to rainfall, the “streambed” is located above the water table year-round, there is no groundwater source, and there are no aquatic organisms.

Contrast this with the currently enforceable definition at 33 CFR section 328.3 from 1986:

For the purpose of this regulation these terms are defined as follows:

(a) The term waters of the United States means

(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or

(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(iii) Which are used or could be used for industrial purpose by industries in interstate commerce;

33 CFR section 328.3 First, an ephemeral stream has none of the attributes listed at 33 CFR section 328.3(a)(3)(i)-(iii) (1986). An ephemeral stream has no recreational purpose, unless you count splashing in puddles recreational. Those types of streams have no fish or shellfish that can be taken and sold in interstate or foreign commerce, and they have no industrial purpose. In fact, the 1986 definition mentions only “intermittent streams” when expanding the definition, which certainly suggests that ephemeral streams were not intended to be covered in the 1986 version of WOTUS. Otherwise, the regulation would include both “intermittent and ephemeral streams.” By insisting on referencing the stayed 2015 rule, if a farm field has water running on it while it rains and there is a defined bed and bank, the U.S. Army Corps of Engineers may well deem that water to be jurisdictional and that any disturbance of the soil on that farm (by farming or development) will trigger penalties and potential criminal action if any disturbance of that water takes place without a 404(b) permit in hand. The U.S. Army Corps of Engineers has already implemented this interpretation and threats of enforcement action have been issued.

James Pray

BrownWinick Law Firm