trask ms thesis 2015

NAVIGATING THE “WATERS OF THE U.S.”:

A REVIEW OF THE EPA’S PROPOSED RULE AND ITS IMPACTS

ON OIL AND GAS DEVELOPMENT

A Master Thesis

Submitted to the Faculty

of

American Public University

by

Sabrina Dawn Trask

In Partial Fulfillment of the

Requirements for the Degree

of

Master of Science

January 2015

American Public University

Charles Town, WV

NAVIGATING WATERS: A REVIEW OF EPA’S PROPOSED RULE 2

The author hereby grants the American Public University System the right to display these contents for educational purposes. The author assumes total responsibility for meeting the requirements set by United States copyright law for the inclusion of any materials that are not the author’s creation or in the public domain. © Copyright 2015 by Sabrina Dawn Trask All rights reserved.


DEDICATION

I dedicate this thesis, and this degree, to my son Nolan; thank you for your patience when I was

busy with homework. Now let’s go play!


ACKNOWLEDGEMENTS

Many thanks go to my employer, WPX Energy, for providing the incentive and tuition

assistance that enabled me to undertake and complete this degree. Thanks also go to Gretchen

Kohler of WPX Energy and Noah Greenberg at Wright Water Engineers, Inc., for providing

timely, relevant and informative materials that provided me a clearer insight into industry

opinions.

Special thanks go to my parents Nancy, Larry, Bob, and Sally; and to Jeff, for supporting

my personal effort with encouragement and patience. My journey would have been much more

difficult without you.


ABSTRACT OF THE THESIS

NAVIGATING THE “WATERS OF THE U.S.”: A REVIEW OF THE EPA’S PROPOSED RULE

AND ITS IMPACTS ON OIL AND GAS DEVELOPMENT

by

Sabrina Dawn Trask

American Public University System, December 14, 2014

Charles Town, West Virginia

Professor Elizabeth Crosier, Thesis Advisor

In early 2014, the U.S. Environmental Protection Agency (EPA) and U. S. Army Corps of

Engineers (ACE) jointly proposed a new rule that would further clarify, by regulatory definition,

the jurisdiction of waters covered under the protective authority of the Clean Water Act (CWA).

This clarification of the scope of Waters of the U.S. (WOUS) could significantly impact the

timing, location and economics of future oil and gas operations. The purpose of this research is

to compare the current jurisdictional scope of WOUS with the newly proposed EPA/ACE scope,

and to determine the potential impacts to oil and gas development if the EPA/ACE proposed rule

is implemented. Three case study areas were examined to determine permitting needs using both

the current and proposed scope of WOUS. Results conclude that of 4 specific sites in the study

areas, 2 plainly require permits under current scope, but all 4 sites require permits under the

proposed scope. The proposed rule would create new, but not necessarily more difficult or

costly, impacts to oil and gas operators, as operators would have a clearer understanding of

permitting requirements, and agencies would provide more systematic and less convoluted

interpretations of regulations and the law.


TABLE OF CONTENTS

CHAPTER PAGE

1. INTRODUCTION .............................................................................................................. 8

2. LITERATURE REVIEW ................................................................................................. 10

Evolution of the Clean Water Act ..................................................................................... 10

Key Definitions and Critical Terminology ....................................................................... 14

Waters of the United States ................................................................................... 15

Navigable Waters .................................................................................................. 18

Supreme Court Decisions ................................................................................................. 21

United States v. Riverside Bayview Homes, Inc. (1985) ....................................... 22

SWANCC v. U.S. Army Corps of Engineers (2001) .............................................. 23

Rapanos v. U.S. Army Corps of Engineers (2006) ............................................... 27

3. THEORETICAL FRAMEWORK .................................................................................... 31

Proposed Rule for Waters of the United States ................................................................ 33

Permits for Oil and Gas Exploration, Development and Production ................................ 40

4. METHODOLOGY AND ANALYSIS ............................................................................. 42

Case Study Data and Results ............................................................................................ 44

Williston Basin ...................................................................................................... 44

San Juan Basin ...................................................................................................... 47

Piceance Basin ...................................................................................................... 52

5. RESULTS, CONCLUSIONS AND RECOMMENDATIONS ........................................ 54

Impacts to Operators ......................................................................................................... 55

Limitations of the Study and Recommendations for Operators........................................ 57

6. LIST OF REFERENCES .................................................................................................. 60


7. LIST OF FIGURES .......................................................................................................... 68

8. APPENDICES .................................................................................................................. 76

Appendix 1: ArcMap 10.2.2 Technical Methodology ...................................................... 76

Appendix 2: Petra 3.8.3 Technical Methodology ............................................................. 76

Appendix 3: Index for Relevant United States Code Items .............................................. 77

Appendix 4: Index for Relevant Code of Federal Regulations ......................................... 77

Appendix 5: Williston Basin Google Images 1995-2013 ................................................. 78


Introduction

The United States experienced an enormous environmental awakening in the 1970s.

Prompted by increasing public pressure and the noticeably detrimental consequences of

widespread water pollution, the federal government in 1972 amended the Federal Water

Pollution Control Act of 1948, creating landmark legislation now commonly known as the Clean

Water Act (CWA). The CWA’s primary purpose is to minimize and regulate the discharge of

pollutants into “waters of the United States” (WOUS), as administered by the U.S.

Environmental Protection Agency (EPA) and implemented by the U.S. Army Corps of Engineers

(ACE). The definition of WOUS (33 CFR § 328; 40 CFR §§ 110, 112, 116 et al.) is widely

recognized as unusually complex, and creates challenges for the EPA and ACE to regulate

between regional offices and across agencies. The definition is equally difficult for private

entities and individuals to interpret, resulting in cases of noncompliance and unintentional

ignorance (EPA, 2014a; Wright Water Engineers, personal communication, 2014). Multiple

U.S. Supreme Court decisions have further complicated the practicable definition of WOUS,

making policy enforcement more difficult and controversial as regulatory programs remain

convoluted and inconsistent in their jurisdictional authorities and practices.

In April 2014, the EPA and ACE jointly proposed a new rule that would clarify the scope

of jurisdictional WOUS. A public comment period was opened via publication in the Federal

Register on April 21, 2014; the original 90-day comment period was twice extended due to the

large volume of public and stakeholder input, and finally closed on November 14, 2014

(Definition of Waters of the United States, 2014). The intended primary result of this

clarification is to increase protection and quality of water and aquatic resources, the

environment, and public health, by ensuring consistency between the regulatory and statutory


definitions of WOUS as interpreted by the U.S. Supreme Court (EPA, 2014d). A secondary

result of this proposed rule is the streamlining of the permitting process for construction and

other potential water body-impacting projects due to improved predictability and uniformity of

CWA programs.

The proposed rule has ignited controversy within the oil and gas industry, as industry

proponents anticipate future permitting requirements will increase with an expected increase in

waters falling under CWA jurisdiction. The proposed clarification of scope of WOUS could

significantly impact the timing, location and economics of future oil and gas drilling and pipeline

operations. New projects such as well pads, compression facilities, access roads or pipelines are

required to obtain a federal permit per CWA Section 404 for locations where construction would

impact WOUS. Similarly, sites containing aboveground storage of 1320 or more gallons of oil

are also required to maintain a Spill Prevention, Control and Countermeasure (SPCC) plan if the

site is located such that a spill could discharge pollutants into WOUS. The EPA estimates the

proposed rule would rectify an additional 3% of jurisdictional waters that previously were

erroneously unprotected, thus expanding locations where permits and SPCC plans are required

(EPA, 2014d). The proposed rule could also impact oil and gas operators by increasing the

duration of project schedules to account for sufficient time needed to acquire permits, increasing

public scrutiny and opposition to oil and gas operations, and increasing bottom line costs of

projects.

Anticipating the impacts of newly protected WOUS is difficult for operators since

permits are obtained from different ACE offices around the country, and each office has

traditionally held their own interpretation of the WOUS definition. Over time, local oil and gas

operators have come to understand the WOUS interpretations of their local ACE permitting


office; the new ruling could change jurisdictional waters (and/or the interpretation of them)

substantially at the local level, thus making future drilling operations more difficult to plan and

implement. A reduction in drilling operations, in turn, could reduce economic growth of local

communities. Identifying any potential impacts to oil and gas development based on a revised

scope of WOUS is critical to future planning and implementation of industry projects.

The purpose of this research is twofold: 1) to compare the current jurisdictional scope of

WOUS with the newly proposed EPA/ACE scope, and 2) to use this knowledge to determine the

potential impacts to oil and gas development if the EPA/ACE proposed rule is implemented.

Although this study is focused on impacts to the oil and gas industry, it could serve as a template

for other energy or resource development industries as well. It also serves to inform on the

complexities and imperatives in policy-writing, and the importance of clear and thoughtful

direction in both statutory and regulatory guidance.

Literature Review

Evolution of the Clean Water Act

The United States federal government has a long and complicated history of

administering control over our nation’s waterways. As early as 1775, during the American

Revolution, George Washington appointed skilled Army officers to engineer and construct river

and harbor defenses, fortifications, and obstructions to thwart British movements (Walker,

1981). Stemming from these wartime innovations in river and harbor engineering, the Army

Corps of Engineers was formally founded by Congress in 1802 to continue peacetime expansion

and improvements (ACE, n.d.b; Walker, 1981).

Throughout the early 1800s, a vast network of public commerce and travel routes

developed from the Great Lakes to the Mississippi Delta, as waterborne transport expanded


across the continent, bringing people, goods and services to a wider area. As the nation’s

transportation and commerce via waterways continued to develop, the need arose to establish

regulatory constraints to protect this economic growth. The 1824 U.S. Supreme Court case

Gibbons v. Ogden determined that the Commerce Clause of the U.S. Constitution granted

Congress authority over interstate commerce conducted via navigable rivers (Committee on

Science, Space and Technology, 2014). The 1824 Rivers and Harbors Appropriation Act

apportioned $75,000 to improve navigability of the Ohio and Mississippi Rivers (Furry, 2011).

The amended Rivers and Harbors Appropriation Act of 1899 (River and Harbors Act) further

established the federal government’s administrative control over the navigable waterways of the

United States, and made unlawful any unauthorized alteration or obstruction of the navigable

capacity of such waters. This protection of navigable waters was granted as an attempt to

maintain and encourage unimpeded commerce on interstate rivers and lakes such as the

Mississippi River and the Great Lakes (Hankey, 1980). Section 10 of the Rivers and Harbors

Act (33 U.S.C. 403) designated the ACE’s authority to allow and regulate obstructions to the

navigability of WOUS. Under this regulatory authority, the ACE may approve certain small

construction projects over or through waterways, as well as the dredging and filling of navigable

waters (ACE, n.d.a).

The Rivers and Harbors Act also included a major secondary component within its

Sections 13 and 16, commonly referred to as the Refuse Act. This portion of the Act established

that the obstruction of navigation (and thus obstruction of commerce), by the dumping of any

wastes or refuse into navigable waters or tributaries thereof without an ACE permit is a

misdemeanor resulting in fines and imprisonment (Manaster, 1971; Murchison, 2005).


It is important to recognize two critical features unintentionally derived from the Rivers

and Harbors Act. First, the language, “navigable water of the United States,” as written in

Section 10 of the Rivers and Harbors Act, establishes the earliest baseline definition of water

bodies that receive some form of federal protection. Although the definition is broad, the use of

the phrase “navigable water” implies the inclusion of any water body that can be travelled upon.

This becomes a key topic in subsequent legislation, regulatory conclusions, and U.S. Supreme

Court decisions. The second unintentional effect from this Act is that for the first time, federal

protection against dumping, dredging or filling is given to waters of the United States; this is,

essentially, the first environmental protection afforded our nation’s water bodies and aquatic

resources.

By 1948, the nation’s rivers, lakes and other surface waters were experiencing

overwhelming pollution and degradation in the wake of drastically increased urban and industrial

growth during and after WWII. The Federal Water Pollution Control Act of 1948 (FWPCA)

established the government’s first comprehensive legislation that specifically addressed the

regulation and control of water pollution (Copeland, 2010). The new law, however, did little in

the way of direct federal intervention regarding pollution. Instead, it designated state and local

governments as jurisdictional authorities for clean water programs, and provided federal support

only in the form of financial assistance for pollution research, development of effluent treatment

facilities, and local pollution control agendas (Copeland, 2010; Murchison, 2005). Amendments

to the FWPCA in 1956 and 1961 did little more than provide additional funding for municipal

treatment facilities and expand federal enforcement over discharge programs (Copeland, 2010;

Murchison, 2005).


The Water Quality Act of 1965, Clean Water Restoration Act of 1966 and Water Quality

Improvement Act of 1970 (WQIA) each provided for greater federal involvement in pollution

control of navigable waters. States were authorized to set water quality standards and devise

programs to monitor and control pollution to meet those standards, but federal enforcement of

noncompliance events was still lacking, and the nation’s waters were still recognized as overly

polluted (Murchison, 2005).

The 1970 WQIA did also provide the federal government’s first specific legislation to

protect waters from oil spills. After two significant spills (the 1967 Torrey Canyon tanker spill

off Great Britain and the 1969 Santa Barbara, California, platform spill), the WQIA prohibited

the discharge of oil into the navigable waters of the U.S., imposed strict liability on violators, and

authorized federal action in response to a spill (Murchison, 2005; Murchison, 2011).

By the year 1970, even though a thriving national environmental movement was

underway, only about half of the states had established water quality standards, and the

cumbersome and limited enforcement procedures of the federal government were failing

(Murchison, 2005). President Richard Nixon implemented a sweeping new paradigm for

improving pollution control by establishing the Environmental Protection Agency via the

Congressional Reorganization Plan No. 3 in 1970 (Manaster, 1971). In doing so, he effectively

consolidated multi-agency efforts to control and regulate pollution at the local, state and federal

level (Manaster, 1971).

Following the foundation of the EPA, the Federal Water Pollution Control Act was again

amended in 1972; the amendments were significant and established new and specific programs

governing the quality of the nation’s surface waters (Copeland, 2010). An additional amendment

in 1977 introduced a new name for the FWPCA: The Clean Water Act (CWA).


Codified at 33 U.S.C. 1251 et seq., the overall objective of the CWA is to “…restore and

maintain the chemical, physical and biological integrity of the Nation’s waters” through the

prevention of point and non-point sources of pollution (Federal Water Pollution Control Act,

2002). Essentially, the Act proclaims that any unauthorized discharge into navigable waters of

the U.S. is prohibited (Copeland, 2010). Section 102 declares that the Act will be administered

by the EPA, who will spearhead, with the cooperative participation of other federal, state, and

local agencies, the development of nationwide regulatory programs to reduce, eliminate or

prevent the pollution of navigable waters.

This study will focus on the CWA’s Section 404 (Permits for Dredged or Fill Material).

Section 404 assigns regulatory and permitting requirements for industrial discharge and nonpoint

source pollution (including stormwater runoff) from construction sites. If an oil and gas operator

wishes to build a well pad, gathering plant, pipeline or other industry-related site that may impact

WOUS either through the dredging or filling of a water body, the operator must first obtain a

permit to do so, else face civil and/or criminal penalties. Under the CWA, the EPA administers

the authorities of the law, and the ACE implements regulatory and permitting programs that

sustain and compel compliance.

Key Definitions and Critical Terminology

The CWA was established to ensure the health of our nation’s waters, a task that, in

theory, should be fairly straightforward. However, a multitude of problems have plagued the

Act, such as widely variable interpretations of the scope of jurisdictional coverage and a history

of impracticable implementation. In order to appreciate emergent problems in the ACE’s and

EPA’s administering of the CWA, the complexities of definitions, interpretations and semantics

are reviewed here.


The two primary sources of vernacular confusion in the CWA are the usage of the terms

“waters of the U.S.” and “navigable water,” since these terms are defined somewhat vaguely

between statute (U.S. Code) and regulation (Code of Federal Regulation). Henry (2011) states,

“The term waters of the United States is important because it is the statutory definition of

“navigable waters”, which are the only waters the EPA and ACE may assert jurisdiction over

under the CWA” (p. 7). The two terms are not always mutually exclusive and must be

considered carefully in usage.

Waters of the United States

The CWA defines jurisdictional waters as “navigable waters,” which is statutorily

defined as “waters of the United States” at 33 USC §1362. 33 CFR § 328.3 defines the

regulatory definition of WOUS per the authority given the ACE by the CWA; it does not provide

a statutory definition of WOUS, nor does it define WOUS as under the authority of the Rivers

and Harbor Act, other than in some cases, certain waters may fall under the regulation of both

statutes (Definition of Waters of the United States, 2014). This definition is authorized under 33

USC § 1344 (Navigation and Navigable Waters – Permits for Dredged or Fill Material), and is

used by the ACE in their administration of authorities under the CWA. For simplicity, this paper

will only refer to non-tidal waters, and shall omit specific mention of coastal, marine, tidal

waters and territorial seas. As such, for regulatory usage, “waters of the United States” are

deemed to be:

(1) All waters which are currently used, or were used in the past, or may be

susceptible to use in interstate or foreign commerce;

(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;

(4) All impoundments of waters otherwise defined as waters of the United

States under the definition;

(5) Tributaries of waters identified in paragraphs (a) (1) through (4) of this

section;

(7) Wetlands adjacent to waters (other than waters that are themselves

wetlands) identified in paragraphs (a) (1) through (6) of this section.

(Definition of Waters of the United States, 2014).

It is interesting to note that the regulation contains multiple references to the requirement of

commerce rather than any requirement for scientific, hydrologic or environmental definition. It

is also important to note that “waters of the United States” does not include prior converted

cropland or waste treatment lagoons.


Three other terms that play a pivotal role in the evolution and understanding of the scope

of jurisdiction of the CWA are also defined in 33 CFR § 328.3; these are “wetlands”, “adjacent”

and “ordinary high water mark”:

(b) The term wetlands means those areas that are inundated or saturated by

surface or ground water at a frequency and duration sufficient to support, and that

under normal circumstances do support, a prevalence of vegetation typically

adapted for life in saturated soil conditions. Wetlands generally include swamps,

marshes, bogs, and similar areas.

(c) The term adjacent means bordering, contiguous, or neighboring. 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 wetlands.’’

(e) The term ordinary high water mark means that line on the shore established

by the fluctuations of water and indicated by physical characteristics such as

clear, natural line impressed on the bank, shelving, changes in the character of

soil, destruction of terrestrial vegetation, the presence of litter and debris, or other

appropriate means that consider the characteristics of the surrounding areas.

(Definition of Waters of the United States, 2014).

These terms are broadly defined, allowing for a wide range of interpretations, both inclusionary

and exclusionary. In using qualitative phrases such as “a prevalence of vegetation”, some areas

with permanent or semi-permanent waters but lacking vegetation (such as glacial outwash

streams, for example,) may be excluded. Without a methodology for quantitatively delineating

wetlands based on vegetation or lateral distance from a known WOUS, this definition is wide

open for individual and conflicting interpretation.


Additional definitions of jurisdictional scope of the CWA are included in 33 CFR §

328.4:

(c) The limits of jurisdiction in non-tidal waters:

(1) In the absence of adjacent wetlands, the jurisdiction extends to the ordinary

high water mark, or

(2) When adjacent wetlands are present, the jurisdiction extends beyond the

ordinary high water mark to the limit of the adjacent wetlands.

(3) When the water of the United States consists only of wetlands the jurisdiction

extends to the limit of the wetland. (Definition of Waters of the United States,

2014).

Navigable Waters

The regulatory definition of “navigable waters” of the United States (as differentiated

from simply “waters of the United States”) is described in 33 CFR § 329, and as codified at 33

USC § 401 et seq., from authorization by the Rivers and Harbors Act of 1899. This definition is

applicable only to provide a scope for jurisdiction of the ACE, and does not apply to CWA

authorities described at 33 CFR § 328. Under the statutory weight of the CWA, “navigable

waters” is defined as “waters of the United States” (33 USC § 1362.7). The multiple federal

definitions clearly demonstrate that the difficulty in determining navigability relies on judicial

analysis rather than simple regulatory agency confirmation. 33 CFR § 329.4 declares navigable

waters to be those waters which “…are presently used, or have been used in the past, or may be

susceptible for use to transport interstate or foreign commerce” (Definition of Navigable Waters

of the United States, 2014). By definition, this could include any water body that was, or could

ever be, traveled upon by anything from a barge to a canoe, as long as the vessel was used in


conducting some sort of commerce. In this case, commerce could include even commercial

whitewater rafting.

Similar to the regulatory definition of “waters of the United States,” the regulatory

definition of “navigable waters” is broad and ill-defined, with the sole qualification that it must

show some instance of past, current, or potential future interstate commerce. 33 CFR § 329.6

through § 329.14 (some of which are described in detail below) provide additional guidance in

determining navigability.

Part 329.6 clarifies that the type, means, and extent of commerce is irrelevant; the

transport of goods is as relevant as commercial recreational activity in establishing navigability.

Part 329.7 includes a caveat that interstate commerce does not even have to occur; if

commerce is occurring on a water body within a single state, but could eventually occur in a

downstream or upstream state, that river (or lake, etc.) is considered navigable and falls under

federal jurisdiction.

Part 329.8 states that navigability is not denied by changes to the natural state of the

water body; if improvements have been, or could be made, navigability may exist. If an artificial

channel is constructed, even through or across privately owned land, and that channel may

potentially carry interstate commerce, the channel is considered to be navigable and

jurisdictional.

Part 329.9 declares that once navigability has been determined on a water body, that

determination remains in perpetuity, even if the physical ability to conduct commerce ceases in

the future. The federal authority remains in effect even if obstructions or other changes in the

condition of the water body make interstate commerce impossible.


Part 329.10 provides another example of a somewhat subjective determination. A

waterbody with obstructions (for example, sandbars, rapids, or bridges) may still be considered

navigable if there is an alternate course of commerce (e.g. a vessel portage or an artificial chute

for goods such as logs). The length and mechanism of the alternative course of commerce is not

defined; it is left to the ACE (or eventually EPA or judiciary board) to determine the severity of

the obstruction.

Geographical and lateral extents of navigable waters are explored in Part 329.11.

Jurisdiction covers the entire surface and bed area of the water body to the edge of the ordinary

high water mark, which is defined at 33 CFR § 328.3. In the case of marshlands and similarly

shallow, semi-submerged wetlands, navigability is determined even where dry (or semi-

submerged) land is below the ordinary high water mark and navigation of a vessel is technically

unfeasible. In addition, the upstream boundary of navigability does not solely rely on a major

obstruction (such as a major rapid or falls). If significant navigability could occur upstream from

such an obstacle, determination of navigability could extend much further upstream toward

headwaters, even if practicability is unlikely.

Part 329.13 provides accommodation for the permanent shifting of water body

boundaries, either through natural or artificial means, and whether through a sudden or a

prolonged mechanism of change (e.g., a landslide fills in a river bed or climate change raises sea

level, increasing the width of a coastal river mouth). In the event the natural boundary of a

navigable water changes slowly over time from natural causes, the recognized boundary will be

reflected in corresponding alterations in jurisdiction. Where water body boundaries change

suddenly, either by natural causes or artificial means to effect such a change, the navigable


jurisdiction will remain “navigable-in-law”, even if the area is no longer submerged or

“navigable-in-fact”.

The ACE procedure for determination of navigability is described in 33 CFR § 329.14.

The ACE is given robust authority to make such determinations and much weight is given to

these determinations. However, in cases where determinations are questioned, findings will be

made only by the federal courts.

Supreme Court Decisions

The ratification of the CWA and issuance of subsequent regulatory rules was meant to

make simpler the mechanism and process for protecting the nation’s waters while allowing for

the continued development of resources and economic growth. CWA Section 404 permits

(described in detail below) were intended to ensure that dredge and fill projects did not

contribute pollutants that could damage WOUS. In theory, the process is simple: if a landowner

chooses to dredge or fill a water body, the landowner should determine if said water body is

protected under the CWA; if it is found to be jurisdictional, the landowner must follow the

procedure necessary to obtain a permit from ACE prior to the start of dirt work. In practice,

however, the plan was set up for failure in multiple aspects, as landowners, operators and agency

staff misinterpreted the definitions of WOUS, misidentified water bodies and their connectivity

to WOUS, and lacked proper regulatory guidance on a large scale. Questions quickly arose

regarding the inclusion of adjacent wetlands as “traditional navigable waters” (TNWs), the

hydrologic connectivity and input of waters isolated from WOUS such as prairie potholes, and

the jurisdiction of non-navigable tributaries (EPA, 2011). Across the states, water bodies were

being bulldozed, filled, dredged, dumped in, and otherwise damaged, and the ACE had little

means of discovering many of these locations or enforcing the law at the locations they were


made aware of. These types of events led to the filing of civil and criminal lawsuits, some of

which found their way to the U.S. Supreme Court and landmark decisions. U.S. Supreme Court

Justice Sandra Day O’Connor stated, “Because one of the most important functions of the

Supreme Court is to ensure uniformity in federal law, when such conflicts become too sharp the

Court must step in to prevent unfairness to the public or an adverse impact on the administration

of the law” (Latham, 2007, p. 5).

United States v. Riverside Bayview Homes, Inc. (1985)

One of the most criticized and mutative aspects of the scope of jurisdictional WOUS was

the determination whether or not wetlands adjacent to TNWs were covered under the CWA. As

wetlands are generally and habitually not acknowledged as TNWs (due to the fact that they are

not typically used for vessel passage, particularly in terms of commerce), but are often

hydrologically linked to TNWs, many conflicting interpretations arose. Some ACE offices

considered intrastate wetlands jurisdictional while other offices held that such wetlands were not.

Eventually a case regarding the inclusion of “adjacent wetlands” – United States v.

Riverside Bayview Homes, Inc. (474 U.S. 121, 106 S. Ct. 455) – made its way through the lower

courts to the U.S. Supreme Court in 1985. In 1976, a land development company, Riverside

Bayview Homes, Inc. (Riverside), began dumping construction site fill material into a low-lying

marshy wetland area on their 80-acre development property near the shores of Lake St. Clair in

Michigan (U.S. v. Riverside, 1985). As the wetland did not feed directly into Lake St. Clair,

Riverside believed the wetland was not considered WOUS and therefore did not obtain a Section

404 permit from the ACE. The ACE identified the wetland as “adjacent” to WOUS and thus

protected; they presented Riverside with a cease-and-desist notice and sued for an injunction in

federal District Court. Over the next nine years, multiple hearings, appeals and reversals


between District Court and Sixth Circuit, and revisions of the ACE regulatory definitions, the

case was brought to the U.S. Supreme Court. In the final round of United States v. Riverside

Bayview Homes, Inc., the Court decided three main points that helped shape future definitions of

wetlands, adjacency, and jurisdiction, and helped determine (if not further confuse) future Court

cases. The three points of decision were:

• That the parcel of land was indeed adjacent to traditional navigable waters;

• That the parcel of land was indeed a wetland as defined by 1977 ACE regulation, and

specifically, that it was subject to inundation or saturation “by surface or ground

water at a frequency and duration sufficient to support… a prevalence of vegetation

typically adapted for life in saturated soil conditions” even though the parcel was not

inundated by the adjacent WOUS;

• That the parcel was therefore protected under the CWA. The Court unanimously

found that the ACE had statutory authority to require a permit to discharge, and

Riverside was required to obtain a permit (Permits for Discharges of Dredged or Fill

Material into Waters of the United States, 2014; Singarella, 2006; U.S. v. Riverside,

1985).

The takeaway result of the Riverside case was that the Court found that the definition of

“navigable waters” would include wetlands that are adjacent to other jurisdictional (navigable)

waters, even if the wetland is not navigable-in-fact (EPA, 2011).

SWANCC v. U.S. Army Corps of Engineers (2001)

Leading up to 2001, the written statutory definition of waters protected under the CWA

was simply “navigable waters”, and formally defined as “waters of the United States” at 33 USC

§1362. The ACE regulatory definition of WOUS was more detailed, with the inclusion of


“…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…” (Definition of Waters of the United States, 2014, 33 CFR § 328.3). This

definition implies that some waters (such as prairie potholes) which are isolated from navigable

(protected) waters are protected under the CWA. In 1986, the ACE adopted new regulations to

expand the regulatory definition of those “other waters” listed above. Per the Federal Register:

The EPA has clarified that waters of the United States at 40 CFR § 328.3(a)(3) also

include the following waters:

a. Which are or would be used as habitat by birds protected by Migratory Bird

Treaties; or

b. Which are or would be used as habitat by other migratory birds which cross

state lines; or

c. Which are or would be used as habitat for endangered species. (Final Rule for

Regulatory Programs of the Corps of Engineers, 1986).

This specific inclusion of waters used by migratory birds became informally known as

the “migratory bird rule,” but since it was never formally processed and accepted through the

Administrative Procedure Act, it never gained legal status as an official and substantive rule, and

was therefore merely recognized as an “interpretive” rule (Bishop, Waldinger & Clark, 2003;

Fitzgerald, 2003). The migratory bird rule became a key factor in the 2001 Supreme Court case

Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC).

Composed of an organized group of 23 municipalities and communities in Cook County,

Illinois, the Solid Waste Agency of Northern Cook County (SWANCC) purchased a 533-acre


tract of land on which to develop a 410-acre landfill for baled non-hazardous municipal waste;

300 acres of the tract had previously been utilized as a sand and gravel quarry (Bishop,

Waldinger & Clark, 2003; Fitzgerald, 2003). The abandoned quarry site was growing into an

“early successional stage forest,” and many of the old mine trenches and pits were naturally

filled with seasonal and permanent water (Bishop, Waldinger & Clark, 2003). As part of the

landfill plan, approximately 31 acres of ponded acreage was to be dredged and filled in

preparation of the landfill. In 1986 SWANCC inquired about a CWA Section 404 permit from

the ACE, but the ACE determined a permit was not required since the ponds had not been

delineated as jurisdictional wetlands based on the fact that no “vegetation typically adapted for

life in saturated conditions” existed there (Bishop, Waldinger & Clark, 2003; Kusler, 2004).

SWANCC did obtain project approval from the Cook County Board of Commissioners and the

Illinois Environmental Protection Agency.

The following summer, the Illinois Nature Preserves Commission notified the ACE that

over 100 species of migratory birds had been verified at the site, including some that required

aquatic habitat (Bishop, Walding & Clark, 2003; Kusler, 2004). The ACE announced that

although the ponds were not technically wetlands under the regulatory definition, they were

jurisdictional as WOUS under the migratory bird rule, since the waters were now recognized as

habitat used by migratory birds which cross state lines (Kusler, 2004). SWANCC applied for a

404 permit in 1990, but the ACE denied the permit, stating that the project “would contribute to

significant degradation of the aquatic ecosystem” (Fitzgerald, 2003). SWANCC again applied

for a permit in 1994, and included in their application a plan for $17 million in mitigation

measures to relocate the significant great blue heron rookery, purchase additional adjacent lands,

and enhance the forest and pond areas (Fitzgerald, 2003). Again, the ACE denied the permit,


citing that the project was not in the public’s best interest because it would cause immitigable

damage to the birds, was not the most practical alternative, and the long-term maintenance costs

were too great for SWANCC to realistically support, which would result in an “unacceptable risk

of groundwater contamination” and danger to public drinking water (Wilson, 2001; Fitzgerald,

2003).

SWANCC filed suit against the ACE, claiming the ACE has no jurisdiction over waters

that are isolated from navigable waters, and that the interstate migrations of birds should not

affect jurisdiction of water, even based on the potential commerce of bird-related economy such

as commercial bird watching. The District Court rejected SWANCC’s argument, as did the

Seventh Circuit Court upon appeal, citing that the destruction of the nesting habitat, and thus

damage to the waters, would result in a noticeable loss of commerce from tourism and hunting

(Bishop, Waldinger & Clark, 2003; Fitzgerald, 2003).

The Supreme Court, however, reversed, and ruled that the migratory bird rule did not

give the ACE authority to regulate intrastate non-navigable waters. In the momentous split 5-4

decision, the Court, led by majority leader Justice Rehnquist, narrowly concluded that the CWA

carried jurisdiction over navigable-in-fact waters, but that isolated, inland, intrastate wetlands

with no “significant nexus” to TNWs were not jurisdictional under the CWA based on the

Commerce Clause of the U.S. Constitution (Fitzgerald, 2003; Kusler, 2004; Singarella, 2006;

SWANCC, 2001). The dissenting argument, led by Justice Stevens, maintained that “common

sense” depicts the CWA as legislation that aims to protect watersheds, rather than economic

viability of a navigable water (Kusler, 2004; SWANCC, 2001). This effectively left the regulation

of inland, isolated wetlands under states’ administration rather than under the protection of the

CWA, and forced the economic burden to manage authority of those wetlands onto the states


(Wilson, 2001; Kusler, 2004). Although the Court held that the migratory bird act was invalid, it

did not better constrain which waters were jurisdictional under Section 404 permitting (Kusler,

2004).

Of note in Justice Rehnquist’s opinion, is his use of the term “significant nexus”. He

stated, “It was the significant nexus between the wetlands and ‘navigable waters’ that informed

our reading of the CWA in Riverside Bayview Homes” (SWANCC, 2001). His reference to the

Riverside case reestablished that the Riverside wetland was abutting or adjacent to navigable

waters, and although the wetland itself was not navigable, the fact that it was ‘inseparably bound

up with the Waters of the United States’ based on Congress’ intent to protect water quality and

aquatic systems made it jurisdictional (SWANCC, 2001). Rehnquist’s recognition of the

“significant nexus” between the Riverside wetland and the navigable waterway it abutted marks

the first usage of this point in the Court system.

Rapanos v. U.S. Army Corps of Engineers (2006)

Where the Riverside case informed on the meaning of “adjacency” and “navigability” of

wetlands, and the SWANCC case informed on the invalidity of the migratory bird rule, the

importance of a “significant nexus”, and the jurisdiction of isolated waters, no jurisprudence had

yet argued the meaning or relevance of tributaries to navigable waters. The landmark

consolidated cases, Rapanos v. U.S. Army Corps of Engineers (547 U.S. 715) and Carabell v.

U.S. Army Corps of Engineers (collectively known as Rapanos) set the current, convoluted,

benchmark for this interpretation of the CWA (U.S. Fish & Wildlife Service [USFWS], 2013).

The Rapanos case is made up of two separate, but similar, cases from the 6th Circuit

Court of Appeals (Michigan). The original Rapanos case centered on the jurisdictional

determination of wetlands that do not physically abut navigable-in-fact WOUS. In this case, Mr.


Rapanos owned 715 acres of wetland property on which he wanted to build a shopping mall.

Rapanos believed his property was an agricultural field with interconnected ditches rather than

wetlands, and claimed it was isolated from a traditional navigable waterway by approximately 20

miles, thus was not jurisdictional under the CWA (Li & Poon, n.d.). The Michigan Department

of Natural Resources (DNR) cautioned Rapanos that the site was likely covered under the CWA

and may require a permit, since the interconnected drainage ditches eventually discharged into

traditional navigable waters (Oyez Scholars, n.d.). Against the advice of the Michigan DNR,

Rapanos filled in a 54-acre portion of the wetlands between 1988-1997 without obtaining a

Section 404 permit (Li & Poon, n.d.). After ignoring both the cease-and-desist orders from the

DNR and a compliance order from the EPA, Rapanos was served both civil and criminal charges

as brought forth by the ACE (Li & Poon, n.d.; Oyez Scholars, n.d.).

The original Carabell case involved the jurisdictional determination of a wetland

adjacent to, but not hydrologically connected to a tributary to WOUS. Ms. Carabell wished to

fill a 16-acre wetland in order to build a condominium; she believed her wetland was not

jurisdictional because it was isolated from navigable waters due to a 4-foot wide earthen berm

between the wetland and the nearest ditch (Oyez Scholars, n.d.). Carabell was denied a permit

from the Michigan Department of Environmental Quality (DEQ) because the wetland drains,

through a series of ditches and tributaries into Lake St. Clair, a navigable waterway (and

ironically the same lake that the Riverside case pertained to) (Li & Poon, n.d.; Oyez Scholars,

n.d.). Carabell sued in District Court.

Continued appeals eventually brought the two cases to the Supreme Court, who

consolidated the cases, as both addressed the issue of wetlands jurisdiction determination under

the CWA. The primary jurisprudent question of the case, “Do waters of the U.S. include


wetlands that occasionally drain into tributaries of traditionally navigable waters?” was not

specifically answered by the Court’s unusual 4-1-4 split decision, although the final 5-4 legal

decision favored Rapanos and remanded the case back to Sixth Circuit for further analysis

(USFWS, 2013; Oyez Scholars, n.d.).

The plurality opinion as written by Justice Scalia and backed by Chief Justice Thomas

and Justices Alito and Roberts, held that the ACE wrongly claimed CWA jurisdiction of

wetlands in the Rapanos case. The opinion acknowledged that that term “waters of the United

States” should not be limited to only those waters that are navigable in the traditional sense. The

opinion also concluded that the ACE’s regulatory authority should only exist over those waters

that are “relatively permanent, standing or continuously flowing” into TNWs, and to wetlands

that sustain a “continuous surface connection to such relatively permanent waters” (RPWs)

(EPA, 2007). Under this definition, wetlands adjacent to intermittent or ephemeral streams

would not be jurisdictional (USFWS, 2013).

The dissenting opinion, written by Justice Stevens and joined by Justices Breyer,

Ginsberg and Souter, held that the ACE and EPA were correct and within their legal authority in

their jurisdiction of WOUS in the case.

With no majority in the 4-4 vote, Justice Kennedy’s opinion proved to be most

remarkable. He concurred with the civil and criminal judgment of the plurality opinion, sending

the case back to the Sixth Circuit with a 5-4 majority in favor of Rapanos, but dissented against

the plurality opinion regarding the legal jurisdiction of WOUS, allowing the 4-1-4 decision to

further confuse the regulatory authority of the ACE and EPA over WOUS (USFWS, 2013).

Although Kennedy allowed that the term “waters of the United States” should include, in some

cases, water bodies that are not navigable in the traditional sense, he disagreed with the


plurality’s opinion of which wetlands should be covered under the CWA. Kennedy stated that

WOUS should necessarily include wetlands that “either alone or in combination with similarly

situated lands in the region, significantly affect the chemical, physical and biological integrity of

other covered waters more readily understood as ‘navigable’” (EPA, 2007).

The Rapanos case’s divided decision confused later cases heard by the First, Ninth and

Seventh Circuits, from which mixed decisions undermined further clarity (Connolly, 2007). The

Rapanos division imparted much difficulty onto regulatory agencies including the ACE; since a

majority decision was not reached, legal principles allow that WOUS jurisdiction under the

CWA is extant as long as either the plurality standard or the Kennedy standard is satisfied (EPA,

2007). This duality results in the enabling of two different tests that regulatory agencies may

use to make a jurisdictional determination (JD) whether or not a wetland is considered WOUS

under the CWA: The Plurality Test and the Kennedy Test.

The Plurality Test uses “relative permanence” and “surface connection” to establish

jurisdiction: a wetland may be considered WOUS if 1) the water is a relatively permanent

standing or continuously flowing water body (relatively permanent water [RPW]) that forms a

geographic feature which would be described in common language as a stream, river, lake or

ocean; and 2) it maintains a continuous surface connection, not merely a hydrological

connection, with a WOUS such that it is difficult to distinguish “where the ‘water’ ends and the

‘wetland’ begins” (EPA, 2007; Oyez Scholars, n.d; U.S. Supreme Court, 2006). Justice Scalia

added that the term ‘relatively permanent’ does not include tributaries whose flow is ephemeral

or intervallic, and that a ‘continuous surface connection’ precludes a wetland that is separated

from WOUS by a berm, dike or other physical barrier (EPA, 2007).


The Kennedy Test uses a “significant nexus” rather than a continuous surface connection

to a continuously flowing WOUS to establish jurisdiction. This applies, on a case-by-case basis,

to wetlands that “alone or in combination with similarly situated lands in the region significantly

affect the chemical, physical and biological integrity of other covered waters more readily

understood as “navigable” (EPA, 2007; Oyez Scholars, n.d; U.S. Supreme Court, 2006).

Kennedy’s use of the phrase “chemical, physical and biological integrity” comes directly from

the written goal of the CWA itself.

Theoretical Framework

The objective of the three Supreme Court cases described above, beside the civil and

criminal components, was the jurisdictional clarification of WOUS. Clearly, this objective was

not met. The only functional outcome of the three cases was the introduction of the two new

tests (Plurality and Kennedy tests) to determine which waters existing upstream of navigable

waters should be covered under the CWA, although these tests have not been recognized as easy

to administer (EPA, 2014d). The multiplicity of interpretations by the Justices conveys the

complexity of the jurisprudence, regulatory authority and even personal opinion wrought

between the juxtaposition of federalism, public welfare, economic growth, states’ rights, and

personal landownership rights. The EPA and ACE jointly issued a written guidance in 2007

(Guidance), as meant to aid ACE staff in making JDs in the field based on these Supreme Court

interpretations and tests. This Guidance intended to explain how agency personnel (and the

interested public) should determine CWA Section 404 jurisdiction of waters; the Guidance was

modified in 2008, and has been the practicable standard since. The Guidance summarizes water

features which are commonly acknowledged to be jurisdictional under the CWA as:

• Traditional navigable waters (TNWs)


• Wetlands adjacent to TNWs, even if no continuous surfacewater connection is visible

• Relatively permanent waters (RPWs), which are non-navigable tributaries to TNWs

(either through direct communication or via other tributaries), and normally exhibit

year-round flow or continuous seasonal flow (typically 90 days or more of continuous

flow, such as from the melting of snowpack from mountain streams; this generally

does not include waters that flow intermittently due to periodic rainfall events)

• Wetlands that abut such RPWs, which are wetlands that have a continuous surface

connection to RPWs, and are not separated by uplands, berms, dikes, etc.

• Non-RPW tributaries (non-navigable tributaries which generally flow less than 90

consecutive days) and their adjacent wetlands that have a significant nexus to a

downstream TNW

• Wetlands adjacent, but not abutting, RPW tributaries when a significant nexus to

downstream TNW is shown (EPA, 2007).

In each case where a significant nexus is required, the ACE (or EPA or other authorized

agency) must evaluate the flow regime and functions performed by the tributary and any

associated wetlands. This evaluation must determine if these functions significantly affect the

chemical, physical and biological integrity of any traditional navigable waters downstream. This

assessment should occur at the upstream edge of the confluence where the tributary enters the

larger order stream or navigable water (Figs. 1 and 2).

Features that are NOT typically WOUS are swales and erosional features (such as low-

volume gullies and small runoff channels that occur only during infrequent and insignificant

flow regimes), and non-RPW ditches that are excavated entirely in and draining only upland

areas (including roadside ditches) (EPA, 2007).


In summary, for any person or agency attempting to determine if a water body,

particularly a tributary or wetland that is not known for navigability, is jurisdictional under

Section 404 of the CWA, the use of the ACE Guidance is helpful, if not critical (ACE, 2007).

Assessing the relative permanence of flow, any possible continuous surface connection, the

existence of a significant nexus, physical, biological and chemical impact, similar situation of

nearby waters, and relevant reach all contribute to the jurisdictional determination of WOUS.

The ACE Guidance contains a six page flowchart diagram that may be used as a quick-guide for

making these determinations (ACE, 2007, p. 8-13).

Proposed Rule for Waters of the United States

Gina McCarthy, EPA Administrator, stated that an estimated sixty percent of the nation’s

streams (primarily those which only flow seasonally) and millions of acres of wetlands are not

currently covered under the protections offered by the CWA, and are therefore at risk for

becoming polluted (McCarthy, 2014). Additionally, an estimated 117 million Americans – one

in three – get their drinking water from these unprotected streams (EPA, 2014c). In light of this

risk to our nation’s waters, including much of our drinking water supply, and the continued

difficulty in interpreting and implementing the CWA, the EPA and ACE jointly proposed a new

rule that would act to more effectively protect our water resources. This proposal would also

simplify the jurisdictional determination of WOUS and streamline CWA permitting processes.

The proposal was formally presented and opened for public comment on April 21, 2014; the

comment period was closed on November 14, 2014, and the final ruling is expected in April,

2015 (Definition of Waters of the United States, 2014).

The proposed rule has widely been met with skepticism, confusion and complaint from

the oil and gas industry as well as certain sectors of the general public. Common misconceptions


are: that the rule would expand WOUS to new types of waters not previously protected, sidestep

Congress’ intent or the Supreme Court’s decisions on jurisdiction, or expand coverage of man-

made ditches (EPA, 2014c). The EPA refutes these claims, arguing that the proposed rule serves

only to clarify waters that have already been under the jurisdiction of the CWA since its

inception in 1972, specifically follows the Supreme Court’s decisions and interpretations, and

acts to exclude from coverage, rather than include, certain ephemeral and intermittent ditches

(EPA, 2014c). The EPA also offers numerous data that suggest the proposed rule would provide

great benefit to the public, including an estimated $388-514 million in annual savings from

reduced flooding and pollution, increased wildlife habitat which supports hunting and fishing

opportunities and revenues, and increased recharge of groundwater to natural aquifers that in

some places are currently being depleted (EPA, 2014c). Annual costs between $160-278 million

for items such as impact mitigation and pollution reduction programs associated with the

proposal’s actions are estimated to be less than the anticipated public financial benefit (EPA,

2014c). The proposed rule would also provide support for 36 states that struggle to protect in-

state waters that are not currently under the jurisdiction of the CWA (EPA, 2014c).

The impetus for the proposed rule is to update the basis for determining CWA

jurisdiction from the original intent to a modern intent that is founded in science and relevance

rather than poor, semantically-based misinterpretations of early non-environmental laws. Instead

of establishing jurisdiction based on how water quality affects interstate commerce (navigable

waters), the EPA and ACE wish to establish jurisdiction based on a clear technical knowledge of

water features, connectivity, and their functionality regarding downstream traditional navigable

waters (EPA, 2014c). Much of this science was based on a study by the Scientific Advisory


Board (SAB), who came up with three primary conclusions that helped steer the proposed rule.

These three conclusions are:

1. Streams, regardless of their size or how frequently they flow, are connected to

and have important effects on downstream waters. These streams supply most of

the water in rivers, transport sediment and organic matter, provide habitat for

many species, and take up or change nutrients that could otherwise impair

downstream waters.

2. Wetlands and open-waters in floodplains of streams and rivers and in riparian

areas (transition areas between terrestrial and aquatic ecosystems) are integrated

with streams and rivers. They strongly influence downstream waters by affecting

the flow of water, trapping and reducing nonpoint source pollution, and

exchanging biological species.

3. Finally, there is insufficient information to generalize about wetlands and open-

waters located outside of riparian areas and floodplains and their connectivity to

downstream waters. (EPA, 2013).

The proposed rule would define WOUS, with no additional analysis required, as:

• Traditional navigable waters (as further defined as those waters which are currently

used, were used in the past, or may be susceptible to use in interstate or foreign

commerce…);

• Interstate waters, including interstate wetlands;

• Impoundments of traditional navigable waters, interstate waters, interstate wetlands,

and tributaries of these waters;

• Tributaries of traditional navigable waters, interstate waters, and interstate wetlands;


• All waters, including wetlands, which are adjacent to TNWs, interstate waters,

impoundments, and tributaries as defined above;

• Other waters, including wetlands, alone or in combination with other similarly

situated waters located in the same region, including wetlands, that on a case-by-case

basis are determined to have a significant nexus to a TNW, interstate water or

impoundment as described above (Definition of “Waters of the United States” under

the Clean Water Act, 2014).

The proposed rule supplies specific language to describe waters that are clearly not

jurisdictional under the CWA. These non-protected waters are:

• Waste treatment systems, including treatment ponds and lagoons;

• Prior converted cropland;

• Ditches that are wholly excavated in and drain only uplands, and have less than

perennial flow;

• Ditches that contribute no flow, either directly or through another water, to a TNW,

interstate water or wetland, or to a jurisdictional impoundment;

• Man-made ponds or lakes created by excavating and/or diking dry land and used only

for such purposes as irrigation, stock watering, or settling basins;

• Water-filled depressions formed incidental to construction activity (i.e. puddles);

• Groundwater;

• Gullies and rills and non-wetland swales (Definition of “Waters of the United States”

under the Clean Water Act, 2014).

The proposed rule also presents some formal definitions for words and phrases which are

critical to interpreting and implementing the CWA. Although it is helpful to have these


definitions, they still allow for individual and subjective interpretation, particularly without the

benefit of any corresponding Guidance to provide photo examples for clarity. These definitions

are as follows:

• Adjacent – bordering, contiguous or neighboring; waters, including wetlands,

separated from WOUS by man-made or natural dikes, ditches, barriers, berms,

dunes and the like are “adjacent waters”;

• Neighboring – neighboring waters include those located within the riparian

area or floodplain of a WOUS, and waters with a shallow subsurface or

confined surface hydrologic connection to WOUS;

• Riparian area – an area bordering a water where surface or subsurface

hydrology directly influences the ecological processes and plant and animal

community structure in that area; a transitional area between aquatic and

terrestrial ecosystems that influences the exchange of energy and materials

between those ecosystems;

• Floodplain – an area, bordering waters, that was formed by sedimentary

deposition from such water under present climatic conditions and is inundated

during periods of moderate to high water flow;

• Tributary – a water physically characterized by the presence of a bed and

banks and ordinary high water mark, or a wetland, lake or pond (even when

lacking a bed and banks or ordinary high water mark), which contributes flow,

either directly or through another water, to a WOUS; a tributary, including

wetlands, can be a natural, man-made or man-altered water, including waters

such as rivers, streams, lakes, ponds, impoundments, canals, and non-


excluded ditches; a water that otherwise qualifies as a tributary under this

definition does not lose its status as a tributary if, for any length, there are one

or more man-made breaks (such as bridges, culverts, pipes, or dams), or one

or more natural breaks (such as wetlands at the head of or along the run of a

stream, debris piles, boulder fields, or a stream that flows underground) so

long as a bed and banks and an ordinary high water mark can be identified

upstream of the break;

• Wetlands – those areas generally including swamps, marshes, bogs and

similar areas, that are inundated or saturated by surface or groundwater at a

frequency and duration sufficient to support, and that under normal

circumstances do support, a prevalence of vegetation typically adapted for life

in saturated soil conditions;

• Significant nexus – a water, including wetlands, either alone or in

combination with other similarly situated waters in the region (i.e., the

watershed that drains to the nearest WOUS), that significantly affects the

chemical, physical, or biological integrity of a WOUS. For an effect to be

significant, it must be more than speculative or insubstantial. Other waters,

including wetlands, are similarly situated when they perform similar functions

and are located sufficiently close together or sufficiently close to a WOUS so

that they can be evaluated as a single landscape unit with regard to their effect

on the chemical, physical, or biological integrity of a WOUS. (Definition of

“Waters of the United States” under the Clean Water Act, 2014).


A number of points must be made in further clarification of the proposed rule. The EPA

and ACE highlight that the unqualified jurisdiction for tributaries and adjacent waters is based on

scientific data showing a significant nexus, Supreme Court caselaw interpretations, and the intent

of the CWA, rather than a simple surface connectivity to downstream traditional navigable

waters. The proposal also describes that other waters, which are those that do not fit any of the

above listed categories, could be found jurisdictional if a significant nexus to WOUS is found,

either alone or together with similarly situated other waters, on a case-by-case basis (Definition

of “Waters of the United States” under the Clean Water Act, 2014). To establish a nexus, the

water body must significantly affect the chemical, physical or biological integrity of downstream

navigable waters. This is one critical distinction between the current and the proposed

definition; the Kennedy test for significant nexus of a wetland or other water demands a

chemical, physical and biological impact on TNW, while the proposed rule requires an impact of

only one type. This distinction allows jurisdiction of other waters, including isolated waters,

based on a smaller impact to TNWs than previously afforded. One point that will likely cause

confusion is the unambiguous exclusion of groundwater from WOUS, but the specific mention

of a shallow subsurface hydrologic connection in the definition of the terms “neighboring”,

“riparian area” and “wetlands”. The lack of distinction between groundwater and shallow

subsurface hydrology leaves the proposed rule wide open to interpretation and possibly future

litigation. Another important distinction of the proposed rule is that ditches would be

jurisdictional if they contribute to a WOUS (Wright Water Engineers, personal communication,

2014). And finally, the proposed rule includes the formal definition of the terms “neighboring”,

“riparian area”, “floodplain”, “tributary”, and “significant nexus”, as interpreted by the U.S.


Supreme Court in SWANCC and Rapanos (Definition of “Waters of the United States” under the

Clean Water Act, 2014). A visual summary of proposed WOUS is presented in Figure 3.

Permits for Oil and Gas Exploration, Development and Production

The CWA established several programs in which jurisdictional authority for the

permitting of various activities is dependent on the definition of WOUS. These programs are

included in CWA Section 303 (Water Quality Standard and Total Maximum Daily Loads),

Section 311 (Oil Spill Programs), Section 401 (State Certification), Section 402 (Pollutant

Discharge Permits) and Section 404 (Dredge and Fill Permits). Although the oil and gas industry

is required to minimize and mitigate spills as regulated in Section 311 with a Spill Prevention,

Control, and Countermeasure Plan (SPCC), and comply with state water quality standards as

authorized in Section 401, this study focuses only on the potential impacts to industry as related

to Section 404 permits, and specifically the requirements for construction permits prior to the

commencement of drilling activity. [The Energy Policy Act of 2005 generally exempts oil and

gas construction sites from the requirement to obtain a National Pollutant Discharge and

Elimination System (NPDES) permit for storm water discharge as regulated in Section 402(1)(2)

of the CWA (Advisory Council on Historic Preservation, 2011)].

A Section 404 permit is required, as authorized by the EPA and administered by the

ACE, in advance of a project’s disposal of dredged or fill material into WOUS (Copeland, 2010;

EPA, n.d.). To qualify for a permit, a project must show that it is the least damaging practicable

alternative for construction or impacting aquatic resources, and that the nation’s waters will not

be degraded (EPA, n.d.). It requires the avoidance or minimization of impacts to water bodies

and the provision for mitigation and/or compensation for any unavoidable impacts (EPA, n.d.).


Permit types include general permits, known as Nationwide Permits (NWPs), and

individual permits, both of which are administered by the ACE. NWPs include a series of

permits that are categorized by activity and are conditional permits-by-rule. If a project meets all

necessary eligibility requirements and criteria as listed under the permit conditions, a NWP may

be used by invocation; in some cases a pre-construction notice (PCN) is also required (ACE,

2012). For oil and gas operators, NWP 12 (Utility Line Activities) and NWP 39 (Commercial

and Industrial Development) are the most commonly invoked general permits (ACE, 2012).

Under 2012 permitting requirements for NWP 12, the construction of a pipeline and associated

access road may not cause more than ½-acre of wetland loss or degradation (ACE, 2012). In the

case of NWP 39, a PCN is always required, and only a maximum physical impact or loss of up to

½-acre of wetland or 300 linear feet of streambed disturbance is allowed (ACE, 2012). Oil and

gas wells were excluded from using NWP 39 until the permit was renewed by the ACE in 2012.

In the event a project is larger than the allotted size for a NWP, an operator may apply for

an individual permit, as administered by the ACE. The application process is longer, requires

direct interaction with the ACE, and will likely include a site inspection by ACE personnel.

The cost and acquisition time of permits varies widely depending on the project type,

scope, and permit requested. Justice Scalia, during the Rapanos case, quoted average NWP

applicants as spending $28,915 and 313 days, and average individual permit applicants as

spending $271,596 and 788 days to complete the permitting process (Latham, 2007, p. 5). These

figures do not include additional funds and time needed to account for design changes or wetland

mitigation plans.


Methodology and Analysis

To determine the potential impacts of the proposed rule on oil and gas operations, three

case studies were developed. For each case, an existing or potential industry site was selected

and mapped twice; the first map used current WOUS jurisdiction and the second map used

proposed WOUS jurisdiction. Each site is located in an ecologically diverse geologic basin, to

assess areas with broadly different topography, climate, hydrology, vegetation and other physical

characteristics that could affect the flow, quality, availability and general condition of water

bodies. Sites were selected using Google Earth satellite images to identify developed locations

where well pads or other industry-related facilities exist at or near a visible or potential water

body. The sites chosen are located in active drilling or producing areas of the Williston Basin,

North Dakota; Piceance Basin, Colorado; and San Juan Basin, New Mexico (Figure 4).

To further attempt to verify WOUS at each site, the online National Wetlands Inventory

(NWI) was consulted. The U.S. Fish & Wildlife Service (USFWS) established the National

Wetlands Inventory (NWI) in 1974 to provide scientists and the public with information

regarding the distribution, extent, trends and status of our nation’s wetland areas and deepwater

habitats (USFWS, 2014b). Developed as an aid for wetland conservation efforts, the NWI

designed a wetland classification system that in 1996 was adopted as the federal wetland

classification standard (USFWS, 2014b). Since then, the system has developed and included

riparian classifications as well as the mapping of historic wetlands. The NWI uses aerial

imagery incorporated into digital Geographic Information System (GIS) layers; this data is

maintained in a geospatial database available online. For each state, digital inventory data is

available for use in the NWI’s online Wetlands Mapper, or as downloadable data which includes

digital wetlands polygon data and project metadata, historic wetlands map information and


project metadata, and riparian polygon data and project metadata (USFWS, 2014a). All

available wetland, riparian and historic digital data from Colorado, New Mexico and North

Dakota were downloaded in shape file format to be used in this project.

A digital mapping project was created using Global Energy Mapper 14, ArcGIS ArcMap

10.2.2, and IHS Petra 3.8.3 data management and mapping software packages. For each study

area, all spatial data sets (shape files, satellite images, etc.) were normalized to the same map

projection using Global Energy Mapper 14. All NWI files were found to be in North American

Datum 1983 (NAD83) Albers; these shape files were all converted to NAD83 Universal

Transverse Mercator (UTM) Zone 13 North, with grids in U.S. Survey Feet.

Once all the NWI files were properly projected, they were loaded into ArcGIS (ArcMap

10.2.2), and three projects were built: Williston, San Juan and Piceance. For each project, NWI

wetlands and riparian zones were imported, and visual extents were cropped such that the study

areas were zoomed and isolated for ease of use and to keep file sizes relatively small. The

wetlands/riparian shape files were then exported for use in Petra.

The new (smaller) NWI shape files were imported into Petra, where they were integrated

in an overlay file with the Google Earth images as a background. This combination allowed a

visual assessment of how closely the Google Earth map (satellite image) and the NWI wetlands

corresponded with each other. In locations where the shape files were slightly misaligned (likely

due to small discrepancies with map reprojections and inconsistencies between individual NWI

staff digitizing wetlands), the shape files were adjusted to fit the ground image. It must be noted

that in some locations, NWI-designation was non-existent in photo areas that clearly showed

existing water bodies or distinct evidence of prior inundation; this is likely due to the unfinished


and ongoing nature of the NWI and the relative large scale (“zoomed-in view”) of the satellite

images. Appendices 1 and 2 provide details on software application workflows.

For each study area, two maps were created; the first using current jurisdictional WOUS,

and the second using proposed jurisdiction of WOUS. Comparisons between map pairs were

made, specifically to identify noticeable differences between current and potential water bodies.

From these visual inspections, determinations of potential permitting issues and needs were

made for each case study.

Case Study Data and Results

Williston Basin

The study area in North Dakota’s Williston Basin is located in the extreme northwest

corner of the state in Divide County, at 48°42’ north latitude, 102°56’ west longitude (Figure 5).

This part of the state, marked with glacially-sculpted topography, numerous prairie pothole

lakes, hummocky, rolling terrain, and poor stream drainage, is geographically known as the

“Missouri Coteau” (or Plateau), as seen in Figures 5 and 6 (Northern Prairie Wildlife Research

Center [NPWRC], 2013; Google Earth, imagery date 19 August 2013). The region’s soils are an

amalgam of poorly-drained silty clay loam with low permeability, formed as glacial ice melted

and sediments were deposited in depressions and swales (Parnell soils), and deep, well-drained

loamy clays deposited as glacial till outwash plains and moraines (Zahl soils) (NPWRC, 2013;

Natural Resource Conservation Service [NRCS], 1998; NRCS, 2014). Figure 6 shows the vast

prairie pothole topography the study site is located within; water-filled potholes appear as

irregular black shapes. Figure 6 also shows an indication that water has flowed from the large

pond in the upper right quadrant of the image toward the southwest along a series of meandering

and anastomosing intermittent stream channels. The soil-based water drainage characteristics are


evidenced by the noticeable demarcation between potholes (poorly drained, low permeability

soils, as marked by a short yellow arrow in Figure 6), and streambed channel (well-drained soils,

as demarcated by a long yellow arrow showing flow direction).

The study area site includes a constructed access road and an oil and gas well pad, both of

which are built over and adjacent to a water body (Figure 7). It must be noted that previous

Google Earth images taken of this location (1995, 2003, 2005, 2006, 2009 and 2010) show that

the developed site existed at least as early as 1995, and that the volume of water in the adjacent

and surrounding water bodies has fluctuated; any “normalized” volume is unknown (see

Appendix 5 for additional Google Earth imagery). Based on 2013 imagery, the access road

includes a 215-foot long section (shown as a red line in Fig. 7) which crosses a water-filled

pothole lake. The size of the well pad is approximately 1.2 acres (outlined in red in Fig. 7) and

includes an area of 0.22 acres that upon close inspection appears to have been built out into the

pothole lake (marked in yellow in Fig. 7). The image also suggests that the road was constructed

to avoid a small wet depression just north of the well pad. There are three additional similar wet

depressions visible to the left of the well pad in Figure 7 (circled in light blue), as evidenced by a

change in vegetative ground cover and the appearance of water.

In determining any jurisdiction of waters at this site, the primary focus is on the concept

of other waters, as the prairie pothole ecosystem is dominant in this region, and the site shows no

obvious physical surface connectivity to any traditional navigable water in the conventional

sense. The well pad and access road are visibly impacting a prairie pothole lake (Figure 7). The

access road is built up like a causeway or levee directly over or through the water for a distance

of approximately 215 feet, and the well pad was built out approximately one-fifth of an acre into

a water body; both the road length and the one-fifth acre of pad are within the NWP 12


threshold, if, indeed, a permit is needed. The 1985 Riverside case established that isolated

wetlands were jurisdictional; when the Migratory Bird rule was rejected in SWANCC in 2001,

those protections were discarded (Smith, Euliss, Jr., & Haukos, 2011). Under current

jurisdictional practices, and based on the outcome of SWANCC, prairie potholes are generally not

protected, except in cases where they are visibly and functionally connected to an existing

WOUS (van der Valk & Pederson, 2003). In the Williston case, where there is no visible

connectivity, adjacency or tributary effect of the pothole lake to a TNW, the construction of

neither the access road nor the well pad would cause degradation or negative impact to a WOUS,

and CWA permit would likely not be required. Even when considering the possibility that a

significant nexus exists under the ACE Guidance, it is unlikely that a biological, chemical and

physical impact to a WOUS, in any surface capacity, would be identified based on the Rapanos

decision. There is a high likelihood that a hydrologic connection between the potholes and a

downstream WOUS exists, but only through groundwater and aquifer channels, and thus not

jurisdictional under current definitions (van der Valk & Pederson, 2003).

Under the proposed rule, however, the pothole(s) may, indeed, be considered to be

WOUS, as determined on a case-by-case investigation conducted by the ACE (or other local

authorized agency). Although there is no clearly visible surface connectivity, abutment, or

adjacency to a known TNW, the potholes in the region may be jurisdictional if they are

determined to have a significant nexus with WOUS, using the proposed scientific definition of a

significant nexus. This specific pothole, alone, or with the many similarly situated and similarly

functional potholes in the region, could be determined to “significantly affect the chemical,

physical, or biological integrity” of a WOUS (Definition of “Waters of the United States” under

the Clean Water Act, 2014). If connectivity is found to exist between the pothole(s) and the


stream drainage visible in Figure 7, either via surface or shallow subsurface conduits, and the

southwest-trending stream drainage is found to flow seasonally or as a relatively permanent

water, the pothole would be jurisdictional, and a Section 404 permit would be required. The

main difference between current and proposed jurisdiction in this case is the specificity of the

significant nexus: physical, chemical and biological impact is more difficult to establish (as

determined under current usage) than a physical, chemical or biological impact (as defined in the

proposed rule).

San Juan Basin

The study location in New Mexico’s San Juan Basin is located on the northern border of

the state in San Juan County, near the town of Cedar Hill, on a tributary of the Animas River

(Figure 8). The region is part of the Upper Colorado River system of the Colorado River

Plateau, and is known for its rugged terrain, pinyon-juniper forests, sandstone cliffs, dry climate

and significant seasonal fluctuations in stream flow (von Guerard, Church, Yager, & Besser,

2007). Stream flow in the area is largely controlled by snowmelt runoff, generally peaking

between April and July. Additional secondary runoff commonly occurs during the monsoon

season from July to September (von Guerard et al., 2007). The U.S. Geological Survey maintains

a hydrologic gauging station on the Animas River (USGS 09363500), approximately 6 miles

upstream from the town of Cedar Hill; the station reports average daily discharge of 200-300

cubic feet per second (cfs) during the low-flow months from November through April, and

average peak discharges between 1000 to over 4000 cfs during intermittent and seasonal flow

events between April and October (Fig. 9) (U.S. Geological Survey, 2014a). Flash flooding may

occur during monsoon events, particularly in smaller tributary canyons, and flood waters tend to


run off into rapidly flowing streams and arroyos or absorb into loose sandy substrate rather than

pooling or ponding at the surface.

The San Juan site, located in Cox Canyon, an intermittent tributary of the Animas River,

is in a “priority watershed” as identified by the New Mexico Environment Department’s Surface

Water Quality Bureau (Surface Water Quality Bureau, 2014). The site is situated near a

meandering incised multi-stream channel and associated floodplain; smaller tributaries are

evident throughout the canyon, with one tributary directly north of and adjacent to the site. The

channel has an average incised width between 15-25 feet, and a visible long-term floodplain that

spans between 100 to 350 feet in width, based on project measurements and Google Earth

imagery from 2011 (Google Earth imagery dated 10 Jun 2011). The site includes two developed

areas this project will focus on: a 2000-ft2 pad with a single oil storage tank about 120 feet from

the eastern edge of the incised channel, and a one acre wellhead station/tank storage area to the

east of the floodplain at an elevation approximately 20 feet higher than that of the incised

channel (Figure 10). The site also has an exposed pipeline suspended over the streambed,

spanning from the small tank pad 185 feet to the western side of the channel where it is buried

underground. The site has been mapped by the NWI to include both wetlands and riparian

zones; these data correspond well with the visible water body corridor as seen on the Google

Earth image; the shape files were retained and utilized in the study (Figure 11).

The canyon’s stream channel extends from southern Colorado across the border into New

Mexico, making it an interstate channel and potentially jurisdictional on that merit alone (as an

interstate water). But to ensure full due diligence in JD, three considerations must be addressed

at the San Juan site. First, unlike the Williston study area, none of the oil and gas infrastructure

in place is directly physically impacting a water body; the pipeline is suspended over the


intermittent stream bed rather than buried underneath it, and both tank pads are clearly and

significantly away from the main incised stream channel (Fig. 10). It is simple to rule out

permitting needs as based on direct impact to existing surface waters, but clearly an investigation

into adjacency is needed. Second, although the region is arid and local streams are commonly

dry, a thorough review of seasonal flow events is needed, and a determination must be made

whether the stream is a relatively permanent water (RPW) or non-RPW. Third, significant nexus

determination must be completed to ascertain jurisdiction of the associated wetland (riparian)

zone of the stream as dependent on it being a RPW or a Non-RPW.

Initial observation would indicate that the suspended pipeline demands permitting

review. The pipeline, however, is not considered an eligible utility under the Section 404

permitting authority. The ACE maintains that pipelines transporting oil and gas products over

navigable waters are acknowledged as bridges, and are thus authorized under Section 9 of the

Rivers and Harbors Act of 1899 as permitted by the U.S. Coast Guard (ACE, 2012). This

eliminates the site’s pipeline from further review in this project.

The first question in making a jurisdictional determination of the site involves adjacency.

Figure 11 shows wetlands (streams, in blue) and riparian zones (floodplain, in green) as

determined by the NWI. Although the NWI shape file does not show the study area in fine

detail, the shape file merged with the Google Earth image does show that at the very least, the

small tank pad is located within a recognized riparian zone. Since the NWI has been adopted as

the federal wetland classification standard, the small tank site should be acknowledged as

existing in a wetland adjacent to a RPW or Non-RPW, even though it lacks saturated soils as

required in the definition of a wetland as described in the CWA (33 CFR § 328.3; USFWS,

2014b). It is logical to use the term “adjacency” rather than “abutting” to describe the physical


relationship between the streambed and the location where the small tank pad sits, since there is

a significant distance (120 feet) between the pad and the active incised channel.

The second question to address is the permanence of water flow in the stream. No

stream gauge data is available for this stream, but it is probable that since there is no upstream or

downstream dam, impoundment or other barrier to flow, the stream has a similar seasonal flow

regime, although on a much smaller scale, as the Animas River. Figure 9 shows water discharge

of the Animas River approximately six miles upstream from the confluence of the study area’s

drainage. The EPA, in its interpretation of the CWA, recommends that in order for a tributary to

be a RPW, it must have sustained flow for a minimum of 90-day period (EPA, 2007). The 2014

data from the Animas River clearly exhibits a period of continuous daily discharge from early

April to late July; even assuming a discharge of only one-fourth the volume of the Animas, it is

reasonable that the stream in the study area does flow for a similar duration, and would thus be

considered jurisdictional as a RPW.

The third consideration must be whether or not a significant nexus exists between the

study area and the Animas River. As a RPW, the streambed itself is clearly jurisdictional. But

the developed sites (small tank pad and 1-acre pad) are built on wetlands (floodplain) adjacent to

the RPW, not abutting the RPW. To be jurisdictional, a wetland adjacent to a RPW must have a

significant nexus with a downstream WOUS (the Animas River) per Justice Kennedy’s guidance

in the Rapanos decision (U.S. Supreme Court, 2006). A significant nexus must show that the

functions of the adjacent wetlands significantly affect the chemical, physical and biological

integrity of the Animas River. One way to assess the existence of a nexus is to model the

impacts of a flood event such as spring runoff. A high-water flood event that filled even part of

the NWI-designated floodplain would clearly impact the Animas River. Any waters reaching the


Animas River would impart chemical, physical and biological characteristics transported from

the incised stream, making the case for a significant nexus.

The upper pad site, situated 20 feet higher than the incised channel, abuts the limits of the

floodplain, as noted by the change in vegetation cover from lush green shrubs to sparse dry

groundcover visible in Google Earth imagery and as mapped in the NWI. The exposed bench of

rock to the eastern edge of the pad, however, appears to mark the limit of an ordinary high water

mark, which marks the limits of jurisdiction per 33 CFR § 328.4 (c)(1). This site provides an

example of the confusion in making such a determination; a wise operator would obtain a permit

for this site or request a formal JD from the ACE to ensure that the site was properly assessed,

while an operator looking for shortcuts might skip a permit and risk future costly interaction with

and fines from the ACE or EPA.

Determining permit requirements under the proposed rule uses a slightly different approach. The

proposed rule integrates definitions of the terms “tributary”, “riparian”, and “floodplain” into the

current definition of “adjacent”. The proposed rule omits the requirement to determine relative

permanence of a water (RPW or non-RPW), stating only that a “tributary” is a channel that

exhibits a bed, banks, and an ordinary high water mark (Copeland, 2014; EPA, 2014b). Both the

small storage tank and the front edge of the larger pad are located clearly adjacent to the tributary

stream channel; this is evident in both the Google Earth image and when using the NWI mapped

data (Fig. 11). Copeland clarifies the term “riparian” as an “area bordering a water where

surface or subsurface hydrology influence the … plant … community structure in that area”, and

notes that “riparian areas are transitional areas between aquatic and terrestrial ecosystems”

(2014, pp.18). Both the small and large pads are situated within riparian areas as evidenced by

the change in vegetation types from the pad locations to outside the riparian zone. Copeland


(2014) also clarifies the term “floodplain” as an area during periods of moderate or high flow;

both pads are located within the visible floodplain as seen in the Google Earth image. Using

these augmented definitions of adjacency, both the small tank pad and the larger pad are situated

within jurisdictional areas and would require permits.

Piceance Basin

The Piceance Basin study area is located on the western slope of the Colorado Rocky

Mountains in Rio Blanco County (Figure 12). The region is on the northern Colorado Plateau,

and is characterized by rugged terrain composed of plateaus and steep cliffs separated by narrow

flat valley channels. Most precipitation falls as snow in the winter months, with an average

annual snowfall of 57 inches; very little rain falls in the summer months, with total summer

precipitation averaging less than one inch (Western Regional Climate Center, 2012).

The study area site sits on a slightly elevated bluff between Dry Gulch and Little Dry

Gulch, just upstream from the confluence of Dry Gulch, Little Dry Gulch, Fawn Creek and Black

Sulphur Creek (Figure 13). Little Dry Gulch flows into an irrigation ditch prior to entering

Fawn Creek, and a pipeline right-of-way exists within the Little Dry Gulch drainage channel

(D.R. Griffin & Associates, unpublished memorandum, 2009). The combined waters from all

four streams flow into Piceance Creek about 1.5 miles downstream. U.S. Geological Survey

hydrograph data exists for Black Sulphur Creek between 1975 and 1983; during that time period,

gauging station 09306175 recorded annual average peak streamflow at 83 cfs, with the highest

flow occurring in 1983 at 346 cfs (USGS, 2014b). D.R. Griffin & Associates completed further

calculations showing anticipated peak discharge of storm water runoff from Dry Gulch and Little

Dry Gulch to be 221 cfs and 159 cfs, respectively, for a 10-year recurrence frequency, and 286

cfs and 207 cfs for a 25-year recurring event (unpublished memorandum, 2009). The site has a


constructed pad of 9.29 acres, but as of yet has no operational facilities built on it. Access roads

were constructed to cross both the Dry Gulch and Little Dry Gulch drainages, and corrugated

metal pipe culverts were installed at both crossings (84-inch and 72-inch pipes, respectively) to

accommodate storm water runoff (D.R. Griffin & Associates, unpublished memorandum, 2009).

An inspection of channel conditions, stream bed geometry and high water marks indicate that

flow volumes are highly unlikely to meet the estimates for 10-year or 25-year flood events (D.R.

Griffin & Associates, unpublished memorandum, 2009). NWI data was extensively incomplete

for this area, particularly lacking riparian data, and was thus not utilized in the project or study.

Determining permitting requirements for this site is similar to the JD completed in this

paper on the San Juan Basin site, in that it is located in an arid environment and situated near to

drainages that may incur potential seasonal flooding events. D.R. Griffin and Associates

assessment of the site’s juxtaposition to seasonal water flows is as follows:

Although the site is bounded on two sides by significant drainage

channels, the land between the channels is significantly elevated

and is above any visible flood stages. The Dry Gulch channel is

relatively wide, deep, well defined and stable providing adequate

capacity for the typical run-off volumes. Although the Little Dry

Gulch channel is markedly small, it also appears to be well defined

and stable providing adequate capacity for the typical run-off

volumes present. Afforded by the above, the site is expected to be

dry for all seasons not subject to flooding that would have effect on

operations. (Unpublished memorandum, 2009).


The site is documented to have been authorized by the U.S. Bureau of Land Management

(BLM), as part of an approval for a larger project applied for by a local operator in 2010. The

BLM’s approval includes notice that “The holder shall notify the Army Corps of Engineers

(USACE) of any ephemeral, intermittent, perennial channels and wetlands that would be crossed

or otherwise impacted by the proposed action… The crossings are expected to be completed

under an Army Corps of Engineers Nationwide #12 permit (USACE 2007)” (BLM right-of-way

grant, serial # COC73903, June 23, 2010). This recommendation specifically encourages the use

of a NWP 12 for the road crossings, but does not address any permit requirements for the pad

itself. The siting of the pad between two drainages, although slightly higher in elevation, makes

it adjacent to and part of the greater floodplain of two Non-RPWs that flow clearly and directly

into Piceance Creek, creating a significant nexus with a TNW. Due to the BLM’s request for

NWP 12 permitting for the two road crossings, it can be assumed that the pad, as well, should

require a permit.

Using the proposed rule, a permit is required, as the pad is within the floodplain of the

Dry Gulch/Little Dry Gulch, which are both tributaries of TNWs.

Results, Conclusions and Recommendations

The three case studies (and specifically four pad sites) in this project help to elucidate the

difficulties in determining the scope of WOUS both under current regulation and under the

proposed rule the EPA and ACE have recommended. Using current jurisdictional scope, and

based on the ACE’s Guidance, two sites would clearly require a permit, one would not, and the

other would be subjectively determined based on the interpretation of the individual or agency

conducting the assessment; using the proposed rule, all four sites would require a permit (Figure

14). In the Williston study area, the developed site directly physically impacts a water body, but


the water body is determined not to be jurisdictional due to its apparent isolation from

downstream WOUS using the current scope. This same site requires a permit under the proposed

rule since a significant nexus to WOUS exists via shallow subsurface or surface connectivity. In

the San Juan study area, the small tank pad is found to exist within jurisdictional adjacent

wetlands under both current and proposed scope of WOUS. The larger pad site, however, is

questionably jurisdictional under the current scope, depending upon personal and subjective

observations of the site; under the proposed rule the larger pad would require a permit. In the

Piceance study area, the BLM established in its 2010 right-of-way approval that any water body

crossing in the area, including ephemeral and intermittent streams, would require a NWP#12.

The same permit requirement would apply under the proposed rule.

Impacts to Operators

The proposed rule would create new, but not necessarily more difficult or costly impacts

to oil and gas operators developing small, localized sites such as well or tank pads. In many

cases, under current scope, a JD would be required to assess multiple variables such as

permanence of flow (RPW versus non-RPW status), adjacency, abutment, and significant nexus.

These assessments are costly both in time and in dollars, and can potentially slow a project down

and create budget overruns, especially if conducted by the ACE or other agency. Under the

proposed rule, knowing in advance that isolated waters, tributaries, wetlands, and other visually

obvious water bodies are jurisdictional would allow operators the foresight to relocate their

projects (assuming landowners are willing to allow access) or accommodate schedules and

budgets to include the acquiring of permits. This could effectively streamline projects thus

making them more economical. Relating this to Justice Scalia’s Rapanos cost analysis, even if

the average cost for a NWP remained close to $30,000, it could be likely that the time to


complete the permit application process could be significantly less than the average of 313 days,

since identification of jurisdiction would be easier both for applicants and permitting agents.

Pipeline projects may be more significantly negatively impacted by the proposed rule, as

the linearity of a pipeline could force the project to maintain a direct path through wetlands, with

fewer options to reroute the line, and thus come into direct contact with more designated water

bodies. With the necessary impacting of additional wetlands, there would also be additional costs

for wetland mitigation and wetland mitigation banking (i.e. the purchase of other wetlands to be

held and managed for long-term ecosystem benefit). These costs are generally known to be

large, ranging from a few thousand dollars per acre to over $300,000 per acre depending on

location, type of water body, type of restoration and length of maintenance (Wilkinson &

Thompson, 2006).

A large number of oil and gas operators and industry proponents feel the proposed rule

would create undue difficulty in the planning, scheduling and implementing of construction

activities due to an expected increased number of permits required, increase in time and

resources needed to determine jurisdiction of local and isolated waters, and decrease in

permissible and reasonable mitigation and alternative options.

Fuller, Thompson & Sgamma (2014), as representatives of the Independent Petroleum

Association of America, American Exploration and Production Council and Western Energy

Alliance, in their formal comments submitted to the EPA, describe multiple ways in which the

proposed rule would impact oil and gas operators. It is noteworthy, however, that Fuller,

Thompson and Sgamma (2014), focus their discussion on impacts to oil and gas outside of

Section 404. Their discussion describes that an increase in jurisdictional waters would force the

requirement of additional CWA Section 311 SPCC plans for certain locations where such SPCC


plans are currently not required; additional CWA Section 402 NPDES permits would be required

in locations were drainage to newly jurisdictional ditches may occur; and expanded jurisdictional

waters would force additional projects to apply for Individual rather than utilize the ability to

invoke Nationwide Permits (NWPs) 12 (Utility Line Activites) or 39 (Commercial and

Institutional Development) based on the ½-acre restriction (Fuller, Thompson & Sgamma, 2014).

Limitations of the Study and Recommendations for Operators

Although an attempt was made in this study to reasonably address possible other factors

that may have helped determine the impacts of the proposed EPA/ACE rule on oil and gas

operations in the three case studies, there are recognized limitations that must be acknowledged,

including operator unknowns, variable market pricing, various additional federal, state and local

regulatory requirements, and unknown changes to land use or cover not accounted for in Google

imaging or NWI shape files.

• Operator unknowns: For every potential oil and gas operator, various unknowns exist that

could affect the results of any of the three case studies in this project. These unknowns

include an operator’s financial capability, cash availability or corporate restrictions;

flexibility (or inflexibility) to relocate, redesign, or provide mitigation of WOUS sites;

and varying degrees of risk aversion (e.g. willingness to pay fines for noncompliance, or

court costs in the event of a criminal or civil suit being brought);

• Variable market pricing: For each case study, the price and availability of lease acreage

was unknown, so a consideration of cost benefit analysis to relocate facilities was not

determined; the cost and availability of possible mitigation measures was also unknown,

which limited the study in determining alternatives that may have reduced required

permitting;


• Additional regulatory requirements and restrictions: This study only focused on CWA

Section 404 permitting, which does not cover all required regulatory oversight for any of

the three case study areas. Various other federal, state, and local regulations that may

further place restrictions on development and/or permitting requirements could make an

impact on the overall feasibility of any given project. Examples of these include CWA

Section 303, 311, 401 & 402, and the federal Endangered Species Act;

• Site unknowns: Although this study utilized recent satellite images to determine water

bodies and industry activity, it does not account for recent changes in land cover or land

use that are not yet updated in Google Earth images. Operators should attempt to obtain

and review all possible data, including historic water flow, vegetation cover, and land use

data, when investigating a potential site. As is evidenced in the Williston example

(Appendix 5), water availability can change drastically from year to year. A single site

inspection only provides a snapshot of data at that given moment, and may not be

representative of the general hydrological regime of an area.

The Williston, San Juan and Piceance study areas each represent a unique oil and gas

basin with widely varying climate, geology, hydrologic and ecologic frameworks. Using the

above described methodology and data, a determination of permitting requirements may be made

for each site based on current jurisdictional WOUS and proposed jurisdictional WOUS. This

determination is important for oil and gas developers and operators for planning new wells and

facilities to ensure optimum time management and economic viability. Currently, the definition

of WOUS is widely interpreted by ACE (and other agency) permitting offices across the country.

The San Juan case study in this project is just one demonstration of the confusion that may

develop in assessing a JD under current WOUS definitions. It would be highly valuable for


operators to have a clear understanding of the potential change in scope of WOUS if the

proposed rule is enacted.

The current CWA definition of WOUS is antiquated and requires a significant level of

subjectivity in making jurisdictional determinations. The proposed rule attempts to clarify for

permitting agents how WOUS should be identified as protected or not protected under CWA

jurisdiction, by using more specific scientific assessments that involve plant and animal

communities, hydrology, energy and material exchange, and wetland processes and functions as

determining factors rather than using the traditional definition as based on the effectiveness of a

water body to transport commercial goods on a boat. In using science, rather than commerce, to

delineate WOUS, the proposed rule is much better set up to regulate and protect our nation’s

streams, rivers, lakes and wetlands, which is ultimately the goal of the CWA. By understanding

the redefinition of WOUS in full, and standardizing interpretations of jurisdictional waters across

individual agencies, oil and gas developers may be able to better plan the locations of

development sites to minimize impacts to WOUS, and thus minimize permitting requirements

while still remaining in compliance with federal law.


LIST OF REFERENCES

Advisory Council on Historic Preservation. (2011). Federal oversight and assistance for shale gas

development and Section 106. Retrieved from

http://www.achp.gov/shale_gas_development.pdf

Bishop, T. S., Waldinger, K. F., and Clark, E. A. (2003). One for the birds: The Corps of

Engineers Migratory Bird Rule. Environmental Law Institute [electronic publication].

Retrieved from http://www.appellate.net/articles/migrabirdrule.pdf

Committee on Science, Space and Technology. (2014). Navigating the Clean Water Act: Is

water wet? U.S. House of Representatives Hearing Charter. Retrieved from

http://science.house.gov/sites/republicans.science.house.gov/files/documents/HHRG-

113-SY-20140709-SD001%20_1.pdf

Connolly, K. D. (2007). Any hope for happily ever after? Reflections on Rapanos and the future

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LIST OF FIGURES

FIGURE PAGE

Figure 1 - Map schematic of current WOUS ............................................................................... 31

Figure 2 - Summary diagram of current WOUS .......................................................................... 31

Figure 3 - Summary diagram of proposed WOUS ....................................................................... 39

Figure 4 - Generalized map of case study areas ........................................................................... 41

Figure 5 - Location map of Williston study area .......................................................................... 43

Figure 6 - Google imagery of Williston region potholes and drainage ........................................ 43

Figure 7 - Williston study area detail ............................................................................................ 44

Figure 8 - Location map of San Juan study area ........................................................................... 46

Figure 9 - Animas River hydrograph: 2014 average discharge .................................................... 46

Figure 10 - San Juan study area detail .......................................................................................... 47

Figure 11 - San Juan site NWI shape file and Google imagery .................................................... 47

Figure 12 - Location map of Piceance study area ......................................................................... 51

Figure 13 - Piceance study area detail .......................................................................................... 51

Figure 14 - Results of case study permitting needs ...................................................................... 53


Figure 1 – Diagram of stream and wetland jurisdiction as described in ACE Guidance. Jurisdictional waters are labeled with “J”, while waters that require an assessment of significant nexus are labeled “SN”. TNW = Traditional Navigable Water; RPW = Relatively Permanent Water.

Figure 2 – Summary of jurisdictional waters. TNW = Traditional Navigable Water; RPW = Relatively Permanent Water.


Figure 4 - Generalized map of case study areas (WPX Energy, 2014).

Figure 3 – Summary of Proposed WOUS


Figure 5 – Map of North Dakota; red star marks approximate location of case study area (map adapted from Free World Maps, n.d.).

Figure 6 - Google Earth satellite imagery of Williston pothole topography and study site (yellow pin). Horizontal scale is approximately 5.5 miles (Google Earth, imagery date 19 August 2013).


Figure 7 – Detailed image of Williston site. Road and well pad boundaries marked in red; section of well pad built out into pond is in yellow (Google Earth, imagery date 19 August 2013).

Figure 8 – Map of southwest United States’ “Four Corners” region, showing San Juan study area as a red star near the Animas River of northern New Mexico (map adapted from Wikipedia, 2014).


Figure 10 – Detailed image of San Juan site. Red polygon highlights the one-acre well pad; yellow box shows small oil tank. Pipeline is visible extending to the southwest from the small tank area. (Google Earth, imagery date 10 June 2011).

Figure 9 – Hydrograph of Animas River; data shows average 2014 discharge near Cedar Hill, NM (USGS, 2014a).


Figure 11 – Side-by-side comparison showing NWI shape file (l), Google Earth image (m), and merged image (r) for San Juan site. NWI key: green = riparian (floodplain); blue = wetland (stream). Horizontal scale is approximately 0.4 miles. (Google Earth imagery dated 10 June 2011).

Figure 12 – Map of Colorado; red star marks approximate location of study area (map adapted from Free World Maps, n.d.).


Figure 13 – Detailed image of Piceance site and area drainage. Piceance site is outlined in red. Horizontal scale is approximately 1.25 miles (Google Earth imagery dated 20 June 2013).

Figure 14 – Summary of permitting needs of study area sites.


APPENDICES

Appendix 1: ArcMap 10.2.2 Technical Methodology

1. Load wetlands and riparian shape files into a new project; make all layers visible

2. Zoom in on selected location; note scale and extent coordinates

3. Catalog /Home Docs/right Click/New/Shape file -> Feature Type = Polygon; edit – select

coordinate system

4. Editor box – select layer to edit, right click/edit features/start editing; Catalog right click

new shape file, select rectangle construction tool at bottom; draw rectangle (click point,

draw first line, click point, expand line out to rectangle); stop editing, save

5. Search – clip analysis; Input feature = original map layer; clip features = new shape file

6. Export new, clipped shape file

Appendix 2: Petra 3.8.3 Technical Methodology

1. Import shape file into Thematic Mapper Module (Theme/Add Theme)

2. Color all wetland polygons (Theme/Theme Properties/color, solid fill)

3. Send Theme to Petra Map Module (Theme/Send Theme to Petra Overlay Layer/set

Geographic Coordinate System to NAD 83)

4. Set imported theme to new layer; rename

5. Display/Set Map Extents from Overlay Extents


Appendix 3: Index for Relevant United States Code Items

33 USC § 403 – Obstruction of navigable waters generally; wharves; piers, etc.; excavations and

filling in (Source: Rivers and Harbors Appropriations Act of 1899)

33 USC § 1344 – Permits for dredged or fill material (Source: Clean Water Act, as amended)

33 USC § 1362(7) – Definition of “navigable waters” (Source: Clean Water Act, as amended)

Appendix 4: Index for Relevant Code of Federal Regulations

33 CFR § 323 – Permits for Discharges of Dredged or Fill Material into Waters of the United

States

33 CFR § 328 – Definition of Waters of the United States (Source: Army Corps of Engineers)

33 CFR § 329 – Definition of Navigable Waters of the United States (Source: Army Corps of

Engineers)

33 CFR § 330 – Nationwide Permit Program (Source: Army Corps of Engineers)

40 CFR § 230 – Section 404(b)1 Guidelines for Specification of Disposal Sites for Dredged or

Fill Material (Source: Clean Water Act of 1977)


Appendix 5: Williston Basin Google Images 1995-2013

trask ms thesis 2015

Documents