The Waters of the United States

Coming soon to federal regulation

On March 31, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) released a proposed rule to expand protection and regulation under the Clean Water Act to streams and wetlands that are merely seasonal. The text of the rule will appear in the Federal Register in April and open a 90 day comment period.

Though the EPA news release called this action a “clarification,” it is tremendous expansion of the scope of the 1972 Clean Water Act which made it illegal to discharge of pollutants into the navigable waters of the United States unless a permit was obtained. The discharge of pollutants regulated under the Clean Water Act was from so called point sources. Point sources are discrete conveyances, such as a pipe. The regulation was intended to stop the free discharge of sewage and industrial waste into our rivers.

The proposed rule expands the definition of navigable waters to apply to include wetlands, seasonal streams and any water that might at any time during the year impact or reach the navigable waters of the United States. In this way the EPA does not see this as an expansion of the Clean Water Act jurisdiction, but it is. The proposed rule will sweep in waters previously considered isolated or exempt and that are a great distance from navigable waters.

For several years EPA has attempted to expand the reach of the Clean Water Act to all waters and discharges to include all sources. Federal authority does not extend to non-point sources, such as from run off from agricultural and urban sources not part of a storm sewer system as well as other small sources such as septic systems. The EPA has been frustrated in their attempts to address what they view as the current generation of environmental problems. These problems are subtle, much less visible to the naked eye because they are from diffuse or non-point sources and often not nearly as susceptible to a top-down, command-and-control approach.

Agriculture is reported to be one or the main non-point sources of water pollution and in studies done in the Chesapeake Bay Watershed and Sacramento River Delta and other locations the contamination from agriculture runoff has been the major source of contamination. Pesticide runoff is a large contributor of known pollutants to the watersheds and may be a significant contributor of endocrine disruptors to the freshwater supply. Both rain feed and irrigated agriculture are sources of contamination of fresh water. Now EPA is making another attempt to expand the Clean Water Act reach to all water and all sources of pollution.

EPA has overcome the challenges of regulating every source of contamination in the Chesapeake Bay Watershed by imposing the Chesapeake Bay pollution diet, the Total Maximum Daily Load (TMDL) mandated to the six Chesapeake Bay Watershed states (Virginia, Maryland, Delaware, New York, Pennsylvania and West Virginia) and the District of the Columbia. The TMDL sets a total Chesapeake Bay watershed limit for the entire region of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment per year which is a 25% reduction in nitrogen, 24% reduction in phosphorus and 20 %t reduction in sediment from the current levels. The pollution limits are then partitioned to the various jurisdictions and river basins based on the Chesapeake Bay modeling tools and monitoring data.

The US EPA has mandated these levels and allowed the states (and District of Columbia) to determine how to achieve them (with the EPA’s approval) by threatening to use what they call “back stop measures”, but are simply reductions in the allowed (permitted) releases from point source permits (waste water treatment plants, municipal separate storm sewer systems, and confined animal feed lots) to achieve the TMDL Essentially, they have said do this in a way we find acceptable or we will impose the most direct and expensive method to achieve our clean water goals.

Now, EPA wants to expand their authority to every bit of water in the US and will be able to effectively and directly regulate all sources of pollution without working through the states. If adopted as proposed, this rule will be felt throughout the U.S and in all areas of our economy and lives not previously directly touched by the EPA. It will have a profound impact on many locally regulated activities, including home building, mining, road construction, commercial property development and water infrastructure projects. The capricious application of the federal command and control regulatory scheme will directly impact all our lives.

Slowing the Erosion from Rising Sea Level and Storms

Breakwater at Westmoreland State Park

At the quarterly meeting of the Potomac Watershed Roundtable Scott Hardaway from the Virginia Institute of Marine Sciences at William and Mary and Mike Vanlandingham the last standing Shoreline Engineer from the Virginia Department of Environmental Quality (DEQ) spoke about shoreline erosion and stabilization in general and along the Potomac River, talking about the problem and potential solutions for slowing the natural forces that are eroding our shorelines. Since 1980 the DEQ has provided Shoreline Erosion Advisory Service to provide technical assistance in the form of an advisory report and plan reviews to landowners, state owned land, localities, and federal agencies experiencing tidal erosion along the 5,000 miles of tidal shoreline in Virginia.

Approximately 15,000 years ago the ocean coast was about 60 miles east of its present location, and sea level was about 300 feet lower. At that time there was no Chesapeake Bay. Instead there was a river that meandered out to sea. It is that ancient river that created the deep channel within the Bay and estuary waters. Sea level continues to rise in the Chesapeake Bay, it was estimated by Scott Hardaway to be rising at about a foot per century, and others have estimated that this rise will accelerate in the future. The rising sea level is one of two primary causes of shoreline erosion, the other is wave action. Storm events can cause powerful waves and change the shape of the shoreline as they erode and transport soil and sand from one part of the shore to another.

The factors that influences the way that the shore line will erode are; coastal geology, the amount of open water, existing shore conditions, storm surges, and rising sea level. While the erosion can be managed, it cannot be stopped. Rising sea level and storm waves are relentless forces. The erosion of shoreline in Virginia has been complicated by the rapid and extensive development in these areas in the past 25 years. The development changes the nature of the shore and creates difficulties in trying to implement an area strategy with multiple property owners who cannot or will not take the (decades) long term view. There are basically three strategies that can be implemented for fighting shoreline erosion: soft, hard and combination. There is little that can be done to permanently hold back the rise in sea level; however shoreline management strategies can be used to blunt the destruction of storm related wave action.

A soft strategy is utilizing wide fringing marshes, beaches and dunes to absorb the energy of waves and reduce the effects that storms will have on adjacent upland banks. With an adequate marsh fringe, beach or dune protection upland banks may only be impacted by the most severe events- at least for a while. Nonetheless, over time, marshes and beaches are eroded themselves and can no longer protect the shore and according to Mr. Vanlandingham, there are areas where a massive storm can erode 30 feet of shoreline in a single year though the shoreline overall averages a loss of 1 foot per year. As rising sea level and erosion narrow beaches and marshes over time, the upland banks are become impacted by storm surge which causes bank instability. Continual erosion can result in sudden collapse of an upland bank taking yards, decks, homes and roads.

Hard strategies to shoreline protection are riprap revetments, retaining walls with anchor systems and bulkheads. The combination strategies utilize groins in combination with the bulkheads and breakwaters. Bulkheads, revetments, and groins are the most common protection strategies currently employed to protect shorelines from erosion. Bulkhead and seawall are often used to describe the same thing, but there really is a difference: bulkheads are generally smaller and less expensive than seawalls. Bulkheads are usually made of wood. They are designed to retain upland soils and often provide minimal protection from severe storms. Seawalls are generally made of poured concrete and are designed to withstand the full force of waves.

In recent years, rock or riprap revetments became more widely used to protect shorelines. A properly designed and constructed rock revetment can last fifty years or more because it can be maintained by the addition of more stones. The revetments have sloped and rough stone faces that decrease wave reflection and bottom scour. Revetments need to be built high enough to withstand waves during extreme storms or they will not work. In addition, the banks need to be graded to create a stable slope.

Between the 1950s and 1980s, groins were a popular way to trap sand and build a modest beach area and are widely seen in beach communities. A groin is a wood structure perpendicular to the shoreline designed to “catch” sand and prevent erosion of the beach. On a relatively wide sand beach the sand will accumulate on the up drift side of a groin. If enough sand were available, the shoreline banks would gain some degree of protection from erosion. However, the sand capture by the groin will prevent the sand from reaching down drift areas increasing erosion there and can create difficulties and lawsuits amongst property owners. Breakwaters can work as a better strategy if used along a long span of shoreline. Breakwaters are built offshore to control shoreline erosion by maintaining a wide, protective beach.

The breakwater, sitting out perpendicular to the shore, “breaks” the force of the waves and dissipates the energy so the waves do not erode the beach or upland banks. Unlike groins that merely capture sand. Breakwater systems are designed to create stable beaches and allow various species of marsh grasses to be established at the site.

from Hardaway

In the past decade or so, coastal engineers use combinations of hard and soft structures in storm damage reduction design. A rock seawall buried within a dune was constructed in 2000 in Virginia Beach, Virginia by the Army Corps of Engineers to protect critical naval infrastructure. Such approaches have been adopted because they proved to be both cost-effective and environmentally friendly alternatives to more classical coastal structure design. Yet, because of the rarity of extreme flood and wave events, these multi-level designs have not been demonstrated to be effective as clearly as they were in New Jersey during Hurricane Sandy in October 2012 when the fate of two adjacent communities demonstrated the effectiveness of a rock seawall buried within a dune.

Hurricane Sandy devastated the Jersey shoreline destroying many coastal communities, caused widespread erosion of the sand dunes as well as having the Barrier Island breached in some locations. Along the hardest-hit stretch of the New Jersey shore are two adjacent coastal communities: the Boroughs of Bay Head and Mantoloking. Before Hurricane Sandy, these adjacent boroughs featured similar topography and residential development. Yet, while similar surges and large waves arrived at their shores, the communities experienced vastly different levels of destruction. A team of scientists lead by Jennifer L. Irish, associate professor of civil and environmental engineering in the College of Engineering at Virginia Tech investigated the shoreline immediately after the storm, and recently published their findings.

From J.L. Irish Buried Seawall

The cause of difference in damage between the two communities turned out to be a long forgotten sea wall originally built in 1882 that had formed the core of the Bay Head dune very much like the structure installed at Virginia Beach. The stone seawall had been covered over with fine dune sand by Aeolian transport and beach nourishment during the twentieth century and forgotten. While similar surges and large waves arrived at both towns the amount of damage and erosion was vastly different between the two. In Mantoloking the dune structure was entirely sand and their entire sand dune was destroyed by the storm. Water washed over the barrier spit and opened three breaches hundreds of feet wide and the sand was swept away by the waves. In Bay Head, only the portion of the dune located seaward of the seawall was eroded and the section of dune behind the seawall received only minor local scouring. The dune remained in place and the sand remained on the beach. In addition in Bay Head only one oceanfront home was destroyed. In Mantoloking, more than half of the oceanfront homes were classified as damaged or destroyed.

The discovery of the relic seawall came as a surprise to many of the residents, generations of families do not stay in communities and there is little realistic long term planning for future storms and rising sea levels. This relic seawall and the deposited dune sand combined to form a combination soft and hard structure that is now in use to protect the shoreline. This design was discovered as the effective protector of the Bay Head shoreline and demonstrated to work during the “Superstorm.”

Shoreline protection strategies continue to evolve. In many locations, elevated shoreline stabilization structures are combined with beach nourishment for shoreline protection. Nontraditional technologies (beach drains, geotextile bags, artificial breakwater structures, wetlands, etc.) are also being investigated in field experiments. Nonetheless, man cannot hold off the rising seas forever. First we protect the shore with engineered barriers (of all types), then we rebuild the beaches by adding sand and marshes. Ultimately we will have to accommodate the rising sea level by raising structures and retreating from the shore.

Expansion of Clean Water Act and Its Impact on You

On April 27th 2011 U.S. EPA and the U.S. Army Corps of Engineers released draft guidance on expanding the scope of the Clean Water Act. The guidance, now in effect, will be used for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. The public comment period was open from May 2-July 1 2011. The proposal prompted 300,000 comments the majority of which were organized by environmental groups and are supportive; however wastewater compliance community also had many concerns. However, the comments were really immaterial because the EPA is not required to address public concerns to guidance documents and no changes contemplated or made to the draft and the guidelines are now final.

The Clean Water Act (CWA) of 1972 makes it a crime to discharge pollutants into the "navigable waters of the United States." However, what constitutes a "pollutant" or "navigable water" has been open to interpretation and a series of guidance documents over the years have expanded the definition of “navigable waters of the United States” until it is now defined by the US EPA and the Army Corps of Engineers as:

Traditional navigable waters
Interstate waters
Tributaries to navigable waters and interstate waters
Seasonal tributaries, steams or creeks
Wetlands adjacent to any of the above
And finally, the other category that seems to include everything but swimming pools, fountains, irrigation ditches and ponds or stock watering systems.

The Guidance broadened a recent Supreme Court decision that created a “significant nexus” standard for wetlands to include all tributaries and isolated water and allow functions of waters to demonstrate a “significant nexus” exists. The list of functions is extremely broad and the Guidance allows for decisions to be based on general scientific literature describing functions that generally apply to the types of waters in question, in lieu of actual case-specific analysis of the water itself. Essentially, this guidance creates federal jurisdiction over everything but swimming pools, fountains, irrigation and stock watering ditches and ponds that would revert to dry upland. Guidance places us all within the whim of regulators, and we all may find ourselves in the position of Chantell and Michael Sackett.

In 2005 the Sacketts purchased less than an acre of land to build a home near to but not adjoining a lake. After obtaining building permits from the county, they began the building process by spreading fill material over the lot. Two people from the U.S. EPA and one person from the Army Corps of Engineers appeared and issued the Sacketts an “Administrative Compliance Order” (ACO), alleging the land was a wetland subject to the Clean Water Act jurisdiction and ordered the Sacketts to restore the land to its original condition or face nearly $50,000 in fines per day. The Sackett family appealed for a hearing believing that their land was not a wetland, but was denied by EPA and the federal court.

In addition under an agreement between the U.S. EPA and the Army Corps of Engineers the Sacketts could not obtain a permit (even if they wanted to) until the open enforcement action was concluded. The site must be restored to its previous condition to apply to the Army Corps of Engineers for a permit to place fill material on a wetland. However, under the new guidance the EPA and Army Corps of Engineers can determine a site is a wetland subject to the Clean Water Act based on “general scientific literature,” in lieu of actual case-specific analysis of the water itself.

The case is scheduled to be heard by the U.S. Supreme Court in January 2012. The Supreme Court will consider whether the Sacketts may seek pre-enforcement judicial review of ACOs and whether petitioners’ current inability to seek pre-enforcement judicial review of the ACO violates their rights under the Due Process Clause of the U.S. Constitution. The regulations, procedures, and guidance on judicial review of Administrative Compliance Orders were created before the federal regulations and power were expanded by the 2011 Guidance to include any conceivable naturally occurring water.

The National Cattlemen’s Beef Association (NCBA) and the Public Lands Council (PLC) recently filed an amicus (friend of the court) brief to the U.S. Supreme Court in the Sackett case because according to NCBA Deputy Environmental Counsel Ashley Lyon, this case could have far-reaching impacts on farmers and ranchers and all private landowners. Few of us can afford the legal resources to address an EPA enforcement action, or afford to restore properties to apply for a Clean Water Act permit if our property is deemed to be subject to the Clean Water Act under the guidance. The guidance is open to inconsistent interpretation and could be used unfairly. There is no provision to obtain a decision that land is not subject to Clean Water Act before an ACO or enforcement action by the EPA. There are no objective standards to determine which waters fall under the act. There should be standards like distance, hydrologic connection, flow connection, size of watershed and storm impact that can be measured and considered in a consistent and quantified way so that a determination could be easily made and reviewed. The EPA Guidance has divorced the law from fact and this must be restored.