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HomeMy WebLinkAboutEX_28_Longacres_DOE_Response_22_1222 2828 Colby Avenue, Suite 401 | Everett, WA 98201 | Phone 425.493.5221 | otak.com k:\project\20700\20796\05 documents\reports\ecology response\longacres_doe_response_22_1222.docx Wetland Review Memorandum To: Jill Ding, Senior Planner, City of Renton From: Jeff Gray, PWS (Otak) Copies: File Date: December 22, 2022 Subject: Longacres Unico Property (Seattle Sounders FC Performance Center) - Response to Ecology’s Wetlands Review Project No.: Renton: PRE21-000410 Otak: 20796.000 This memorandum has been prepared in response to the email from the Washington Department of Ecology (Ecology) dated December 20, 2022, regarding jurisdiction of “Feature G” as a regulated wetland defined per Revised Code of Washington (RCW) 90.58.030(2)(h) at the proposed Seattle Sounders FC Performance Center (Project) on the Longacres Office Park (LOP) property in the City of Renton. Otak, Inc. (Otak) conducted a review of the Critical Areas – Existing Conditions Letter Report (Letter Report) dated April 29, 2022, prepared by Talasaea Consultants, Inc. (TCI) for the Project for consistency with Renton Municipal Code (RMC) Critical Area Regulations (RMC 4-3-050). As documented in the Peer Review Memorandum dated June 9, 2022, it was determined that “Feature G” did not meet the definition of a regulated wetland per RMC 4-3-050B.1 and 4-11-230 because it was artificially constructed as a stormwater facility during construction of the Boeing facility in the late 1990’s (Attachment A). Ecology disagreed with this determination on the basis that the wetland conditions were not intentionally created because the wetland developed after the stormwater facility was filled at the end of construction around the year 2000. Ecology did agree that Feature G is artificial in nature and was created in non-wetland (e.g., uplands). As included in the three definitions of regulated wetlands per the Renton Municipal Code, Shoreline Management Act, and Growth Management Act, wetlands do not include “those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway.” Construction of the Boeing facility occurred after July 1, 1990, and included multiple roads and streets for traffic circulation. Feature G therefore meets the full definition of unregulated wetlands because it was artificially constructed in uplands as a stormwater facility for the Boeing facility, and since then wetlands have unintentionally been created as a result. The definitions of regulated wetlands per RMC 4-11-230 and 4-3-050B.1, RCW 90.58.030(2)(h) [Shoreline management act of 1971], and RCW 36.70A.030 (Growth Management) are nearly identical and are provided below for reference: • RMC 4-11-230: WETLANDS: Areas that are inundated or saturated by surface water 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 Page 2 of 4 Longacres Property – Wetland Peer Review December 22, 2022 k:\project\20700\20796\05 documents\reports\ecology response\longacres_doe_response_22_1222.docx conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands include artificial wetlands created from nonwetland areas to mitigate the conversion of wetlands. [RMC 4-3-050B.1 reiterates the last sentence above: Regulated wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway.] • RCW 90.58.030(2)(h): "Wetlands" means areas that are inundated or saturated by surface water 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. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass -lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands . • RCW 36.70A.030(31): "Wetland" or "wetlands" means areas that are inundated or saturated by surface water 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. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands. Page 3 of 4 Longacres Property – Wetland Peer Review December 22, 2022 k:\project\20700\20796\05 documents\reports\ecology response\longacres_doe_response_22_1222.docx USACE Jurisdictional Assessment under the Clean Water Act Feature G is assumed to be a non-regulated wetland under the Clean Water Act. The United States Environmental Protection Agency (USEPA) and the United States Army Corps of Engineers (USACE) regulates “waters of the United States” (WOTUS) under Section 404 of the Clean Wat er Act, including wetlands. The USEPA and USACE are currently interpreting WOTUS consistent with the pre-2015 regulatory regime until further notice due to recent legal challenges of the previously implemented Navigable Waters Protection Rule (NWPR). More background information can be found on the USEPA’s webpage titled Current Implementation of Waters of the United States (https://www.epa.gov/wotus/current-implementation-waters-united-states). The term WOTUS is currently defined at 40 Code of Federal Regulations (CFR) 230.3(s) as: 1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb a nd flow of the tide; 2. All interstate waters including interstate wetlands; 3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or na tural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: a. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or b. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or c. Which are used or could be used for industrial purposes by industries in interstate commerce; 4. All impoundments of waters otherwise defined as waters of the United States under this definition; 5. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section; 6. The territorial sea; 7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as de fined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States. On November 18, 2021 the agencies announced the signing of a proposed rule to revise the definition of WOTUS as published December 7, 2021 in the Federal Register (Volume 86, No. 232). On page 69434, in Section V.D Implementation of Proposed Rule, Subsection 1(Generally Not Considered “waters of the United States”, Part b (Certain Other Features), it is clearly stated that the agencies have generally not asserted jurisdiction over certain other features under the pre-2015 regulatory regime, including waterfilled depressions created in dry land incidental to construction activity . Pages 69433 and 69434 are Page 4 of 4 Longacres Property – Wetland Peer Review December 22, 2022 k:\project\20700\20796\05 documents\reports\ecology response\longacres_doe_response_22_1222.docx included as Attachment B with this memorandum, and the full Proposed Rule with supporting rationale (79 pages) is publicly available at https://www.govinfo.gov/content/pkg/FR-2021-12-07/pdf/2021- 25601.pdf. Feature G includes compacted clay soil at the surface that collects and holds seasonal precipitation, which has enabled hydric soil indicators and wetland hydrophytic vegetation to develop over time following construction. Feature G did not exist prior to the creation of the stormwater facility and the earthwork associated with construction of the Boeing facility around the year 2000. Attachment A: As Built Drawing R-23236C Attachment B: Federal Register, Vol. 68, No. 232, Tuesday, December 7, 2021, Proposed Rules (Pages 69372, 69433, and 69434). 69372 Federal Register /Vol. 86, No. 232/Tuesday, December 7, 2021/Proposed Rules 1 To avoid confusion between the term ‘‘navigable waters’’ as defined in the Clean Water Act and its implementing regulations, 33 U.S.C. 1362(7); 33 CFR 328.3 (2014), and the traditional use of the term ‘‘navigable waters’’ to describe waters that are, have been, or could be used for interstate or foreign commerce, 33 CFR 328.3(a)(1) (2014), this preamble will refer to the latter as ‘‘traditional navigable waters’’ or waters that are ‘‘navigable-in-fact.’’ DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers 33 CFR Part 328 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 120 [EPA–HQ–OW–2021–0602; FRL–6027.4–03– OW] Revised Definition of ‘‘Waters of the United States’’ AGENCY: Department of the Army, Corps of Engineers, Department of Defense; and Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency (EPA) and the Department of the Army (‘‘the agencies’’) are publishing for public comment a proposed rule defining the scope of waters protected under the Clean Water Act. This proposal is consistent with the Executive Order signed on January 20, 2021, on ‘‘Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,’’ which directed the agencies to review the agencies’ rule promulgated in 2020 defining ‘‘waters of the United States.’’ This proposed rule would meet the objective of the Clean Water Act and ensure critical protections for the nation’s vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States. DATES: Comments must be received on or before February 7, 2022. Please refer to the SUPPLEMENTARY INFORMATION section for additional information on the public hearing. ADDRESSES: You may send comments, identified by Docket ID No. EPA–HQ– OW–2021–0602, by any of the following methods: •Federal eRulemaking Portal: https://www.regulations.gov/ (our preferred method). Follow the online instructions for submitting comments. •Email: OW-Docket@epa.gov. Include Docket ID No. EPA–HQ–OW– 2021–0602 in the subject line of the message. Instructions: All submissions received must include Docket ID No. EPA–HQ– OW–2021–0602. Comments received may be posted without change to https://www.regulations.gov/, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the ‘‘Public Participation’’ heading of the SUPPLEMENTARY INFORMATION section of this document. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are open to the public by appointment only to reduce the risk of transmitting COVID–19. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries and couriers may be received by scheduled appointment only. For further information on EPA Docket Center services and the current status, please visit us online at https:// www.epa.gov/dockets. FOR FURTHER INFORMATION CONTACT: Damaris Christensen, Oceans, Wetlands and Communities Division, Office of Water (4504–T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 564–2281; email address: CWAwotus@epa.gov, and Stacey Jensen, Office of the Assistant Secretary of the Army for Civil Works, Department of the Army, 108 Army Pentagon, Washington, DC 20310–0104; telephone number: (703) 459–6026; email address: usarmy.pentagon.hqda- asa-cw.mbx.asa-cw-reporting@mail.mil. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Public Participation A. Written Comments B. Virtual Public Hearings III. General Information A. What action are the agencies taking? B. What is the agencies’ authority for taking this action? C. What are the incremental costs and benefits of this action? IV. Background A. Legal Background B. The Agencies’ Post-Rapanos Rules C. Summary of Stakeholder Outreach V. Proposed Revised Definition A. Basis for Proposed Rule B. Concerns With Alternatives C. Proposed Rule D. Implementation of Proposed Rule E. Publicly Available Jurisdictional Information and Permit Data F. Placement of the Definition of ‘‘Waters of the United States’’ in the Code of Federal Regulations VI. Summary of Supporting Analyses VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review; Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. Executive Summary Congress enacted the Federal Water Pollution Control Act Amendments of 1972, Public Law 92–500, 86 Stat. 816, as amended, 33 U.S.C. 1251 et seq. (Clean Water Act or Act) ‘‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’’ 33 U.S.C. 1251(a). In doing so, Congress performed a ‘‘total restructuring’’ and ‘‘complete rewriting’’ of the existing statutory framework, seeking to better protect the quality of the nation’s waters. City of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981). Congress thus intended the 1972 Act to be a bold step forward in providing protections for the nation’s waters. Central to the framework and protections provided by the Clean Water Act is the term ‘‘navigable waters,’’1 defined in the Act as ‘‘the waters of the United States, including the territorial seas.’’ 33 U.S.C. 1362(7). This term establishes the extent of most federal programs to protect water quality under the Act—including, for example, water quality standards, impaired waters and total maximum daily loads, oil spill prevention, preparedness and response programs, state and tribal water quality certification programs, and dredged and fill programs—because such programs apply only to ‘‘waters of the United States.’’ As the Supreme Court presciently noted decades ago, defining this term requires the EPA and the U.S. Department of the Army (Army) (together, ‘‘the agencies’’) to ‘‘choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: The transition from water to solid VerDate Sep<11>2014 18:11 Dec 06, 2021 Jkt 256001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\07DEP2.SGM 07DEP2 lotter on DSK11XQN23PROD with PROPOSALS2 69433 Federal Register /Vol. 86, No. 232/Tuesday, December 7, 2021/Proposed Rules surrounded by development that severed any hydrologic connections between the wetland and a nearby wetland complex and lake; wetlands in Washington separated by potential jurisdictional waters by thousands of feet of well-drained soils as well as impervious surfaces; a large forested wetland in Washington separated by the nearest jurisdictional waters by residential and commercial developments on a topography that would preclude flows into these waters and with no identified ecological connections; a wetland in Oregon surrounded by a concrete and cinder block wall, preventing any flows into downstream waters; and a wetland in Arkansas separated from other wetlands and surrounded by uplands. While in most of these examples, the tributary, wetland, or lake may well have had some effect on traditional navigable waters, interstate waters, or the territorial seas, the agencies concluded that those effects were not significant and so concluded that jurisdiction did not lie under the Clean Water Act. See implementation section V.D of this preamble for more information on significant nexus determinations. D. Implementation of Proposed Rule The agencies are proposing to return to the longstanding definition of ‘‘waters of the United States’’ that two other Administrations have codified over the years, updated to reflect consideration of the intervening Supreme Court decisions. This section first discusses features over which the agencies generally did not assert jurisdiction under the preambles, guidance, and practice of the pre-2015 regulatory regime. The agencies intend to continue generally not asserting jurisdiction over such features. Then the agencies explain the Rapanos Guidance and how they have determined jurisdiction under the two Rapanos standards for various categories of waters under the pre-2015 regulatory regime and solicit comment on potential alternative approaches for applying the Rapanos standards. The agencies then discuss the implementation tools and resources available for making such determinations. The agencies welcome comment on all of these topics, including the availability and efficacy of all of the tools and resources discussed. The agencies intend to issue an updated ‘‘Approved Jurisdictional Determination’’ form and instruction manual upon promulgating a final rule to aid the public and field staff in determining which waters are ‘‘waters of the United States’’ under the final rule. The agencies may provide additional guidance in the final rule based on public input received on this proposal. 1. Generally Not Considered ‘‘waters of the United States’’ Under the pre-2015 regulatory regime, the waters described below were generally not considered ‘‘waters of the United States’’ even though they were not explicitly excluded by regulation. The agencies intend to continue this longstanding approach and are soliciting comment on this approach for the proposed rule. The preamble to the 1986 regulations states that the agencies ‘‘generally do not consider [these] waters to be ‘Waters of the United States.’’’ 51 FR 41217. The preamble further stated that ‘‘the Corps reserves the right on a case-by-case basis to determine that a particular waterbody within these categories of waters is a water of the United States. EPA also has the right to determine on a case-by-case basis if any of these waters are ‘waters of the United States.’’’ Id. In practice, the agencies have not generally asserted jurisdiction over such waters and would continue to implement the proposed rule consistent with this practice. Even when not themselves considered jurisdictional waters subject to the Clean Water Act, the features described below (e.g., certain ditches, swales, gullies, erosional features) may either be relevant to a ‘‘water of the United States’’ jurisdictional analysis or otherwise be subject to the Clean Water Act. The features may still contribute to a surface hydrologic connection relevant for asserting jurisdiction (e.g., between an adjacent wetland and a jurisdictional water). Rapanos Guidance at 12. In addition, these waters may function as point sources (i.e., ‘‘discernible, confined, and discrete conveyances’’), such that discharges of pollutants to other waters through these features could require a Clean Water Act section 402 or 404 permit. Discharges to these waters may be subject to other Clean Water Act regulations (e.g., Clean Water Act section 311). Id. a. Certain Ditches Under the agencies’ longstanding approach to determining which waters are ‘‘waters of the United States,’’ certain ditches are generally not considered ‘‘waters of the United States.’’ The preamble to the 1986 regulations explains that ‘‘[n]on-tidal drainage and irrigation ditches excavated on dry land’’ are generally not considered ‘‘waters of the United States.’’ 51 FR 41217. The agencies shifted this approach slightly in the Rapanos Guidance and explained that ‘‘ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water are generally not waters of the United States.’’ Rapanos Guidance at 11–12. The agencies explained that these features are generally not considered ‘‘waters of the United States’’ ‘‘because they are not tributaries or they do not have a significant nexus to downstream traditional navigable waters.’’ Id. The agencies intend to continue implementing the approach to ditches described in the Rapanos Guidance. This approach is more consistent with the relatively permanent standard than the approach in the preamble to the 1986 regulations. Consistent with previous practice, ditches constructed wholly in uplands and draining only uplands with ephemeral flow would generally not be considered ‘‘waters of the United States.’’ Also consistent with previous practice, the agencies would typically assess a ditch’s jurisdictional status based on whether it could be considered a tributary (and, consistent with previous practice, would not assess whether the ditch was jurisdictional under the ‘‘other waters’’ provision). The implementation section below includes discussion on the application of relevant reach under the Rapanos Guidance, and the agencies solicit comment on potential alternative approaches (see section V.D.2.b.ii.1.b of this preamble), such as whether relevant reaches can be distinguished based on a change from relatively permanent flow to non-relatively permanent flow. The agencies acknowledge that for ditches in particular there may be scenarios that make identification of relevant reach especially challenging and encourage stakeholders to identify and discuss these situations in their comments on relevant reach. The agencies specifically request comment regarding whether the interpretation of relevant reach for ditches should consider any particular factors for situations where ditches are tidal, are treated as tributaries, or contain wetlands. In some situations, ditches with wetland characteristics have been considered jurisdictional as adjacent wetlands. In most cases, such ditches have been constructed in adjacent wetlands and would be considered part of that larger adjacent wetland. However, consistent with previous practice, wetlands that develop entirely within the confines of a ditch that was excavated in and wholly draining only uplands that does not carry a relatively permanent flow would be considered VerDate Sep<11>2014 18:11 Dec 06, 2021 Jkt 256001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4702 E:\FR\FM\07DEP2.SGM 07DEP2 lotter on DSK11XQN23PROD with PROPOSALS2 69434 Federal Register /Vol. 86, No. 232/Tuesday, December 7, 2021/Proposed Rules part of that ditch and generally would not be considered ‘‘waters of the United States.’’ Where a ditch is jurisdictional, the agencies have historically taken the position that the ditch can be both a ‘‘water of the United States’’ and a point source and are proposing to reinstate this position. For example, in 1975, the General Counsel of EPA issued an opinion interpreting the Clean Water Act: ‘‘it should be noted that what is prohibited by section 301 is ‘any addition of any pollutant to navigable waters from any point source.’ It is therefore my opinion that, even should the finder of fact determine that any given irrigation ditch is a navigable water, it would still be permittable as a point source where it discharges into another navigable water body, provided that the other point source criteria are also present.’’ In re Riverside Irrigation District, 1975 WL 23864 at *4 (emphasis in original). The opinion stated that ‘‘to define the waters here at issue as navigable waters and use that as a basis for exempting them from the permit requirement appears to fly directly in the face of clear legislative intent to the contrary.’’ Id. Further, in Rapanos, Justice Kennedy and the dissent rejected the conclusion that because the word ‘‘ditch’’ was in the definition of ‘‘point source’’ a ditch could never be a water of the United States: ‘‘certain water bodies could conceivably constitute both a point source and a water.’’ 547 U.S. at 772 (Kennedy, J., concurring); see also id. at 802 (Stevens, J., dissenting) (‘‘The first provision relied on by the plurality—the definition of ‘‘point source’’ in 33 U.S.C. [section] 1362(14)—has no conceivable bearing on whether permanent tributaries should be treated differently from intermittent ones, since ‘pipe[s], ditch[es], channel[s], tunnel[s], conduit[s], [and] well[s]’ can all hold water permanently as well as intermittently.’’). The agencies recognize that this position is different than the position in the NWPR, which stated that a ditch is either a water of the United States or a point source. 85 FR 22297, April 21, 2020. The NWPR justified this position by noting that the Clean Water Act defines ‘‘point sources’’ to include ditches and that the plurality opinion in Rapanos stated that ‘‘[t]he definitions thus conceive of ‘point sources’ and ‘navigable waters’ as separate and distinct categories. The definition of ‘discharge’ would make little sense if the two categories were significantly overlapping.’’ 547 U.S. at 735–36 (Scalia, J., plurality), NWPR Response to Comments, section 6 at 12–13. The NWPR, however, did not address that even this statement in the plurality opinion in Rapanos acknowledges that there may be some overlap between point sources and ‘‘waters of the United States’’ as indicated by its finding that the two categories should not be ‘‘significantly’’ overlapping. Id. Moreover, there is no indication in the text of the Clean Water Act that ditches that meet that plain language definition of a point source cannot also be a ‘‘water of the United States.’’ The agencies therefore believe that their longstanding, historic view that a ditch can be both a point source and a water of the United States is the better interpretation. b. Certain Other Features In addition to the ditches described above, the agencies have generally not asserted jurisdiction over certain other features under the pre-2015 regulatory regime and the agencies intend to continue the practice for these features. The preamble to the 1986 regulations explains that these other waters include: Artificially irrigated areas which would revert to upland if the irrigation ceased; artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing; artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating and/or diking dry land to retain water for primarily aesthetic reasons; and waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of ‘‘waters of the United States.’’ 51 FR 41217. In the Rapanos Guidance, the agencies added an additional category to this list, explaining that ‘‘[s]wales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow) are generally not waters of the United States.’’ Rapanos Guidance at 11–12. The agencies explained that these features are generally not ‘‘waters of the United States’’ ‘‘because they are not tributaries or they do not have a significant nexus to downstream traditional navigable waters.’’ Id. Swales and gullies are generally not jurisdictional, and these features differ from ephemeral streams because they lack indicators of an OHWM, whereas ephemeral streams typically have at least one indicator of an OHWM. Ephemeral streams are jurisdictional where they are tributaries and have a significant nexus to downstream waters. Colloquial terminology may differ across the country; for example, some streams in the arid West are known as ‘‘gullies’’ but are in fact ephemeral streams because they have at least one indicator of an OHWM. 2. Determining Jurisdiction Under the Relatively Permanent Standard and the Significant Nexus Standard In this section, the agencies explain how they have determined jurisdiction under the relatively permanent standard and significant nexus standard for various categories of waters under the pre-2015 regulatory regime. The agencies describe how each standard has been implemented consistent with the Rapanos Guidance, SWANCC Guidance, and other aspects of longstanding practice where not addressed explicitly by the guidances. The agencies then solicit comment on implementing the standards consistent with the pre-2015 regulatory regime as well as potential alternative approaches for applying the relatively permanent and significant nexus standards. Additionally, the agencies solicit comment on whether the implementation approaches adequately account for expected changes in climate, and whether alternative approaches to implementing the relatively permanent standard and significant nexus standard should be considered. a. ‘‘Waters of the United States’’ Under the Relatively Permanent Standard i. Approaches Under the Pre-2015 Regulatory Regime (1) Background Under the relatively permanent standard, relatively permanent tributaries and adjacent wetlands that have a continuous surface connection to such tributaries are jurisdictional under the Clean Water Act as ‘‘waters of the United States.’’ Under the Rapanos Guidance, the agencies assert jurisdiction over tributaries as ‘‘relatively permanent’’ waters where the waters typically (e.g., except due to drought) flow year-round or have a continuous flow at least seasonally (e.g., typically three months). Rapanos Guidance at 6–7 (citing 126 S Ct. at 2221 n.5 (Justice Scalia, plurality opinion) (explaining that ‘‘relatively permanent’’ does not necessarily exclude waters ‘‘that might dry up in extraordinary circumstances such as drought’’ or ‘‘seasonal rivers, which contain continuous flow during some months of the year but no flow during dry VerDate Sep<11>2014 18:11 Dec 06, 2021 Jkt 256001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 E:\FR\FM\07DEP2.SGM 07DEP2 lotter on DSK11XQN23PROD with PROPOSALS2