Potential Impacts to Lake County’s Wetlands Due to Changes in Clean Water Act Definition of Waters o
Clients occasionally ask me about how the soon to be enacted “waters Rule” (effective on June 22, 2020) will impact their current or prospective projects within Lake County, IL. They are right to be concerned: the new rule will cause many areas now under federal jurisdiction across the country to be unregulated under the Clean Water Act (CWA). But specifically, how about here in Lake County? I will try to provide you my insights. First, some background:
We Have Been Here Before?
Yes, we have been here before. Recall that the Supreme Court’s January 9, 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers found that isolated waters and wetlands could no longer be regulated under the CWA. In response, Lake County amended its Watershed Development Ordinance (WDO) on August 14, 2001 to regulate development of isolated waters and wetlands effectively creating two classes of waters: (1) waters of the US (also known as WOTUS) under federal regulatory control – in this case the U.S. Army Corps of Engineers Chicago District, and (2) Isolated Waters of Lake County (known as IWLC) that would encompass everything else.
Importantly, IWLC are defined as: “All waters such as lakes, ponds, streams (including intermittent streams), farmed wetlands, and wetlands that are not under U. S. Army Corps of Engineers jurisdiction” (WDO, Appendix A). IWLC comprise approximately 44% of waters and wetlands within the county by number and comprise about 15% of its total land area (SMC unpublished GIS data). In comparison, the Illinois Department of Natural Resources (IDNR) estimates that isolated wetlands comprise nearly 12% of the state’s wetland resources (Levin et al. 2002).
So, What Does the New Rule Do?
The new rule narrows what is a WOTUS to the following:
The territorial seas and traditional navigable waters
Tributaries of such waters (and these need to be intermittent or perennial)
Lakes and ponds and impoundments of jurisdictional waters (under some circumstances)
Wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands)
So, let me hit the high line summary and then I will provide my opinion on how this might play out in Lake County. Following is from the Association of State Wetland Managers Key Take-Aways:
Tributaries must meet several requirements, including being a naturally recurring surface water channel contributing surface water flow to the territorial seas or navigable waters with perennial or intermittent flow in a typical year either directly or through one or more specified waters.
No ephemeral waters are federally jurisdictional under the new WOTUS rule but may be regulated by states or tribes under their own laws.
Provides and uses definitions of perennial, intermittent and ephemeral waters, as well as the definition of “typical year” from the Connectivity Report.
A typical year is defined as “when precipitation and other climatic variables are within the normal periodic range (e.g. seasonally, annually) for the geographic area of the applicable aquatic resource based on a rolling 30-year period.”
Removes any “significant nexus” considerations.
Only ditches that meet definition of ‘tributary’ (e.g. channelized streams) with flow in a typical year.
Removes interstate waters and impoundments as separate categories.
Also, the term “adjacent” becomes redefined as (sorry for the long quote here, but you’ll see why I do that later):
(1) Adjacent wetlands. The term adjacent wetlands means wetlands that: (i) Abut, meaning to touch at least at one point or side of, a water identified in paragraph (a)(1), (2), or (3) of this section; (ii) Are inundated by flooding from a water identified in paragraph (a)(1), (2),or (3) of this section in a typical year; (iii) Are physically separated from a water identified in paragraph (a)(1), (2), or (3) of this section only by a natural berm, bank, dune, or similar natural feature; or (iv) Are physically separated from a
water identified in paragraph (a)(1), (2), or (3) of this section only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrologic surface connection between the wetlands and the water identified in paragraph (a)(1), (2), or (3) of this section in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year.
If Lake County Has IWLC Regulations, Then They Are Covered, Right?
Well, here is the issue – Yes, some areas that will be removed from federal jurisdiction under this rule will be covered by the WDO without any updates or definition changes. But I see fuzzy gray areas that may need some clarity
First, some background on who determines jurisdiction of a wetland/waters in Lake County. Ultimately, the USACE – Chicago District determines what will be considered WOTUS under the CWS. But Lake County and the USACE-CD have an agreement to work together to facilitate this by having a Preliminary Jurisdictional Determination (PJD) procedure. This is a real bonus for Lake County as other Chicago collar counties do not have such an agreement. Staff from the USACE-CD and Lake County SMC or PBD visit each site, by request and application, and determine which wetlands or waters area will be considered WOTUS, or IWLC, or exempt. So, the USACE-CD personnel will ultimately have to decide:
How to apply what is adjacency? I included the definition above to show that adjacency sounds easy but in practice may not be so easy. For example, what about connections made through a culvert under a road or “similar artificial structure” that are very lengthy (100 feet, 200 feet, 500 feet?) and are underground for quite some time? Ok, not likely but what about drain tiles that connect wetlands to tributaries? A drain tile survey – required under the WDO for major developments – will show these connections.
What makes a tributary intermittent and what is ephemeral? The new rule defines intermittent as: “surface water flowing continuously during certain times of the year and more than in direct response
to precipitation (e.g., seasonally when the groundwater table is elevated or when snowpack melts).” This flow is based upon a “typical year” and this is defined as: “Typical year. The term typical year means when precipitation and other climatic variables are within the normal periodic range (e.g., seasonally, annually) for the geographic area of the applicable aquatic resource based on a rolling thirty-year period.” I am not aware of the USACE-CD issuing any guidance on what this means exactly. Note, I may have more on this later after additional information. Does one apply 30 years back – say to 1990 – and look at monthly precipitation data and evaluate if flow happened at that time? The Federal Register preamble details some of the sources that could be used, my question is specifically how this applies for the Chicago District and/or Lake County.
How will Lake County SMC look at areas that are deemed “ephemeral”? Recall the two-step process on jurisdiction – the USACE-CD first determines whether a subject waters/wetland is a WOTUS. Areas not determined to be WOTUS are then assessed by Lake County personnel who determine if it meets either the WDO or UDO definition. Right now, the IWLC definition seems to cover areas not determined to be WOTUS but the term “ephemeral” is not included in the definition. Note, the WDO does not have a definition for intermittent or ephemeral streams. At SMC’s April 2020 Technical Advisory Committee’s meeting, the following WDO Amendment to clarify the IWLC definition was proposed and passed. Note – the full Lake County Board will be required to approve WDO Amendments – it is likely that this will pass.
What it All Boils Down To:
For the most part, Lake County’s WDO (and UDO in unincorporated areas) cover most of the wetlands or waters that will no longer be under federal jurisdiction. That is a good thing as wetlands provide many good and useful functions. We have yet to see how the personnel from the USACE-CD will interpret some of the adjacency, intermittent, or ephemeral definitions. Also, the WDO may not (yet) cover some streams yet – those that are ephemeral. Keep an eye for the final WDO approvals in late May-June.
