American Oil and Gas Reporter - July 2015 - 170

tivities defined under the CWA.
The final rule establishes a definition
of "neighboring" to determine adjacency,
based on three circumstances, for waters
in whole or in part:
* Located within 100 feet of the ordinary high-water mark of a traditional navigable or interstate water, the territorial seas,
an impoundment of a jurisdictional water,
or a tributary as defined in the rule;
* Located in the 100-year flood plain
and that are within 1,500 feet of an ordinary high-water mark of a traditional
navigable water, interstate water, territorial seas, impoundment or a defined tributary; or
* Located within 1,500 feet of the
high-tide line of traditional navigable
waters, territorial seas or the ordinary highwater mark of the Great Lakes.
The two agencies say establishing
bright-line boundaries for adjacency doesn't restrict states from considering statespecific information and concerns, as
well as emerging science, to evaluate the
need to more broadly protect their waters
under state law. They point out the CWA
establishes both national and state regulatory roles to ensure specific circumstances
in individual states are considered properly to complement and reinforce actions
taken at the national level.

Exclusions
Under the CWR, all exclusions from
the WOTUS definition are retained, and
several added. Those include exclusions
for waters and features previously identified as generally exempt, for example, exclusions for certain ditches that are not located in or drain wetlands. The agencies
add this is the first time these exclusions
have been established by rule.
Also covered by rule for the first time
are certain ditches excluded from jurisdiction, including those with ephemeral flow
that are not relocated tributaries or excavated in a tributary, or ditches with intermittent flow that are not a relocated tributary, or excavated in a tributary or drain
wetlands, the agencies say.
The CWR adds exclusions for groundwater and erosional features, as well as
exclusions for some waters identified in
public comments as possibly being found
jurisdictional under proposed rule language where this was never the agencies'
intent, such as stormwater control features
constructed to convey, treat or store
stormwater, and cooling ponds, the rule
states.
Waste treatment systems and converted cropland have been excluded from the
WOTUS definition since 1979 and 1992,
respectively, and continue to be excluded,
the agencies point out.

Case-Specific Significant Nexus
The rule identifies particular waters that
are not jurisdictional by rule but are subject to case-specific analysis to determine
if a significant nexus exists and the feature
is covered by WOTUS, the agencies say.
They add such determinations typically
will be made on a feature individually but
can, when warranted, be made in combination with other waters where they function together.
Under CWR, five specific types of waters have been identified that should be
subject to a significant nexus analysis and
are to be considered similarly situated by
rule because they function alike and are
sufficiently close to function together in
affecting downstream waters. The rule
identifies the five types as:
* Prairie potholes (glacially formed
wetlands found in the upper Midwest);
* Carolina and Delmarva bays (seasonally flooded upland depressions ranging from New Jersey to Georgia);
* Pocosins (evergreen shrub bogs
found in Southeastern U.S. coastal plains);
* Western vernal pools (seasonal wetlands in California); and
* Texas coastal prairie wetlands
(freshwater bodies found along that state's

Gulf Coast).
Consistent with a Supreme Court opinion, the agencies say they determined such
waters should be analyzed as a group in the
watershed that drains to the nearest traditional navigable or interstate water or territorial sea, when making a case-specific
analysis of whether they have a significant
nexus.
The final rule also provides that waters
within the 100-year flood plain of a traditional navigable or interstate water or the
territorial seas, and waters within 4,000 feet
of the high-tide line or the ordinary highwater mark of those bodies or a covered
tributary are subject to case-specific significant nexus determinations, unless the
rule already excludes the water body.
"The science available today does not
establish that waters beyond those defined
as 'adjacent' should be jurisdictional as a
category under the CWA, but the agencies'
experience and expertise indicate that
there are many waters within the 100-year
flood plain of a traditional navigable water, interstate water or the territorial seas,
or out to 4,000 feet where the science
demonstrates that they have a significant
effect on downstream waters," the final
rule states.
❒

Industry's Opponents Try New
Tack In Pennsylvania Localities
By Matt Benson

AUSTIN, TX.-Disputes about local
regulatory authority regarding oil and
gas activity continue to rage in the Marcellus Shale, and the Pennsylvania Independent Oil & Gas Association has noticed
that opponents of unconventional natural
gas development have begun a new-but so
far unsuccessful-tactic of using a 2013
Pennsylvania Supreme Court decision to
argue that municipalities have a duty to
protect the environment when enacting and
enforcing land use ordinances.
Collisions between local regulation
and oil and gas development are not new
in Pennsylvania, and the state's highest
court has decided such cases three times
in the past 10 years. In 2005, the industry
challenged a pair of municipal land use ordinances. One involved Salem Township
in Westmoreland County, which had enacted an ordinance that required bonding
and permitting for oil and gas wells, and
regulated the location, design and construction of well sites, access roads, pipelines
and related facilities. The Pennsylvania
Supreme Court struck down the ordi-

170 THE AMERICAN OIL & GAS REPORTER

nance and said local government could not
regulate the same aspects of oil and gas operations as the state Oil and Gas Act of
1984.
The second case challenged a requirement that an operator obtain conditional
use approval for a gas well that was to be
drilled in a residential subdivision in the
Pittsburgh-area borough of Oakmont. Although the Oil and Gas Act's only limitation on well placement is a minimum 200foot setback from existing buildings, the
Pennsylvania Supreme Court has ruled that
a municipality's zoning scheme has the authority to decide where oil and gas operations are permissible. In this case, the
court declared, Oakmont was not attempting to regulate a technical feature of oil and
gas activity, but merely was exercising legitimate zoning powers.
The Supreme Court's decisions drew
something less than a sharp line for local
jurisdiction as Marcellus Shale development ramped up. A considerable number
of municipalities enacted ordinances that
addressed oil and gas activities, some of
which drifted across the line and regulated technical matters. Because Pennsylva-
American Oil and Gas Reporter - July 2015

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