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Clean Water Act: EPA/Corps Initiate Rulemaking Seeking to Expand Federal Reach Over Wetlands and Other Waters

May 19, 2014

EPA and the U.S. Army Corps of Engineers (the Corps) are again attempting to expand their jurisdiction over wetlands and other ancillary waters. The move comes after years of debate, studies, and trips up and down the federal court system. In this most recent chapter, the agencies issued for public comment a joint proposed rule that would, if enacted, expand the agencies’ Clean Water Act (CWA or Act)[1] jurisdiction over permits to dredge and fill wetlands and other waters under CWA §404 and to discharge pollutants to surface waters under CWA §402 (NPDES). The proposed rule relies on a 331-page draft scientific report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence that the EPA’s Science Advisory Board released for public comment in September 2013. The agencies are using the draft Report as the scientific basis for the policy decisions expressed in the jurisdictional rule.

The proposed rule embodies the agencies’ current views on the reach of the CWA in light of the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)[2]and Rapanos v. United States (Rapanos).[3] The rule will supersede a 2003 “Joint Memorandum”[4] providing clarifying guidance on SWANCC, and a 2008 Joint Guidance memo issued after the U.S. Supreme Court’s Decision in Rapanos v. United States, (collectively “Existing Guidance”). The proposed rule has the potential to expand categorical federal CWA jurisdiction over millions of acres of private property, and is certain to face legal challenges. If adopted, the rule will likely increase costs and regulatory burdens on business in the development, industrial, manufacturing, retail, energy, and mining sectors, and on private and public landowners, state and local government, and even federal government by expanding the types of water bodies that require CWA permits. The proposed rule would also increase the set of properties subject to risk of regulatory enforcement by EPA, the Corps, their state counterparts, or – under the CWA’s robust citizen suit provisions – non-governmental organizations.

Significant Supreme Court Decisions on CWA Jurisdiction

The U.S. Supreme Court has addressed the scope of CWA several times in the past few years. In SWANCC, the Court addressed the question of CWA jurisdiction over isolated ponds, and concluded that CWA jurisdiction could not be based solely on the presence of migratory birds. In Rapanos, the Court addressed CWA protections for wetlands adjacent to tributaries, and issued five opinions with no single opinion commanding a majority of the Court. Neither SWANCC nor the opinions in Rapanos invalidated any of the regulatory provisions defining “waters of the United States.” The Court also addressed the question of CWA jurisdiction in an earlier case, Riverside Bayview Homes.[5]While not specifically addressed in the 2011 Guidance, the Riverside Bayview case informed the Court’s decisions in the latter two cases. In the 2011 Guidance, the agencies stated that they “believe it is advisable to replace existing guidance documents interpreting SWANCC and Rapanos in order to implement the CWA in a manner that is consistent with those opinions, reflects the best available science, and recognizes recent field implementation experience.”[6]

In September 2013, the agencies had sent the proposed rule to the Office of Management and Budget (OMB) for review and simultaneously withdrew the proposed but never finalized 2011 Guidance, which can be read here. For more on the 2011 Guidance, see J. Kray, EPA/Corps Release Draft Guidance in Bid to Expand Federal Jurisdiction Over Wetlands, Marten Law Environmental News (May 4, 2011). The agencies’ decision to issue the 2011 Guidance instead of immediately initiating rulemaking was strongly criticized by members of Congress and representatives from both industry and environmental interest groups. The agencies’ new Connectivity Report and the proposed rule are, in part, responses to that criticism.

Connectivity Report

The Connectivity Report EPA issued in September 2013 summarizes the agency’s science on physical, chemical, and biological connections between upland streams and wetlands and water bodies recognized as “traditional navigable waters.” The Report was prepared to provide a basis for determining which wetlands and water bodies are categorically – rather than on a case-by-case basis – within EPA and Corps jurisdiction.

Prior to public release, the draft Connectivity Report was reviewed by “peers”, including federal government employees from the U.S. Department of Agriculture and U.S. Geological Survey, academics from universities around the country, employees of an environmental consulting firm (TetraTech), and two non-profits (the Stroud Water Research Center and the Nature Conservancy). EPA’s Scientific Advisory Board (“SAB”) is now performing a mandatory quality review. EPA is also accepting public comments on the draft Report. EPA has not established a closing date for public comments but will do so at some future point by publishing notice in the federal register.

The Report reaches the following major conclusions:

  • All tributary systems, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers.
  • Wetlands and open waters in riparian areas and floodplains are physically, chemically, and biologically connected with downstream rivers.
  • Current literature is insufficient to generalize about the connectivity or downstream effects of isolated wetlands.

The Connectivity Report’s conclusions will, if enacted into law by the proposed rule, have the effect of establishing categorical federal jurisdiction over tributary systems, riparian areas, and floodplains, allowing the agencies to establish jurisdiction over such water bodies without conducting a case-by-case analysis.

How the Proposed Rule Differs from Existing Guidance

The proposed rule addresses the scope of the CWA’s key term “waters of the United States” for allCWA provisions that use the term, including the Section 402 National Pollutant Discharge Elimination System (NPDES) permit program, the Section 311 oil spill program, the water quality standards and total maximum daily load programs under Section 303, and the Section 401 State water quality certification process.[7] The Existing Guidance was limited on its face to CWA Section 404 determinations.

Like the formerly proposed 2011 Guidance – and different from the Existing Guidance – the proposed rule would significantly expand the scope of categorical federal agency jurisdiction under the CWA.[8] The most significant departure from the Existing Guidance is the heightened emphasis placed on Justice Kennedy’s “significant nexus” test for determining CWA jurisdiction.[9] The Rapanos decision advanced two different standards for determining federal jurisdiction under the CWA – Justice Scalia’s “continuous surface connection” standard and Justice Kennedy’s “significant nexus” standard – and the Existing Guidance said that the agencies would use both standards.[10]

One purpose of the proposed rule is to reduce the use of the Corps’ Wetlands Delineation Manual. The 1987 Manual and more recent Regional Supplements are tools the agencies have used for several decades to determine whether water bodies are subject to CWA jurisdiction on a case-by-case basis.

One of the more contentious areas of determining CWA jurisdiction has involved what are described as “other waters” in the EPA’s and the Corps’ regulations. These waters include, among other things, “mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows” and were specifically at issue in the Supreme Court’s decision in SWANCC,[11] in which the court held that Corps jurisdiction does not extend to isolated, abandoned sand and gravel pits with seasonal ponds. A notable point of departure that the proposed rule makes from the Existing Guidance has to do with determining CWA jurisdiction over non-navigable tributaries of traditional navigable waters.

Under the proposed rule, and for the first time, the following will always be jurisdictional:

  • All “tributaries”, including any water (wetlands, lakes, and ponds) that contribute flow, either directly or through another water, to downstream traditional navigable waters, interstate waters, or territorial seas.
  • All waters “adjacent” to such tributaries. The proposed rule broadly defines “adjacent” to include all waters located within the “riparian area” or “floodplain” of otherwise jurisdictional waters, including waters with shallow subsurface hydrologic connection or confined surface hydrologic connection to jurisdictional water.

The proposed rule would, however, codify existing policies and categorically exempt from federal CWA jurisdiction the following:

  • Ditches excavated wholly in/only draining uplands, and less than perennial flow.
  • Ditches that do not contribute flow, either directly or through another water, to traditional navigable waters, interstate waters, or the territorial seas.
  • Artificially irrigated areas that revert to upland should water application cease.
  • Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for stock watering, irrigation, settling basins, or rice growing.
  • Artificial reflecting or swimming pools created by excavating and/or diking dry land.
  • Small ornamental waters created for primarily aesthetic reasons.
  • Water-filled depressions created incidental to construction activity.
  • Groundwater, including groundwater drained through subsurface drainage systems.
  • Gullies and rills and non-wetland swales.

The proposed rule’s net effect is that more smaller and remote upstream bodies of water will fall with certainty within federal CWA jurisdiction; resulting in federal permit requirements and mitigation for any activities that may fill or add pollutants to such water bodies.

Agricultural Interpretive Rule

The agencies’ proposed jurisdictional rule does not address CWA jurisdictional exclusions for waste treatment systems or prior converted croplands, contentious issues that the agencies have intended to address in future agency guidance documents. Nor does it affect any of the exemptions from CWA Section 404 permitting provided by CWA Section 404(f), including those for normal agriculture, forestry, and ranching practices, nor the statutory and regulatory exemptions from NPDES permitting requirements for agricultural stormwater discharges and return flows from irrigated agriculture.

However, on March 25, 2014 – the same day as the proposed jurisdictional rule was released for public comment – the agencies, in conjunction with the U.S. Department of Agriculture, enacted an interpretive rule regarding CWA § 404(f)(1)(A), the statutory exemption from Corps dredge and fill permits for “normal forming, silviculture, and ranching activities.” The new agricultural interpretive rule, which took effect immediately when issued, states that discharges associated with 53 specific Natural Resources Conservation Service (“NRCS”) practices, listed in a separate document, are exempted.

Potentially Impacted Business Sectors

The proposed rule has implications for permitting, facility siting, land use options, required mitigation, and even the availability of financing. Developers and private and public landowners may experience costs associated with additional permits, restrictions on options for land use, and greater restrictions on available financing. Sectors dependent on the availability of developable land – such as industry, manufacturing, energy, mining, transportation, and retail may be similarly impacted in terms of project timing, scope, and costs. Finally, federal and state agencies may need to expand regulatory requirements for activities affecting jurisdictional waters, including increased permitting for stormwater discharges or uses of materials such as pesticides that may reach surface waters.

Comment Period for the Draft Rule

Comments on the Draft Report must be received by July 21, 2014. The agencies are asking for public comment on all aspects of the proposed rule, including interpretations and scientific underpinnings. They have expressly asked for comment on:

  • Parameters for future application of the significant nexus test on a case-by-case basis.
  • Additional classes of waters to categorically deem either jurisdictional or non-jurisdictional.

Given the proposed rule’s reliance on the Connectivity Report, comments should address both scientific and legal concerns about the proposed rule.

For more information regarding the Clean Water Act, please contact Jeff Kray, or any other member of Marten Law’s Water Quality practice group.

[1] 33 U.S.C. § 1251 et seq.

[2] 531 U.S. 159 (2001).

[3] 547 U.S. 715 (2006).

[4] 68 FR 1991, 1995.

[5] 474 U.S. 121 (1985).

[6] See EPA’s Federal Register Notice at p. 6.

[7] Id. at p. 3.

[8] See R. Lawrence, Can We Comment Yet? EPA and Corps Issue Proposed New Rapanos Guidance , American College of Environmental Lawyers (May 2, 2011).

[9] Proposed 2011 Guidance at pp. 7-18.

[10] See J. Kray, “Post-Rapanos Guidance on Clean Water Act Jurisdiction Issued by EPA and Corps.” Marten Law Environmental News (June 6, 2007).

[11] 531 U.S. 159 (2001).

 

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