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Clean Water Act: “Waters of the United States” Rule Faces Political, Legislative, and Legal Challenges

June 3, 2015

On May 27, 2015, the EPA and the U.S. Army Corps of Engineers (the Corps) issued a rule defining “Waters of the United States” (“Clean Water Rule“) that expands the agencies’ Clean Water Act (CWA or Act)[1] jurisdiction over millions of acres of private, state and federal property, and is certain to face political, legislative, and legal challenges. The Clean Water Rule determines where permits will be required to dredge and fill wetlands and other waters under CWA §404 and to discharge pollutants to surface waters under CWA §402 (NPDES). The rule relies on a 331-page scientific report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (“Connectivity Report”) that the EPA’s Science Advisory Board finalized in January 2015. The agencies are using the Connectivity Report as the scientific basis for the policy decisions expressed in the Clean Water Rule.

The Clean Water Rule embodies the agencies’ 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] It supersedes a 2003 “Joint Memorandum”[4] that provided 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”). By expanding categorical federal CWA jurisdiction, the rule will increase costs and regulatory burdens on business in the development, industrial, manufacturing, retail, energy, transportation, 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 rule will even impact the agricultural community, the scope of that impact depending in part on how it is applied. The rule also increases the set of properties and activities 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 jurisdiction several times in the past fifteen 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, but 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]

In 2011, the agencies drafted new guidance (“2011 Guidance”) stating 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.” The agencies’ decision to issue the 2011 Guidance instead of immediately initiating rulemaking was strongly criticized at the time by members of Congress and representatives from both industry and environmental interest groups. In September 2013, the agencies sent a 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).

Connectivity Report

The Connectivity Report EPA, first issued as a draft 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”) performed a mandatory quality review and EPA accepted public comments on the draft Report. EPA released the final report in January 2015.

The Report reached 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, as enacted into law by the new Clean Water 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.

The Rule and How It Differs from Prior Guidance

The Clean Water 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, the Section 401 State water quality certification process, and the Section 404 dredge and fill permitting process.[6] 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 Clean Water Rule significantly expands the scope of categorical federal agency jurisdiction under the CWA. The most significant departure from the Existing Guidance is the heightened emphasis placed on Justice Kennedy’s “significant nexus” test for determining CWA jurisdiction. 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.[7]

The Clean Water Rule is intended to reduce use of the Corps’ Wetlands Delineation Manual.[8] 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.

Categorical Inclusions

A notable point of departure that the Clean Water Rule makes from the Existing Guidance has to do with determining CWA jurisdiction over non-navigable tributaries of traditional navigable waters. Under the rule, the following will, for the first time, always be jurisdictional:

  • All “tributaries”, including any waters that contribute flow, either directly or through another water, to downstream traditional navigable waters, interstate waters, or territorial seas “characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.”[9]
  • All waters “adjacent” to traditional navigable waters, interstate waters, territorial seas, or tributaries. The proposed rule broadly defines “adjacent” to include all waters bordering, contiguous, or “neighboring” (the latter term defined as being located within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark).[10]

Categorical Exclusions

The Clean Water Rule does, however, codify existing policies and create new policy, categorically exempting from federal CWA jurisdiction certain waterbodies, even if they otherwise meet terms of the rule. For the first time, the rule expressly excludes from federal jurisdiction some waterbodies that EPA and the Corps had previously treated as potentially jurisdictional on a case-by-case basis. Excluded from “Waters of the United States” under the Clean Water Rule are the following:

  • Waste treatment systems, including treatment ponds or lagoons designed to meet CWA requirements.
  • Prior converted cropland.
  • Ditches as follows:
    • With ephemeral flow that are not a relocated tributary or excavated in a tributary.
    • With intermittent flow that are not relocated tributary or excavated in a tributary, or drain wetlands.
    • That do not contribute flow, either directly or through another water, to traditional navigable waters, interstate waters, or the territorial seas.
  • The following features:
    • Artificially irrigated areas that revert to upland should water application cease.
    • Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds.
    • Artificial reflecting pools or swimming pools created in dry land.
    • Small ornamental waters created in dry land.
    • Water-filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water.
    • Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways.
    • Puddles.
  • Groundwater, including groundwater drained through subsurface drainage systems.
  • Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land.
  • Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.

Case-specific Waters of the United States

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’ prior regulations and guidance. These waters include, among other things, “mudflats, sandflats, wetlands, sloughs, prairie potholes, and 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. The Clean Water Rule asserts federal jurisdiction over five new sets of “case-specific” waters for which a significant nexus to navigable waters has not previously been established. Each of the five sets represents what EPA has called “regional water treasures” unique to a particular part of the country. These are:

  • Prairie potholes: Located in the upper Midwest, these water-filled depressions are both waterfowl habitat and potentially prime farmland.
  • Carolina bays and Delmarva bays: Located along much of the Atlantic Seaboard, these seasonal coastal depressions have limited natural drainage.
  • Pocosins: Located along the Central Atlantic coastal plain, these are precipitation filled wetlands.
  • Western vernal pools: Located in parts of California, the vernal pools are seasonal wetlands that dry out in summer.
  • Texas coastal prairie wetlands: Located along the Texas Gulf Coast, these are freshwater wetlands formed in topographic depressions.

EPA is asserting jurisdiction over these specific waters on grounds that science shows they can function like a system and impact the health of downstream waters. Given the indirect relationship between these waters and traditional navigable waters, they will likely be a focus of legal and political disputes over the scope of EPA’s jurisdiction under the Clean Water Rule.

The Clean Water Rule will take effect 60 days after it is formally published in the Federal Register, meaning the Rule will likely take effect in approximately August 2015.

Economic Implications of the Clean Water Rule

EPA and the Corps estimate that the Clean Water Rule’s economic costs for additional permits, facility implementation, spill prevention, water quality administration, and mitigation will range from $158.4 to $306.6 million annually. The estimated economic benefits range from $338.9 to 349.5 million annually. The complete Economic Analysis of the Clean Water Rule is here.

Challenges to the Clean Water Rule

The Rule faces determined political, legislative, and judicial challenges. On the political front, numerous state and local leaders, including the National Association of Counties, assert that EPA failed to adequately consult with them and have called for the Agencies to withdraw the Rule for further consultation.[12]

The U.S. House of Representatives has passed both stand-alone and spending legislation aimed at preventing the Rule. The U.S. Senate is considering a bill, S. 1140, that would – if passed – sharply restrict EPA’s authority to enact rules defining “Waters of the United States,” require EPA to restart the Clean Water Rule process, and require EPA to further consult with state and local government. The Senate will likely consider S. 1140 this summer. The White House has stated that President Obama would veto such legislation.[13]

Clean Water Rule opponents have also questioned whether EPA’s public outreach campaign for the Rule violated federal lobbying laws and Department of Justice policies. Senator David Vitter (R-La.) wrote a letter to EPA Administrator Gina McCarthy on May 26, 2015 requesting information and documents about EPA’s communications with stakeholders about the Rule and asserting that the agency was “ignoring its requirements under the Regulatory Flexibility Act (RFA) to avoid undue economic impacts to small businesses in the rulemaking process.”

Finally, the history of litigation surrounding federal jurisdiction over wetlands will almost certainly continue. Opponents of the Clean Water Rule may challenge the rule on its face, asserting that EPA and the Corps have exceeded their jurisdictional authority. For example, EPA’s assertion of jurisdiction over prairie potholes appears to conflict with the Supreme Court’s ruling in SWANCC. The Rule may also face challenges to its clarity. For example, the Rule does not define certain key terms such as “dry land,” which is referenced to several of the Rule’s exemptions. Similarly, the Rule’s reference to the “100-year floodplain” will prove practically challenging because 100-year floodplain maps are missing, incomplete, and out-of-date or under revision for many parts of the country. It is very likely that despite the Clean Water Rule – or as a result of it – the U.S. Supreme Court will have further opportunity to analyze the scope of EPA’s and the Corps’ authority over “Waters of the United States.”

Potentially Impacted Business Sectors

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

The Clean Water Rule has implications for permitting, facility siting, land use options, required mitigation, and even the availability of financing. Developers, farmers, ranchers, and private and public landowners – including cities and counties – may experience costs associated with additional permits, restrictions on options for land use, and greater restrictions on available funding. Sectors dependent on the availability of developable land – such as energy (transmission, solar, and wind), industry, agriculture, manufacturing, mining, transportation, and retail – may be similarly impacted in terms of project timing, scope, and costs. Finally, federal, state, and local 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.

For more information about Marten Law’s Water Quality and Wetlands practice please contact Jeff Kray.

[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] Id.

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

[8] See Fact Sheet, Clean Water Rule.

[9] See Clean Water Rule, 40 CFR 230.3 (proposed).

[10] Id.

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

[12] See http://www.naco.org/newsroom/Documents/Press%20Release%20Documents/RulepublicationsStatement.pdf. Last visited June 3, 2015.

[13] See https://www.whitehouse.gov/sites/default/files/omb/legislative/sap/113/saphr5078r_20140908.pdf. Last visited June 3, 2015.

 

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