BB&K is Assembling a Coalition of Local Governments to Provide Input

The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) released a Proposed Rule designed to clarify their regulatory jurisdiction under the Clean Water Act. The Proposed Rule will potentially expand EPA and Corps jurisdiction to reach a far greater number of lands, drainage systems and development projects than are currently regulated under the Clean Water Act. Best Best & Krieger is assembling a coalition of local governments and special districts to offer operational insights on the Proposed Rule.

The changes to jurisdiction in the Proposed Rule are not benign. An expansion of Clean Water Act jurisdiction means an increased number of projects and activities will be subject to the Clean Water Act’s permitting requirements. These permitting requirements apply to discharges of pollutants as well as fill material and potentially impose discharge limitations, mitigation requirements and other limitations where they previously did not apply. Additionally, because Clean Water Act permits are enforceable by members of the public, any person or group who can establish standing can file a lawsuit to enforce the Act. An expansion of Clean Water Act jurisdiction will therefore result in an increased risk of litigation for those who find themselves subject to the Act.

In the Proposed Rule, the agencies are seeking comment on how they should evaluate Clean Water Act application to “other waters” and whether waters in several “ecoregions” should be evaluated individually or systemically. Comments on the Proposed Rule are due 90 days after it is officially published in the Federal Register and can be filed electronically here.

Background

The Clean Water Act grants the EPA and the Corps regulatory authority to protect the quality of “the waters of the United States” but leaves up to the agencies to define what constitutes “the waters of the United States.” A decade in the making, the agencies developed the Proposed Rule to address regulatory uncertainty that arose from a pair of Supreme Court decisions in 2001 and 2006. In those cases, Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers and Rapanos v. United States, the Supreme Court established limits on what the EPA and the Corps can define as “waters of the United States.”

In a 5-4 decision, the Court held in SWANCC that the Corps’ use of the long controversial “migratory bird rule” (that the Clean Water Act covers waters “which are, or would be, used as habitat by... migratory birds that cross state lines”) adopted by the Corps and the EPA to interpret the reach of their section 404 authority over discharges into “isolated waters” (including isolated wetlands), exceeded the authority granted by that section. In Rapanos v. United States, a divided Court could not agree whether the reach of the Clean Water Act extended to non-navigable waters and isolated wetlands. A plurality ruled that non-navigable waters are subject to Clean Water Act regulation only if they exhibit a relatively permanent flow and that wetlands are subject to Clean Water Act regulation only if they have a continuous surface water connection to a relatively permanent water body. The lack of a clear ruling means that regulators and the courts are not divided by a clear and universal policy, with some decisions resting on other court precedent and others relying on the concurring opinion of Justice Anthony Kennedy to set regulatory parameters.

It would appear that the Proposed Rule is largely guided by Justice Kennedy’s concurring opinion and generally relies on his “significant nexus” test to define which waters are subject to Clean Water Act regulation. According to Justice Kennedy, an intermittent stream or isolated wetland has significant nexus to a navigable waterway if it, either by itself or through connections with other bodies of water, significantly affects the physical, chemical or biological integrity of a downstream navigable waterway.

The Proposed Rule specifically defines “waters of the United States” as:

• All waters which are currently used, 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 and flow of the tide
• All interstate waters, including interstate wetlands
• The territorial seas
• All impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary
• All tributaries of traditional navigable water, interstate water, the territorial seas or impoundment
• All waters, including wetlands, adjacent to traditional navigable water, interstate water, the territorial seas, impoundment or tributary
• On a case-specific basis, other waters, including wetlands, provided those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas

The Proposed Rule would maintain the following exemptions:

• Water treatment systems
• Prior converted cropland
• Ditches that are wholly excavated in uplands, drain only uplands and have less than perennial flow
• Ditches that do not contribute flow to traditional navigable waters, interstate waters, or the territorial seas
• A wide array of features, such as irrigated farmland, small ornamental waters and water-filled depressions incidental to construction work

In the Proposed Rule, the EPA and the Corps are specifically seeking comment on new definitions for:

• Significant nexus
• Tributary
• Neighboring waters
• Floodplains
• Wetlands