By John R. Embick, Esq.
Chair, Environmental Law Section, Chester County Bar Association
On May 27, 2015, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“ACE”) announced final rule-making on a definition of “Waters of the United States” (“WOTUS”). The final rule was subsequently issued in the Federal Register on June 29, 2015 (80 F.R. 37054 - 37127). The WOTUS rule is effective on August 28, 2015.
The agencies dubbed the new rule “The Clean Water Rule.” Opponents have called it a breathtaking (and unconstitutional) regulatory overreach. Sixteen states have already filed suits challenging the new regulation: one in Texas (State of Texas v. U.S. Environmental Protection Agency, No. 15-cv-162 (U.S.D.C.S.D. Tex.)), and the other in North Dakota (North Dakota v. U.S. EPA, No. 15-59 (U.S.D.C. N.D.). Farmers have gathered pitchforks and torches, according to the American Farm Bureau Federation. Environmental advocacy groups (including a group of beer manufacturers!) have praised the new rule with messianic fervor.
What’s all the fuss about? The problem arises from the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (“CWA”). When describing what waters are subject to federal regulation (e.g., for the purposes of the National Pollution Discharge Elimination System (“NPDES”) permit requirements), the CWA uses the term “navigable waters,” which the CWA in turn defines as “waters of the United States, including the territorial seas.” Unfortunately, the term “waters of the United States” is not further defined in the CWA.
In most situations, the determination of whether WOTUS is involved is not controversial. Navigable waters (and this includes some traditionally non-navigable waters) are widely understood to cover most: (1) inland seas, rivers, streams, and lakes that are used in, or could be used in interstate commerce; (2) interstate waters and wetlands; (3) the territorial seas; and (4) impoundments.
A controversy has arisen in determining federal jurisdiction over isolated waters (which are not directly connected to navigable waters) or wetland areas or waters which are adjacent to navigable waters. These latter two issues were presented to the U.S. Supreme Court (“SCOTUS”) in two cases: Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”), 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006).
At issue in SWANCC were isolated, intrastate wetlands which a group of local municipalities near Chicago, IL had selected for construction of a municipal landfill. These wetlands clearly met the biological definition of wetlands, but were not located in or adjacent to open waters traditionally considered to be navigable waters of the United States. The wetlands had formed over time on the site of an abandoned sand and gravel quarry site, and were home to a wide variety of migratory waterfowl. In a holding which turns on the statutory construction of the term “waters of the United States,” the Courtnarrowed the Corps’ interpretation of the term “ waters of the United States.”
In Rapanos, the matter involved the filling of wetlands that were located miles from traditional WOTUS. Justice Scalia’s plurality opinion decried ACE’s excessive and over-broad interpretation of jurisdictional wetlands. In order to be a proper subject for regulation, he said, a wetland had to be permanently and directly attached to traditional navigable waters. In an opinion concurring in the judgment, Justice Kennedy, outlined a “significant nexus” standard, which must be determined on an ad hoc basis (hence his concurrence in the remand decision). The agencies ended up trying to use both tests on a water-by-water basis.
After SWANCC and Rapanos, the agencies developed guidance (not rulemaking) documents (2003 and 2008) which were designed to explicate how the agencies would proceed in determining whether jurisdictional waters existed, and in complying with the High Court rulings. In an effort to clarify the scope and ambit of WOTUS, in 2011, the agencies published new draft guidance to help clarify the manner in which WOTUS jurisdiction would be determined. This proposed guidance was controversial and was never adopted. Several bills were introduced in Congress, which would have forbidden the agencies from implementing the proposed guidance.
On April 21, 2014, the agencies published a draft WOTUS definitional rule in the Federal Register, which also has proved to be very controversial. In the rulemaking process involved with the development of the new WOTUS rule, thousands of public comments were received, and the EPA Science Advisory Board (“SAB”) reviewed hundreds of scientific articles and texts, in an effort to evaluate the scientific basis for identifying and classifying WOTUS, and therefore for the exercise federal jurisdiction over those waters.
The scientific effort was aimed at understanding current understanding of the connections (or lack of connection) of streams, marshes and wetlands relative to large water bodies such as rivers, lakes, estuaries, and seas, as well as the factors which create the connections, such as frequency, duration, magnitude, timing, and rates of change of water, material, and biotic fluxes to downstream waters.
In those cases where the extent of WOTUS is not clear, this is a big deal since the regulatory consequences can be significant (and expensive). For example, the applicability of the Endangered Species Act (“ESA”) could be triggered, because the ESA requires federal agencies to evaluate potential impacts to threatened or endangered species, when federal permits are required. In our current political climate there is a great deal of controversy about almost any proposed extension of regulatory control or power.
The result of this regulatory history is a new final rule which stretches for over 75 pages in the Federal Register. The agencies hope that the new definition, since it is based on extensive public comment and scientific analysis, will help clarify the scope of WOTUS.
In the two key areas involving current political, legislative, scientific and jurisprudential controversy (isolated waters, and adjacent waters), the new rule seems to expand federal jurisdiction and clarify what waters are WOTUS. In all other respects, the rule does not change the regulatory landscape to any great degree, and in fact appears to expand the list of exclusions to WOTUS (e.g., stormwater management structures and systems, water distribution structures and wastewater recycling structures, groundwater recharge basins, and “puddles”).
With respect to “adjacent waters,” the new rule seems to define by rule these waters as a category of WOTUS based on distance limits.
With respect to “isolated waters,” the new rule appears to express a protocol for determining whether the isolated waters are WOTUS, and therefore is expected to reduce the number of case-by-case investigations which would otherwise be necessary. The final rule identifies two sets of waters for which a site specific “significant nexus” analysis to determine if CWA jurisdiction applies. The first set involves five specific subcategories of waters (prairie potholes, Carolina bays and Delmarva bays, pocosins, western vernal pools, and Texas coastal prairie wetlands). The second set are waters located in the 100-year floodplain of a traditional navigable water, interstate water, or the territorial seas, and within 4,000 feet of the high tide line or ordinary high water mark of a jurisdictional water.
The agencies estimated that the new rule will extend CWA jurisdiction over 3%-5% more waters, when compared to prior practice and experience.
Farmers are upset because they assert that the rule adds uncertainty (and possibly regulatory control) over lots of agricultural activities (e.g., irrigation and run-off control). They (or their representatives) say that farmers are already excellent stewards of their lands and additional control is not necessary. However, it is clear that agricultural run-off remains a significant problem and continues to contribute to the contamination of many rivers, streams and lakes. The development of the Chesapeake Bay TMDL permit certainly seems to confirm that this continues to be a problem.
The new rule, if it survives, is not expected to cause many ripples in Pennsylvania, since the Commonwealth already exercises more extensive jurisdiction over the “waters of the Commonwealth,” the latter which includes virtually all waters (surface and subsurface) in the state.