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The Ever-Expanding “Waters of the United States”
July 23, 2014
UPDATE: As of July 23, 2014, the comment period for this proposed rule has been extended to October 20, 2014. See the Federal Register notice HERE.
Original Post: May 6, 2014
On April 21, 2014, the U.S. Army Corps of Engineers (“Army Corps”) and the United States Environmental Protection Agency (“EPA”) (collectively, the “Agencies”) published a joint proposed rule amending the definition of “waters of the United States” under the Clean Water Act (“CWA”). This proposed rule is currently in the comment phase, and is set to become final on July 21, 2014.
Advertised as merely “clarification” and “narrowing” of the definition, this proposed rule would have the impact of significantly broadening the reach of federal regulation under the CWA. While this proposed definition would clarify some of the confusion caused by recent Supreme Court interpretations of the definition of “waters of the United States”, the jurisdictional trigger for the CWA, this rule could open up regulation for any water source, even intermittent isolated wetlands.
A brief summary of the background and Supreme Court interpretations of the “waters of the United States” jurisdictional trigger follows, along with some highlights of the proposed rule.
Under the Clean Water Act, the federal government has jurisdiction over “navigable waters”, in order to further the Act’s objectives to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”[i] Unfortunately, the CWA does not provide much insight into what constitutes “navigable waters”, since it is only defined as the “waters of the United States and the territorial seas.”[ii] This ambiguous grant of jurisdiction has led to three major Supreme Court cases regarding what water sources triggered the CWA, and subjecting dischargers to regulation by the EPA and Army Corps of Engineers.
In 1985, the first Supreme Court case, titled United States v. Riverside Bayview Homes [iii](“Riverside”), upheld the inclusion of purely intrastate, non-navigable wetlands under the CWA jurisdiction of the Army Corps, reasoning that the adjacent wetland was “inseparably bound up with” interstate waters. Predictably, the Agencies read this decision to validate sweeping regulation over waters and wetlands, under the interpretation that any wetland was “inseparably bound up with” nearby navigable waters.
The Riverside case ushered in a period of broad assertion of jurisdiction by the EPA and Army Corps, until the Supreme Court decided the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers[iv] (“SWANCC”), in 2001. In this case, the Corps had attempted to assert jurisdiction over an isolated, non-navigable intrastate pond solely on the basis of an expansive interpretation of the Commerce Clause, and the presence of migratory birds in the pond that were known to migrate to other states. Luckily, the Supreme Court reined in this expansive view, and denied the assertion of jurisdiction by the Corps.
Lastly, in 2006, the Supreme Court in Rapanos v. United States[v], addressed the issue of whether jurisdiction applies to wetlands that are adjacent to non-navigable tributaries. In this case, the Army Corps had denied a permit to add pre-construction fill materials to a wetland that was separated by a 4-foot-wide berm to a ditch, which only intermittently held water, but occasionally flowed to a creek that eventually emptied into Lake St. Clair, a navigable water.
Unfortunately, the decision left the issue unanswered, as the Court was left at a 4-1-4 plurality. Writing the plurality decision, Justice Scalia ruled against the Army Corps, holding that the term “waters of the United States” can only refer to “relatively permanent, standing or flowing bodies of water,” not “occasional, intermittent, or ephemeral” flows. Also, the plurality held that wetlands were only covered by the CWA if it had a “continuous surface connection” with a water of the United States, not merely a “hydrological connection.”
However, Justice Kennedy wrote a separate concurring opinion, concluding that “waters of the United States” included wetlands that have a “significant nexus” with a water of the United States. In his view, a surface connection to a continuously flowing body of water was not necessary; a wetland had a significant nexus if “the wetlands alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.”[vi]
In light of the indecisiveness of the Rapanos holding, the Agencies attempted several times to issue guidance on how the scope of the CWA would be defined. However, none were sufficiently specific for stakeholders or Congress, who pressured the Agencies to pursue rulemaking.
Highlights of the Proposed Rule:
In this Proposed Rule, the most substantial change is the replacement of the old “Waters of the United States” definition with the following:
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 impoundment;
All waters, including wetlands, adjacent to a traditional navigable water, interstate water, the territorial seas, impoundment or tributary; and
On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus (affects chemical, physical, or biological integrity) to a traditional navigable water, interstate water or the territorial seas.
In addition, the Agencies propose to lower the evidentiary requirements necessary for making a determination that other waters have a significant nexus with traditional navigable waters, including:
Reducing documentation and review time requirements for making jurisdictional determinations;
Allowing for more generalized studies for proving the “significant nexus” between waters, or for giving evidence that an entire region of waterways should be considered together for their aggregate impact on traditional navigable waters; and
By naming certain waters, like tributaries, as “jurisdictional by rule”, the only evidence needed to assert jurisdiction is an ordinary high water mark, a bed, or a bank, even where water flow is broken by a road or other barrier. These areas are categorically deemed to be “tributaries” with a significant nexus to navigable waters.
Implications of the Proposed Rule
By simultaneously broadening the categories of waters under the Agencies’ jurisdiction, and loosening the requirements for demonstrating inclusion into the catch-all “other waters” category, the Proposed Rule could allow for federal regulation of many new areas that were not previously thought to be "water." Even isolated or only seasonally-wet “waters” could be aggregated together with every similar area in the watershed, without a detailed scientific analysis of the areas involved, to require a permit for construction or other discharge activities.
Therefore, if adopted as proposed, this rule change could expose several businesses in Ohio and across the country to regulation by the EPA or Army Corps. As a result, all businesses currently located near or discharging into water sources, even if those water sources are very low flow, seasonal, or intermittent, should re-evaluate their compliance programs to plan for dealing with this broadening area of environmental law.
Predictably, given the unprecedented reach and scope of the proposed rule affecting potentially every segment of the economy, this proposed rule has received much scrutiny from industry groups and Congress. In order to preserve their rights, affected businesses and other stakeholders should prepare and submit comments before the comment period closes on July 21, 2014,
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[i] Clean Water Act, 33 U.S.C. §1251(a).
[ii] Clean Water Act, 33 U.S.C. §1362(7).
[iii] United States v. Riverside Bayview Homes, 474 U.S. 121 (1985).
[iv] Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).
[v] Rapanos v. United States, 547 U.S. 715 (2006)
[vi] Id, at 780.
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