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Will Republican Tide Sink Proposed Clean Water Act Jurisdiction Rule?

February 2015

Members of the new Congressional Republican majority are seeking to block a broad rule proposed on April 21, 2014, by the U.S. Enviromental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) regarding federal jurisdiction over waters pursuant to the Clean Water Act (CWA). See 79 Fed. Reg. 22,187.   The prospects of Congressional passage of bills have increased with the November 2014 midterm elections, which give Republicans substantial majorities in both the House and Senate—but a Presidential veto would seem likely.  However, there are other ways that Congress could seek to block the rule, including a joint Congressional resolution of disapproval of a final rule pursuant to the Congressional Review Act or attaching amendments to important spending bills to block funding for the rule.  Both of these approaches would be subject to Presidential veto.

In the meantime, activity on the proposed rule continues.  On January 15, 2015, EPA released the final version of a scientific report that provides the rationale for the proposal.  But EPA's progress has been slow.  In response to stakeholder requests, EPA and the Corps extended the comment period for the proposed rule to November 14, 2014.  See 79 Fed. Reg. 61,590 (Oct. 14, 2014).  Such requests were not surprising in light of the central role that CWA jurisdiction plays on whether land developers and others must obtain “dredge and fill” discharge permits under Section 404 of the CWA and pollutant discharge permits under Section 402.  By the end of the comment period, EPA had received around 900,000 comments.  It may issue its final rule by Spring 2015.

Dueling Opinions in Rapanos Set the Stage for Current Controversy

The scope of CWA jurisdiction has long been a subject of vigorous debate, punctuated by key Supreme Court decisions.  A new chapter began in 2006 when the Court issued a decision in which the five justices ruling for the landowner put forth different tests for the jurisdictional phrase “waters of the United States” in the CWA.  See Rapanos v. United States, 547 U.S. 715 (2006).  This lack of a majority opinion has resulted in confusion, and agency efforts to clarify the situation have engendered pushback as well as support.

Under the approach taken by Justice Antonin Scalia (joined by three other justices), “waters of the United States” include “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features' that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.'”  Id. at 739. Also, “those wetlands with a continuous surface connection to bodies that arewaters of the United States' in their own right, so that there is no clear demarcation betweenwaters' and wetlands, areadjacent to' such waters and covered by the Act.”  Id. at 742.

In contrast, Justice Anthony Kennedy, concurring in the result, said that, in order for wetlands to be subject to CWA jurisdiction, there must be a “significant nexus” between the wetlands and navigable waters in the traditional sense.  Id. at 779. The wetlands possess the requisite nexus if, either alone or in combination with similarly situated lands in the region, they “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.'”  Id. at 780.

The lower federal courts have grappled with how to apply Rapanos.  The result has been courts opting to use the Scalia approach, the Kennedy approach, or both, or not deciding.

EPA and the Corps Proposal:  Clarification or Power Grab?

EPA and the Corps issued the proposed rule to resolve the issue.  It has been both welcomed as a needed clarification and condemned as using overly broad terms to stretch federal jurisdiction beyond the breaking point.  The proposal defines “waters of the United States” to include six categories of waters by rule.  No additional analysis would be needed for them to be deemed jurisdictional.  Building on broad definitions of such terms as “tributary” and “adjacent,” the six categories are:

1. 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;

2. All interstate waters, including interstate wetlands;

3. The territorial seas;

4. All impoundments of waters identified in 1 through 3 and 5;

5. All tributaries of waters identified in 1 through 4; and

6. All waters, including wetlands, adjacent to a water identified in 1 through 5.

On a case-specific basis, “other waters,” including wetlands, would be considered to be “waters of the United States” provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water identified in 1 through 3 above.

The proposal further provides that a number of categories are not “waters of the United States” notwithstanding whether they are within the scope of the categories discussed above (e.g., certain waste treatment systems; prior converted cropland; certain ditches; various features such as some artificially irrigated areas, artificial lakes or ponds, or artificial reflecting pools; and groundwater).  EPA and the Corps also state that the proposed rule preserves existing CWA exemptions and exclusions for agricultural activities.  In addition, they are exempting by interpretive rule 56 established conservation practices from Section 404 dredge and fill permitting requirements if they occur in waters covered by the CWA.  See 79 Fed. Reg. at 22,275.

The scientific rationale for the proposal is based substantially on EPA's draft report on the nature of connectivity and the effects of streams and wetlands on downstream waters.  See Connectivity of Streams and Wetlands to Downstream Waters:  A Review and Synthesis of the Scientific Evidence, (September 2013 External Review Draft, EPA/600/R-11/098B).  A Science Advisory Board (SAB) issued a peer review of the draft report in October 2014.  See 79 Fed. Reg. 63,594 (Oct. 24, 2014).  The final version of the report was announced on January 15, 2015.  See 80 Fed. Reg. 2100.  Any final regulatory action related to CWA jurisdiction is to take the final report into account.

The report makes five major conclusions:

  • The scientific literature unequivocally demonstrates that streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function.
  • The scientific literature clearly shows that wetlands and open waters in riparian areas (transitional areas between terrestrial and aquatic ecosystems) and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality.  These systems act as effective buffers to protect downstream waters from pollution and are essential components of river food webs.
  • There is ample evidence that many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters.  Some potential benefits of these wetlands are due to their isolation rather than their connectivity. Evaluations of the connectivity and effects of individual wetlands or groups of wetlands are possible through case-by-case analysis.
  • Variations in the degree of connectivity are determined by the physical, chemical, and biological environment, and by human activities. These variations support a range of stream and wetland functions that affect the integrity and sustainability of downstream waters.
  • The literature strongly supports the conclusion that the incremental contributions of individual streams and wetlands are cumulative across entire watersheds, and their effects on downstream waters should be evaluated within the context of other streams and wetlands in that watershed.

Congressional Effort to Block the Proposed Rule 

There have been vigorous Congressional efforts to block the proposed rule.  A look at activity in the prior Congress provides a taste of what can be expected in the new Congress.

In response to criticism of the EPA and Corps proposal, the U.S. House of Representatives on September 9, 2014, handily passed (262 to 152) H.R. 5078, “Waters of the United States Regulatory Overreach Protection Act of 2014.”  The bill, introduced by Rep. Steve Southerland (R-FL), was referred to the Senate.  There was a companion Senate bill, S. 2496, “Protecting Water and Property Rights Act of 2014.”

Senate Republicans also sent EPA and the Corps a blistering letter on October 23, 2014, characterizing the proposed rule as “unprecedented executive overreach” and urging the agencies to withdraw the proposal and work more cooperatively with interested stakeholders in future regulatory proceedings.  Senate Republicans also sent a separate letter dated the same day calling for withdrawal of the interpretive rule on what agricultural activities are exempt from regulation under the CWA, on the grounds that the interpretive rule has created great confusion.

H.R. 5078 would drive a stake through the heart of the proposed rule.  It would prohibit EPA and the Corps from developing, finalizing, adopting, implementing, administering, or enforcing the proposed rule, as well as the proposed 2012 “Guidance on Identifying Waters Protected by the Clean Water Act.”  The agencies would also be prohibited from using the proposed rule or proposed Guidance, any successor document, or any substantially similar proposed rule or guidance, as the basis for any rulemaking or decision regarding the scope or enforcement of the CWA.  There is also a prohibition against the interpretive rule on exemption from permitting for certain agricultural conservation practices.

H.R. 5078 provides a substitute mechanism for EPA and the Corps to craft a proposal on CWA jurisdiction:  joint consultation with State and local officials to develop recommendations for a regulatory proposal.  EPA and the Corps are to be “respectful of maintaining the Federal-State partnership” in implementing the CWA and explore whether federal objectives under the CWA can be attained by means “other than through a new regulatory proposal.”  The agencies are to publish a draft report within 12 months and may include a recommendation only if consensus has been reached with regard to the recommendation among them and the State and local officials.  The report is to identify where consensus was not reached.  The federal agencies are to prepare a final report, taking public comments into account, and submit it to House and Senate Committees.

The related House Report (H.R. Rep. No. 113-568, 113th Cong. 2d Sess.) states that, without this legislation, stakeholders will not have any reasonable assurance that EPA and the Corps will take into consideration, in a meaningful way, their concerns about the federal agencies' regulatory actions pertaining to redefining the scope of jurisdiction under the CWA or the exemption for agricultural conservation practices.  The Congressional dissenters from the Report argue that the bill will perpetuate confusion and uncertainty, associated increases in project costs and delays, and diminished protection of waters and related benefits.

The White House strongly opposed H.R. 5078, saying that the bill would “derail current efforts” to clarify the scope of the CWA, “hamstring future regulatory efforts,” and “create significant ambiguity regarding existing regulations and guidance.”  Statement of Administration Policy Re:  H.R. 5078, Waters of the United States Regulatory Overreach Protection Act (Sept. 8, 2014).

S. 2496, introduced by Senator John Barrasso (R-WY), contains a prohibition against the proposed rule, and any similar rules or decision, but it does not contain a mechanism for development of a substitute proposal.

New bills are likely in the new Congress.

There are other ways that Congress could try to foil the rule.  Under the Congressional Review Act, Congress could pass by a simple majority of each chamber, a joint resolution disapproving a final rule.  Congress could also amend a spending bill to block funding for development or enforcement of a rule.  Both of these approaches are subject to Presidential veto.  Any veto would face potential Congressional override.

If a rule survives such blocking efforts, it will likely end up back in the courts.  Perhaps the Supreme Court will arrive at a decision that that can be more easily navigated than Rapanos