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Wading In: Opportunity to Comment on Proposed Clean Water Act Jurisdiction Rule

April 2014

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have issued a controversial proposed rule intended to clarify federal jurisdiction over waters, including wetlands, pursuant to the Clean Water Act (CWA). 79 Fed. Reg. 22187 (April 21, 2014).

The stakes are high: the rule would govern 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. The 88-page proposal takes a broad approach to CWA jurisdiction. Comments are due by July 21, 2014.

EPA and the Corps have also issued a related interpretive rule addressing an exemption for certain agricultural practices. Id. 22275. Comments on this are due by June 5, 2014.

Rapanos and the Need for Further Clarification

Clarification of CWA jurisdiction is in order. The jurisdictional situation was left muddy by the Supreme Court of the United States' Rapanos decision, in which the five justices' ruling for the landowner put forth different tests for the jurisdictional phrase “waters of the United States.” Rapanos v. United States, 547 U.S. 715 (2006).

Justice Antonin Scalia, joined by three other justices, said that the phrase includes “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. 739. Also, “those wetlands with a continuous surface connection to bodies that are ‘waters of the United States' in their own right, so that there is no clear demarcation between ‘waters' and wetlands, are ‘adjacent to' such waters and covered by the Act.” Id. 742.

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. 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. 780.

EPA and the Corps Respond with a Broad Proposal

Eight years later, after extensive consideration, EPA and the Corps have issued their proposed clarification, which is strongly influenced by the Kennedy “significant nexus” approach.

The proposal defines some waters as categorically jurisdictional. Other waters would be deemed jurisdictional on a case-by-case basis based on “significant nexus” considerations. And there would be exclusions.

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

Looking to the Kennedy “significant nexus” test, the proposal provides a seventh category. 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 provides a definition of “significant nexus” that draws heavily from the Kennedy opinion: a water, including wetlands, either alone or in combination with other similarly situated waters in the region (i.e., the watershed that drains to the nearest water identified in (1) through (3) above), significantly affects the chemical, physical, or biological integrity of a water identified in (1) through (3). For an effect to be significant, it must be more than speculative or insubstantial. Other waters, including wetlands, are similarly situated when they perform similar functions and are located sufficiently close together or sufficiently close to a “water of the United States” so that they can be evaluated as a single landscape unit with regard to their effect on the chemical, physical, or biological integrity of the water identified in (1) through (3).

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 seven categories discussed above. These include, inter alia, waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the CWA; prior converted cropland; certain ditches; various features such as some artificially irrigated areas, artificial lakes or ponds, 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. The agencies have announced the availability of the interpretive rule. 79 Fed. Reg. 22275 (April 21, 2014).

Central Role of EPA's Connectivity Report

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. Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. 78 Fed. Reg. 58536 (Sept. 24, 2013). The draft report was circulated for comment, and it is being reviewed by a Science Advisory Board (SAB). The SAB met in December 2013 and will conduct teleconferences on April 28, 2014 and May 2, 2014. Any final regulatory action related to CWA jurisdiction is to take into account the final version of the report.

Opportunity to Comment on Proposal

The comment period, which extends until July 21, 2014, provides an opportunity for interested parties to weigh in. For example, EPA and the Corps request comment on alternate approaches to determining whether “other waters” are similarly situated and have a “significant nexus” to traditional navigable water, interstate water, or the territorial seas. They also seek comment on determining which waters should be determined non-jurisdictional. And they seek comment on the aquatic resources, implementation, and economic implications their proposed definition of “waters of the United States.”

There is also an opportunity to comment until June 5, 2014, on the interpretive rule addressing the exemption from permitting provided for discharges of dredged or fill material associated with various agricultural conservation practices.

Varied Responses to the Proposal

Not surprisingly, the proposal has met with praise from environmental groups and opposition from business and some members of Congress. Critics attack both the merits of the proposal and the procedures being used to adopt it.

The U.S. Chamber of Commerce warns that the proposal would put the EPA “effectively in charge of zoning in the entire country.” The National Association of Home Builders says that, while it had long asked for the rulemaking, the proposal “goes too far,” and the increase in the number of required permits stemming from the rule would delay or impede construction projects. Agricultural interests have expressed concerns despite the exemptions and exclusions for agricultural activities.

Critics also charge that EPA and the Corps should not have issued the proposal before the SAB completes its review of the scientific basis for the rulemaking. EPA counters that the SAB's evaluation will be completed before the rule is finalized and that it will be taken into account in developing the rule. These positions were highlighted during a March 27, 2014 hearing of the Subcommittee on Interior, Environment and Related Agencies of the House Appropriations Committee.