Defining “Water”: EPA and Corps of Engineers’ Proposed Rule to Clarify Jurisdiction is a Positive Step Towards Greater Environmental Protection
On March 25, the Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) announced that a proposal for a new rule defining “waters of the United States” as it appears in the Clean Water Act (“CWA”) would be appearing in the Federal Register for notice and comment in the coming weeks.[i] The definition is meant to clarify the scope of federal jurisdiction under the CWA, including the reach of the National Pollutant Discharge Elimination System (“NPDES”) permitting program, the oil spill prevention and response program, and the state water quality certification process.[ii]
The pre-existing regulatory definition is very broad; existing regulations (last codified in 1986) define ‘waters of the United States’ as traditional navigable waters, interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, tributaries, the territorial seas, and adjacent wetlands.”[iii] However, recent Supreme Court decisions have called it into question by holding that the phrase “waters of the United States” as used in the CWA conferred authority over only those waters with a “significant nexus” to navigable waters (because waters of the United States is used as part of the Act’s definition of “navigable waters”).[iv] While not necessarily blocking EPA action, these rulings have made it more difficult for the agency to exercise its regulatory authority, because it must determine whether or not it has jurisdiction over a given body of water before even considering whether or not a regulatory action should be taken under the substantive provisions of the acts/regulations it administers.[v] Determining whether or not it has jurisdiction over particular waters is more difficult for the agencies than it might seem. Several Supreme Court rulings make it clear that the administrative record must contain sufficient evidence/explanation to allow insight into an agency’s decision making processes, which typically requires extensive research, fact-finding and explication on the agency’s part before any action can be taken.[vi] Thus, the agency was required to engage in “time and resource demanding case-specific analysis prior to determining jurisdiction and any need for permit or enforcement actions.” [vii]
The proposed rule issued by the EPA and the Corps would remove this burdensome requirement in many situations by concluding, on the basis of the best available science, that certain water sources are, in a sense, “pre-cleared” as sources over which the CWA grants jurisdiction.[viii] This determination would be based on a peer-reviewed report by the EPA surveying a wide variety of scientific research and concluding that such sources have a “significant nexus” to navigable waters as defined in the CWA.[ix] These would include all “waters which are currently used, were used in the past, or may be susceptible to use in interstate commerce,” interstate waters (including wetlands), the territorial seas, as well as impoundments of the aforementioned waters and their tributaries.[x] The agencies would still be required to conduct case-specific analysis in order to exercise their jurisdiction over all “other” waters not mentioned in the proposed rule to determine whether or not those waters have a “significant nexus” to navigable waters.[xi] Additionally, the rule would (for the first time) explicitly deny the agencies jurisdiction over types of waters that have traditionally not been regulated, including “artificially irrigated areas that would revert to upland should application of the irrigation water to that area cease” and “water-filled depressions created incidental to construction activity.”[xii]
The most significant aspect of this “pre-clearance” is its application to “tributaries,” combined with the inclusion, for the first time, of a regulatory definition of that term as:
[A] water physically characterized by the presence of a bed and banks and ordinary high water mark, as defined by 33 CFR § 328.3(e), which contributes flow, either directly or through another water, to a [larger body of water, such as a river, identified earlier in the regulation]. In addition, wetlands, lakes, and ponds are tributaries (even if they lack a bed and banks or ordinary high water mark) if they contribute flow, either directly or through another water to a water identified [earlier in the regulation]. . . . A tributary, including wetlands, can be natural, man-altered or man-made water and includes waters . . . . not excluded [by other parts of the regulation].[xiii]
The definition also explains that man-made breaks in tributaries do not deprive them of their status as a “water of the United States.” [xiv] It is this provision that will have the largest impact in reducing the number jurisdictional investigations the agencies must conduct before taking regulatory action.[xv]
Consequently, this is the provision of the rule, which has already drawn the most criticism, even though the official agency announcement of the rule has yet to appear in the Federal Register.[xvi] Various industries affected by EPA regulations (including the construction industry and various agricultural interests) argue that it will increase costs and waste taxpayer money by expanding the scope of agency jurisdiction.[xvii] In particular, farmers are concerned that irrigation ditches and other agricultural activities or uses of water might fall under EPA permitting regimes, while construction companies have expressed similar fears regarding water control measures (such as rainwater ditches) at construction sites.[xviii]
Perhaps in an attempt to head off such criticism, the EPA has expressly denied that the new rule would expand agency jurisdiction in a variety of outlets, including an op-ed by EPA Administrator, Gina McCarthy.[xix] Moreover, the EPA plans to simultaneously issue an interpretive rule addressing concerns that the new rule would increase oversight of farming activities.[xx]
Overall, the criticism of the agency’s proposed rule seems overblown for several reasons. First, it is worth noting that run-off from many industrial sites is already within the regulatory jurisdiction of the EPA.[xxi] Additionally, the proposed rule would not remove any of the myriad statutory limitations on the extent of EPA jurisdiction, including agricultural storm water discharges, maintenance of draining ditches, and return flows from irrigated agriculture. [xxii] The mere fact that the agency need not conduct jurisdictional analysis as to a particular source of water does not mean that the agency will ultimately conclude that regulation or an enforcement action is appropriate.
Interest groups like the American Farm Bureau counter this analysis by suggesting that these exceptions would apply only to “dredge and fill” activities and would leave other normal farming activities (including the use of pesticides) open to increased federal scrutiny.[xxiii] However, while it is true that the interpretive rule issued by the EPA and Corps applies only to dredge and fill activities, the preexisting exceptions to CWA jurisdiction are not so narrowly limited.[xxiv] Among these long-standing regulatory exemptions is one for discharges related to “normal farming, silvicultural, and ranching” activities.[xxv] It is difficult to see how this would not extend to the types of activities the Farm Bureau has expressed concern about. Additionally, the EPA has requested comments from agricultural interests regarding the interpretive rule, which seems to indicate a willingness to make additional adjustments to its regulations in order to avoid severely damaging farming activities.[xxvi]
It is also worth noting that the very nature of the CWA is to impose costs on those whose activities have an impact on our nation’s waterways in order to protect them. While it is important to ensure that farmers are not forced to bear onerous burdens that jeopardize their livelihoods, this concern must be balanced with a need to fulfill the environmental goals of the CWA. This is a balancing that should be addressed head on through a discussion of the substantive merits of exempting certain activities from regulation, not collaterally through a debate over whether or not protection of the waters in question is outside the jurisdiction of the agencies.
Furthermore, it is true that the proposed rule may lead to regulatory actions that the agency had previously declined to pursue due to a hesitancy to engage in the onerous process of jurisdictional analysis and/or a fear of overstepping its statutory authority due to uncertainty over the scope of the CWA.[xxvii] However, the overriding purpose of the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,”[xxviii] suffers when the EPA does not exercise jurisdiction over waters that are covered by the statute’s terms. If the public must bear those harms because the agency chooses not to act, it should be based upon a rational consideration of the merits of the proposed action, not on jurisdictional uncertainty. For instance, according to the Fish and Wildlife Service, tens of thousands of acres of wetlands have been lost from 2004 to 2009 alone, approximately 30% of which was due to development activities.[xxix] To the extent those losses could and should have been prevented but for jurisdictional confusion at the EPA, they likely constitute unnecessary damage to the environment that we will pass on to future generations.
The EPA and the Corps’ efforts seem well designed to maximize the protection provided by the CWA, provide greater clarity to regulated entities regarding what is and is not covered by the CWA’s provisions, and reduce red tape at the agency level. For these reasons, it has been applauded by a number of groups who have long requested greater jurisdictional clarity from the agencies.[xxx] At the end of the day, clearer rules and the resulting cleaner water is in everyone’s best interest, despite the opposition of some who would prefer to benefit from the pre-existing uncertainty.
The proposed rule will be subject to a 90-day notice and comment period required by the Administrative Procedure Act before any final action may be taken by the agency. The proposed rule itself specifically requests input into the provisions regarding the assessment of “other waters” in order to determine if the “significant nexus” language drawn from Justice Kennedy’s concurrence is the most appropriate formulation [xxxi] as well as several other aspects of the proposed rule.[xxxii] Accordingly, the issuance of a final version of the rule, if the agencies choose to proceed after reviewing those comments, will not take place in the immediate future.
- Ben Reese is a General Member on MJEAL. He can be reached at firstname.lastname@example.org.
[i] Neela Banerjee, Clean Water Act Proposal Would Protect More Water Sources in West, L.A. Times, Mar. 25, 2014, http://www.latimes.com/nation/la-na-epa-waters- 20140326,0,1080552.story#axzz2y2VrYy3Q
[ii] U.S. Envtl. Prot. Agency, EPA-HQ-OW-2011-0880, Definition of “Waters of the United States” Under the Clean Water Act, at 15-16 (2014), http://www2.epa.gov/sites/production/files/2014-03/documents/wus_proposed_rule_20140325_prepublication.pdf [hereinafter Proposed Rule].
[iii] Proposed Rule at 16 (quoting 33 C.F.R. § 328.3; 40 C.F.R. § 122.2).
[iv] Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs., 531 U.S. 159, 167 (2001) (citing United States v. Riverside Bayview Homes, 474 U.S. 121(1985)); Rapanos v. United States, 547 U.S. 715, 759 (2006) (Kennedy, J., concurring in the judgment).
[v] Proposed Rule, supra note ii, at 14-15.
[vi] See e.g. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45, 864-66 (1984); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46-51 (1983); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 417-20 (1971); Sec. and Exch. Comm’n. v. Chenery Corp. (Chenery I), 318 U.S. 80, 92-93 (1943); Sec. and Exch. Comm’n. v. Chenery Corp. (Chenery II), 332 U.S. 194, 198-202 (1947).
[vii] Proposed Rule, supra note ii, at 15.
[viii] Id. at 19-20.
[ix] Proposed Rule at 13; U.S. Envtl. Prot. Agency, Office of Research and Dev., EPA/600/R-11/098B, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, at 1-3 to 1-4 (2013).
[x] Proposed Rule, supra note ii, at 325.
[xi] Id. at 19-20, 325-26.
[xii] Id. at 326.
[xiii] Id. at 22, 327-28.
[xiv] Id. at 328.
[xv] Id. at 22.
[xvi] Banerjee, supra note i.
[xviii] See Id.
[xix] Gina McCarthy, Clearer Protections for Clean Water, Huffington Post, Mar. 25, 2014, http://www.huffingtonpost.com/gina-mccarthy/clearer-protections-for-c_b_5029328.html (“Some may think this rule will broaden the reach of EPA regulations — but that’s simply not the case. Our proposed rule will not add to or expand the scope of waters historically protected under the Clean Water Act.”); Press Release, U.S. Environmental Protection Agency, EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded by Proposal (Mar. 25, 2014), http://yosemite.epa.gov/opa/admpress.nsf/3881d73f4d4aaa0b85257359003f5348/ae90dedd9595a02485257ca600557e30 (“[The rule] does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.”).
[xx] Proposed Rule, supra note ii, at 25-26.
[xxi] See e.g. David Hopkins, No Permit Necessary: How Decker is Expanding Pollution, Mich. J. Envtl. & Admin. L. Blog, March 28, 2014, http://students.law.umich.edu/mjeal/2014/03/no-permit-necessary-how-decker-is-expanding-pollution/.
[xxii] Proposed Rule, supra note ii, at 25.
[xxiii] Annie Snider, Farm Bureau Vows to “Dedicate Itself” to Opposing Clean Water Act Proposal, Greenwire, April 2, 2014, http://libproxy.law.umich.edu:2217/greenwire/stories/1059997197/search?keyword=farmers; David Hopkins, Balancing Clean Water Act Jurisdiction with Agricultural Pragmatism, Mich. J. Envtl. & Admin. L. Blog (forthcoming).
[xxiv] Id.; Proposed Rule, supra note ii, at 25.
[xxv] Proposed Rule, supra note ii, at 25.
[xxvi] Proposed Rule, supra note ii, at 25-26.
[xxvii] Banjeree, supra note i.
[xxviii] 33 U.S.C.A. § 1251(a) (West, Westlaw through P.L. 113-74).
[xxix] Banjeree, supra note i.
[xxx] Press Release, U.S. Environmental Protection Agency, Here’s What They’re Saying About the Clean Water Act Proposed Rule (Mar. 25, 2014), http://water.epa.gov/lawsregs/guidance/wetlands/upload/wus_quotes_326.pdf.
[xxxi] Proposed Rule, supra note ii., at 20-21
[xxxii] See e.g. Proposed Rule, supra note ii, at 29-30.