by Kristine A. Tidgren
On March 25, 2014, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) released a proposed rule defining “waters of the United States” under the Clean Water Act (CWA). If enacted, this proposed rule would likely significantly expand the current scope and coverage of the CWA.
Generally, the CWA prohibits the discharge of any pollutant or fill material into “waters of the United States” without a permit. The Corps issues permits for the discharge of fill material, and the EPA issues permits for the discharge of pollutants. Persons who discharge pollutants or fill material without obtaining a permit (an often expensive and lengthy process) are subject to civil and criminal penalties. Because the CWA regulates “waters of the United States,” the definition of this phrase defines the statute’s reach. If, for example, a wetland qualifies as “waters of the United States,” its owner may not deposit fill material into that wetland without a permit. If, however, the wetland does not fall into that definition (or if the owner’s activity falls under a specific CWA exemption), no such restrictions exist.
Agency regulations created in 1986 define “waters of the United States” to include traditional navigable waters, interstate waters, all other waters that could affect interstate commerce, tributaries, and adjacent wetlands. Several United States Supreme Court decisions have narrowed the agencies’ permitted application of this definition.
U.S. Supreme Court Precedents
The last such U.S. Supreme Court opinion to consider the definition of “waters of the United States,” Rapanos v. United States, 547 U.S. 715 (2006), determined that the Corps’ application of the definition was too broad. Rapanos, however, was a plurality decision in which a majority of Supreme Court justices could not agree on a single rationale. The case involved a 54-acre parcel—11 miles from the nearest navigable water—that sometimes became saturated with water. Despite warnings, the landowner backfilled a portion of the property with sand to prepare it for commercial development, and the Corps initiated enforcement proceedings. The Corps alleged that because these lands were “adjacent” to other “waters of the United States,” the landowner’s activities required a CWA permit. The owner faced hundreds of thousands of dollars in fines and 63 months in prison. Five justices agreed that the Corps’ definition of “waters of the United States” was overbroad. Four justices reasoned that only those wetlands with a continuous surface connection to adjacent water covered by the CWA could be “waters of the United States.” One concurring justice—agreeing that the Corps’ definition was too expansive—wrote that whether adjacent wetlands were “waters of the United States” turned on whether they possessed a “significant nexus” to other CWA-regulated waters.
Since the Supreme Court’s Rapanos opinion, the lower courts have reached different conclusions as to which rationale of the Supreme Court to apply in many wetland cases.
After Rapanos, the Corps and the EPA issued joint guidance attempting to implement the Supreme Court’s directives. Under this guidance, the agencies asserted CWA jurisdiction over all traditional navigable waters, wetlands adjacent to these waters, relatively permanent tributaries of traditional navigable waters, and wetlands abutting such tributaries. They also claimed jurisdiction over non-permanent tributaries and their adjacent wetlands if they had a “significant nexus” to traditional navigable waters.
Finding implementation of this guidance “confusing” and “unpredictable,” the agencies set forth their proposed definition of “waters of the United States” on March 25, 2014, to “clarify” the types of waters that could be covered by the CWA.
Under this proposed definition, the CWA would apply to: (1) waters which have been or ever could be used in interstate commerce and (2) all interstate waters and wetlands. Additionally, the CWA would apply to (3) all “tributaries” of these interstate waters, (4) all waters and wetlands “adjacent” to these interstate waters, and (5) all waters or wetlands with a “significant nexus” to these interstate waters.
“Tributaries” is broadly defined to include natural or man-made waters, wetlands, lakes, ponds, canals, streams, and ditches if they contribute flow directly or indirectly to interstate waters. The proposed rule has no requirement that these waterways continuously exist or have any nexus to traditional “waters of the United States,” as is required under current guidance.
In perhaps the most expansive language of the proposed rule, “adjacent” is defined to include “bordering, contiguous or neighboring” waters. Under this definition, all waters (not just wetlands) within the same riparian area or flood plain of interstate waters would be “adjacent” waters subject to CWA regulation.
Under the proposed “significant nexus” test, “similarly situated” waters are evaluated as a “single landscape unit.” As such, the proposed regulations would appear to allow the agencies to regulate an entire watershed if one body of water within it has a “significant nexus” to interstate waters.
The proposed definition does specifically exclude certain artificially irrigated areas; artificial lakes or ponds used for stock watering, irrigation, or rice growing; artificial swimming pools; small ornamental waters created for primarily aesthetic reasons; and water-filled depressions incidental to construction activity.
Although the proposed rule retains existing Clean Water Act exemptions for agricultural activities and specifically exempts 53 additional conservation practices, the breadth of the proposed rule’s language raises a number of concerns regarding the potential impact of these proposed regulations on farmers. Exactly how the agencies would apply these rules is unknown.
The agencies assert in the executive summary of the proposed rule that the proposed definition would provide greater “certainty and predictability,” and “minimize the number of case-specific determinations” spawned by three United States Supreme Court decisions interpreting the definition of “waters of the United States.” EPA Administrator Gina McCarthy has stated that the proposed rule will not broaden the reach of EPA regulations or “expand the scope of waters historically protected under the Clean Water Act.” Rather, she urges that the proposed rule will result in “increased clarity” that will save time, money, give certainty to business, and “help fulfill the Clean Water Act’s original promise: to make America’s waters fishable and swimmable for all.” The agencies state in the summary that “the scope of regulatory jurisdiction in this proposed rule is narrower than that under the existing regulations.”
Opponents of the proposed rule, including United States Senator Charles Grassley of Iowa, disagree. On his website, Senator Grassley states that “it seems the EPA is fishing for ways to cast a wider net to expand implementation of the Clean Water Act over virtually all waters in the United States, public and private.” Senator Grassley fears the proposed rule, if implemented, might “open a can of worm for farmers,” potentially exposing them to costly regulation of farm ponds, drainage ditches, culverts, dams, and dry creek beds. Given the expansive language of the proposed regulation, the concerns are valid.
A 90-day public comment period for these proposed regulations began on April 21, 2014 and will end on July 21, 2014. Members of the public are free to submit comments and raise specific concerns or questions with the agencies at www.regulations.gov (in Docket No. EPA-HQ-OW-2011-0880).