This article is intended to provide a brief overview of a newly proposed EPA rule designed to clarify federal jurisdiction under the Clean Water Act. First, a brief history. The law commonly known as the Clean Water Act was passed by Congress in 1972. The Act and its subsequent amendments prohibit discharges of pollutants, dredged, or fill materials into navigable waters without a federal permit. Navigable waters is defined as “waters of the United States.” Federal regulatory authorities originally treated waters of the United States to mean those navigable waters that could be used in interstate commerce. Commerce power jurisdiction is a necessary prerequisite to federal regulation. In recent years the Environmental Protection Agency and the Army Corps of Engineers have asserted jurisdiction over isolated bodies of water with less than a direct connection to interstate commerce. (State and local governments have regulatory jurisdiction over all those waters that have no connection to interstate commerce.) A well-publicized example of the federal government’s attempted expansion of its authority occurred in 1986 when it published a guidance document invoking the “migratory bird rule.” This rule extended the definition of navigable waters to include intrastate waters inhabited by migratory birds. The Corps invoked Commerce Clause jurisdiction because the hunting and bird watching industries were dependant on migratory birds that inhabited isolated wetlands even if those wetlands were non-navigable and had no hydrologic connection to interstate waters. The U.S. Supreme Court invalidated this rule in 2001 in SWANCC v. Corps, finding that the Clean Water Act did not support a reading that isolated intrastate, non-navigable bodies of water fall within federal jurisdiction. In 2006 in Rapanos v. U.S. a plurality of the Court determined that the language, structure, and purpose of the Clean Water Act required limiting federal authority to “relatively permanent, standing or continuously flowing bodies of water” traditionally recognized as “streams, oceans, rivers and lakes” that are connected to traditional navigable waters.
The EPA implementation of the Rapanosdecision, published in 2008, mandated that federal agencies had jurisdiction over the following waters:
- Traditional navigable waters
- Wetlands adjacent to traditional navigable waters
- Non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries flow year-round or have continuous flow at least seasonally
- Wetlands that directly abut tributaries
Jurisdiction would be decided on a case-by-case basis over the following waters based on a fact-specific analysis to determine whether they have a significant nexus with a traditional navigable water:
- Non-navigable tributaries that are not relatively permanent
- Wetlands adjacent to non-navigable tributaries that are not relatively permanent
- Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary
The following were exempt from federal regulation:
- Swales or erosional features
- Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.
Federal agencies have been operating under these rules since 2008. In April
2014, the EPA and the Corps published a proposed rule which purports to clarify this definition and set forth with particularity the regulatory reach of the agencies. The stated purpose was to minimize the number of case by case determinations and to allow for categorical determinations of jurisdiction. This proposal has drawn criticism from some local regulatory authorities, farmers and landowners. Critics assert that this proposed rule redefines “waters of the United States” in a way that contradicts the rulings in SWANCC and Rapanos. The EPA and the Corps define the “waters of the United States to mean:
- 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
- Territorial seas
- All impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary
- All tributaries 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 significant nexus to a traditional navigable water, interstate water or the territorial seas.
The EPA and Corps acknowledge that a change in assertion of Clean Water Act jurisdiction could result in indirect costs of implementation of the Section 404 permitting program as a greater share of development projects would intersect with jurisdictional waters, thus requiring the sponsors of those additional projects to obtain and comply with the Section 404 permitting process. This could potentially have a significant impact on state and local governments as they design and construct infrastructure improvements. Organizations representing farmers and landowners have also been vocal in their criticism, alluding to the possibility that planting trees, applying fertilizer, or building fences across ditches will trigger federal regulation. The U.S. Small Business Administration concluded that in current practice 98% of streams and 98.5% of wetlands meet the definition of waters of the United States. Under the proposed rule these figures rise to 100%. Zero percent of “other waters” (the last category in the proposed rule) are covered in current practice, but the proposed rule would cover 17% in this category. There is little doubt that this attempt to clarify the definition will bring additional activities within the purview of federal regulators.
The U.S. House passed H.R. 5078 to bar issuance of the proposed rule and a related interpretive rule on agriculture exemptions. The White House threatened to veto the bill if passed by both houses of Congress.