According to the government, the intent of the Rule is to make the process of identifying “waters” subject to the requirements imposed by the CWA “easier to understand, more predictable, and consistent with the law and peer-reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.” Clean Water Rule Preamble at 7. As a practical matter, the new Rule substantially extends the extent of claimed federal jurisdiction over water resources nationwide, will result in significant costs for the regulated community, and, as it is applied, will likely be subject to numerous legal challenges.
The extent of federal CWA jurisdiction has been addressed in three seminal Supreme Court cases. In the first, United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), the Supreme Court issued an unanimous opinion deferring to the Corps’ ecological judgment and upholding the inclusion of certain adjacent wetlands in the regulatory definition of “waters of the United States.” In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), the Court struck down the government’s overbroad interpretation of the CWA extending jurisdiction over non-navigable intrastate ponds on the basis that the ponds supported migratory bird populations. Finally, in Rapanos v. United States, 547 U.S. 715 (2006), a split court addressed the extent of permissible CWA jurisdiction over waters that are not navigable in a traditional sense. The plurality Rapanos opinion held that federal jurisdiction could only extend over non-navigable waters if they exhibit a relatively permanent flow or, in the case of wetlands, where there is a continuous surface water connection between the wetland and a relatively permanent waterbody. Justice Kennedy’s concurring opinion held that CWA jurisdiction extends to wetlands and non-navigable waterbodies provided that there is a “significant nexus” to a traditional navigable waterway.
In response to the Supreme Court cases addressing CWA jurisdiction, EPA and the Corps issued guidance in 2003 (post-SWANCC) and 2008 (post-Rapanos) seeking to clarify the extent of federal jurisdiction over waterways and wetlands. According to EPA, this guidance was insufficient, requiring complex and resource intensive “case-specific” jurisdictional determinations that resulted in inconsistent interpretations of CWA jurisdiction and perpetuated ambiguity over the extent of federal authority. Clean Water Rule Preamble at 13. EPA initiated a rulemaking to adopt the Clean Water Rule to define “waters of the United States” in an effort to “make the process of identifying waters protected under the CWA clearer, simpler, and faster.” Id.
Before issuing the current draft Rule, EPA and the Corps published a proposed rule addressing the scope of CWA jurisdiction in April 2014. The government received public comments for 200 days and, according to the government, over 1 million public comments were received. In adopting the final Rule, EPA and the Corps relied substantially upon a report -- Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence -- finalized by EPA’s Office of Research and Development in early 2015. That Report, a copy of which is available here, is based upon the government’s review of more than 1,200 peer-reviewed publications. According to EPA, the Science Advisory Board also reviewed the adequacy of the Report and the technical basis for the rulemaking.
According to EPA, the new Rule accomplishes the following:
- “Clearly defines and protects tributaries that impact the health of downstream waters.” The Rule concludes that tributaries are “waters of the United States” and extends federal jurisdiction over any “tributary” that shows physical features of flowing water (e.g., a bed, bank, and ordinary high water mark). Clean Water Rule Preamble at 19.
- “Provides certainty in how far safeguards extend to nearby waters.” The Rule provides that CWA jurisdiction extends to “adjacent waters.” Those waters are defined as waters or wetlands that are “bordering, contiguous, or neighboring, including waters separated from other ‘waters of the United States’ by constructed dikes or barriers, natural river berms, beach dunes and the like.” Clean Water Rule Preamble at 20.
- The term “neighboring,” is defined in the rule to include: (i) waters located in whole or in part within 100 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment of jurisdictional water, or a tributary…”; (ii) “floodplain waters,” meaning “waters located in whole or in part in the 100-year floodplain and that are within 1,500 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment, or a tributary …”; and (iii) waters located in whole or in part within 1,500 feet of the high tide line of a traditional navigable water or the territorial seas and waters located within 1,500 feet of the ordinary high water mark of the Great Lakes. Id.
- “Protects the national’s regional water treasures.” The Rule identifies five types of isolated “waters” that will now be subject to “a case-specific analysis” to determine if a significant nexus exists with a “water of the United States”: (i) Prairie potholes, (ii) Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands. The Rule requires that EPA and the Corps analyze such “waters” “‘in combination’ (as a group, rather than individually) in the watershed…” Clean Water Rule Preamble at 22.
- “Focuses on Streams, not ditches.” The Rule exempts certain ditches from CWA jurisdiction. This exclusion extends to ditches with “ephemeral flow that are not a relocated tributary or excavated in a tributary, and ditches with intermittent flow that are not a relocated tributary, or excavated in a tributary, or drain wetlands.” Clean Water Rule Preamble at 25. To the extent that ditches are not exempted by the terms in Rule, they are subject to regulation under the CWA.
The regulated community, including industry and agricultural associations, have concluded that the Rule will substantially increase the geographic reach of CWA jurisdiction. Illustrations prepared by the Farm Bureau, showing how the new definitions will extend the geographic scope of CWA authority, are available here. For example, many small, isolated geographic areas with wetland characteristics that would have fallen outside CWA jurisdiction under existing Supreme Court precedent and prior agency interpretations will now be regulated or, at a minimum, require a case-by-case evaluation for jurisdiction (e.g., vernal pools, prairie potholes, etc.) that is both time-consuming and expensive.
Although EPA and the Corps argue that the Rule “does not interfere with or change private property rights, or address land use,” as a practical matter the Rule will require many property owners that were not previously regulated by the CWA to engage with the Corps to determine whether there are jurisdictional waters and wetlands on their property and, if so, to pursue permits prior to any development or other activities within the regulated area.
Expected consequences as a result the Rule include:
- Expanded Jurisdiction and Burden on the Regulated Community. EPA and the Corps, via adoption of the Rule, seek to dramatically expand the geographic reach of federal jurisdiction under the CWA. As a result, many property owners will now be regulated by the CWA for the first time. Prior to development or intrusive activities in potentially regulated areas, those property owners will need to retain consultants to assess the extent of federal jurisdiction, potentially seek an approved jurisdictional determination from the Corps and/or a permit, and either mitigate potential impacts or alter development on, or use of their private property. For some property owners, activity that was previously lawful on their private property will now be subject to CWA jurisdiction. For example, existing mining (e.g., sand, gravel, etc.) in an area with prairie potholes or vernal pools will likely require a jurisdictional evaluation prior to continued operation.
- Regulatory Confusion. In the short-term, there is likely to be substantial confusion among regulators, as they come up to speed with the requirements in the new Rule, and throughout the regulated community as the new Rule is implemented. This confusion may result in additional enforcement activity. There is also likely to be confusion about whether the new Rule will apply to pending permit applications and existing, unresolved enforcement actions.
- Slower Permitting. Although EPA and the Corps claim that the Rule will reduce ambiguity, in the short term we expect confusion caused by the new definitions will further slow the permitting process for all. Additionally, because of the substantial increase in the geographic reach of CWA jurisdiction, an increase in permit applications (or requests for approved jurisdictional determinations) will likely tax Corps and EPA resources. Delay in issuing permits and approved jurisdictional determinations will result in substantial transaction costs and other economic damages to the regulated community.
- Legal Challenges to Scope of the Rule. We expect legal challenges to the Rule, both in connection with the rulemaking itself, and as the Rule is applied on a case-by-case basis. It will likely take years for legal precedent to accumulate to the point where the full extent of CWA jurisdiction claimed by the Rule is clearly specified and understood.
- Congressional Opposition. Republicans in Congress have already started efforts to overturn the Rule. On May 12, for example, the House, passed legislation (by a vote of 261-155) that would require EPA and the Corps to withdraw the Rule. The Senate is exploring similar legislation. Although the Obama Administration has already stated that President Obama would veto any such legislation, there is likely to be a continuing political show-down over the Rule through the 2016 election and beyond.
For more information, contact Tom Boer at jtb@bcltlaw.com or (415) 228-5413.
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