The EPA and Corps have published a proposed rule to clarify federal regulatory jurisdiction over the nation’s streams and isolated wetlands. The rule comes in response to two Supreme Court cases that muddied the question of what waters are subject to federal Clean Water Act (CWA) jurisdiction. The rule seeks to assert the agencies’ authority over the nation’s isolated streams and wetlands under CWA and, if finalized, would mean that nearly all streams, rivers, and wetlands are subject to CWA jurisdiction. A scientific report issued during the fall of 2013 identified the connectivity between upstream wetlands and rivers with downstream waterways. Because pollution in upstream waterways can contribute to violations downstream, EPA and the Corps are seeking jurisdiction over these waters.
CWA jurisdiction extends to activities including dredging, filling, and discharging pollutants into “navigable waters” and to adjacent waters with a “significant nexus” to navigable waters. EPA and the Corps are attempting to clarify the term “significant nexus” by using a scientific definition relating to the connectivity of upstream and downstream waters. In a 2001 Supreme Court case, Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, 531 U.S. 159 (2001), the justices held that EPA was not authorized to regulate isolated, intrastate waters, absent a “significant nexus” to traditionally navigable waters. In 2006, in Rapanos v. Unites States, 547 U.S. 715 (2006) four justices held in a plurality opinion that the term “navigable waters” includes “only those relatively permanent, standing or continuously flowing bodies of water forming geographic features,” such as streams, oceans, rivers and lakes. The justices stated that jurisdiction also extends to wetlands adjacent to those “navigable waters.” The Court did not reach a majority opinion in Rapanos, but the plurality and concurrences have paved the way for the EPA and Corps’ rule proposal.
Justice Anthony Kennedy did not join in the plurality opinion, but concurred with the Rapanos plurality on different grounds, relying on the SWANCC holding. Justice Kennedy reiterated that CWA jurisdiction extends only to navigable waters and waterways with a “significant nexus” focusing on the significant ecological function wetlands adjacent to tributaries can serve. Justice Kennedy wrote that the nexus is established if “the wetlands [or isolated waters] alone, or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.” Justice Kennedy was more hesitant to extend CWA jurisdiction over any tributary to navigable waters, even connecting wetlands, and ruled the tributary must possess sufficient “volume and regularity of flow” such that the upstream water significantly affects the downstream water.
The proposed rule seeks to clarify the term “significant nexus” and would extend jurisdiction to upstream waters if there is a scientific nexus between the upstream and downstream waters. The agencies interpret “significant nexus” as a scientific term, finding jurisdiction where science supports a connection between upstream waters and downstream pollution. Developers, landowners, and conservatives called the rule a power grab that will stymie economic growth and development. Many conservative lawmakers also worry the expanded scope of federal CWA jurisdiction will limit the states’ ability to regulate their own, intrastate waters. EPA Administrator Gina McCarthy countered critics stating “the rule does not expand the Clean Water Act,” claiming it merely clarifies jurisdiction following recent Supreme Court cases.
In a blog post from November 2013 when a draft of the rule was leaked, Nancy Stoner, head of EPA’s water division, stated that the purpose was to clarify EPA’s authority following the two Supreme Court cases discussed above. In particular, the confusion centers on the question of EPA’s jurisdiction over small streams and wetlands – many of which only flow after rain events and dry up during parts of the year. Ms. Stoner stated: “The proposed joint rule [with the Corps] will provide greater consistency, certainty, and predictability nationwide by providing clarity for determining where the Clean Water Act applies and where it does not. These improvements are necessary to reduce costs and minimize delays in the permit process and protect waters that are vital to public health, the environment and economy.”
The proposed rule includes the same exemptions for water pollution from farmers and agricultural lands, and even adds new carve-outs exempting farmers from having to obtain federal approval for water discharges, but the expansion of CWA jurisdiction has the agricultural community worried about what could be next. Agricultural groups, in addition to industry groups, see the rules as a manifestation of broader federal government expansion into their lives and worry they could be next. It is unclear whether EPA would seek to expand jurisdiction to cover water discharges from agriculture, and EPA Administrator McCarthy has vowed that the agency has no such plans, but farmers are nevertheless staunchly opposed to the proposed federal rule.
Laura Barron-Lopez, Feds assert authority over streams, wetlands, The Hill, March 25, 2014 (http://thehill.com/blogs/e2-wire/e2-wire/201652-feds-hunker-down-on-protections-of-streams-wetlands)
Matthew Rojas, It’s all significant: proposed US EPA rule to expand the definition of “waters of the United States” under the CWA, Lexology, April 1, 2014 (http://www.lexology.com/library/detail.aspx?g=0a1b557f-b1e5-4c25-b48f-a455278ccd17)
Proposed Rule Amending Definition of “Waters of the United States” Under the Clean Water Act (see Vigilance Sources)
Philip Pulitzer, EPA Proposes Rule Clarifying Regulations on Isolated Streams, Red-on-line USA, September 19, 2013
Philip Pulitzer, EPA unveils broader stream and wetland regulations under the Clean Water Act, Red-on-line USA, April 4, 2014
Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001) (http://scholar.google.com/scholar_case?case=9631308632076296452&q=531+U.S.+159&hl=en&as_sdt=4006)
Rapanos v. Unites States, 547 U.S. 715 (2006) (http://scholar.google.com/scholar_case?case=6892271506340161224&q=547+U.S.+715&hl=en&as_sdt=4006)
Latham & Watkins, A divided US Supreme Court Offers Disparate, Sweeping Opinions as to the Reach of the Federal Clean Water Act – Rapanos & Carabell, Client Alert, June 21, 2006 (see source documents)
Latham & Watkins, EPA & Army Corps propose new rule to govern federal CWA Jurisdiction, Lexology, April 8, 2014 (http://www.lexology.com/library/detail.aspx?g=95467c4c-55f1-4465-a338-a8e16d78b620&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+Federal+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2014-04-17&utm_term)
Red-on-line EHS Legal Counsel