The Environmental Protection Agency (“EPA”) and the US Army Corps of Engineers (“USACE”) have recently released a new waters of the United States rule under the Clean Water Act (“CWA”) that has been in the works for over a year concerning the definition of what are the ‘Waters of the United States.’ The importance of this definition is that anything that is considered a water of the United States can be regulated under the CWA. The scope and effect of this rule are a point of considerable contention among stakeholders. Environmentalists have applauded the rule while industry-led coalitions, including the American Farm Bureau Federation and American Petroleum Institute, have said the rule will stifle economic growth and is overly burdensome on farmers and business owners. Within the Federal Government itself Republican lawmakers have classified the rule as a power grab by the Obama Administration. The joint EPA and USACE press release, however, described the rule as providing clarity as to which waters are governed by the CWA, and that this rule will help alleviate confusion generated by Supreme Court rulings handed down in 2001 and 2006.
The two Supreme Court rulings in question are Rapanos v. Unites States, 547 U.S. 715 (2006) and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In SWANCC the Court held that the Federal Government could not invoke the migratory bird rule as the reason why it could regulate isolated waters; this is the first case where the Court focused in on whether or not their existed a “significant nexus” between waters attempting to be regulated and navigable waterways. Meanwhile in Rapanos the Court issued a split decision regarding what may constitute ‘waters of the United States’ for the purposes of invoking CWA jurisdiction. The plurality in Rapanos created a ‘relatively permanent flow’ test for deciding whether the Federal Government has jurisdiction over a body of water. Kennedy, in his concurrence, outlined a more expansive test focusing on whether or not a body of water affects the physical, biological, or chemical integrity of a downstream navigable waterway for determining whether or not there was a “significant nexus” between the two.
While proclaiming to have taken into account the plurality opinion as well, it is clear that the EPA and USACE tailored the rule to be more in line with Justice Kennedy’s opinion. This can be seen by the Executive Summary of the Rule quoting Justice Kennedy:
Justice Kennedy concluded that wetlands possess the requisite significant nexus if the wetlands “either alone or in combination with similarly situated [wet]lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” 547 U.S. at 780.
In the official discussion of the rule the EPA and USACE outline five different types of waters that this new rule will cover and describe how each of these types of bodies of waters can significantly affect navigable waterways. These five types of waters are Prairie Potholes, which are glacially formed pools in the central north of the country, they generally connect to navigable waterways through shallow subsurface flows or artificially created drainage mechanisms. Carolina and Delmarva bays exist on the Atlantic coast and are formed by precipitation with the bodies of water usually draining into shallow groundwater, these bodies of water tend to be lumped together and/or close to streams. The third type of body of water that the new rule will be covering are pocosins, which are found in the southeastern portion of the country and are peat accumulating wetlands that exist on a hill. Next are western vernal pools which are seasonal bodies of water, they form in wet months in the west and then either drain or evaporate during dry summer months. Finally coastal prairie wetlands found in Louisiana and Texas will be regulated; these are freshwater wetlands that are found in abundance and generally collectively drain to a common river or tributary. The rule goes in to great length discussing why the agencies find each of these types of waters to have a significant nexus to navigable waters. If a body of water on a piece of property is found to connect to similar small bodies of water that are ultimately hydrologically connected to a navigable waterway then they will fall under the jurisdiction of the CWA.
The EPA and USACE press release specifically notes that “ditches that are not constructed in streams and that flow only when it rains are not covered.” The Wall Street Journal reports that only about 3% more waterways will be put under federal jurisdiction with this new rule. But most of the concern regarding the rule surrounds the types of waters that the expansion covers and not the quantity. Four of the five new types of waters outlined in the rule occur in depressions on a variety of land, some of which could be on farmland and/or land used for mining purposes. The EPA and USACE have determined that these types of waters have a “significant nexus” to navigable waters. While the rule doesn’t change exemptions or exclusions to the CWA (including the agricultural exemptions and exceptions), concern arise from landowners being uncertain if a small body of water that forms on their land is a “prairie pothole” or other type of water covered by the CWA, or simply a large hydrologically disconnected pooling of water. Determining the hydrological connections of these pools of water could prove costly.
While the comment period for this rule has closed and the rule will go in to full effect in late July Schroeder Law Offices submitted comments on the draft rules on behalf of our clients. Ultimately, much of the uncertainty concerning this rule will not be clarified until it is in full effect and users/landowners can see how the Federal agencies apply it. Stay tuned to Schroeder Law Offices’ Water Law Blog for more water news that may affect you!
The 300 page document outlining and discussing the rule released by the agencies can be found here.
The USACE and EPA Press Release can be found here.
The Wall Street Journal Article can be found here.
