Clean Water Act rule change finalized

By Michael Howell

The proposed federal rule change for determining what waters are considered Waters of the U.S. under the Clean Water Act has reached final form and is about to be entered into the federal registry. The rule underwent some modifications as it approached adoption at the end of May.
According to Nathan Brackman, former assistant director and general counsel for the Western States Water Council, in the 2015 issue of Water & the Law, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) developed the rule to clarify the scope of CWA jurisdiction following the U.S. Supreme Court’s decisions in SWANCC v. U.S. Army Corps of Engineers and Rapanos v. United States. Those rulings, which the Court issued in the 2000s, created significant uncertainty about the scope of the CWA, especially as applied to wetlands and isolated water bodies.
Much of this confusion, according to Bracken, is due to Rapanos, in which the Justices set forth competing jurisdictional tests for determining whether a water is subject to the CWA but failed to agree upon which test should apply. The ensuing confusion has required lengthy and often costly case-by-case determinations to determine if a water is subject to CWA regulation, prompting calls from all sides for a clarifying rule.
“The new rule attempts to resolve this uncertainty by describing the process EPA and the Corps will use to determine whether a water is subject to CWA jurisdiction consistent with SWANCC and the competing tests in Rapanos. EPA and the Corps say the rule does not create new permitting requirements for agriculture and maintains all previous exemptions and exclusions. The agencies also say the rule only protects waters that have historically fallen under the CWA, and that the scope of jurisdictional waters will decrease under the new rule when compared with historic practice. Nevertheless, an EPA economic analysis for the rule estimates that positive jurisdictional determinations will increase between 2.84% and 4.65% annually,” states Bracken.
The final rule creates a framework in which certain ‘bright line’ waters are categorically jurisdictional and others are explicitly excluded. At the same time, certain waters that are not categorically jurisdictional or excluded may be jurisdictional subject to a case-by-case analysis.
Under the rule, most of the ‘bright line,’ categorically jurisdictional waters have long been subject to CWA jurisdiction, such as large interstate rivers and lakes used in interstate and foreign commerce.
The rule, however, also categorically includes all tributaries that have a bed and bank, an ordinary high water mark, and directly or indirectly contribute flow to “bright line” jurisdictional waters. The preamble to the rule further states that dry ephemeral and intermittent streams may be jurisdictional tributaries if they contribute flow to a “bright line” jurisdictional water.”
Bracken thinks that the inclusion of dry ephemeral and intermittent streams is likely stir controversy in the West where such streams are common and some may not have been subject to the CWA previously.
The rule further states that “adjacent” waters that border “bright line” jurisdictional waters will be subject to CWA jurisdiction. “Neighboring” waters may also be deemed to be “adjacent” if they are located partly or wholly within: (1) 100 feet of the ordinary high water mark of a “bright line” jurisdictional water; (2) The 100-year floodplain of a “bright line” jurisdictional water and within 1,500 feet of the jurisdictional water’s ordinary high water mark; or (3) 1,500 feet of the high tide line of certain “bright line” jurisdictional waters.”
According to critics, this definition for “adjacency” could represent an expansion of CWA jurisdiction because prior CWA regulations only referenced adjacent wetlands, whereas the new definition will encompass both wetlands and other types of waters. On the other hand, EPA and supporters of the rule say this interpretation is necessary to address the interconnected nature of most water bodies.
Then there is the matter of exclusions. The rule excludes a number of waters from CWA jurisdiction, including features such as groundwater, puddles, and ditches. The rule also excludes certain features located in dry land, such as stock and irrigation ponds, stormwater control features, swimming pools, certain erosional features, and wastewater recycling features, among others. Notably, the final rule does not include language EPA and the Corps proposed in an earlier draft that would have used “shallow, subsurface hydrologic” connections to establish jurisdiction between surface waters. That language had raised concerns that it would undermine the rule’s groundwater exclusion.
EPA, the Corps, and the rule’s supporters point to these exclusions as evidence of the rule’s limited scope. Opponents, however, are arguing that the rule’s exclusions appear overly narrow when compared to the total number of waters that may be jurisdictional, citing the rule’s need to exclude swimming pools and puddles as an indication of its broad scope.
Bracken believes the rule’s exclusion for ditches has also generated perhaps the most attention, particularly among the agricultural community. Under the rule, a ditch will not be jurisdictional if it does not flow, either directly or through another water, into certain “bright line” jurisdictional waters. Other ditches may also qualify for the exemption if they have ephemeral or intermittent flow, subject to certain conditions. Presumably, those ditches that do not qualify for the exclusion may be subject to CWA jurisdiction. While this language is broader than what EPA and the Corps proposed in earlier drafts of the rule, the American Farm Bureau and other agricultural groups have criticized this exclusion for being too narrow and have warned that many ditches will be classified as jurisdictional tributaries under the final rule.
The final rule states that EPA and the Corps will use case-by-case analyses to determine the jurisdictional status of certain waters that do not fall within the “bright-line” jurisdictional categories or qualify for an exclusion. In performing these determinations, the rule says EPA and the Corps will use the so-called “significant nexus” test that Justice Anthony Kennedy set forth in Rapanos. Under the rule, a water or wetland will be jurisdictional under this test if it “significantly affects” other jurisdictional waters. In determining a water’s impact on jurisdictional waters, the rule will evaluate the impact a water has “either alone or in combination with other similarly situated waters in the region.” In other words, the rule will aggregate the effects of one water with those of other similar water bodies. To assist with this determination, the rule outlines a number of factors the agencies will consider, such as nutrient recycling, sediment trapping, and contribution of flow, among others.
“Importantly,” states Bracken, “the rule limits the application of the significant nexus test to two specific categories. The first consists of five specific types of regional water features, such as prairie potholes in the Upper Midwest and western vernal pools in California. The second category includes waters that are located in whole or in part within the 100-year floodplain or 4,000 feet of the high tide line or ordinary high water mark of certain ‘bright line’ jurisdictional waters. Waters that fall outside of these categories will not be subject to the significant nexus test and will presumably not be jurisdictional.”
In Congress, Republicans and a handful of Democrats have introduced a number of bills to prevent EPA and the Corps from finalizing the rule. According to Bracken, last month, the U.S. House of Representatives passed the Regulatory Integrity Protection Act (H.R. 1732) to withdraw the rule and require EPA and the Corps to develop a new one in partnership with the states. President Obama, however, has threatened to veto this legislation and it is uncertain whether there are enough votes to override a presidential veto. In addition to stand-alone legislation, it is also likely the rule’s critics will insert language into must-pass federal funding legislation to prevent EPA and the Corps from using federal money to implement the rule.
“Whether such efforts will be successful is unclear,” states Bracken, and “given the considerable differences and variability in the nation’s waters, it is likely the rule will impact each state differently.”
To date at least six lawsuits have been filed in five different states, including North Dakota, Texas, Ohio, Georgia, and West Virginia, and in the Fifth Circuit Court of Appeals asking that the rule be vacated. Four of the suits were filed by state attorneys general and two by industry.
Hans McPherson, local irrigator and chairman of the Supply Ditch, said that he was not familiar with the latest changes in the rule made prior to being adopted. He said it worries him that changes are not being made by scientists on the ground.
“Having changes made by scientists is one thing,” said McPherson, “but having them made by politicians and bureaucrats is another.”