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Final Version of Controversial Clean Water Rule Announced: Does EPA Have Jurisdiction Over Your Ditch?

Dirtroad

Torrence_Allison_COLORBy Allison A. Torrence

 

On May 29, 2015, the Obama administration released the final version of its highly controversial Clean Water Rule. President Obama declared that the new rule “will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable.” Republicans do not agree with the President’s sentiment, as was quickly made clear by House Speaker John Boehner, who sees the Clean Water Rule as “a raw and tyrannical power grab that will crush jobs.”

The main point of the Clean Water Rule is to define the scope of waters protected under the Clean Water Act (CWA). If a water is protected under the CWA, any person who discharges pollutants into that water needs a CWA permit. Likewise, operations that would dredge or fill a water under CWA jurisdiction also need permits.

The CWA limits its jurisdiction to “navigable waters”, which are defined obliquely as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1361(7).  The Supreme Court has been called on over the years to help interpret what Congress intended to include as “waters of the United States”, most recently in Rapanos v. United States, 547 U.S. 715 (2006). The Supreme Court struggled with this definition, evidenced by the plurality opinion in Rapanos, but what has emerged from that struggle were two clear points: (1) waters of the United States includes some waters that are not navigable in fact; and (2) non-navigable waters must have a “significant nexus” to traditional navigable waters to be covered under the CWA authority. EPA and the Army Corps of Engineers have promulgated the Clean Water Rule in order to clarify these jurisdictional rules.

Under the new Clean Water Rule, the term ‘‘waters of the United States’’ now includes the following waters:

  1. Traditional navigable waters;
  2. Interstate waters;
  3. The territorial seas;
  4. Impoundments of jurisdictional waters;
  5. Tributaries;
  6. Waters adjacent to traditional navigable waters, interstate waters, or the territorial seas; and
  7. Other waters found after a case-specific analysis to have a significant nexus to traditional waters, interstate waters, or the territorial seas.

The first four categories have previously been identified as jurisdictional waters under the CWA rules. Tributaries and adjacent waters were not defined in the previous rules, but were often categorized as jurisdictional waters on a case-by-case basis under the standards set out by the Supreme Court. Now, the rule defines tributaries as waters that (1) are shown to have physical indicators of flow – bed and banks, and an ordinary high water mark – and (2) contribute flow directly or indirectly to a traditional navigable water, interstate water, or the territorial seas. This definition includes ditches that are constructed in tributaries or are relocated tributaries or, in certain circumstances drain wetlands. The rule explicitly excludes other categories of ditches, including ditches that flow only after precipitation (thus the drainage ditch in your front yard is likely not a water of the United States under the CWA).

Adjacent waters are defined as waters bordering, contiguous, or neighboring traditional navigable waters, interstate waters, or the territorial seas. Adjacent waters can include wetlands, ponds, lakes, oxbows, or impoundments, depending on how close they are to other navigable waters, but do not include waters subject to established normal farming, silviculture, or ranching activities.

Finally, EPA has identified five specific types of waters that are subject to a significant nexus analysis on a case-specific basis: (1) prairie potholes, (2) Carolina and Delmarva bays, (3) pocosins, (4) western vernal pools in California, and (5) Texas coastal prairie wetlands. Such waters will be analyzed on a case-specific basis to determine whether they have a significant nexus to traditional navigable waters, interstate waters, or territorial seas, and would therefore be subject to CWA jurisdiction.

The Obama administration claims that the Clean Water Rule only protects the types of waters that have historically been covered by the CWA and simply clarifies that jurisdiction. Others, like Congressional Republicans, disagree. House Republicans introduced a bill on April 13, 2015, H.R. 1732, aimed at stopping EPA from finalizing the Clean Water Rule. They object to the Clean Water Rule because they believe EPA is exerting jurisdiction over waters on private property that were previously “off-limits to federal regulation”. H.R. 1732 is now moot, but House Republicans may continue efforts to legislatively amend the actions taken by EPA. In addition, lawsuits from industry will almost certainly be filed to challenge EPA’s authority to promulgate these rules.

More information about the Clean Water Rule, and the full text of the rule, can be found at EPA’s website.