EPA, Corps Release Proposed Guidance To Clarify Clean Water Act Jurisdiction

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The Environmental Protection Agency and the U.S. Army Corps of Engineers released proposed Clean Water Act guidance April 27 that the agencies said would extend protection to more waters than under current policy.

EPA Administrator Lisa Jackson said the proposed guidance would provide “consistency and reliability” in determining where the Clean Water Act applies nationwide, and it will be “instrumental in protecting waters of the United States.”

The net effect is that more waterways will be protected, she said. “The goal is to protect water quality. The goal is to move us toward removing the underprotection we have right now.”

The proposed guidance will apply to all Clean Water Act programs, including those dealing with discharge permits, oil spill prevention and response, certification, and wetlands.

During a telephone news conference, Jackson said the guidance, which will be open for a 60-day comment period following publication in the Federal Register, “will help restore protection” to the nation's waters.

She said EPA and the Corps of Engineers will follow up the guidance by developing a rule and will consider comments received on the proposed guidance in drafting it, but she declined to give a rulemaking timeline.

The proposed guidance was released as part of a broader national clean water framework released by the administration April 27 that calls for several steps to safeguard U.S. waters. In addition to a provision to update U.S. water policies, which includes the proposed guidance, the framework calls for efforts to promote innovative partnerships; improve communities and economies; pursue new ways to reduce contaminants in drinking water; and support science and research to improve water programs and to identify emerging pollution problems.

Improvement on Previous Guidance.

Unlike previous guidance issued by EPA and the corps, Jackson said the proposed guidance has been “transparently developed” and is available for public comment. Previous guidance issued in 2003 and 2008, which attempted to clarify U.S. Supreme Court rulings, resulted in a narrowing of the definition of waters of the United States considered to be under Clean Water Act jurisdiction, she said.

Current guidance “underprotects our waters,” Jackson said. “We now have years of working under that guidance, and we think we can make it better.”

EPA said the proposed guidance will reaffirm protections for small streams that feed into larger streams, rivers, bays, and coastal waters. It also will reaffirm protection for wetlands that filter pollution and help protect communities from flooding.

EPA also released a cost-benefit analysis that determined the proposed guidance will yield nearly twice as much in benefits as it will cost affected industries. (See related article in this issue.)

'Significant Nexus' to Be Addressed.

In attempting to provide clarity on what waters and wetlands are protected under the Clean Water Act, Jackson said the guidance will address what constitutes “a significant nexus to navigable waters.” A navigable water cannot be protected if all tributaries to that waterway are unprotected because water flows downhill, she said. The biology of the waterway must be considered , as well as its connection between upstream and downstream navigable waters.

EPA said the proposed guidance would implement the U.S. Supreme Court's decisions on Clean Water Act jurisdiction in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. United States.

In SWANCC, the court addressed the question of Clean Water Act jurisdiction over isolated ponds, and concluded that jurisdiction could not be based solely on the presence of migratory birds (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159, 51 ERC 1838 (2001)).

In Rapanos, the court addressed the question of Clean Water Act protections for wetlands adjacent to tributaries, but failed to issue a single opinion commanding a majority of the court (Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (2006); 37 ER 1327, 6/23/06).

Justice Anthony Kennedy concluded that “waters of the United States” included wetlands that had a significant nexus to traditional navigable waters “if the wetlands, either 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.' ”

Expanded Federal Jurisdiction.

“The agencies expect, based on relevant science and recent field experience, that under the understandings stated in this draft guidance, the extent of waters over which the agencies assert jurisdiction under the CWA will increase compared to the extent of waters over which jurisdiction has been asserted under existing guidance, though certainly not to the full extent that it was typically asserted prior to the Supreme Court decisions in SWANCC and Rapanos,” the proposed guidance said.

“At the same time, we recognize that for other waters that are geographically separated from jurisdictional tributaries, establishing a significant nexus may be more challenging. Thus, at this time, we are not providing specific guidance on making such determinations and are instead directing agency field staff to continue the current practice of referring determinations for non-physically proximate other waters to their respective Headquarters and obtaining formal project-specific approval before asserting or denying jurisdiction,” it continued.

“Because such waters may be widely scattered geographically, and physically remote from jurisdictional waters, field staff should generally conduct significant nexus analyses for such waters individually, unless there is a compelling scientific basis for treating a group of such waters as similarly situated waters in the same region.”

All Clean Water Act Programs Affected.

The guidance will apply to all Clean Water Act programs, including Section 303 water quality standards, Section 311 oil spill prevention and response, Section 401 water quality certification, Section 402 National Pollutant Discharge Elimination System permits, and Section 404 permits for discharges of dredged or fill material.

Under the proposal, the following waters are protected by the Clean Water Act: traditional navigable waters; interstate waters; wetlands adjacent to either traditional navigable waters or interstate waters; non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally; and wetlands that directly abut relatively permanent waters.

In addition, the following waters are protected by the Clean Water Act if a fact-specific analysis determines they have a “significant nexus” to a traditional navigable water or interstate water: tributaries to traditional navigable waters or interstate waters; wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters; and waters that fall under the “other waters” category of the regulations.

The proposed guidance divides these waters into two categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be evaluated.

Determinations will be made on a case-by-case basis and will involve both corps and state staff to accurately make that determination, Jackson said. They will take into account habitat for fish and wildlife, water pollution, and reducing impacts on wetlands, which “are meant to be nature's sponge.”

Guidance to Provide Clarity.

Jackson said the agencies believe “there is a lot of uncertainty out there that this guidance can clarify.” For example, one question is whether prairie potholes--shallow wetlands that are primarily freshwater marshes found most often in the upper Midwest--will meet the significant nexus test for determining jurisdiction. They will not, she said.

Agriculture Secretary Tom Vilsack said the guidance is consistent with the needs of farmers as it exempts prior converted farmland from Clean Water Act jurisdiction.

Jo-Ellen Darcy, assistant secretary of the Army for civil works, said the proposed guidance will provide needed clarity and protect the nation's waters. “We worked very closely with EPA. It's going to do what it is meant to do,” she said.

Ben Grumbles, president of the Clean Water America Alliance and former EPA assistant administrator for water, said in a statement: “All wetlands and waters, including washes and tribulets, have value, but not all are protected under the federal Clean Water Act. The key is finding the right balance between federal and local and between regulation and cooperation. The new guidance, like the last, is striving for that balance, trying to thread a legal needle without poking a political eye.”

Grumbles said, however, that “continuing stopgap guidances will ultimately fall short, particularly in times of partisan warfare. We need a more durable, bipartisan legislative solution that keeps America on track toward gaining wetlands and improving watershed health through stewardship and cooperation.”

'More Protective Than Current Policy.'

Environmental groups praised EPA's proposed guidance. Industry groups and several congressional Republicans have opposed it.

The proposed guidance is very similar to the proposal EPA sent to the White House Office of Management and Budget for review in December, with one exception, Ed Hopkins, director of the Sierra Club's environmental quality program, told BNA. The earlier draft differs from the proposed guidance in addressing so-called isolated waters, he said. Under the earlier version, he said, “it would have been an easier matter to include isolated waters [under the Clean Water Act] more broadly.”

“It will now be more challenging to include these isolated waters if there is not a traditional navigable water or a tributary close by,” he said.

The Natural Resources Defense Council also praised the proposal, calling it “an important step” to further ensure the nation's waterways are kept clean. For more than a decade, NRDC said in a statement, many of these waters have been “in legal limbo,” including waters that help supply drinking water.

Jon Devine, NRDC senior attorney, told BNA the proposal, while consistent with Supreme Court decisions, “is certainly more protective than current policy.”

Unlike the draft document sent to OMB, which was leaked to the public, Devine said the proposal would treat those isolated waters that are not next to each other individually rather than collectively.

Rulemaking Called Important.

“What's important is the agency has said it will work on a rulemaking to solidify the guidance,” he said. “In that context EPA will be able to develop a scientific record for protecting these resources and show they are similar enough to be considered in the aggregate. We're pleased.”

Jan Goldman-Carter, an attorney with the National Wildlife Federation, also praised the proposed guidance and said she expects EPA could begin working on developing a rule simultaneously as it considers comments on the proposed guidance.

She told BNA, “The only place where we have identified a substantive change from the leaked guidance is the agencies' policy decision to be particularly cautious in the context of this proposed guidance with respect to aggregating geographically remote waters for purposes of finding significant nexus and therefore Clean Water Act jurisdiction.”

The proposed guidance takes a moderate approach that falls within the limits of the Supreme Court decisions, the National Wildlife Federation and other conservation groups said. For example, it generally excludes roadside ditches, gullies or small washes from coverage under the Clean Water Act and does not apply to ponds and other ornamental bodies of water constructed by excavating dry land. Moreover, the proposed guidance does not affect any of the existing exemptions in the Clean Water Act for a wide range of farming and forestry activities, including plowing, cultivating and seeding and the construction and maintenance of stock ponds and logging roads, they said.

'More Faithful' Reading of Kennedy.

“This guidance reflects a more faithful reading of Justice Kennedy's pivotal 'significant nexus' test for jurisdiction and places clean water programs on more solid legal and scientific footing,” said Goldman-Carter. “There is also widespread agreement that a rulemaking is needed to further clarify and restore protections that existed prior to the SWANCC decision for our nation's wetlands, streams and other waters.”

Industry groups that opposed the earlier draft version of the proposal said it would expand federal Clean Water Act jurisdiction and would be burdensome and costly for landowners.

“We think the agency has kicked the can down the road,” Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation, told BNA. “It's very troubling. The guidance didn't exclude anything. It significantly broadens the Clean Water Act. It provides the agency with a road map that allows it to claim jurisdiction over virtually anything they want to claim jurisdiction over. It includes a menu of options for staff to employ to support a jurisdictional determination.”

The proposed guidance “does not exclude ornamental ponds, swimming pools, and ditches,” he said. Moreover, although Jackson said prairie potholes would not meet the significant nexus test, Parrish said there is nothing in the guidance that specifically mentions the exclusion.

The National Association of Home Builders also objected to the new proposal. Bob Nielsen, chairman of the association, said in a statement: “Extending federal jurisdiction regarding waters of the U.S. increases the regulatory burden and raises the cost of new homes without providing a demonstrated benefit to the environment. In addition, it results in 'jurisdiction by default,' rather than requiring that the agencies demonstrate why a piece of property belongs under their jurisdiction.”

House Transportation to Hold Hearings.

Republican leaders on the House Transportation and Infrastructure Committee expressed disappointment. Rep. John Mica (R-Fla.), Bob Gibbs (R-Ohio) and 168 other House Republicans and Democrats recently wrote to EPA and the Corps of Engineers to express their concerns that the agencies are circumventing the proper regulatory process in order to push through an expansion of federal jurisdiction (42 ER 872, 4/22/11).

In a statement responding to the proposed guidance April 27, Mica, the committee chairman, said “the Administration is clearly attempting to redefine wetlands, expand the federal government's authority over states and private individuals, and enact its economically stifling agenda.”

Gibbs said he will hold hearings on the issue and work with Mica to call more attention “to the EPA's practice of circumventing the regulatory process by imposing costly, burdensome de facto rules disguised as mere advisory guidelines so that this blatant disregard for Congressional intent will be put to an end.”

But Sen. Barbara Boxer (D-Calif.), chairman of the Senate Environment and Public Works Committee, called the proposed guidance “an important step today toward restoring environmental safeguards.”

“This guidance reaffirms certain Clean Water Act protections for America's rivers, streams, and wetlands, and it will help keep our waterways and drinking water sources safe for children and families for decades to come,” Boxer said in a statement.

By Linda Roeder

The proposed guidance is available at http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf.

The administration's clean water framework is available at http://www.whitehouse.gov/sites/default/files/microsites/ceq/Clean%20Water%20Framework.pdf.