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Proposed EPA, Corps Rule Clarifies Federal Jurisdiction Over Waters, Wetlands

Wednesday, March 26, 2014

By Amena H. Saiyid  

March 25 --All natural and artificial tributaries and wetlands that are adjacent to or near larger downstream waters would be subject to federal Clean Water Act protections under a joint proposed rule announced by the Environmental Protection Agency and the U.S. Army Corps of Engineers March 25.

The proposal also would allow the EPA and corps to seek comment on a case-by-case basis on whether the aggregate effect of geographically isolated wetlands and other waters that “significantly” affect the physical, biological and chemical integrity of federally protected downstream waters are jurisdictional.

The agencies also included an interpretive rule, immediately effective, that clarifies that the 53 specific conservation practices identified by the Agriculture Department's Natural Resources Conservation Service to protect or improve water quality won't be subject to dredge-and-fill permits under Section 404 of the Clean Water Act.

The rulemaking is significant because it would seek to clarify the definition of which waters or wetlands are considered “waters of the U.S.” under the Clean Water Act, and therefore within U.S. regulatory jurisdiction, triggering federal requirements, such as permitting, state water quality certification and oil spill response.

EPA Administrator Gina McCarthy signed off on the proposed rule March 25, and Jo-Ellen Darcy, assistant secretary of the Army for civil works, signed off on it March 24. Comments will be accepted on the proposed rule for 90 days following publication in the Federal Register.

According to McCarthy, the proposed rule will reduce the confusion and complexity about where the Clean Water Act applies following U.S. Supreme Court decisions in Solid Waste Agency of N. Cook Cnty. (SWANCC) v. U.S. Army Corps of Eng'rs., 531 U.S. 159, 51 ERC 1833 (2001), and Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (2006).

“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” McCarthy in a statement accompanying the proposed rule's release.

Darcy said, “Today's rulemaking will better protect our aquatic resources, by strengthening the consistency, predictability, and transparency of our jurisdictional determinations.”

The agencies said the proposed rule would not subject “any entities of any size to any specific regulatory burden.” Rather, it is designed to clarify the statutory scope of “the waters of the United States, including the territorial seas,” consistent with Supreme Court precedent.

Proposed Rule Would Address Loopholes

During a March 25 teleconference call, McCarthy pointed out that an Environmental Law Institute study showed that 36 states have legal limitations that prevent the agency from covering waters not covered by the Clean Water Act. She said this proposed rule would cover those regulatory loopholes.

Emphasizing the need to protect 60 percent of streams that flow “seasonally” and provide drinking water to 117 million people, McCarthy said, “From farming to manufacturing to recreation to energy production, you name it--these streams and wetlands protect the economy,” she said.

McCarthy said the proposed rule wouldn't cover groundwater, tile drainage, maintenance and construction of irrigation ditches, agricultural stormwater discharges, silvicultural activities that involve logging and construction of temporary roads.

The EPA and the U.S. Army Corps of Engineers jointly sent a draft rule to the White House Office of Management and Budget in September 2013 for interagency review. The rule proposed by the agencies doesn't differ drastically from the draft rule, which was leaked in November 2013.

New Definitions Proposed

More significantly, the proposed rule would revise the existing definition of “waters of the United States” that now include a new regulatory definition for tributaries. The EPA and the corps proposed that only those waters meeting the regulatory definitions would be subject to Clean Water Act protections.

The proposed rule, as in the draft rule, also would define the terms “significant nexus,” “neighboring” waters, floodplains, riparian areas and wetlands.

The proposed rule would expand the definition of a tributary of an interstate river, territorial seas and navigable waters. Right now, it is defined as having a bed, a channel and an ordinary high water mark.

Under the proposed rule, the definition would include tributaries that run through wetlands and bridges, culverts and dams without losing their characteristics. Tributaries would include lakes, streams, canals and ditches, excluding those ditches that don't contribute flow or have an ephemeral flow or are found in uplands.

In a change from the draft rule, the rule would define tributaries to impoundments of interstate waters, territorial seas or navigable waters to be jurisdictional.

Test Set by Supreme Court

The so-called significant nexus test was articulated by Supreme Court Justice Anthony Kennedy in Rapanos v. United States. The purpose of Kennedy's test was to identify which waters fell under the Clean Water Act jurisdiction based on a significant nexus between the water in question and downstream navigable waters and wetlands.

The agencies have asked the public to comment on how it should go about evaluating, on a case-by-case basis, “other waters” that include prairie potholes, playa lakes, mudflats and sandflats that “alone or in combination with similarly situated waters, including wetlands” have a significant nexus to traditional navigable waters, interstate waters or the territorial seas.

Environmental groups, including Earthjustice and the National Wildlife Federation, were mostly effusive in their praise for the proposed rule.

“By protecting the streams that feed into mighty rivers like the Mississippi and the wetlands that filter pollution from the Puget Sound and other iconic waters, this rule is a safety net for all the waterways Americans care about,” Margie Alt, executive director of Environment America, said.

Peter Lehner, executive director for the Natural Resources Defense Council, cautioned against the rule's naysayers, urging the public to support the rule.

Chandler Goule, vice president for the National Farmers Union, was pleased that the rule clarified Clean Water Act jurisdiction, maintained existing agricultural exemptions and added new exemptions.

Farm Bureau Federation Displeased

Unlike Goule, Don Parrish, federal regulatory relations director for the American Farm Bureau Federation, maintained the group's opposition to the proposed rule, saying it would expand federal regulatory overreach over the nation's waters.

Parrish questioned the exemptions that the rule immediately grants for conservation practices, saying they already were exempt from permitting requirements under the Clean Water Act.

Patrick Parenteau, a Vermont Law School professor specializing in environmental issues, asked whether the EPA “couldn't have done more” in asserting jurisdiction over geographically isolated wetlands, such as prairie potholes in the Upper Midwest and Carolina Bays in the southeastern U.S. that play important roles in filtering pollutants and providing habitat for wildlife.

Overall, Parenteau said the proposed rule was an improvement over what existed before.

“The fact it is a rule, not simply a guidance, gives it additional formality,” Parenteau said. “It has more the status of law now. I think it may undergo further changes during notice and comment. I would say EPA is moving in the right direction to clarify that something that is extraordinarily complicated, but it's an improvement.”

Positive Economic Impacts Expected

In a teleconference call, both Chris Wood, president of Trout Unlimited, and Whit Fosburg, president and chief executive officer of the Theodore Roosevelt Conservation Partnership, highlighted the positive economic impact of protecting headwaters that serve as habitat for fish and wildlife. Representing anglers, Wood said the direct economic benefit to the nation from protecting headwaters is estimated at $87 billion each year.

Benjamin Grumbles, the president of the nonprofit U.S. Water Alliance, was more circumspect in his reading of the proposed rule, saying, “It's a respectable jump shot, but hardly a slam dunk.”

Democratic lawmakers say the cost of inaction would be higher. Republican lawmakers remained opposed to the rulemaking (see related story).

Sen. David Vitter (R-La.), the ranking member on the Environment and Public Works Committee, led five Republican senators in circulating a letter March 5 urging a “no” vote on President Obama's nominee to serve as assistant administrator for water at the EPA, a bid to stop the agency from moving forward with the Clean Water Act jurisdiction rulemaking .

Comments identified by Docket ID No. EPA-HQ-OW-2011-0880 should be submitted to http://www.regulations.gov.

 

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com


The EPA pre-publication proposed rule on waters of the U.S. is available at http://www2.epa.gov/sites/production/files/2014-03/documents/wus_proposed_rule_20140325_prepublication.pdf.

For more information about the rule, contact Downa Downing, in the EPA Office of Water, at CWAwaters@epa.gov or 202-566-2428, or Stacy Jensen, in Regulatory Community of Practice at the Corps, at USACE_CWA_Rule@usace.army.mil or 202-761-5856.

For information on the Bloomberg BNA March 27 webinar on the Clean Water Act jurisdiction rule, see http://www.bna.com/clean-water-act-w17179882461/.

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