May 01, 2014

“Waters of the United States” - Myths and Facts Surrounding the New Proposed Rule from EPA and the Army Corps of Engineers

On April 21, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published a proposed rulemaking to clarify the jurisdictional reach of the protections afforded by the Clean Water Act of 1972.  The Clean Water Act is the foundation of our nation’s effort to restore and maintain the biological, chemical, and physical integrity of our water resources.  While the jurisdictional reach of the Act was well defined and well understood for nearly forty years, two Supreme Court cases in the early 2000s (SWANCC v. U.S. Army Corps of Engineers and Rapanos v. United States) created confusion and added complexity to the determination of which streams and which wetlands were subject to Clean Water Act protection.  The proposed rulemaking responds to the need, articulated by the regulated community and others, to provide clarity amidst the uncertainty generated by the cases.  It also provides clear protection to our nation’s waters and wetlands, including many headwaters, adjacent wetlands, and seasonal streams the protection of which was thrown into some degree of confusion by the cases. 

The proposal is consistent with the Supreme Court’s reading of jurisdiction under the Clean Water Act.  It is based on sound science and is carefully crafted to further the intent of Congress in enacting the Clean Water Act as interpreted by the Supreme Court.  In fact, it does not expand upon the scope of the waters that have historically been protected under the Clean Water Act.

The agencies propose to define waters of the United States to mean: all waters that were, are, or may be susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide; all interstate waters, including interstate wetlands; the territorial seas; and impoundments of waters otherwise defined as waters of the United States.  It also includes all tributaries to traditional navigable waters, interstate waters, the territorial seas, or impoundments of waters otherwise defined as waters of the United States, and all waters, including wetlands, which are adjacent to traditionally navigable waters, interstate waters, the territorial seas, and tributaries and impoundments as defined above.  Finally, it includes, on a case-by-case basis, other waters, including wetlands, which have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas. 

A number of waters are specifically excluded from the definition.  No changes, for example, are proposed for prior converted cropland or for waste treatment systems that are designed to meet the requirements of the Act, neither of which have ever been included in the definition.  In addition, the agencies are proposing to exclude by regulation many waters and features over which the agencies as a matter of policy have not asserted jurisdiction.  These waters and features include: artificially irrigated areas that would revert to upland if irrigation ceased; water-filled depressions created incidental to construction activity; gullies and rills and non-wetland swales; groundwater; and ditches that do not contribute flow to a traditional navigable water, interstate water, the territorial seas, or impoundment. 

Furthermore, the proposal does not affect the provisions in the Clean Water Act that exclude agricultural stormwater discharges and return flows from irrigated agriculture from regulation as point sources of water pollution. 

Despite the fact that the proposal is consistent with the nation’s historic approach to the control of water pollution, a number of special interests have denounced it, spreading misinformation and contending that the proposal is unprecedented in terms of its scope.

In an effort to dispel some of these misconceptions, listed below are a number of myths and corresponding facts concerning the proposal to refine and clarify the definition of waters of the United States. 


According to a blog posted on the law firm of Holland & Knight's website, “the proposed rule would effectively expand the reach of [Clean Water Act] jurisdiction by finding that all ‘tributaries’ and ‘adjacent waters including wetlands’ have a significant nexus and therefore are categorically included as jurisdictional.”


It is true that the agencies conclude in the proposal that a significant nexus exists between tributaries and traditional navigable waters, interstate waters, and the territorial seas into which they flow and between adjacent water bodies including wetlands and traditional navigable waters, interstate waters, and the territorial seas.  This conclusion is based on overwhelming scientific data that demonstrate that upland streams, individually and collectively, have a strong impact on the quality and functioning of downstream waters.  As the agencies wrote:

All tributary streams, including perennial, intermittent, and ephemeral streams, are chemically, physically, and biologically connected to downstream rivers . . . . Headwater streams . . . are the most abundant stream-type in most river networks, and supply most of the water in rivers.  In addition to water, streams supply sediment, wood, organic matter, nutrients, chemical contaminants and many of the organisms found in rivers.  Streams are biologically connected to downstream waters by the dispersal and migration of aquatic and semi-aquatic organisms, including fish, amphibians, plants, microorganisms, and invertebrates, that use both up- and downstream habitats during one or more stages of their life cycles, or provide food resources to downstream communities.

Wetlands . . . provide nursery habitat for breeding fish, colonization opportunities for stream invertebrates, and maturation habitat for stream insects.  Moreover, wetlands in this landscape setting serve an important role in the integrity of downstream waters because they also act as sinks by retaining floodwaters, sediments, nutrients, and contaminants that could otherwise impact the condition or function of downstream waters.

In short, headwater streams and adjacent wetlands are connected, not too surprisingly, to the larger bodies of water into which they flow physically, chemically, and biologically.  They are holistic, interconnected systems.  One cannot protect traditional navigable waters or interstate waters without protecting the systems that provide their water.  That is what Justice Kennedy meant by a significant nexus in his concurring opinion in Rapanos.

The proposal, therefore, does not expand the jurisdictional reach of the Clean Water Act.  It rather helps to ensure that it is effectively and efficiently implemented according to congressional intent.  Instead of having to make thousands of case-by-case jurisdictional decisions involving headwaters and their adjacent wetlands, the agencies have streamlined the process based upon sound science and the law.  It does not broaden the application of the Act; it simply curtails delay, saves money, and creates more certainty.  Most importantly, it furthers the overarching objective of the Clean Water Act which was to create swimmable and fishable waters.


According to the American Farm Bureau Federation, the new definition could mean that “ordinary fieldwork, fence construction or even planting could require a federal permit.” 


Prior converted cropland is specifically excluded from the definition of “waters of the United States” and thus is not subject to regulation or a permit requirement under the Clean Water Act.  Of course, activities that discharge fill material in areas that are currently jurisdictional wetlands and not prior converted cropland may be subject to regulation under Section 404 of the Act, that is nothing new.  It has been the law since the mid-1970s.  However, the agencies have coordinated with the U.S. Department of Agriculture to develop an interpretive rule to ensure that nearly 60 conservation practices that protect or improve water quality will not be subject to the permitting requirements of Section 404. 


According to Congressman Jason Smith, the proposal “would require farmers to jump through needless regulatory hoops that would cause delays and reduced productivity.”


Stormwater runoff from agricultural fields which may contain fertilizers and pesticide residue as well as return flows from irrigated agriculture are not regulated under the Clean Water Act by virtue of a number of statutory exemptions and exclusions.  The proposed rulemaking does not affect those exemptions or exclusions in any way.    However, applications of pesticides made in or over, including near, waters of the United States in order to control pests are not exempt from regulation as a result of the 6th Circuit decision in National Cotton Council v. EPA


According to New York Farm Bureau President Dean Norton, the proposal “could be stretched to contain even puddles and shallow pools if they remain for as little as four days as they may be connected underground to larger waterways.”


If by “puddle” one means a relatively small, temporary pool of water that forms on uplands or pavement right after a rainstorm or snowmelt, then, as the agencies related, such puddles “obviously are not, and have never been thought to be waters of the United States subject to CWA jurisdiction.”   Prior converted farmland, moreover, is specifically excluded from the definition of “waters of the United States,” notwithstanding any other provision of the proposed regulation.


The blog posted on Holland & Knight's webstie contends that the “expansion of jurisdiction could lead to a great deal of uncertainty in areas like the arid West.”


Instead of creating great uncertainty in the West, the proposal will do the opposite.  It will create more transparency and clarify more precisely what the law is.  The great majority of tributaries are headwater streams even if they are intermittent or ephemeral as so many headwaters are in the West.  They are important for transporting water, sediments, organisms, as well as nutrients to downstream environments and are thus waters of the United States even if they flow but for a portion of the year.  Justice Kennedy recognized that in his Rapanos concurrence, and these waters have historically been protected under the Clean Water Act.  The proposal simply ends the confusion engendered by Justice Scalia’s plurality view in Rapanos that contended that intermittent or ephemeral tributaries cannot be waters of the United States.  This is important because approximately 60 percent of the stream miles in the United States only flow seasonally or following precipitation events.  Some 117 million people, one-third of the country’s population, get their drinking water from public systems that depend in part upon the water provided by such streams.  The protection of these waters, therefore, is vital to the health and well-being of the nation. 


Senator Pat Toomey and 14 other Senators have argued that the proposal will add “an additional layer of red tape to countless activities that are already sufficiently regulated by state and local governments.”


The proposed rulemaking merely codifies the historic scope of waters regulated under the Clean Water Act and does so in a manner consistent with both Supreme Court precedent and congressional intent.  Furthermore, over 66 percent of the states (36 in total) have legal limitations in place that constrain the authority of state environmental agencies to regulate waters that are not covered by the Clean Water Act.  These limitations on state authority are derived in many instances from state laws that either prohibit or limit the power of state agencies to adopt regulations that are more stringent than federal law.  In other cases, the limitations flow from state statutes that are designed to protect property rights and in most such instances call for compensation from the state or property impact assessments that act as a disincentive for any agency inclined to regulate in a way that would possibly affect property rights.  See Environmental Law Institute, State Constraints: State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope of the Federal Clean Water Act (May 2013).  Federal action, therefore, is necessary to fully and appropriately protect the “waters of the United States.”



William Andreen, CPR Member Scholar; Clarkson Professor of Law, University of Alabama School of Law. Bio.

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