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How Would You Define "Water"?

April 3, 2014

Overview

Who knew "water" would be so hard to define? The definition of "water of the United States" is controversial because it limits the authority of powerful federal agencies like the United States Environmental Protection Agency ("EPA") and U.S. Army Corps of Engineers ("Corps"). Federal agencies often assert Clean Water Act authority to regulate land that is almost always dry or is miles away from a stream of any size. Federal permits can be exceedingly complex and expensive to obtain, and there is little consistency in how these permits are implemented. For instance, requirements for applicants in one state are often more stringent than those of an adjacent state because Corps staff in different offices have different interpretations of how to implement the Clean Water Act.

The U.S. Supreme Court ‎had the opportunity to clarify the situation in 2006, but the plurality decision the Court issued in the Rapanos case did little to clarify the scope of these agencies' jurisdiction for property owners, ranchers, farmers, and others who make, build, or grow things on the land. Five justices agreed that the wetlands at issue in Rapanos were not "waters of the United States," but they could not agree as to why that was the case, and the multiple opinions the Court issued contain somewhat conflicting standards for how "waters of the United States" should be defined.

On March 25, 2014, the EPA and the Corps released notice of a proposed rule establishing a new definition of "waters of the United States" on which to base regulatory programs of those agencies and others. In the coming weeks, the rule will be published formally in the Federal Register and begin a 90-day comment period. The agencies will then evaluate the comments and issue a final rule.

The significance of the proposed rule cannot be overstated. The proposed rule is heralded for providing greater certainty than the current approaches but, depending on one's point of view, certainty has come with much too high a price. Whether this process ends up in court or Congress, or both, several more years of debate and uncertainty lie before us.

The opposing positions are strongly held. The following sections are opposing views of the proposed rule, a "con" and a "pro," designed to help illustrate the debate of these important issues.

" This Land Was Made for EPA"

As written by Congress, the Clean Water Act regulates only the "navigable" waters of the United States. Traditionally, a "navigable" water was large enough to float a boat used in commerce. Since the adoption of the Clean Water Act in 1972, the EPA and Corps have used their regulatory powers to expand the definition of "navigable" far beyond any traditional concept of navigation. Many of the "waters" these agencies seek to regulate are not "waters" at all, but merely land that is sometimes saturated with water.

The U.S. Supreme Court has attempted to rein in these agencies in a series of decisions culminating in the Rapanos decision in 2006. In Rapanos, the Court noted that these agencies had, over the years, attempted to expand their jurisdiction to "any plot of land" containing a drainage "channel or conduit – whether man-made or natural, broad or narrow, permanent or ephemeral – through which rainwater or drainage may occasionally or intermittently flow." Congress has not authorized the EPA or Corps to undertake such an "immense" expansion of their jurisdiction.

The Rapanos case involved "four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters," located some 11 to 20 miles away. For filling these wetlands without a federal permit, "John Rapanos faced 63 months in prison and hundreds of thousands of dollars in criminal and civil fines." The court also noted that the "average applicant for an individual permit spends 788 days and $271,596 in completing the process," not counting the cost of mitigating for the loss of the wetlands. Over $1.7 billion is spent each year in the process of obtaining federal wetland permits in the U.S.

The Court ultimately ruled in favor of Mr. Rapanos, holding that "the Corps has stretched the term ‘waters of the United States' beyond parody. The plain language of the statute simply does not authorize this 'Land is Waters' approach to federal jurisdiction."

Over the last eight years since the Rapanos decision, Congress has refrained from stepping in to expand these agencies' jurisdiction through an amendment to the Clean Water Act. The draft rule being proposed by the EPA and the Corps again asserts the "Land is Waters" approach rejected by the Supreme Court, seeking to reverse Rapanos and expand these agencies' jurisdiction, not through legislation, but through the agency rulemaking process.

On the same day the draft rule was released, EPA Administrator, Gina McCarthy, published a feel good op-ed entitled "Clearer Protections for Clean Water" that reads somewhat like she borrowed the lyrics from Woody Guthrie's classic "This Land Is Your Land" and substituted the term "waters" for "land."

Her words tug at the heartstrings as she describes "fond memories of playing at our neighborhood pond." In describing the Clean Water Act, she states: "The law didn't just defend the mighty Mississippi or our Great Lakes; it also protected the smaller streams and wetlands that weave together a vast, interconnected system." Clean water is no doubt important, and water does flow downhill picking up traces of the substances it comes in contact with along the way. However, expansion of these agencies' jurisdiction beyond the terms of the Clean Water Act should not come without legislative amendment to the Act itself and the national debate that accompanies any major piece of federal legislation.

The EPA protests too much that the draft rule does not expand these agencies' jurisdiction. As the Supreme Court discussed in Rapanos, these agencies have a long history of pushing the envelope of their jurisdiction "beyond parody." Those same words, "beyond parody," aptly describe the EPA's latest attempts to assure the public that the draft rule does nothing more than clarify prior confusion about which waters are protected and "will not add to or expand the scope of waters historically protected under the Clean Water Act."

Contrary to the protestations of the EPA, the draft rule seeks to expand the jurisdiction of the EPA and the Corps beyond what was allowed by the Court in Rapanos. The rule makes an attempt at clarity with a few bright-line exclusions for things like waste treatment facilities and certain ditches that do not drain into other waters or that are excavated wholly in uplands, drain only uplands, and do not flow year round. Certain water features, such as holes created during construction activities, artificial ponds used to water livestock, swimming pools, and small ornamental waters are also excluded, but only if they are created wholly out of dry land.

However, outside of these narrow categories of exclusions, navigable "waters of the United States" is defined so broadly in the draft rule as to include any water or wetland located in the same region as a "navigable" water that has a "significant nexus" to a "navigable" water.

The use of the "significant nexus" test was suggested by Justice Kennedy in his concurring opinion in the Rapanos case. According to the EPA, the "proposed rule is consistent with the more narrow readings of Clean Water Act protection by the Supreme Court." However, the more narrow reading would be the opinion of the four-justice plurality, not the more expansive test suggested by Justice Kennedy. The proposed rule is not narrow at all.

The term "significant nexus" is not a scientific term but a legal term, defined in the draft rule with broad sweeping language to include any connection to a "navigable" water that is "more than speculative or insubstantial." The draft rule also adds several malleable definitions for terms such as "neighboring," "riparian area," "floodplain," and "tributary." Moreover, the draft rule requires a discretionary case-by-case analysis of whether any particular "water" falls within EPA and Corps jurisdiction. So, there is no clarity whatsoever outside of the very few, narrow exclusions.

When the draft rule is viewed through the lens of Rapanos, the very same four Michigan wetlands that the Court held were not "waters of the United States" would seem to fall within these agencies' jurisdiction under the new proposed "significant nexus" test. Despite the Court's rejection of the "Land is Waters" approach to Clean Water Act jurisdiction, the EPA and the Corps have drafted a rule seeking to expand their jurisdiction to just about any land that has more than a speculative connection to a navigable water.

" It's About the Water"

Water is life. Clean water is essential to healthy communities and thriving commerce. No one challenges the comment made in support of the proposed Clean Water Act rule that "ensuring protection of water bodies upstream is vital to keeping pollution out of our waters downstream." It has been said that about 60 percent of U.S. rivers and streams are in poor condition.

The proposed rule will provide certainty and clarity that will allow for planning and progress. The new rule advances ecological conservation efforts. Importantly, the rule is built on peer-reviewed science on the connectivity of surface waters.

In its simplest terms, the new rule will define "waters of the United States" with improved clarity. Currently, the U.S. Supreme Court decisions have put EPA and Corps processes into a "case-by-case" mode. Uncertainty is the prevailing "rule" today. In 2011, the EPA initiated a process to develop guidance to help determine what is a jurisdictional water body. Thankfully, that process was dropped. The use of "guidance" to regulate important matters is an anathema to effective and efficient operations of all kinds. Guidance is as uncertain as the weather on a spring day. If your situation meets the guidance, the regulatory agency need only say that it's only guidance, and the agency can still require something different. If the guidance does not readily apply to your situation, the inapplicability of the guidance is used as the excuse against the agency using good judgment; an excuse for why you cannot do what you seek to do. A publicly adopted rule, developed in processes honed in almost a half-century of agency practice and jurisprudence, is an improvement.

Additionally, the rule leaves alive the "case-by-case" approach for unique bodies of water that do fall outside the proposed basic definition of "waters of the U.S." The standards proposed for the case-by-case approach can provide additional process improvement.

Conservation efforts are supported by the rule. As the Secretary of Agriculture, Tom Vilsack, has said, it is a "good rule" for agriculture. The rule continues a broad series of exemptions. A list of 56 conservation practices are protected in the rule. No notice to any agency nor permits are required to implement these positive conservation practices. Activities necessary for the productive use of land in support of ranching and agriculture, such as ditch maintenance, remain protected in the rule.

The proposed rule is supported by peer-reviewed science. The EPA developed a Science Advisory Board ("SAB") with members from a broad range of backgrounds and interests. The SAB studied the connectivity of streams and wetlands to downstream water. As illustrated in an exhibit to the draft report, there is a meaningful connection between upstream and downstream waters. The science recognizes the connection between various water bodies that anyone who has walked around or worked on the land recognizes. The SAB's draft report was published in September 2013 and was the subject of a multi-day public meeting in December 2013. The EPA has committed that the SAB's report will be made final along with the final proposed rule.

The rule provides a framework on which plans can be executed and agencies can be held accountable. The majority of America's streams and water bodies have been in a purgatory of debatable protection in the past decade. The new rule presents a toe-hold of certainty in a long journey that remains fraught with conflict and challenge.

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