Do the Clean Water Rules Matter?
For years, the question of whether intermittent streams, ditches, seasonally wet areas, and isolated waters should be regulated under the Clean Water Act has been decided on a case-by-case basis. The Clean Water Rules will change this—putting into black and white a broad definition of those waters that can be regulated by the U.S. Army Corps of Engineers ("Corps"), the Environmental Protection Agency ("EPA"), and states that implement water permitting programs under EPA oversight.
The Clean Water Act authorizes EPA (and states with EPA oversight) to require operators to adhere to water quality standards and authorizes the Corps to regulate fill activities in "waters of the United States." These waters were traditionally viewed to be navigable waters and waterways directly connected to navigable waters. Over time, the definition has expanded. The new Rules will be the most expansive definition of waters subject to federal regulation under the Clean Water Act to date.
The expansiveness of the Rules is based on a 331-page scientific report commonly referred to as the Connectivity Report. The Report has three major conclusions:
All tributary systems are connected (physically, chemically, or biologically) to downstream rivers, regardless of whether they are perennial, intermittent, or ephemeral streams.
Wetlands and waters in riparian areas and floodplains are connected (physically, chemically, or biologically) to downstream waters.
The (physical, chemical, or biological) connection between isolated wetlands and downstream waters should be determined on a case-by-case basis.
The Clean Water Rules therefore state that all tributaries characterized by a bed, bank, and ordinary high water mark and all waters bordering, contiguous to, or neighboring these tributaries will be regulated. The Rules exclude certain waters, such as isolated ditches and artificial ponds in uplands, but the exclusions are narrow and limited.
Setting aside the question of whether the Clean Water Act legally supports the breadth of the new Rules—an issue that will undoubtedly be addressed through litigation in the coming years—the EPA and Corps have advanced the idea that having certainty as to the breadth of their jurisdiction is positive for the regulated community. For families and businesses that have been the subject of unfounded enforcement actions, some amount of certainty pertaining to the definition of "waters" could be helpful.
In this case, however, the breadth of the rules likely undermines any such benefit. Landowners and businesses instead are faced with the certainty that virtually all water and wetlands will be regulated. They have exchanged uncertainty for the certainty that they will be subject to Rules asserting extensive federal jurisdiction. Many have voiced a preference for uncertainty.
On the flip side, the certainty that virtually all waters and wetlands are regulated provides a significant benefit to citizens who may wish to sue landowners and businesses through citizen suits. No longer will citizens have to wait for a determination by the EPA or Corps that a certain waterway or wet area will fall under the Clean Water Act's jurisdiction. When the Rules become final in August, they will remove a practical impediment to citizen suits and businesses and landowners will be exposed to a heightened threat of legal action by neighbors and organizations.
It is fair to say that operators with permits already in place may see little practical impact on their activities. However, for agriculture, timber, and development interests, it is fair to say that the new Rules will have an impact. By virtue of the now clear, broad definition of "waters," landowners and developers are likely to face more regulatory hurdles and a heightened threat of citizen suits.
Practically speaking, it is possible that Congress will intervene. If not, it will be years before a legal challenge to the Rules is final. As a result, the Rules remind us that landowners and developers will need to be more diligent than ever in establishing and maintaining good working relationships with regulators, neighbors, and legislators and in being creative about how to be economically viable in the face of increasing regulation.