The EPA has published a new draft definition of “water” and is accepting public comments until November 14, 2014.‎ The definition determines the EPA and Army ‎Corps of Engineers jurisdiction for a variety of ‎regulatory programs under the Clean Water ‎Act (CWA), including:‎

• Section 404 dredge and fill
• Section 402 pollution control

Adopted in 1972, 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. However, over the years, the EPA and Corps (with help of the courts) ‎expanded the definition of “navigable” far ‎beyond any traditional concept of navigation, seeking to regulate waters that were far too small to float any kind of commercial watercraft but might support a small canoe. Federal jurisdiction has been further expanded to include wetlands, which are not “waters” at all but land that is frequently saturated with water.

The new proposed rule would expand federal jurisdiction even further to include lands that are only occasionally saturated with water. So what’s the underlying issue? Water runs downhill, gathering pollutants along the ‎way. The proposed new rule is an effort by the agencies to stop pollution at its source by regulating the ‎outer capillaries of the system.

This effort to regulate the capillaries raises issues of local vs. federal control. Many argue that the capillaries of the system ‎are adequately protected by local regulations. For instance, Washington state statutes in both the Growth Management Act and the Shorelines Management Act require protection of both riparian areas and wetlands through local ordinances that must be based on peer reviewed best available science to protect listed species. Oregon has its own comprehensive land use planning program with statewide planning ‎goals 5, 6, 15, 16, 17, 18, and 19 that protect riparian areas, wetlands, beaches, and dunes with a wide variety of state mandated regulations.

So there is some question whether ‎further federal regulations are needed. The current federal regulatory program already includes federal oversight of local municipal stormwater regulations to protect the river system from being polluted by runoff from upland areas. Further, the new definition of “water” applies to more than just ‎water quality regulations. It also applies to dredge and fill rules, which are less directly connected to water quality, especially when applied to isolated wetlands or remote ditches.

The proposed rule has been broadly ‎criticized. House Appropriations Committee chair Harold Rogers ‎called the new rule “the biggest land grab in history.”

Groups opposed to the rule (at least in its current form) include:‎

• American Farm Bureau
• Pacific Legal Foundation
• Waters Advocacy Coalition
• National Council of Farmer Cooperatives
• Agricultural Retailers Association
• Congressional Western Caucus
• ‎Pacific Northwest Waterways Association
• ‎National Waterways Conference
• ‎American Association of Port Authorities

There is also bipartisan opposition to the proposed rule. It is opposed by both Democrats and Republicans in the House of Representatives, which passed H.R. 5078 with bipartisan ‎support, and a vote of 262 to 152‎. The bill prohibits the EPA and ACOE from redefining “water” without consensus‎ and consultations with the states. However, President Obama threatens to veto the bill if it passes the Senate.

The proposed rule is supported by the Obama administration and a wide variety of environmental groups, including the National Wildlife Federation, Izaak Walton League of America, Theodore Roosevelt Conservation Partnership, and Trout Unlimited. Seven state attorney generals, including Washington State ‎Attorney General Bob Ferguson, support the rule.

The Obama administration ‎claims the “land grab” is a ‎myth. Let’s analyze the proposed rule, starting with the two U.S. Supreme Court decisions that are often cited by those in support of the rule. The EPA often claims that the Court’s decisions in Solid Waste Agency of Northern ‎Cook County (SWANCC) v. U.S. Army Corps ‎of Engineers (ACOE) (2001) and Rapanos v. United States‎‎ (2006) create uncertainty that must be clarified with the new rule.

SWANCC v. ACOE (2001) involved “isolated waters” that were not traditionally ‎navigable, and were not adjacent or tributary to a navigable water, in ‎this case, an abandoned gravel pit. The Court held that the “migratory bird rule” (whether a migratory bird lands ‎on the property) did not create federal CWA jurisdiction. The Court’s broad rationale casts doubt on CWA jurisdiction ‎over any “isolated waters.”

In Rapanos v. United States (2006)‎, 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.” The Court held that the EPA and Corps were not authorized to undertake such ‎an “immense” expansion of their jurisdiction.

The Rapanos case involved four Michigan wetlands that lie near ditches or man-made drains ‎that eventually empty into traditional navigable ‎waters located some eleven to twenty miles away. For filling these wetlands without a ‎federal permit, John Rapanos faced sixty-three months in prison and hundreds of thousands of dollars in ‎criminal and civil fines.

The Court noted the immense cost of wetland permitting in the United States. In 2006, the average applicant for an individual permit spent:

• ‎788 days (over two years)‎
• ‎$271,596 in permitting and consulting fees
• Plus 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 United States.‎

The Rapanos Court ruled in favor of Mr. Rapanos, stating that the ACOE had stretched the term “waters of the United States” beyond parody and that the CWA does not authorize the “‘Land is Waters” approach ‎to federal jurisdiction.

Given the clear and unambiguous language of the Rapanos ‎decision, why does the EPA claim the Court created ‎uncertainty? Rapanos was a plurality decision. Four justices joined the plurality, Justice Kennedy concurred in the result but for different ‎reasons (the so-called “significant nexus” test), and four justices dissented. The portions of Rapanos discussed above are from the four-justice plurality decision. With no clear majority of justices agreeing on these issues, there is uncertainty as to how the Court may treat a future case.

The EPA draft rule expands on the “significant nexus” test from Justice ‎Kennedy’s concurrence. “Significant nexus” is not a scientific term, but a legal term. It’s defined in the draft rule with broad sweeping ‎language that includes any connection to a “navigable” water ‎that is “more than speculative or insubstantial.”‎

In simple terms, the draft rule ‎defines “water” to include:‎

• Traditionally navigable waters, like navigable ‎lakes, rivers, and seas
• Interstate waters and wetlands
• Tributaries of navigable waters
• Waters that are “adjacent” to navigable waters or ‎their tributaries
• Waters that have a “significant nexus” to ‎traditionally navigable waters

Tributaries are defined broadly to include wetlands, lakes, and ponds, even if they lack a bed and banks or an ‎ordinary high water mark. Any water that flows directly or indirectly into a ‎navigable or interstate water (in other words, any hydrological connection) is a tributary.

Interstate waters would be those that cross state lines, like the Columbia River. However, the Columbia River is navigable and both it and its tributaries are “waters” under other provisions of the definition. The “interstate” waters prong appears designed to capture waters that are isolated from navigable waters and their tributaries but still cross state lines.

The next prong of the definition is “adjacent waters.” No hydrological connection with a navigable water is required under the proposed new rule for a water to be subject to CWA jurisdiction as an “adjacent” water. Adjacent waters include waters, including wetlands, that are separated ‎from navigable waters or tributaries by man-‎made dikes or barriers, natural berm, beach ‎dunes, etc.‎, and waters that are bordering, contiguous, or ‎neighboring to a navigable water or a tributary. “Neighboring” waters are those located within ‎the riparian area or floodplain of a navigable ‎water or tributary or that have a hydrological ‎connection to such waters.

“Significant nexus” means a water or wetland that:

• Alone or in combination with other waters,
• Significantly affects the chemical, physical, or ‎biological integrity of a navigable water, and
• Where the effect is “more than speculative or ‎insubstantial”

“Significant nexus” waters are evaluated on a case by case basis, which is highly discretionary with the agency. The effect of filling a small isolated wetland or ditch may be inconsequential by itself, but when viewed “in combination” with a variety of other waters, the effect may be more than insubstantial, which is enough to create federal jurisdiction over all the waters under the “significant nexus” test. So, individually, a significant nexus water might only ‎have an insubstantial effect, but if it is combined with ‎other waters that have a “significant” effect as a whole, ‎it will still be regulated.

The only real clarity in the proposed rule is the exemptions. ‎ The following are exempt:‎

• Waste treatment systems that meet the CWA
• Prior converted farmland
• Ditches that are excavated wholly in uplands, drain only uplands, and do not have ‎perennial flow
• Ditches that do not contribute flow, either directly or indirectly, to a navigable or ‎interstate water
• Artificially irrigated uplands
• Artificial lakes or ponds created from uplands and used exclusively for stock watering, ‎irrigation, settling basins, or rice growing
• Artificial reflecting or swimming pools created out of dry uplands
• Small ornamental waters created out of dry uplands
• Water-filled depressions created incidental to construction activity
• Groundwater
• Gullies, rills, and non-wetland swales

Some of these exemptions are self-explanatory, but others have some important details buried in the fine print. For instance, the new rule gives the EPA authority to override other agencies’ determinations about ‎prior conversion to cropland. Also, normal farming operations on existing farms are exempt from ‎dredge and fill permits under 40 CFR 232.3(c)(1)‎, but farming activities may not be exempt from water quality rules. The EPA has handled many of these issues pertaining to farmers in an informal interpretation that exempts 56 NRCS farming practices, but since these are not incorporated in the rule itself, they could be changed at any time.

Ditches are another source of controversy. Only ditches with no hydrological connection to a navigable or interstate water or those excavated wholly in uplands, that drain only uplands, ‎and that do not have perennial flow are exempt. A ditch that touches a wetland or that eventually flows into a navigable water, no matter how remote, is not exempt.‎

Outside of these narrow exemptions, the draft rule defines “waters” broadly ‎to allow the EPA and ACOE great discretion to assert CWA jurisdiction over ‎virtually any piece of land that is occasionally saturated, and when viewed in combination with other such lands, ‎has anything more than a speculative or insubstantial effect on navigable ‎waters.‎