Source: NATIONAL SUSTAINABLE AGRICULTURE COALITION, 7/25/14

There has been a lot of attention lately on the Environmental Protection Agency (EPA) as it engages with the farming community on the proposed rule to define “Waters of the U.S.”  The so-called WOTUS rule would define which bodies of water fall under EPA’s Clean Water Act jurisdiction.  In this post and the related Q&A, NSAC provides an update on where things stand with the proposed rule and the accompanying interpretive rule, and explores some of the confusions, myths, and facts surrounding both rules.


Background
The Clean Water Act (“the Act”) prohibits the discharge of any pollutants, including dredged or fill material, into “navigable waters” unless the activity is done in compliance with an authorized permitting scheme.  The Act authorizes EPA to administer two separate permitting programs: the National Pollutant Discharge Elimination System (NPDES, or Section 402) permitting program, which allows the discharge of pollutants for certain permitted activities, and the Section 404 permitting program, which allows the discharge of dredge and fill material into waters, particularly wetlands, if done as part of certain permitted activities.  EPA and the Army Corps of Engineers (the Corps) collaboratively carry out the Section 404 permitting program.
The Act defines “navigable waters” as “waters of the United States,” and ultimately leaves it to EPA to define which bodies of water fall within that category.  Before the proposed rule, EPA’s regulations defined waters of the US as:
1. Traditional navigable waters;
2. Interstate waters; and
3. All other waters that could affect interstate or foreign commerce, impoundments of waters of the U.S., tributaries, the territorial seas, and adjacent wetlands.
Supreme Court Decisions

Over the years, several lawsuits over the reach of EPA’s Clean Water Act jurisdiction made their way to the Supreme Court, and resulted in much confusion among regulators and the regulated community alike regarding which waters were part of the definition of “waters of the US,” particularly those that might fall into the “all other waters” category.

In 2001, the Supreme Court considered whether the Act extended EPA’s authority to an isolated, non-navigable, intrastate pond that was visited by migratory birds. (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159) (the “SWANCC” case).  The Court held that it did not in this instance, but did state that EPA’s authority to regulate wetlands was “inseparably bound up” in its Clean Water Act authority.  The Court further stated that EPA’s reach over such waters was determined based on an assessment of whether there was a “significant nexus” between the wetlands and other jurisdictional navigable waters.

In 2006, the Court further elaborated on the “significant nexus” test when it considered the extent of EPA’s regulatory authority over wetlands adjacent to non-navigable tributaries that connected to navigable waters. (Rapanos v. United States, 547 U.S. 715) (the “Rapanos” case).  The Court unanimously agreed that a body of water doesn’t have to be navigable in the traditional sense to still be considered a water of the US.  The Court was otherwise fractured in its analysis, however, with a plurality upholding EPA’s jurisdiction over “relatively permanent, standing or continuously flowing bodies of water . . . that are connected to traditional navigable waters . . . as well as wetlands with a continuous surface connection to such relatively permanent bodies of water.”

The Rapanos case also resulted in an endorsement of the “significant nexus” approach (through a concurring opinion by Justice Kennedy), which provides that EPA has authority over waters with a “significant nexus” to jurisdictional waters.  The Court provided some clues for how EPA might apply the significant nexus test – does it affect the chemical, physical and biological integrity of jurisdictional water? is the nexus only speculative, or is it substantial? – but EPA was largely left to apply the significant nexus test based on its interpretation of what these terms might mean.

EPA and the Corps had been operating under a guidance that attempted to provide some clarity regarding whether and how the significant nexus test was to be applied.  However, the regulated community sought greater clarity and, in March of 2014, EPA and the Corps released a long-awaited proposed rule to define “waters of the US.”

Definitions in the Proposed WOTUS Rule
EPA has proposed a definition of “waters of the US” that it maintains does not expand the scope of EPA’s jurisdiction of water, but rather clarifies and codifies EPA’s existing regulatory approach.  EPA further has stated that the proposed rule, because it better incorporates the SWANCC and Rapanos decisions, actually limits their authority from what is currently codified.
The new definition states that waters of the US includes:
1. Traditional navigable waters;
2. All interstate waters, including interstate wetlands;
3. The territorial seas;
4. All impoundments of water identified in 1 – 3 and 5;
5. All tributaries of waters identified in 1 – 4;
6. All waters, including wetlands, adjacent to a water identified in 1 – 5; and
7. On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water identified in 1 – 3.

Essentially, what EPA has done is remove impoundments, tributaries, and adjacent wetlands from the “other waters” category, based on its determination that impoundments, tributaries, and adjacent wetlands that connect to traditional jurisdictional waters have a significant nexus to those waters without requiring a case-by-case determination.

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