by Daniel R. Flynn
Dinsmore & Shohl LLP is an IMA B2B Partner
Last month marked the 50-year anniversary of one of the more infamous and impactful environmental disasters to occur in the United States. On June 22, 1969, the Cuyahoga River, which runs through the heart of Cleveland before emptying into Lake Erie, caught fire for the 13th time. Time magazine ran a story that highlighted the river’s severe pollution. The national reaction to the story is widely credited as the impetus for the Federal Water Pollution Control Act Amendments of 1972, now known as the Clean Water Act (CWA). The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” This seemingly straightforward and worthy objective has, however, led to more than 40 years of uncertainty and litigation over what constitutes “the nation’s waters” or “waters of the United States.”
That uncertainty dramatically increased following two significant Supreme Court cases in 2001 and 2006. How the term “waters of the United States” is defined often determines whether the CWA’s permitting provisions apply, so the definition’s lack of clarity has been problematic for landowners, farmers, developers, manufacturers, and corporations that operate in close proximity to or on land containing water that could be considered a water of the United States. The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) have tried with mixed success to clarify the murky definition on a number of previous occasions, including in 2015. Now, the EPA and the Corps under the Trump administration have once again expressed desire to “increase [CWA] program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States.’” But the agencies’ most recent efforts may only further muddy the waters, continuing decades of uncertainty.
As it currently stands, 22 states and Washington, D.C., abide by one definition of “waters of the United States,” while 28 states follow another definition.
The EPA under the Obama administration attempted to clarify the uncertainty of the definition of “waters of the United States” following the Supreme Court’s decisions in SWANCC and Rapanos. The EPA’s efforts, however, were met with a variety of legal challenges. As a result, the definition that was in place prior to 2015 is back in effect in 28 states.
The EPA defined waters of the United States in the 1980s to include navigable rivers, lakes, bays, and coastal waters, their tributaries and adjacent wetlands, as well as “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce.”
This definition was altered by the Supreme Court in SWANCC and Rapanos. In Rapanos, however, the Court failed to issue a majority opinion. Instead, four justices joined Justice Scalia’s plurality; four justices joined Justice Stevens’ dissent; and Justice Kennedy issued a concurring opinion. In his plurality opinion, Justice Scalia stated, “on its only plausible interpretation, the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’ The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps’ expansive interpretation of the ‘the waters of the United States’ is thus not ‘based on a permissible construction of the statute.’” “Therefore, only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act. Wetlands with only an intermittent, physically remote hydrologic connection to ‘waters of the United States’ do not implicate the boundary-drawing problem of Riverside Bayview, and thus lack the necessary connection to covered waters that we described as a ‘significant nexus’ in SWANCC.”
Instead of following Justice Scalia’s plurality opinion, the EPA and the Corps followed the guidance common to five of the nine justices in both Justice Kennedy’s concurring opinion and the Rapanosdissent. The agencies declared they would continue to “assert jurisdiction over wetlands adjacent to traditional navigable waters, including over adjacent wetlands that do not have a continuous surface connection to traditional navigable waters .” The agencies also confirmed the definition included “(1) non-navigable tributaries that are not relatively permanent, (2) wetlands adjacent to non-navigable tributaries that are not relatively permanent, and (3) wetlands adjacent to, but not directly abutting, a relatively permanent tributary (e. a., separated from it by uplands, a berm, dike or similar feature)” so long as such waters had a significant nexus with a traditional navigable water.
The Clean Water Rule
Twenty-two states follow the definition contained in the Clean Water Rule passed by the Obama administration. In promulgating the Clean Water Rule, the EPA and the Corps emphasized the definition only covered waters that were historically covered by the CWA and the Rule “does not interfere with or change private property rights, or address land use[,] does not regulate most ditches or regulate groundwater, shallow subsurface flows or tile drains[,] does not change policy on irrigation or water transfers[, and] does not apply to rills, gullies, or erosional features.” Rather, the goal of the Clean Water Rule was to maintain jurisdiction over navigable rivers, lakes, bays, and coastal waters while clearly defining and protecting tributaries, streams, and wetlands that impact downstream water quality as well as certain, defined water features that also impact downstream waters. These include prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
In comments at the National Press Club Luncheon in early June, the EPA’s current administrator, Andrew Wheeler, confirmed the new definition of “waters of the United States” proposed by the EPA in February 2019 is “focused on providing regulatory certainty and clarity that every American can understand.” He said the EPA’s “ultimate objective is that property owners should be able to stand on their property and tell if a water is federal or not without hiring outside professionals.”
The definition would retain navigable rivers, lakes, bays, and coastal waters. Significantly, however, the proposed rule would alter the definition of adjacent wetlands to those “that abut or have a direct hydrological surface connection to [those navigable waters].” The proposed rule also excludes ephemeral streams, upland ditches, ephemeral ditches, and groundwater. This definition would remove a number of waters from the federal EPA’s and Corps’ protection under the CWA and, depending on the applicable state regulations, would allow stakeholders to develop, or discharge to, such waters without the need for a permit.
This new definition, which is due to be published as a final rule in December 2019, is widely expected to face significant legal challenges, so the certainty the EPA has sought to achieve for decades will likely not arrive anytime soon.
Landowners, farmers, developers, manufacturers, and corporations are currently subject to the EPA’s and the Corps’ broad jurisdiction over navigable and non-navigable waters. Companies should carefully review the applicable regulations before conducting any construction, expansion, or modification to determine whether any development or discharge is subject to the CWA’s permit provisions.
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