Summary: This EcoPerspective discusses the EPA’s and Army Corps of Engineers’ attempt at redefining the meaning of  “waters of the United States.” Since the Supreme Court decision in Rapanos v. United States , the jurisdictional reach of those agencies over waters with a significant nexus to navigable waters has been somewhat unclear. However, the agencies’ new definition may make farmers and other interest groups unhappy, even with proposed exemptions for some agricultural practices.

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By Emily Lyons

The Clean Water Act’s (CWA) jurisdictional reach has been unclear ever since the Supreme Court’s convoluted decision in Rapanos v. United States . On April 21, 2014, the Environmental Protection Agency (EPA) and Army Corps of Engineers (USACE) published a rule in the Federal Register that redefines “waters of the United States” and gives much needed clarity to the CWA’s jurisdiction. The proposed definition attempts to clarify EPA’s jurisdiction over navigable waters, their tributaries, and other waters—including wetlands and streams—with a significant nexus to a navigable water or tributary.

Politicians, construction and agricultural industry representatives, and other critics of the rule argue that the agencies have gone too far and the rule, if finalized, would be unduly  burdensome to developers and especially to farm and ranch operations. EPA says the program will not protect any new types of waters that the CWA did not historically cover. However, the agency’s own economic analysis estimates that approximately 3% more of U.S. waters would fall under the CWA’s jurisdiction as a result of the proposed rule. The same analysis claims that the proposed definition will impact an additional 1,332 acres nationwide under CWA’s section 404.

 

Muddied Waters Following Rapanos

The CWA prohibits the discharge of pollutants or fill material into “waters of the United States” without a permit. EPA issues permits for the discharge of pollutants, while the USACE issues permits for the discharge of fill material. Individuals who discharge a pollutant or fill material without a permit from the proper agency are subject to civil and criminal penalties. Because the CWA regulates “waters of the United States,” the definition of this phrase is key to determine the statute’s jurisdictional reach.

In 1986, EPA and USACE defined “waters of the United States” to include traditional navigable waters, interstate waters, all other waters that could affect interstate commerce, tributaries, and adjacent wetlands. However, subsequent Supreme Court decisions over the years narrowed the agency’s application of this definition.

In Rapanos , the Supreme Court most recently considered the definition of “waters of the United States.” The Court determined that the USACE’s application of the definition was too broad when applied to a wetland adjacent to a tributary but without a surface water connection. Unfortunately, the Supreme Court could not come to a majority decision in the case. Five justices agreed that USACE’s interpretation was too extensive. Four justices reasoned that wetlands with continuous surface connections to adjacent waters fall under the CWA’s jurisdiction. One concurring justice—who agreed that the interpretation was too broad—wrote that whether or not adjacent wetlands were a “water of the United States” depends upon whether the wetland has a “significant nexus” to a water regulated by the CWA.

Following the Supreme Court’s decision in Rapanos , EPA issued guidance that adopted the concurring opinion’s significant nexus test. Through this guidance, USACE and EPA asserted CWA jurisdiction over all traditional navigable waters, wetlands adjacent to these waters, relatively permanent tributaries of traditional navigable waters, wetlands abutting those tributaries, and non-permanent tributaries and their adjacent wetlands if they had a “significant nexus” to traditional navigable waters. The guidance proved vague, unwieldy, and created a patchwork of court precedents which caused EPA and USACE to propose the clarified “waters of the United States” definition.

The Proposed Rule

When EPA and USACE released the proposed rule, they stated that the definition generally finds all tributaries of traditionally navigable waters, interstate waters, and adjacent water bodies as automatically within the agencies’ jurisdictions because these waters share a “significant nexus” to navigable waters. According to EPA, the proposed rule clarifies that the CWA protects the following waters: seasonal and rain-dependent streams, wetlands near rivers and streams, other types of waters that may have uncertain connections with downstream water based upon a significant nexus to a water body (i.e. ditches).

The proposed rule also establishes default jurisdiction for all streams, ponds, and wetlands located in floodplains and riparian corridors, but leaves jurisdictional determinations on “unidirectional” waters, non-adjacent wetlands, and “other waters” such as prairie potholes, that are outside of riparian and flood zones and determined on a case-by-case basis based on  scientific evidence demonstrating a “significant nexus.” The agencies define “significant nexus” as one that “significantly affects the chemical, physical or biological integrity” of a downstream river, territorial sea, or other jurisdictional water.

EPA and USACE based this draft rule on a peer-reviewed assessment of more than a thousand scientific studies that look at the connectivity of waters in the United States to each other. In essence, this assessment concluded that all streams and wetlands—regardless of size of continuity of flow—are connected to a navigable water because they affect the quality of the larger waterways. The agencies will not issue a final rule until EPA finalizes this connectivity study. However, EPA’s own Science Advisory Board has issues with the study and it is unclear when EPA will complete the study.

  Farmers Unhappy with Overbroad Rule

Many agricultural interest groups are unhappy with the proposed “water of the United States” definition because the proposal brings virtually all waters, regardless of their size or continuity of flow, under the CWA’s jurisdiction. Most of these groups are concerned about that farmers will be required to obtain costly and burdensome CWA permits to conduct everyday chores because the rule would regulate things such as ephemeral drains, small and remote waters, and ditches. Thus, EPA will require farmers to obtain federal permit for activities performed near these “waters.” These groups, and even politicians, see the rule as a new roadblock for farmers and an attempt by EPA to obtain land use regulatory authority.

The CWA grants numerous exemptions and exclusions for farming and ranching. EPA and USACE claims that the proposed rule preserves those exemptions. Additionally, the agencies worked with the United States Department of Agriculture (USDA) to develop an interpretive rule to ensure 56 specific conservation practices related to water quality improvement, such as habitat restoration and establishing riparian forest buffers, will not be subject to CWA’s section 404 permitting requirements. The interpretive rule seeks to exempt these practices by specifying these activities as “normal farming” measures. In order to qualify for this exemption, the activities must be part of an established farming, forestry, or ranching operation and implemented in compliance with USDA technical standards.

These exemptions appear as though they actually benefit agricultural practices by exempting “normal” farming or ranching activities. However, these exemptions are not all that they seem to be. First, many exempted activities are common farming practices such as fencing, grazing, and brush management that have usually been considered “normal” farming and ranching activities under the statutory exemption. Additionally, EPA and USACE narrowly defined “normal” by limiting it to activities that have been ongoing since the 1970s. This means that new farms, farms that have come in and out of production over time, or those that have changed from one type of crop to another fall outside the “normal” farming exemption. Finally, these exemptions only apply to the CWA’s section 404 fill permit program; it does not provide protection from potential liability and section 402 requirements. Many everyday activities such as weed control or fertilizer application could trigger liability if a farmer accidentally deposits materials into a ditch or ephemeral stream. These narrow exemptions do not protect farmers from new restrictions on farming practices or provide for the clarity on the jurisdictional reach of the CWA as the rule intended.

The “water of the United States” rule is open for comment until July 21, 2014.

Emily is a 2014 VLS graduate. Originally from a small dairy farm in Northern Illinois, she graduated from the University of Illinois Urbana-Champaign with a BS in Animal Sciences and a minor in Environmental Economics and Law. Emily’s passion for agriculture drove her to attend law school where she focuses on the interplay between environmental law and agricultural operations. While at VLS, Emily was a member of the National Moot Court Team and a Headnote Editor for the  Vermont Law Review.

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