How easily can a significant expansion in jurisdiction be called just a “clarification” of existing jurisdiction? On April 21, 2014, the United States Environmental Protection Agency and the Army Corps of Engineers published a proposed rule that promises to significantly change federal Clean Water Act jurisdiction. While EPA Administrator Gina McCarty has described the proposed rule as merely a clarification of existing EPA authority, if finalized, it will likely expand CWA permit requirements to include minor tributaries and even seasonal waters such as vernal pools as “waters of the United States.”
The Clean Water Act is deceptively complex. At its most basic, it forbids discharges of pollutants into “the waters of the United States” without a permit. But defining what is and what is not a water of the United States under the CWA has traditionally been a difficult proposition. Confusion over CWA jurisdiction came to a head in 2006, when the Supreme Court handed down its opinion on whether isolated wetlands could be subject to the CWA in the case of Rapanos v. U.S., 547 U.S. 715.
In Rapanos, a plurality of the court stated that only “relatively permanent” bodies of water and wetlands with a continuous surface connection to other “waters of the United States” could fall under the jurisdiction of the CWA. Justice Kennedy articulated a competing “significant nexus” test, and since there was no clear majority, regulators were forced to evaluate CWA jurisdiction on a case-by-case basis. Guidance subsequently published by the EPA failed to clarify the question of CWA jurisdiction, leading the EPA and the Corps to issue its proposed rule.
EPA stresses that the proposed rule seeks to “clarify” EPA jurisdiction, rather than expand it. But notably, the proposed rule would impose federal jurisdiction on a category of so-called “other waters,” if “those waters alone, or in combination with other similarly situated waters… have a significant nexus to a traditional navigable water.” That nexus will be informed by a technical, peer reviewed study on the connectivity of streams and wetlands to downstream waters that EPA released for public comment in September 2013.
Given the report’s focus on the importance of aggregating the effects of various waters and wetlands across ecosystems, the “other waters” portion of the proposed rule seems poised to allow EPA to significantly expand CWA jurisdiction beyond what the Rapanos plurality envisioned. For example, EPA could designate isolated wetlands or vernal pools as “waters of the United States” because they provide flood control services for the watershed. Such a determination would then trigger CWA permit requirements for any development activities in that area, such as dredging or filling for real estate development.
Given this potential for expanded jurisdiction, and the complex hydrological issues at the heart of the proposed rule a group of fifteen United States Senators has asked EPA to expand the public comment period to allow more time for review of the impacts of the proposed rule. However, at present, EPA has set the public comment period deadline for July 21, 2014.
If you have questions about the potential impact of the proposed CWA rule on your activities, contact one of the environmental attorneys at Periconi, LLC today, or stay tuned to the Periconi, LLC Environmental Law Blog for further developments.