Almost as soon as the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers proposed clarifying streams and wetlands under the Clean Water Act (CWA), controversy began.
Known as the “Waters of the United States,” or WOTUS, the agencies released the 370-page proposed rule on March 25, 2014. The public comment period, originally scheduled for 90 days, was extended to November 14, 2014. The docket, EPA-HQ-OW-2011-0880, indicates that 1,034,375 comments were received. The date for the final rule has not yet been announced.
However, the proposal included an immediately effective interpretive rule for agricultural activities.
Key leaders of the agricultural community vocalized their objections to the entire proposal. The largest organization, the American Farm Bureau Federation (AFBF), launched a “Ditch the Rule” campaign on its website, pointing to farmers’ difficulties with the proposal. EPA countered with “Ditch the Myth” on its website to address concerns and misconceptions.
After Congressional hearings in the spring and summer several bills were introduced that variously addressed “EPA overreach.” S. 2496, was introduced in the Senate June 19, 2014, to prohibit finalizing WOTUS. H.R. 5071 to withdraw the interpretive rule was introduced July 10, 2014, in the U.S. House of Representatives. On September 26, 2014, the House passed H.R. 5078 to prohibit the two agencies from developing or enforcing the WOTUS rule.
Interpretive rule withdrawn in budget
On December 11, 2014, the House passed the Cromnibus spending bill; the Senate passed it two days later. The subsequent Act, “The Consolidated and Further Continuing Appropriations Act, 2015,” instructs EPA and the Army Corps to withdraw the interpretive rule. President Obama signed the Act January 3, 2015.
In a January 29, 2015, statement for Farming, EPA stated:
“EPA and the Army Corps of Engineers will follow the statutory directive and withdraw the agencies’ interpretive rule, which was intended to encourage conservation and provide farmers with a simpler way to take advantage of existing exemptions from Clean Water Act dredge and fill permits. Normal farming and ranching—including planting, harvesting, and moving livestock—have long-standing exemptions from Clean Water Act regulation, and withdrawal of the interpretive rule will not change those historic exemptions or the agencies’ work to finalize the Clean Water Rule. The final rule will strengthen protection for the clean water that is essential to all Americans. Science clearly shows what kinds of streams and wetlands impact water downstream—the agencies are committed to protecting those waters. In fact, one in three Americans—that’s 117 million people—get drinking water from streams that are currently vulnerable and need clear protection. Streams and wetlands provide multiple benefits for communities—they filter pollution, reduce flooding, recharge groundwater supplies, and provide habitat for fish and wildlife. Water also drives a strong American economy. Streams and wetlands are crucial for fishing, hunting, tourism, agriculture, recreation, energy production and manufacturing—and all businesses depend on clean water for basic operations.”
More issues in proposal
Issues remain in the WOTUS proposal. Clarifying the definitions of waters, EPA and the Army Corps note, will determine Clean Water Act protection. The interpretation of two Supreme Court decisions colors the debate.
In the March 25, 2014, release of the proposed rule, EPA Administrator Gina McCarthy said, “We are clarifying protection for the upstream waters that are absolutely vital to downstream communities.” Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy added, “Today’s rule making will better protect our aquatic resources by strengthening the consistency, predictability, and transparency of our jurisdictional determinations. The rule’s clarifications will result in a better public service nationwide.”
EPA’s website includes an extensive list of organizations and individuals that have requested clarification of “Waters of the U.S.” by rule making. Supportive statements, primarily from environmental and recreational organizations, are included.
EPA and the Army Corps state in the proposal: “The proposed definitions of waters will apply to all Clean Water Act programs. It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.”
Supreme Court decisions
In Supreme Court decision Rapanos v. United States, 547 U.S. 715 (2006), Justice Antonin Scalia, writing for the majority, said, “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,’ Webster’s New International Dictionary 2882 (2d ed.), and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”
Referring to the Clean Water Act also in Rapanos, Justice Scalia writes, “The Act’s use of the traditional phrase ‘navigable waters’ further confirms that the CWA confers jurisdiction only over relatively permanent bodies of water.” Scalia noted that the CWA defines intermittent flow channels and conduits as ‘point sources,’ not ‘navigable waters.’
Continuing in Rapanos, Justice Scalia wrote, “A wetland may not be considered ‘adjacent to’ remote ‘waters of the United States’ based on a mere hydrologic connection.”
In his concurrence with the Rapanos decision, Justice Anthony M. Kennedy concluded that the Sixth Circuit in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers 531 U.S. 159 (2001) “correctly recognized that a water or wetland constitutes ‘navigable waters’ under the Act if it possesses a ‘significant nexus’ to waters that are navigable in fact or that could reasonably be so made.”
Continuing in Rapanos, Kennedy wrote, “The nexus required must be assessed in terms of the Act’s goals and purposes. Congress enacted the law to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,’ and it pursued that objective by restricting dumping and filling in ‘waters of the United States.’ ”
Explaining the CWA’s rationale, Kennedy further wrote, “Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense. When, in contrast, their effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the term ‘navigable waters.’ ”
Also in Rapanos, Scalia, citing SWANCC, wrote, “In addition, ‘the waters of the United States’ hardly qualifies as the clear and manifest statement from Congress needed to authorize intrusion into such an area of traditional state authority as land-use regulation; and to authorize federal action that stretches the limits of Congress’s commerce power.”
The National Farmers Union (NFU) comments by President Roger Johnson on September 22, 2014, requested a definition of ‘tributary’ that clarifies without increasing CWA jurisdiction, and a bright-line rule for ‘adjacent waters,’ to reduce the need for case-by-case determinations. The NFU also pointed to the need for codification of agency practice in light of Supreme Court rulings. In addition, NFU requested that ditches without perennial flow and those unconnected with wetlands and floodplains be excluded, and that agricultural exemptions be affirmed in the rule. Johnson noted that those comments would remove much uncertainty and protect family farmers from litigation.
AFBF President Bob Stallman’s testimony before the House Transportation and Infrastructure Committee on June 11, 2014, said, “The EPA ‘Waters of the U.S.’ proposal broadly expands federal jurisdiction. It threatens local land use and zoning authority, and is an end run around Congress and the Supreme Court.”
Stallman said the proposed rule significantly expands the definition of ‘navigable waters’ by regulating ‘ephemeral streams’ as tributaries, and all ditches that ever carry any amount of water that eventually flows to a navigable water as tributaries. Plus, by regulating all water deemed ‘adjacent’ to other jurisdictional waters, including dry ditches and ephemerals, plus ‘other waters’ that have a ‘significant nexus,’ ‘navigable waters’ is expanded. Stallman said, “These categories have the potential to sweep into federal jurisdiction vast numbers of small, isolated wetlands, ponds and similar features on farmlands nationwide.” Also, he added that substantial costs and roadblocks will be triggered.
Stallman noted that the SWANCC decision limited the scope of CWA jurisdiction as interpreted by EPA and the Army Corps.
Thomas Nagle, who raises beef cows and grows crops on 750 acres in Pennsylvania, testified on April 28, 2014, before the House Transportation and Infrastructure Committee. Nagle told the Committee, “The proposed rule is supposed to be a clarification, but seems to only provide more confusion and less clarity for farm families whose land will be judged by these agencies. If I guess wrong on their judgment, I could face fines of up to $37,000 per day. If they guess wrong, I have to go to court to correct it. That’s a scary thought.”
On October 1, 2014, the U.S. Small Business Administration’s Office of Advocacy (Advocacy) recommended that the agencies withdraw the proposed rule. The comments state that Advocacy believes EPA and the Army Corps improperly certified the proposed rule under the Regulatory Flexibility Act because it would have significant economic impacts on small businesses.
State and local land use matters
On November 14, 2014, a joint letter by Senator David Vitter (R-La.) and Representative Bill Shuster (R-Pa.) to EPA Administrator Gina McCarthy and Secretary of the Army John M. McHugh urged the agencies to abandon the proposed rule. The letter was co-signed by Senators Charles Grassley, James R. Inhofe, John Bozzman, Orrin Hatch and Ted Cruz, along with and Representatives Bob Goodlatte, Bob Gibbs and Spencer Bachus.
Citing numerous legal authorities, the letter stated, “the proposed rule contemplates an extra-constitutional relationship between the federal government and the states in the regulation of local land use matters. It also challenges the designations of ‘tributaries’ and ‘adjacent waters,’ and ‘other waters’ as ‘Waters of the United States.’ In its discussion of the Rapanos and SWANCC decisions, the writers said the Supreme Court decisions confirmed the constitutional and statutory limits to Clean Water Act jurisdiction, which the EPA and Army Corps proposal exceeds.
The Senate Committee on Environment and Public Works and the House Committee on Transportation and Infrastructure scheduled a joint hearing for February 4, 2015, on “Impacts of the Proposed Waters of the United States Rule on State and Local Governments.”
Significance of the defunded interpretive rule
The now-withdrawn interpretive rule applied to exemptions from permitting of certain agricultural practices. Specifically, the rule was to clarify the normal farming activities exempt under section 404(f)(1)(A) of the Clean Water Act. That section outlined the permitting requirements for discharges of dredged or fill material into waters and wetlands. The interpretive rule required the exempt practices to conform to National Resources Conservation Service (NRCS) technical standards.
In its questions and answers on the interpretive rule, EPA indicated that the rule expanded the existing exemptions.
In his testimony noted above, AFBF President Bob Stallman said the interpretive rule “provides no meaningful protection from the harmful implications of the expansion of ‘navigable waters’ and, in fact, further narrows the already limited ‘normal’ farming exemption.” Stallman further explained that the exemption applies only to the CWA section 404 ‘dredge and fill’ permitting, and not to the other CWA requirements, such as the National Pollutant Discharge Elimination System (NPDES) permitting.
Also, Stallman noted that the exemption would apply only to farming or ranching ongoing since the 1970s, and the compliance with NRCS standards narrows the exemption. He also pointed to other NRCS conservation practices, such as one on reduced tillage, which by not being among the 56 listed practices, would constitute a violation if any incidental discharge of dredged or fill material should occur. This, Stallman said, would have a chilling effect on conservation practices.
The Act, in Division D, Title I, Corps of Engineers—Civil, in Section 112 states, “The U.S. Environmental Protection Agency and the U.S. Department of the Army shall withdraw the interpretive rule, ‘U.S. Environmental Protection Agency and the U.S. Department of the Army Interpretive Rule Regarding the Applicability of the Clean Water Act Section 404(f)(1)(A),’ signed on March 25, 2014.”
Further, Section 109 states, “None of the funds made available in this or any other Act making appropriations for Energy and Water Development for any fiscal year may be used by the Corps of Engineers during the fiscal year ending September 30, 2015, to develop, adopt, implement, administer, or enforce any change to the regulations in effect on October 1, 2012, pertaining to the definitions of the terms ‘fill material’ or ‘discharge of fill material’ for the purposes of the Federal Water Pollution Control Act. (33 U.S.C. 1251 et seq.)”
Section 111 states, “None of the funds made available by this Act may be used to require a permit for the discharge of dredged or fill materials under the Federal Water Pollution Control Act (33 U.S.C, 1251, et seq.) for the activities identified in subparagraphs (A) and (C) of Section 404(f)(1) of the Act (33 U.S.C. 1344(f)(1)(A),(C).”