A proposed definition for “Waters of the United States”

Andy Waldera//September 29, 2014

A proposed definition for “Waters of the United States”

Andy Waldera//September 29, 2014

Andy WalderaOn April 21, 2014, the U.S. EPA and the U.S. Army Corps of Engineers published a proposed administrative rule in the Federal Register (79 FR 22187) attempting to further define the term “Waters of the United States” under the Clean Water Act.

The Act’s permitting programs touch almost all aspects of land use and development in and around regulated water bodies: agricultural uses and practices, commercial and industrial land uses and practices, and even small scale residential development and land use. Consequently, interpretation, application, and modification of the definition of “Waters of the United States” has far-reaching implications.

The EPA and the Corps assert that the rulemaking is necessary to end regulatory confusion left in the wake of various United States Supreme Court opinions regarding what water bodies are jurisdictional (i.e., subject to regulation under the Act) and those that are not. Jurisdictional water bodies are regulated under the Act via various permitting programs governing the discharge of pollutants (Section 402 of the Act—known as the NPDES program, and Section 303 which sets water quality standards and mandates the creation of Total Maximum Daily Loads for impaired waters) and dredging and filling activities (Section 404 of the Act).

Many think the Act has been stretched so far beyond any logical application that it is hopelessly unworkable, creating unfunded mandates requiring a grossly disproportionate expenditure of effort and money to achieve only minute incremental gains in water quality. Others contend that the Act is just hitting its stride, and that much work remains to be done (and much time and money to be spent) correcting decades of perceived environmental abuses. The EPA and the Corps contend that their proposed definition is a natural outgrowth of the stated purpose of Section 101 of the Act: “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

While the truth likely resides somewhere in between, there is no question that the EPA and the Corps’ proposed definition is expansive. For example, the United States Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006), questioned whether seasonally and storm event-related “intermittent” and “ephemeral” water bodies were subject to the Act. The proposed rule answers the question in the affirmative, casting a broad net placing all tributaries of navigable waters and interstate waters and wetlands—including those that flow or are inundated only seasonally or intermittently—under the reach of the Act.

This is significant because the EPA estimates that approximately 60 percent of stream miles in the U.S. are intermittent. That percentage is magnified here in the West where 94 percent of Arizona streams are intermittent, 89 percent are dry most of the year in Nevada, and 88 percent percent are intermittent and ephemeral in New Mexico. Man-made water bodies (ditches, flumes, aqueducts, drains, etc.) are not immune from jurisdiction under the proposed rule either, provided they are tributary to other jurisdictional waters—which they frequently are.

Proponents of the rule, including the agencies, cite to the rule’s “significant nexus” requirement—a term originating from Justice Kennedy in the Rapanos decision, but one he did not define—as an important limitation; evidence that the Act cannot automatically apply to intermittent and ephemeral streams and isolated wetlands absent some scientifically demonstrable link or contribution to the physical, chemical, or biological integrity of downstream waters. But, that supposed significant nexus “limitation” does not cleanly end jurisdictional inquiry. Instead, EPA and the Corps acknowledge that several jurisdictional “other waters” determinations will have to be made on a case-by-case basis because “significant” hydrologic interconnection is rarely readily apparent. Jurisdictional determinations made on a case-by-case basis will inherently contain some modicum of subjectivity, and a case-by-case approach begs the question of whether the stated clarity and efficiency gains of the proposed rule will truly materialize.

Particularly concerning in southern Idaho is the proposed rule’s implications for the thousands of miles of irrigation facilities (delivery ditches and drains) and the rural and urban lands that are adjacent to and upstream of those facilities (though many of these facilities have already been considered jurisdictional for years under the Ninth Circuit’s 2001 Headwaters v. Talent Irrigation District decision). Idaho’s predominantly desert landscape is also traversed by miles of intermittent and ephemeral washes and gullies. While the proposed rule may breed additional clarity by automatically including these types of water bodies under the Act, the question remains whether it was the Act’s intent to regulate these water bodies, thereby affecting nearly all land use and development activities adjacent to, and upstream of, them.

The Act’s ultimate intent is an interesting question. The Act is an outgrowth of the Rivers and Harbors Act of 1899. The goal of the Rivers and Harbors Act was to maintain the physical navigability and utility of the Country’s rivers and harbors for commerce-related purposes. It prohibited the discharge of navigation-threatening refuse into waterways without a permit. It also prohibited the dredging and filling of water bodies capable of supporting commercial navigation. The Rivers and Harbors Act was not a pollution control or prevention statute; rather it was a commerce protection-oriented statute with some secondary pollution prevention benefit ancillary to the physical navigability goal.

In 1948, Congress enacted the Federal Water Pollution Control Act. This Act, too, was less a pollution prevention statute than it was a means by which the federal government could provide loans and funding for investigating and cleaning up water pollution after the fact. However, subsequent amendments to the Water Pollution Control Act in 1956 and 1965 began to shift focus to pollution prevention, not just as a public health issue, but as an environmental issue as well. Pollution prevention appeared to be the primary theme of 1972 amendments reorganizing the Water Pollution Control Act into the federal Clean Water Act as we more or less know it today.

The Act has evolved from its more practical, commercial navigation-protective roots into a pollution prevention first and foremost vehicle. There is no question that the Act has had many successes, particularly early on when pollution gains were easier to achieve and relatively cost effective to make. But when is jurisdictional reach too much? When is a man-made ditch just a ditch, or an otherwise dry wash, just a dry wash? At what point does the weight of regulation outstrip and crush its utility? The pending proposed rule does not answer these questions, but it certainly raises them.

The public comment period for the proposed rule remains open until October 20, 2014. Public comments can be submitted online under EPA Docket Number: EPA-HQ-OW-2011-0880.

Andy Waldera is a shareholder at Moffatt, Thomas, Barrett, Rock & Fields, Chtd. in Boise. His practice focuses on environmental/natural resources, water, and agricultural land use law. His email address is: aj[email protected]. More information is available at www.moffatt.com.