By now I am sure most everyone knows about the Proposed Rules issued on March 25, 2014 by the EPA and the United States Army, Corps of Engineers that define "waters of the United States." The 90 day comment period, however, did not begin until it was published in the Federal Register. On April 21, 2014 (one day before Earth Day), the Proposed Rules were published. The Comment Period will end July 21, 2014.
On the bright side, the rule simplifies things by pretty much making just about everything that is wet or that looks wet waters of the United States by rule. On the other hand it is not at all clear that the scope of the definition in the Proposed Rule was intended by Congress when it enacted the Clean Water Act. The Proposed Rule also identifies a few exceptions, but, by in large, if it is wet, it may be a navigable water.
The Clean Water Act regulates discharges to "navigable waters." However, the Congress defined navigable waters as simply "waters of the United States and territorial seas." With no more definition, the applicable administrative agencies are left to provide a definition that comports with the purposes and intent of the Clean Water Act. EPA is responsible for issuing discharge permits under Section 402 of the Clean Water Act, and the Corps of Engineers is responsible for issuing dredge/fill permits under Section 404 of the Clean Water Act.
The history of the attempts to define regulatory jurisdiction is well known. In United States v. Riverside Bayview Homes1 the U.S. Supreme Court clarified that wetlands that were physically adjacent to traditionally navigable waters (in that case Saginaw Bay) are waters of the United States. In Solid Waste Association of Cook County v. U.S. Army Corps of Engineers2, the Supreme Court found that a non-navigable wetland isolated from a traditionally navigable water could not become waters of the United States because of its use by migratory birds in and of itself because the government had not proven a significant nexus between a traditionally navigable water and the wetland. The most recent state of confusion was created following the plurality decision of the Supreme Court in Rapanos v. United States.3 In Rapanos (where the TNW was also Saginaw Bay), four of the members adopted a "Joe Six Pack" test related to waters that are relatively permanent or that flow into TNW's, four members determined the "any hydrologic connection" test used by the government was sufficient, and one member, Justice Kennedy, determined that only waters possessing a significant nexus to a TNW would be jurisdictional. As a result the EPA/Corps applied both the relative permanent water test as well as the significant nexus test in making jurisdictional determinations.
The Agencies issued joint guidance on June 5, 2007 and December 3, 2008 to assist in making jurisdictional determinations under the decision in Rapanos. In 2012, the Agencies re-proposed a greatly expanded version of the guidance. Numerous comments were received by stakeholders. A common theme among commenters was that the Agencies should implement the guidance through rulemaking. The Agencies apparently listened and have issued the Proposed Rule.
The Proposed Rule vastly expands the Agencies' jurisdictional reach through the use of three defined terms. The first is the definition of "traditional navigable waters ("TNW")" and the second is the term "tributary." While the Agencies' current rules provide a similar definition as the Proposed Rule for TNW's, the interpretation given by the Agencies and stated in the Proposed Rule appears to be much broader and has questionable legal support. Under the Agencies' interpretation of the rule, a TNW is not only the commonly understood meaning of the term, but includes waters that are "susceptible" to commercial navigation "now or could be made so in the future." The Agencies' interpretation is that if a boat of any kind will float in it, then it is a TNW.
Now combine the expansive interpretation of TNW with the term "tributary," which is a new definition. Under the Proposed Rule a tributary is physically characterized by a defined bed and banks and an ordinary high water mark which contributes flow either directly or indirectly to traditionally navigable waters. A tributary is not just the channel flowing into the TNW, but includes a network of tributaries that could eventually flow into the TWN. The Proposed Rule declares that such waters have a significant nexus to TNW's and no case by case analysis is necessary to establish jurisdiction. The definition is intended to capture small intermittent or even ephemeral headwater streams. With the expansive reading of TNW together with the definition of tributary, it is hard to imagine that any watercourse, including many roadside ditches, is not waters of the United States.
Finally, the Proposed Rules define the term "neigboring wetlands" for wetlands that are in the defined "Riparian Area." Thus, the wetland would not need to be actually adjacent to a TNW, but instead located in the Riparian Area. That term is defined as "an area bordering a water where surface or subsurface hydrology direcly influence the ecological processes and plant and animal community in that area." It is not clear how far the Agencies will extend such a broad definition.
To the extent any waters are left over, the Proposed Rule covers "Other Waters" that may be jurisdictional as evaluated on a case by case basis. The Agencies are soliciting comments as to how they should be evaluate Other Waters.
What appears to be left of non-jurisdictional waters are set out in the Proposed Rules as Exceptions. These narrow exceptions include waste treatment systems designed to comply with the Clean Water Act and prior converted cropland, both of which are current exclusions. The rules further clarify that certain ditches (excavated wholly in uplands, drain only uplands, and have less than perennial flow and ditches that do not contribute flow directly or indirectly to a jurisdictional waters) are not jurisdictional. With the expansive view of jurisdictional waters, even this exclusion appears to be very minimal. The Proposed Rule clarifies that artificially irrigated lands, artificial stock ponds, reflecting and swimming pools, ornamental waters, water filled depressions created incidental to construction activity, groundwater and gullies and rills are non-jurisdictional. It seems hard to understand why there would even be any confusion about whether the Agencies would attempt to regulate those features, such as swimming pools, so granting that exclusion appears to be unnecessary or an attempt at trying to show generosity by the Agencies. Since the exclusions do not expressly or impliedly exclude roof drains from houses, is it possible that the Agencies could take jurisdiction over stormwater from a homeowner's roof drain as "other waters?"
The Proposed Rule poses a conundrum to the Tennessee jurisdictional scheme for streams. By Tennessee law a "wet weather conveyance" is not a stream. However the Proposed Rule would, in fact, create federal regulatory jurisdiction over wet weather conveyances that are tributaries, requiring alterations to be subject to Clean Water Act 404 permitting and perhaps more stringent requirements for discharge under Clean Water Act Section 402 permits since many wet weather conveyance will now be federally defined streams.
The breadth and detail of the Proposed Rule is much more complicated than can be provided in this brief article. However, the impact to the regulated community will be significant.
Footnotes
1 474 U.S. 121(1985)
2 531 U.S. 159 (2001)
3 547 U.S. 715 (2006)
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