There has been a lot of attention lately on the Environmental Protection Agency (EPA) as it engages with the farming community on the proposed rule to define “Waters of the U.S.”  The so-called WOTUS rule would define which bodies of water fall under EPA’s Clean Water Act jurisdiction.  In this post and the related Q&A, NSAC provides an update on where things stand with the proposed rule and the accompanying interpretive rule, and explores some of the confusions, myths, and facts surrounding both rules.

Background

The Clean Water Act (“the Act”) prohibits the discharge of any pollutants, including dredged or fill material, into “navigable waters” unless the activity is done in compliance with an authorized permitting scheme.  The Act authorizes EPA to administer two separate permitting programs: the National Pollutant Discharge Elimination System (NPDES, or Section 402) permitting program, which allows the discharge of pollutants for certain permitted activities, and the Section 404 permitting program, which allows the discharge of dredge and fill material into waters, particularly wetlands, if done as part of certain permitted activities.  EPA and the Army Corps of Engineers (the Corps) collaboratively carry out the Section 404 permitting program.

 The Act defines “navigable waters” as “waters of the United States,” and ultimately leaves it to EPA to define which bodies of water fall within that category.  Before the proposed rule, EPA’s regulations defined waters of the US as:

1. Traditional navigable waters;
2. Interstate waters; and
3. All other waters that could affect interstate or foreign commerce, impoundments of waters of the U.S., tributaries, the territorial seas, and adjacent wetlands.

Supreme Court Decisions

Over the years, several lawsuits over the reach of EPA’s Clean Water Act jurisdiction made their way to the Supreme Court, and resulted in much confusion among regulators and the regulated community alike regarding which waters were part of the definition of “waters of the US,” particularly those that might fall into the “all other waters” category.

In 2001, the Supreme Court considered whether the Act extended EPA’s authority to an isolated, non-navigable, intrastate pond that was visited by migratory birds. (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159) (the “SWANCC” case).  The Court held that it did not in this instance, but did state that EPA’s authority to regulate wetlands was “inseparably bound up” in its Clean Water Act authority.  The Court further stated that EPA’s reach over such waters was determined based on an assessment of whether there was a “significant nexus” between the wetlands and other jurisdictional navigable waters.

In 2006, the Court further elaborated on the “significant nexus” test when it considered the extent of EPA’s regulatory authority over wetlands adjacent to non-navigable tributaries that connected to navigable waters. (Rapanos v. United States, 547 U.S. 715) (the “Rapanos” case).  The Court unanimously agreed that a body of water doesn’t have to be navigable in the traditional sense to still be considered a water of the US.  The Court was otherwise fractured in its analysis, however, with a plurality upholding EPA’s jurisdiction over “relatively permanent, standing or continuously flowing bodies of water . . . that are connected to traditional navigable waters . . . as well as wetlands with a continuous surface connection to such relatively permanent bodies of water.”

The Rapanos case also resulted in an endorsement of the “significant nexus” approach (through a concurring opinion by Justice Kennedy), which provides that EPA has authority over waters with a “significant nexus” to jurisdictional waters.  The Court provided some clues for how EPA might apply the significant nexus test – does it affect the chemical, physical and biological integrity of jurisdictional water? is the nexus only speculative, or is it substantial? – but EPA was largely left to apply the significant nexus test based on its interpretation of what these terms might mean.

EPA and the Corps had been operating under a guidance that attempted to provide some clarity regarding whether and how the significant nexus test was to be applied.  However, the regulated community sought greater clarity and, in March of 2014, EPA and the Corps released a long-awaited proposed rule to define “waters of the US.”

Definitions in the Proposed WOTUS Rule

EPA has proposed a definition of “waters of the US” that it maintains does not expand the scope of EPA’s jurisdiction of water, but rather clarifies and codifies EPA’s existing regulatory approach.  EPA further has stated that the proposed rule, because it better incorporates the SWANCC and Rapanos decisions, actually limits their authority from what is currently codified.

The new definition states that waters of the US includes:

1. Traditional navigable waters;
2. All interstate waters, including interstate wetlands;
3. The territorial seas;
4. All impoundments of water identified in 1 – 3 and 5;
5. All tributaries of waters identified in 1 – 4;
6. All waters, including wetlands, adjacent to a water identified in 1 – 5; and
7. On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water identified in 1 – 3.

Essentially, what EPA has done is remove impoundments, tributaries, and adjacent wetlands from the “other waters” category, based on its determination that impoundments, tributaries, and adjacent wetlands that connect to traditional jurisdictional waters have a significant nexus to those waters without requiring a case-by-case determination.

Exclusions from the Definition of “Waters of the US”

EPA has also proposed a set of exclusions of bodies of water that do not qualify as jurisdictional.  This includes:

1. Waste treatment systems, including ponds or lagoons designed to meet the requirements of the Clean Water Act;
2. Prior converted cropland (which refers to wetlands that were drained and cropped prior to December 23, 1985);
3. Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow; and
4. Ditches that do not contribute flow, either directly or through another water, to jurisdictional water.

Waste treatment and prior converted cropland are already excluded in the existing regulations.  The two categories of ditches were typically excluded as a matter of practice, but have not been codified as exclusions.

Importantly, ditches that meet the definition of a tributary (see below) and fall outside of these exclusions are jurisdictional.  No case-by-case significant nexus test applies to tributaries (including ditches that are considered tributaries).  However, ditches that would appear to be excluded could still fall within the “other waters” category if they meet the significant nexus test.

Tributaries are defined as a body of water physically characterized by the presence of a bed, banks, and an ordinary high water mark, which contributes flow, either directly or through another water, to a jurisdictional water.  Wetlands, lakes, and ponds are considered tributaries if they contribute flow directly or indirectly to other jurisdictional waters even if they do not have a bed, banks, or ordinary high water mark.   A tributary, including wetlands, can be natural, man-altered, or man-made, and includes rivers, streams, lake, ponds, impoundments, canals, and ditches that are not otherwise excluded.

Ditches are not expressly defined in the rule.  Nor is “upland.”  Given the importance of these terms and the questions that have been raised regarding exclusions for ditches, there may need to be clarifying definitions or further elaboration on ditches in the final rule.

The following waters continue to be excluded under the proposed rule:

• Groundwater;
• Artificially irrigated areas that would revert to upland should irrigation cease;
• Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basis, or rice growing; and
• Gullies, rills, and non-wetland swales.

The Interpretive Rule

EPA and the Corps also simultaneously released an Interpretive Rule, which went into effect immediately, and which relates only to activities considered exempt under the Section 404 permitting program.  Under Section 404, activities that are considered “normal farming” are exempt from the requirement to have a permit for the discharge of dredge or fill material into jurisdictional waters, including wetlands.  EPA regulations elaborate that “normal farming” includes such activities as plowing, seeding, cultivating, minor drainage, harvesting, or upland soil and water conservation practices.  However, these are not outright exclusions.  That is – unlike a wholly upland ditch that drains only uplands and has less than perennial flow – the water may still be considered jurisdictional; it is the activity that is exempt.  If the activity is done in a way that could impair the flow or circulation of a jurisdictional water or bring it under a new use, then the activity is no longer exempt from the permitting requirement under the so-called “recapture” provision.

To expand upon this exemption, the Interpretive Rule provides a list of NRCS Conservation Practice Standards and states that any farmer undertaking an activity on the list – whether or not the practice is implemented or installed with NRCS technical assistance and training – does not have to obtain a Section 404 permit for that activity, even if it results in dredge or fill material being discharged into a wetland or other jurisdictional water.  Like any Section 404 exemption, these activities would still be subject to the recapture provision.

This list, like the proposed rule itself, has resulted in significant confusion among the farming, environmental, and conservation communities.  See our Q&A blog for more on the Interpretive Rule.

Reactions to Both Rules

The reactions to the rules have varied greatly.  Many organizations are in full support of EPA’s actions. Others are generally supportive, but have expressed concern that the proposal does not provide the degree of certainty they had hoped would be apparent from the new language.  Still others, including the American Farm Bureau Federation and the National Cattlemen’s Beef Association, have launched all-out campaigns to have EPA scrap the rule and start over (or cease regulation of water altogether).

EPA has undertaken significant outreach, particularly with the farming community, in anticipation of and in response to these reactions.  As one example, in early July, EPA Administrator Gina McCarthy spent two days in Missouri.  While there, she took a farm tour, met with agribusiness leaders, and spoke to farmers about the issue.

EPA also recently hosted a webinar and launched a dedicated website containing information on the rules and countering the anti-regulatory myths.

Congress, too, has entered the fray.  The House held a hearing on the interpretive rule.  A bill has been introduced in the House to revoke the Interpretive Rule.  A bill introduced in both the House and Senate would require EPA to halt all action on the proposed rule, as would a rider that was attached to the House appropriations bill during committee vote to fund EPA and the Interior Department.   Though it is unlikely that such a bill could pass the Senate floor, and the appropriations bills may not go anywhere this fiscal year anyway, the actions by some Members of Congress to curtail the public process that is underway are still disconcerting.

Whatever concerns the public may have with the specifics contained within the proposed rule, the public rulemaking process provides an opportunity to analyze the rule, engage with the agency, educate the public, and motivate thoughtful comments that could truly impact the ultimate rule.

NSAC recently submitted comments on the Interpretive Rule and intends to submit comments on the proposed rule as well.

More Information

You can submit comments on the proposed rule until October 20 to via regulations.gov, Docket No. EPA-HQ-OW-2011-0880.

For more information on both rules, check out our Q&A.

EPA also has a website dedicated to the WOTUS rules.