On May 27, 2015, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) announced their final Clean Water Rule, which lays out a new method for determining whether or not a water body is governed by the Clean Water Act. The Clean Water Rule is controversial because it is ultimately a rule that defines the boundaries of Federal power over water bodies in the United States. Although it is settled that traditional navigable waters (like lakes and rivers) are “waters of the United States” and therefore subject to the Clean Water Act, whether or not smaller streams and wetlands must follow the same Federal law has been disputed for decades.
Reading and comparing the varied viewpoints of the press releases, opinion pieces, and blogs written about the Clean Water Rule, you may start to think that each side is praising or condemning different rules.
So what will the Clean Water Rule do? How is it different from the rules that were in place before it was finalized? Is it going to keep the Nation’s waters clean or is it a Federal land grab with dire economic consequences? The purpose of this article is to provide information and links to other resources so you can answer these questions for yourself.
Legal & Scientific Background
The Clean Water Act prohibits the “discharge” of “pollutants” into “navigable waters” without a permit. There have been countless fights over whether or not a particular water body is subject to the Clean Water Act or not because although the Clean Water Act defines “navigable waters” as “waters of the United States”, the Act does not explain what “waters of the United States” actually means. This missing statutory definition has forced the agencies, states, industry, and nonprofit groups to figure it out themselves through rulemaking and the courts.
Another compounding factor is that it is incredibly difficult to formulate a definition of “waters of the United States” that applies in every case. Because of the nature of water and how it cycles through land, air, and sea, where a water body begins and ends is difficult to determine and changes over time. In addition, tributaries and streams may not contain flowing water at all times, especially during drought, which is occurring in parts of the American West today.
The EPA and the Corps have defined “waters of the United States” through rulemaking and guidance in the past, but they have never reached a satisfactory definition. The Supreme Court has weighed in on the issue three times, but that has not resolved the issue either. This lingering confusion has resulted in real costs to businesses through Clean Water Act consultant and lawyer fees, lawsuits, and project delays. It would be simpler if Congress amended the Clean Water Act to define “waters of the United States” as a law, but that has never happened.
So in another attempt to clear up the confusion about which water bodies the Federal government has the power to regulate and which ones it does not, the EPA and the Corps proposed a rule to update their definition of “waters of the United States” through the official rulemaking process. For over 200 days, the public submitted over 1 million comments on the proposed definition. The EPA and the Corps also held over 400 meetings nationwide to receive feedback from states, small businesses, farmers, academics, miners, energy companies, counties, municipalities, environmental organizations, other federal agencies, and many others. The EPA also created a comprehensive website on the Clean Water Rule.
The Definition & Connectivity Report
The Clean Water Rule’s final definition of “waters of the United States” is controversial and therefore worth reading for yourself. In short, the Clean Water Rule lays out which categories of water bodies are always “waters of the United States”, never “waters of the United States”, and may be “waters of the United States” subject to a case-by-case analysis.
Here is a simplified version of the Clean Water Rule’s definition of “waters of the United States”:
- Like the rules and guidance before it, the following water bodies are “waters of the United States”: (1) traditionally navigable waters; (2) interstate waters and interstate wetlands; (3) territorial seas; and (4) impoundments of “waters of the United States”.
- All tributaries with “physical indicators of a bed and banks and an ordinary high water mark” that contribute flow to downstream traditional navigable waters, interstate waters, or territorial seas are “waters of the United States”.
- All waters “adjacent” to traditional navigable waters, interstate waters, territorial seas, or tributaries are “waters of the United States”. The Clean Water Rule defines the term “adjacent” with specific scenarios and distances.
- The following are “waters of the United States” if it is determined, on a case-by-case basis, that the water body has a “significant nexus” to a traditionally navigable water, interstate water, or territorial sea: (1) prairie potholes in the upper Midwest; (2) Carolina bays and Delmarva bays located along the Atlantic seaboard; (3) pocosins located along the Central Atlantic coastal plain; (4) Western vernal pools located in California; (5) Texas coastal prairie wetlands located along the Texas Gulf Coast; and (6) waters within the 100-year floodplain or within 4,000 feet of the high tide line or ordinary high water mark of a traditionally navigable water, interstate water, territorial sea, or impoundment of a water of the United States or tributary.
- The Clean Water Rule includes a specific definition of “significant nexus”.
- The following waters are NOT “waters of the United States”: (1) waste treatment systems; prior converted cropland; (2) ditches; (3) artificially irrigated areas that revert to upland if water application ceases; (4) artificially constructed lakes and ponds; (5) artificial pools on dry land; (6) small ornamental waters on dry land; (7) water-filled depressions in dry land incidental to mining or construction activity; (8) erosional features; (9) puddles; groundwater; (10) stormwater control features; and (11) wastewater recycling structures.
In support of including water bodies with a “significant nexus” to downstream “waters of the United States” as federal waters, the EPA reviewed more than 1,200 peer-reviewed scientific publications and published a Connectivity Report that concludes: (1) “the scientific literature unequivocally demonstrates that streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function” and (2) “the scientific literature clearly shows that wetlands . . . are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality.”
Since the agencies announced the final Clean Water Rule earlier this year, at least twenty-eight states, many industry groups, and a group of environmental organizations have sued the agencies in federal court to overturn the new rule. The Clean Water Rule was supposed to go into legal effect on August 28, 2015, but the U.S. Court of Appeals for the Sixth Circuit put the rule on hold while the lawsuits are sorted out. The U.S. Senate Democrats recently blocked a Senate bill that would have forced the Obama administration to rewrite the Clean Water Rule.
Many states, farmers, and other industry groups want the rule overturned because they believe that the Federal government is overstepping its constitutional boundaries by interfering with private property rights and state power. For example, many farmers do not agree with the Clean Water Rule because they do not want the Federal government interfering with their farming operations. Many states are suing the agencies because they believe that they have the right to regulate local streams, tributaries, and wetlands within their borders.
Many environmental and public health groups are praising the Clean Water Rule for protecting the drinking water for millions of Americans. The Clean Water Act has been successful in reducing water pollution, and many nonprofit groups are happy that the Clean Water Rule definitively protects wetlands and tributaries that are connected to and impact the traditional “waters of the United States”.
Other environmental nonprofits are displeased with the final Clean Water Rule because it includes “last-minute exemptions for industries” and filed their own lawsuit against the EPA and the Corps.
This article only scratches the surface of the issues and viewpoints surrounding the Clean Water Rule’s new definition of “waters of the United States”. The Federal court system is currently grappling with all of lawsuits and technical documents associated with the Clean Water Rule, so it will be interesting to see how the issues are resolved and when. In the meantime, businesses, environmental groups, states, and the agencies themselves continue working with the current interpretation of the Clean Water Act as best they can.