Clean Water Restoration Act- Federal Expansion or Restoring Protections?

Posted on July 1, 2009 by Joe Koncelik

On June 18th the Senate Environment and Public Works Committee, on a vote of 12-7, passed the amended version of the Clean Water Restoration Act.  The proposal is seen by some as an attempt to fix a major hole in the Clean Water Act.  Others see it as a major extension of federal regulation.  I see it as a State's rights issue...

The debate over the bill has centered on whether federal jurisdiction should cover essentially all streams and wetlands. (for a discussion of the jurisdiction issue see the extended entry to this post)  The hardcore supporters or detractors appear to break into two camps:

  1. Farmers who want the independence and flexibility to address irrigation or flooding without the need of federal permits
  2. Without passage the majority of streams and wetlands will be left completely unprotected leading to a complete destruction of water quality even in federally regulated waterways. 

If you think I'm painting the camps too dramatically let me provide some examples.  First from the protection camp (post on Blue Living Ideas).

Without CWRA, we could return to the times of the Cuyahoga River burning and the Great Lakes smelling like cesspools. The Clean Water Act is important legislation that needs restoration. It’s about birds; it’s about clean water; it’s about drinking water. CWA was intended to protect all of America’s waters from pollution, not just those that are navigable.

Now from the farmer's perspective (post on Drovers).

Under current law, the federal government has jurisdiction over "navigable waters of the United States." However, by removing the word "navigable" from the definition, the CWRA would expand federal regulatory control to unprecedented levels - essentially putting stock tanks, drainage ditches, any puddle or water feature found on family farms and ranches—potentially even ground water—under the regulatory strong-arm of the federal government.

There are of course other perspective, such as the U.S. Chamber's.  In a letter to the Senate Committee the U.S. Chamber opposes the Clean Water Restoration Act because it fears the expansive language will be used by citizen groups to stop development projects:

It has been well-documented that deletion of the term “navigable” from the definition of “waters of the United States” could lead to the unnecessary expansion of the CWA to certain intrastate waters. The bill does attempt to address this problem by listing the specific types of waters explicitly covered by the CWA and exempting others. However, the Chamber’s primary concern is that, despite the good intentions of the Committee in negotiating a compromise, S.787 as drafted is still subject to manipulation by activist groups whose only goal is to stop development.

Lost in the debate seems to be Republican notions of federalism.  When it comes to environmental protection, States seem to often loose the argument that they can craft better regulations or even be trusted to adopt any regulation at all.

The lack of trust makes groups push hard for federal regulation, which is unfortunate because State crafted water quality regulatory programs should be a much better alternative. Here are some reasons why an expanded Ohio jurisdiction over waterways and wetlands may be preferable to "putting all waters under federal protection." 

  1. Regulations crafted at the local level-  ideally States should be in a better position to address unique water quality issues that may be present in their state.  Rather than one size fits all approach under federal regulations.
  2. One permit instead of two-  If the Clean Water Restoration Act passes, anyone with development projects in the State that impacts a stream or wetland will have to get a 401 water quality certification and a 404 permit.  This means all development projects face distinct regulators who may push for different outcomes to mitigate for impacts. 
  3. Greater Flexibility-  In navigating federal regulations, companies and developers often must deal with the "national consistency" argument.  In other words, "we can't be flexible in this instance because we have to worry we are setting national precedent."
  4. Navigation of only one regulatory structures-  Water quality regulation is a complex business.  It involves biological and chemical criteria.  Navigating two complex regulatory structures (federal and state) bogs down business.  An efficient regulatory structure can still be protective.

A state water permit program is not only a possibility, it was proposed by Ohio EPA in the fall of 2008 in response to shrinking federal regulation.  The State's proposal has met with significant resistance which has slowed the rule development process down to a crawl.  However, for the reasons articulated above perhaps its worth reconsidering positions on the proposal.  

Those groups opposing both the Clean Water Restoration Act and Ohio EPA's proposed Water Quality Permit Program must realize they will not get it both ways.  There is too much support for protecting streams and wetlands to have no regulatory program in place.  Without a strong push for State regulation, the default will be to push for federal regulation.

To fend off federal regulation through adoption of effective state regulation, supporters must address the perception of many that State's engage in a "race to the bottom" when enacting environmental regulation.  Federal legislation like the Clean Water Restoration Act get pushed because fear by many groups that if regulation is left up to the State's they will all compete to have the least amount of protections or requirements. 

(Photo: Colin Gregory Palmer/everystockphoto.com)

The Supreme Court got things set in motion by issuing its decisions in SWANCC and Rapanos which significantly narrowed the jurisdiction of U.S. EPA and the Army Corps of Engineers under the Clean Water Act. The decisions were seen at first as limiting jurisdiction over wetlands. However, the same term "navigable water" was used in the Clean Water Act to discuss wetlands or streams that fall within federal regulation.

The Rapanos decision increased regulatory uncertainty. At decision with no clear majority (4-4-1) that includes two separate methods of determining whether waters or wetlands are federally regulated. Under the Plurality test a stream must have permanent flow and be connected to a navigable water. Under Justice Kennedy's test, the waterway must have a "significant nexus" to a navigable water. Whether such a nexus exists depends upon whether impacts to a waterway would have a impact on the chemical, physical or biological quality of downstream navigable waters.

After the Rapanos decisions was issued, U.S. EPA and the ACOE issued guidance to determine whether waters where federally regulated using the tests established by the Supreme Court. The guidance did not remove the uncertainty. As noted in a prior post, the U.S. EPA Inspector General released a report that indicated tremendous uncertainty persists in applying the law. The uncertainty impacted some 489 enforcement cases across the country. Some have estimated that 60% of the nations waterways have been left unprotected as a result of the narrow federal jurisdiction applicable under the Rapanos tests. 

Lower courts have had difficulty in applying the Rapanos test on a consistent basis.  (Legal Planet: The Environmental Law and Policy Blog- has a good discussion of regarding the inconsistency in application of the two tests under Rapanos.)

In response to all this uncertainty many environmental groups and states have pushed for a Rapanos "fix." A change in the federal Clean Water Act to extend coverage to unprotected waterways. The "fix" has now taken the form of the Clean Water Restoration Act. In reality, the Act proposes a fairly simple fix- delete the term "navigable waters" as a limiting factor on federal jurisdiction over waterways. In its place substitute a new term "Waters of the U.S." 

The amended version of the Clean Water Restoration Act does include two exceptions from coverage from the broad definition of "waters of the U.S.".  Those exemptions include:

  1. Converted Cropland- included in an attempt to appease the agricultural community
  2. Waste Treatment Systems- included to address things like wastewater treatment systems and storm water retention ponds

The amended version also includes statements intended to limit coverage under the new term "waters of the U.S." to only that federal jurisdiciton that existed prior to SWANCC. 

The bill now moves to the full Senate where passage is less than certain even with the new 60 vote majority held by the Democrats.

 
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EPA Inspector General Reports Impact of Rapanos Uncertainty

Posted on May 17, 2009 by Joe Koncelik

U.S. EPA's Office of Inspector General released a report regarding the effects of the Supreme Court's decision in Rapanos on enforcement of Section 404 of the Clean Water Act.  The report, titled Comments Related to Effects Jurisdictional Uncertainty On Clean Water Act Implementation, contains some interesting observations and discussion.  Bottomline, the lack of clarity for determining whether wetlands or waterways fall within the jurisdiction of the Clean Water Act has led to U.S. EPA dropping hundred of enforcement cases. 

Overall, CWA enforcement activities (for Sections 311 (oil spills), 402 (National Pollutant Discharge Elimination System), and 404) have decreased since the Rapanos ruling. An estimated total of 489 enforcement cases (Sections 311, 402, and 404 combined) have been affected such that formal enforcement was not pursued as a result of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an enforcement action.

Some interesting observations by the EPA lawyers who are  trying to provide advice to those enforcing the Clean Water Act:  Here are two notable comments about the legal terms that are causing uncertainty:

Traditional navigable waterways evade easy definition; even the Supreme Court has been vague on the precise scope of traditional navigable waterways. Traditional navigable waterways have arisen in multiple legal contexts over the years, not just in CWA discussions. Many stakeholders find the Appendix D definition to be still too broad to adequately serve the jurisdictional issues created by the Rapanos decision. The OGC attorneys noted that there had been considerable discussion about the scope of traditional navigable waterways in Fall 2007. Traditional navigable waterways continue to be an issue in some "isolated (a)(3)" elevations.

"Adjacency" was not addressed by the Supreme Court. Although there are 1-2 sentences on it in the interim June 2007 guidance, it remains an imprecise term. However, OGC staff is working with various program offices to create a follow-up to the June 2007 Rapanos guidance where adjacency, among other things, will be addressed. The real debate involves the interpretation of one aspect of the "adjacency" definition: "neighboring." This "neighboring" term was a cornerstone of the debate in the Carabell case.

The blog Great Lakes Law provides a good summary of the aftermath of the Rapanos Decision as well as discussing the possible legislative fix currently being debated in Congress:

Rapanos / Carabell vs. United States resulted in a divided Court issuing a confusing 4-4-1 divided ruling that cast doubt on whether non-navigable tributaries and their associated wetlands were protected by the Clean Water Act. The Rapanos decision has put at risk safeguards for approximately 60% of the nation’s stream miles (exclusive of Alaska) and their neighboring wetlands.

If nearly 60% of the rivers and wetlands are "unprotected" under federal law, it would seem there would be strong pressure on the States to fill the void.  That pressure is being felt in Ohio where it has proposed a new permit program for impacts to streams.  This proposed rule, if it goes final, would likely be challenged.  This could lead to the State of Ohio's own Rapanos-type decision in the State Supreme Court.  Although that is a long way off.

Outside of new regulations, some states have legal authority that appears broader then federal jurisdiction over waterways.  I wonder whether in any of the 500 cases the U.S. EPA  has dropped they attempted to make a reverse referral to the States for enforcement.   For instance, Ohio Revised Code 6111 has a very broad definition of "Waters of the State" which could form the basis of a State enforcement action:

“Waters of the state” means all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and other bodies or accumulations of water, surface and underground, natural or artificial, regardless of the depth of the strata in which underground water is located, that are situated wholly or partly within, or border upon, this state, or are within its jurisdiction, except those private waters that do not combine or effect a junction with natural surface or underground waters.

Many are pinning their hopes on a Congressional fix that would expand federal jurisdiction beyond navigable waters or those with a "significant nexus" to a navigable water.   Legislation has been proposed- the Clean Water Restoration Act.  It would redefine fedral waterways covered by the Clean Water Act by dropping the term "navigable" as a qualifier to which waters are covered.  It would also add the following language regarding federal

WATERS OF THE UNITED STATES.—The term ‘waters of the United States’ means all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution."

This language would certainly capture virtually every water way.   However, it is very controversial.  Especially out West.  Perhaps with Democratic control this legislation will begin to move, but it still faces a huge challenge.  As a result, states will be feeling increasing pressure, like Ohio has, to exercise existing authority in an attempt to fill the void left by the Rapanos decision.

(Photo: whiskymac/everystockphoto.com)

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Controversial Ohio EPA Rule Proposes New Permit For Impacts To All Streams

Posted on October 1, 2008 by Joe Koncelik

On September 12, 2008, Ohio EPA issued proposed rules that would require a new permit, called a "state water quality permit", for all dredge or fill impacts to non-federally regulated streams.  Ohio may be the first state in the country to try and expand state stream permit requirements in reaction to recent U.S. Supreme Court decisions limiting the coverage of the Clean Water Act.  As discussed below, Ohio's effort will be controversial.

 The Supreme Court in Rapanos and SWANCC limited federal jurisdiction of the nation's waterways based upon its interpretation of the Clean Water Act's trigger for jurisdiction- "Navigable Waters".  In a prior post (Narrowing Federal Jurisdiction Over Waterways), I discussed the pressure mounting on States to react to federal court decisions which leave many waterways unprotected.  

Currently, Ohio EPA only requires a permit (401 permit) to fill or dredge a stream if the stream is under federal jurisdiction.   No permit is required if a stream is considered a state waterway but not a federal waterway.

In the past this approach didn't matter much because the Army Corps had a very expansive interpretation of federal waterways.  However, with the federal authority shrinking based upon a flurry of recent federal court decisions, the State felt it could no longer allow more and more streams to go unprotected.  In reaction, they have proposed a new rule that would require a permit for dredge or fill activity on any Ohio waterway, defined as "waters of the state" under Ohio Revised Code 6111.01(H). 

While Ohio EPA's action is understandable, after reviewing the rule, the Agency may be overcompensating.  The definition of a "water of state" is quite expansive under O.R.C. 6111.01(H), it includes:

 "...all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and other bodies or accumulations of water, surface and underground, natural or artificial, regardless of depth of the strata in which underground water is located, that are situated wholly or partly within, or border upon, this state, or are within its jurisdiction, except those private waters that do not combine or effect a junction with natural surface or underground waters."

I can see the lobbyists now, holding up pictures of a small puddle and arguing that Ohio EPA would require a permit for putting a few shovels of dirt in the hole.  Only problem is there is not much in the rule to refute this claim from a purely legal perspective.  The rule does not contain an exemption from permit requirements for small water bodies or deminimis impacts. 

In my experience the Agency is typically not persuasive when it argue "just trust us" to apply the regulation fairly.  As a result, there is no doubt this rule package will be very controversial. 

Other issues with the package include the following:

  1. Same Level Review for All Impacts-  While flawed, Ohio's isolated wetland permit requirements appropriately tries to match the level of review required with the amount/severity of impact.  The proposed rule makes no such effort.  All impacts are required to submit the same amount of technical information as part of their application. Also, all projects will be reviewed within 180 days, expedited review requirements for smaller projects is not included in the rule.
  2. Drainage Ditches- Who can clean out a ditch and when has been a controversial issue in Ohio for some time.  The proposed rule would put significant limitations on when ditches can be cleaned out for purposes of flood control or drainage.
  3. Clean Fill Materials- The rule limits fill to material "free from toxic contaminants in other than trace quantities."  While this limitation often appears in 401 permits, it has always been vague.  The rule adds no clarity to what is considered "trace quantities."  For instance, arsenic is naturally occurring in most Ohio soils.  Couldn't this limit be viewed to prohibit use of even typical Ohio farm soil as fill?
  4. All Permit Applicants Will Have to Wait-  The rule requires every applicant provide a copy of a determination letter from the Army Corps of Engineers as to whether the waters to be impacted are within federal jurisdiction.  Shouldn't some waters be just obviously not within federal jurisdiction?  This requirement is problematic because the Army Corps has been very slow to issue jurisdictional determinations. 
  5. Ohio EPA Guidance Elevated to Legal Requirements-  The rule requires all applicants evaluate the quality of streams in accordance with a series of technical guidance developed by Ohio EPA.  While these guidance documents have been used for years in permit reviews, it certainly will be controversial to make them mandatory. 

Comments on the rule package are currently due October 27, 2008.  However, business associations  are already requesting Ohio EPA allow for more extensive public involvement in the development of the rules.

 (Photo: flickr, heather0174)

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Narrowing Federal Jurisdiction Over Waterways

Posted on June 20, 2008 by Joe Koncelik

The USA Today did a story on the huge debate taking place over the limits of federal jurisdiction over waterways.   The debate ensued in the aftermath of two major Supreme Court cases dealing with federal jurisdiction over wetlands. 

Early on the focus after Rapanos and SWANCC was which wetlands would receive federal protection.  Now, after a series of federal district court rulings and proposed federal legislation, the debate has grown to be much larger.  The States may soon find themselves in the middle scrambling to fill some large holes in federal authority.

(Image: Colin Gregory Palmer/everystockphoto.com)

At issue was the term "navigable waters" which appears repeatedly in the Clean Water Act.  Both Rapanos and SWANCC looked at that term as it related federal jurisdiction over wetlands.  The Supreme Court ruled that Congress, by using the term "navigable waters", did not intend to use its full powers under the Commerce Clause of the Constitution.  Rather, Congress limited exercise of its authority to waters and wetlands that had some significant connection to a "navigable in fact waterway." 

Unfortunately the Court could not agree on a clear test for determining which waters are federally protected.  Justice Kennedy's broader "significant nexus" test seems to have emerged as the most relevant test.  Under the "significant nexus" test, any stream, pond, wetland or other waterway that has a "significant nexus" to a navigable water is federally protected.  "Significant nexus" means it has a significant effect on the chemical, physical, and biological integrity of the navigable water.

The grey area are intermittent streams and isolated ponds/wetlands.  Litigation has seen a clash between experts arguing over whether there is some significant hydrologic connection to a navigable water. 

Now two major cases have expanded the debate from beyond just wetlands.  Back in 2006, the 5th Circuit in United States v. Chevron Pipe Line Co. 437 F. Supp. 2d 605, 614 (N.D. Tex. June 28, 2006)  drastically limited the federal government's authority to pursue spill and contamination in waterways.  Chevron involved a major oil spill of 126,000 gallons.  The Company successfully argued there was no federal violation resulting from the spill because contamination only reached intermittent streams that had no flow during the time of the spill or during clean up.  The Court put the burden on U.S. EPA to prove contamination actually reached a navigable water.

In March, a Federal Court vacated U.S. EPA's SPCC Rule (API v. Johnson, No. 02-2247, 2008 U.S. Dist. LEXIS 25859 (D.D.C March 31, 2008) because it contained an overly broad definition of navigable water.  The Court ruled there was no way U.S. EPA could defend the regulation in light of the recent Supreme Court rulings limiting federal jurisdiction.  The result of this ruling may be less facilities will need to prepare spill control plans. 

Many are focused on the proposed federal legislation as the viable fix to these gaps in federal authority. The legislation would expand coverage under the Clean Water Act from "navigable waters' to "waters of the United States".   As highlighted in the USA Today article, given the controversy over such a large expansion of federal jurisdiction, I don't see legislation passing anytime soon.  This means the States, who have broader authority will soon be facing the prospect of filling the gaps in federal authority using state permitting or enforcement authority.

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