When does placing fill in a wetland or disturbing a stream for construction require a federal permit? Seems like this should evoke a pretty straightforward answer. However, for more than a decade the extent of federal permitting regulations has been unclear. Now EPA and the Army Corps of Engineers (ACOE) are attempting, once again, to try and provide a clear answer.
Background on Supreme Court Clean Water Act Decisions
Federal regulations clearly define "waters of the United States" in 40 CFR 122.2 to include "navigable waters" (i.e. those waterways used for commerce) as well as interstate waters. What has not been clear is the scope of "other waters" that fall within federal jurisdiction.
The extent of federal jurisdiction over streams and wetlands has been unclear ever since the Supreme Court issued its decisions in Solid Waste Authority of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006). Since Rapanos, Justice Kennedy’s “significant nexus” test has been used to determine jurisdiction for streams and wetlands that fall into the "other water" regulatory classification. Under the test, a waterway is evaluated to determine whether it impacts the chemical, physical, and the biological integrity of a navigable water. If it does impact a navigable water in that manner, then it falls under federal jurisdiction.
Since the Rapanos decision, both the ACOE and EPA have struggled to provide clear guidance as to which waterways meet the "significant nexus" test. Far too frequently, the determination has been left to case-by-case determinations that are litigated. Making matters worse, different federal courts have reach different conclusions when applying the “significant nexus” test.
The ACOE and EPA have attempted to clarify through guidance federal jurisdictional waters, but those guidance documents have been vacated by the Courts (see prior post). The courts made clear a formal rule was necessary for EPA and ACOE's scientific interpretations to have legal force.
On March 25, 2014, EPA and the Army Corps of Engineers jointly released their proposed rule defining the terms “waters of the United States” under the Clean Water Act. Under the proposal, the federal agencies attempt to move away from the case-by-case application of the “significant nexus” test by simply defining certain waters as under federal jurisdiction.
Proposal Maintains Jurisdiction over Navigable Waters
Under the proposed rule, the following waters are jurisdictional by rule, with no further analysis needed:
- Navigable waters
- Territorial seas
- Interstate waters
- Tributaries of navigable or interstate waters
- Adjacent waters and wetlands
The EPA and ACOE state they are not expanding the definition of these categories in the proposed rule. Rather, these categories represent those waterways that have been consistently recognized as subject to federal jurisdiction in prior rule making.
Expansive Proposed Definition of Tributary
The rule proposal does contain an entirely new definition of "tributary," which under the proposed rule, would be classified as jurisdictional waters with no further analysis. If the rule were finalized, it would eliminate most case-by-case decision making on federal jurisdiction. Under the proposal, a “tributary” is any waterway that meets the following characteristics:
· Can have perennial, intermittent or ephemeral flow
· Has a defined bed, bank and ordinary high water mark (a term defined under existing regulations)
· Contributes flow, either directly or through another water, to as jurisdictional water
· Or, is part of a network that drains to a jurisdictional water
The portion of the definition which states any waterway that contributes flow “directly or through another water” to a jurisdictional water, is very expansive. It is these waterways with more tenuous connections to "navigable rivers" that have been the subject of litigation. The proposed rule would eliminate any doubt for the vast majority of such streams and wetlands- they would be under federal jurisdiction.
The tributary definition includes wetlands, lakes, ponds that contribute flow to a navigable or interstate water. It also includes ditches, except in upland areas that don’t contribute flow to a jurisdictional water.
The rule proposal states the connectivity demonstration can be made using aerial photos and/or USGS maps or other evidence. However, only the connection must be demonstrated. There does not need to be any individualized demonstration that the waterway in question impacts the chemical, physical, and the biological integrity of a navigable water. EPA argues its review of the science demonstrates the vast majority of tributaries have such impacts.
While it difficult to come up with a stream or wetland that would likely not fit the definition of tributary, the rule still proposes to a catchall provision which states jurisdiction may still be asserted over any waterway on a case-by-case basis. The catchall provides EPA and ACOE for regulate streams and wetlands that may not meet the expansive definition of tributary.
EPA Argues Proposal Rule Supported by Science
EPA states that the proposal to expansively define tributary to automatically include most waterways without a case-by-case demonstration is supported by scientific literature. EPA conducted a review of published peer-reviewed scientific literature- “Connectivity and Effects of Streams and Wetlands on Downstream Waters: A Review and Synthesis of Scientific Evidence.” In it's review EPA concludes most waterways are interconnected and can impact water quality of larger streams and rivers.
In the proposed rule, EPA argues that its expansive definition of tributary is supported not only by science but by case law as well. EPA discusses the various cases that have tried to address the "significant nexus" test.
Public Comment Period
A 90-day public comment period will begin once the proposal is published in the Federal Register. The EPA states is seeks comments to its proposal as well as other ways to define which waters should be considered jurisdictional. However, the proposal makes very clear that EPA believes its proposal is on solid ground.
Creative Commons photo by putneypics via Flickr