Tuesday, May 20, 2014



Comments on the EPA’s proposed rule which fundamentally redefines what may constitute “waters of the United States” under the Clean Water Act are due by July 21, 2014.  As proposed, the new rule would expand the scope of the jurisdiction of the Army Corps of Engineers by defining “waters of the United States” to include ponds, ditches, and other areas which are “occasionally” wet.  The rule would expand jurisdiction to include these types of areas, even where the connection to navigable waters or an evident “water of the United States” is not readily apparent.

Per the EPA’s announcement, the new definition is needed because the issue of Clean Water Act authority and the Army Corps of Engineers’ jurisdiction has been addressed but not resolved by the U.S. Supreme Court in two decisions since 2000.  In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers,  531 U.S. 159,  (2001), the Court ruled in a 5-4 decision that the use of “isolated” non-navigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of Army Corps of Engineers regulatory authority under the Clean Water Act. The Court found that Section 404(a) of the Clean Water Act, 33 U.S.C. §1344(a), did not “confer federal authority over an abandoned sand and gravel pit in northern Illinois which provides habitat for migratory birds.”  Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. at 162.

Thereafter, the Supreme Court addressed the term “waters of the United States” in Rapanos v. United States, 547 U.S. 715 (2006).  Rapanos involved consolidated cases in which Clean Water Act jurisdiction had been applied to wetlands adjacent to non-navigable tributaries of traditional navigable waters in Michigan.  Rapanos, 547 U.S. at 719.  The Petitioners and their businesses in one consolidated case had deposited fill material without permits into wetlands on three sites in Michigan.  These sites were connected to man-made drains and ditches which eventually connected to navigable rivers and Lake Huron.  Id., at 729.  The Petitioners in the other consolidated case had been denied a permit to deposit fill material in a wetland located on a parcel of land located about one mile from Lake St. Clair.  Id. at 730.  The wetland was near a drainage ditch, but drainage from the wetland was blocked by a man-made, impermeable berm.  Id.  The judgments of the Sixth Circuit finding federal jurisdiction in these consolidated cases were vacated and remanded by the Supreme Court for further proceedings.

In addressing the definition, the Court ruled that the term “waters of the United States” included some waters that were not navigable in the traditional sense.  Justice Scalia announced and delivered the plurality opinion, in which Justices Thomas, Alito, and Chief Justice Roberts joined.  Id.  For the plurality, the term “waters of the United States” covered “relatively permanent, standing or continuously flowing bodies of water,” that are connected to traditional navigable waters, along with wetlands.  Id., at 739, 742.  The plurality in Rapanos noted that the term “relatively permanent” did not necessarily exclude streams, rivers, or lakes that might dry up in a drought, or “seasonal rivers, which may contain continuous flow during some months of the year but no flow during dry months.”  Id., at 732, n. 5 (emphasis in original).

In a concurring opinion, however, Justice Kennedy wrote that the term “waters of the United States” encompassed wetlands that “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be made so.”  Id., at 759.  Because of Justice Kennedy’s use of the term “significant nexus,” this standard has since been used as the standard for Clean Water Act jurisdiction.

The dissenting Justices in Rapanos would have defined “waters of the United States” to include all tributaries and wetlands that satisfy either the pluralities’ standard or Justice Kennedy’s standard.  Id., at 810, n. 14 (Stevens, J., dissenting).  As Chief Justice Roberts noted in his concurring opinion in Rapanos, “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act.  Lower courts and regulated entities will now have to feel their way on a case-by-case basis.”  Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring).  Accordingly, because of the lack of a clear opinion on the limits of jurisdiction under the Clean Water Act, the EPA has promulgated the proposed rule.

The current proposed  rule would revise the existing definition of “waters of the United States” to include “all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mud flats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce including any such waters:  which are or could be used by interstate or foreign travelers for recreation or other purposes; from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or which are used or could be used by industrial purposes by industries in interstate commerce.”  79 Fed. Reg. 22188, 22191 (Apr. 21, 2014).   This language emphasizes the basis for federal and Army Corps of Engineers’ jurisdiction under the Clean Water Act, which was enacted per the authority of the Commerce Clause, which gives Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  U.S. CONST. art. I, §8, cl. 3.   Under the proposed definition, these “other waters”  “would only be jurisdictional upon a case-specific determination that they have a significant nexus as defined by the proposed rule.”  79 Fed. Reg. at 22,192.

The definition, if adopted as proposed, would impact all industries, businesses, municipalities and private citizens owning or using lands where water is present.  The rule would apply to all Clean Water Act programs and permits, including §404 dredge and fill permits, the §311 spill prevention program, and the §401 state certification process.

The full text of the announcement in the Federal Register and information on providing comments on the proposed rule can be found at http://www2.epa.gov/uswaters.  For more information, contact Toni Ellington at 504-599-8500.

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