As foreshadowed in an alert we issued a year ago, today (May 27, 2015) the Obama Administration finalized its comprehensive “Clean Water Rule,” formerly referred to as the “Waters of the United States” rule, ending a multi-year rulemaking, but kicking off a legislative and litigation showdown. Touted by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACOE) as a comprehensive measure to protect the nation’s waterways and to codify via rulemaking U.S. Supreme Court holdings in two cases issued since 2001, the rule cloaks intermittent, perennial and ephemeral streams and waterways in federal Clean Water Act protection while coming under significant criticism by farmers and ranchers, real estate owners and developers, and mining, energy and transportation industries.
The rule was first proposed jointly by EPA and ACOE in March of 2014 in an attempt to clarify the limits of federal jurisdiction under the Clean Water Act following the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006). In combination, the cases dealt with ACOE’s and EPA’s broad assertion of federal regulatory jurisdiction over isolated wetlands or any water that is “connected” to navigable surface waters, both of which were batted back by the Court. In the wake of these decisions the rule was developed and vetted by, according to the agencies, “more than 400 meetings with stakeholders across the county” and “a 207-day public comment period that resulted in more than one million comments.”
The rule has come under fire as a Washington, D.C. overreach with vague language that would allow federal bureaucrats to descend on private landowners and attempt to exercise federal regulatory jurisdiction over wetlands that are adjacent to tributaries of navigable waters. Such tributaries (called intermittent or ephemeral features) are often dry most of the year. For these features that are adjacent to jurisdictional navigable surface waters, the rule sets a minimum applicability distance of 100 feet and within the 100-year floodplain to a maximum distance of 1,500 feet of the ordinary high water mark of the jurisdictional water.
The rule’s reach also includes other “isolated” or regional waters such as specifically designated potholes, pools and features in California and Texas as well as those waters with a “significant nexus” to jurisdictional waters. Bipartisan measures have already been introduced in Congress to stop the rule, and several industry groups have threatened lawsuits to challenge the rule and its implementation. The House measure passed by a vote of 261-155 earlier this month, and the Senate bill is awaiting a vote out of Committee. The legal challenges will likely include a claim that the agencies failed to comply with the requirements of the Administrative Procedures and Regulatory Flexibility Act. In testimony delivered on May 19th, the Small Business Administration told Congress that the agencies’ certification of no small business impact was not supportable.
The agencies assert that the rule is needed to protect the headwaters of navigable waters and to protect the surface waterways that ultimately serve as a drinking water source for one in three Americans. The agencies also assert that the rule does not overreach but “only protects waters that have historically been covered by the Clean Water Act” and does not regulate “most ditches…groundwater, shallow subsurface flows or tile drains.” EPA asserted today that the rule would only expand the reach of the Clean Water Act by about 3 percent. Environmental groups have supported the rule, calling on the need of federal regulatory oversight where they assert states have failed to protect surface water resources. Groups have filed petitions with EPA, asserting that states are failing to regulate waters that are connected to surface waters and calling for EPA to step in. The impact of the rule on a project must be reviewed in light of the extent of counterpart state regulatory authorities to evaluate its true impact. A copy of the prepublication version of the rule can be downloaded here. The rule will be incorporated into 33 CFR Part 328 (governing ACOE) and several parts of 40 CFR applicable to EPA activities and authorities.