Vol. 22, No. 5 September, 30 2014

New WOUS Proposed Rule

On April 21, 2014, the U.S. Army Corps of Engineers (COE) and the U.S. Environmental Protection Agency (EPA) published a proposed rule to define the scope of waters protected under the Clean Water Act (CWA). The proposed rule is intended to clarify policy that was based on a number of Supreme Court decisions, including Solid Waste of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, and most recently Rapanos v. United States. According to the agencies, the proposed rule “would enhance protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of waters of the U.S. protected under the Act.” Comments were originally requested by July 21, 2014; due to the number of comments and questions concerning the proposal, the comment period was extended for ninety days, until October 20, 2014. The draft regulations are quite confusing – and subject to widely varying interpretations. WSSI has been meeting with industry officials on this problem – and have met personally with the EPA officials in charge to try to clarify the administrations intent and draft a reasonable alternative to this proposal.
The current definition of waters of the U.S. (WOUS) has been in effect since November 1986 when Part 328 of 33 CFR was added to clarify the scope of the Section 404 CWA permit program. Various court cases have shaped the interpretation of the WOUS definition, including SWANCC in 2001 and Rapanos in 2006. According to the supplementary information in the proposed rule, these court decisions resulted in the agencies evaluating jurisdiction too often on a case-specific basis. The proposed rule purports to provide clarity and reduce confusion and uncertainty for the regulated public.
The current definition of WOUS includes a component in 328.3(c)(3) that includes “all other waters … the use, degradation, or destruction of which would affect interstate or foreign commerce including any such waters:
i. Which are or could be used by interstate or foreign travelers for recreational or other purposes, or,
ii. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce, or
iii. Which are used or could be used for industrial purpose or by industries in interstate commerce.”
These components related to interstate commerce are not part of the new proposed definition of WOUS. Both the current and proposed definitions include a component that includes all waters, including wetlands adjacent to another WOUS. The proposed rule defines adjacent as “bordering, contiguous, or neighboring.” “Neighboring is then defined to include waters within the riparian area or floodplain of another water, or waters with a shallow subsurface hydrologic connection… to another water. The proposed rule also defines “floodplain” and “riparian areas,” as they are part of the definition of “adjacent.” More importantly, “tributary” is defined, as well as “significant nexus.” A tributary is a water characterized by the presence of a bed and banks and an ordinary high water mark that contributes flow, either directly or through another water to another jurisdictional WOUS. Wetlands, ponds, and lakes are also considered tributaries if they contribute flow, directly or through another water, to a jurisdictional WOUS.
The agencies believe that because of the Supreme Court decisions described above, the scope of their jurisdiction in the proposed rule is narrower than under the existing regulations. Further, the proposed rule expands on features that are not jurisdictional, including waste treatment systems, as well as treatment ponds or lagoons, designed to meet the requirements of the CWA; groundwater, including groundwater drained through subsurface drainage systems; and gullies and rills and non-wetland swales. However, the definition of ditches that are jurisdictional WOUS as currently written, has been expanded. Meetings we've had with EPA suggest that this was not the intent.
Regardless, the rule has garnered strong opposition from various groups, including the agriculture and development communities, as well as municipal governments. The House passed a bill (HR 5078) on September 9, 2014 to kill the proposed rule, with local Maryland and Virginia representatives voting strictly along party lines (i.e., Democrats against, Republicans for passage). However, according to the Washington Post, the bill is expected to die in the Senate. We will continue to follow the progress of the proposed rule; in the meantime please contact Mark Headly or Mike Rolband if you would like additional information.
Supplemental Info:
In SWANCC, the Supreme Court ruled in a 5-4 opinion that the use of “isolated” intrastate ponds by migratory birds was not by itself a sufficient based for federal jurisdiction under the CWA. The Rapanos decision involved two consolidated cases where CWA jurisdiction had been asserted over wetlands adjacent to non-navigable tributaries of traditional navigable waterways. While all nine members of the Court agreed that the term “waters of the U.S.” included some waters that are non-navigable in the traditional sense, they disagreed on the waters in question in these cases. Four judges felt the waters at issue should not be jurisdictional, while four others felt they should be jurisdictional as wetlands with a continuous surface connection to “relatively permanent, standing, or continually flowing bodies of water.” Justice Kennedy concurred that the wetlands in question should be jurisdictional, if they “possess a significant nexus” to waters that are or were navigable in fact or that could reasonably be so made.” Further, wetlands possess the requisite significant nexus if they “either alone or in combination with other similarly situated wetlands in the region, significantly affect the chemical, physical and biological integrity of other covered waters.”