A quick search on the Internet reveals the Environmental Protection Agency (EPA) has developed roughly 2,800 new regulations since 2009, when the current administration took office. While most regulations have likely met with some level of disapproval, it is probably fair to say the recently proposed rule defining the scope of waters protected under the Clean Water Act (CWA) has been the most widely criticized rule proposed by the agency since the current administration assumed control over the executive branch.
Despite the agency’s assurance that the proposed rule does not protect any waters that have not historically been protected, it has met serious resistance from numerous groups, including a bipartisan contingent of U.S. representatives and senators.
While the EPA and the Army Corps of Engineers (COE) always have asserted broad jurisdictional authority over most waters and drainage features, the CWA and the current definition of “waters of the U.S.” simply does not support their declaration.
A number of Supreme Court justices pointed this out in two cases — Solid Waste Agency of Northern Cook County vs. Army Corps of Engineers and Rapanos vs. United States — in which the agencies’ jurisdictional authority was denied over remote waters because they could not legitimize a tie to waters that were clearly covered in the CWA. Recognizing the importance of this condition, Justice Anthony Kennedy in the Rapanos decision gave the agencies guidelines to determine whether wetlands have the required “nexus” when assessing whether they are a jurisdictional wetland.
In short, Kennedy explained that, to be jurisdictional, the wetland must “either alone or in combination with similarly situated wetlands in the region, significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as ‘navigable.’” The agencies explain in the preamble of the proposed rule, “… it is reasonable to utilize the same standard for tributaries.” Calling on a study still under review by the EPA’s Science Advisory Board titled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence,” the EPA and COE conclude that tributaries, as defined in the proposed rule, perform the functions outlined by Kennedy and therefore qualify them to be considered, as a category, “waters of the United States.”
Unfortunately for landowners, especially farmers and ranchers, the proposed rule’s definition of tributary embodies almost every conceivable type of water and drainage feature. This includes ephemeral streams that are small swales or natural ditches that are dry most of the time and carry flow infrequently.
No consideration for the frequency, volume or duration of flow will be given when the agencies claim jurisdiction over the countless topographical features that fall into this category. Coupling the terms “adjacent” and “neighboring” with a broad definition of “tributary” will bring riparian areas and floodplains under their jurisdiction as well.
While the proposed rule indicates ditches are exempt, the exemption applies only under two narrow conditions. To be exempt, a ditch must be excavated wholly in an upland, drain only an upland and have less than perennial flow. Further, a ditch is exempt if it does not contribute flow, either directly or through another water, to a water traditionally defined as a “water of the U.S.” The exemption would not apply if a ditch flows into another ditch or ephemeral stream that eventually flows into a “waters of the U.S.”
Despite the EPA’s claim that the proposed rule does nothing more than clarify the scope of “waters of the United States” protected under the Act, many consider it to be a huge land grab that would give the agencies limitless control over how a landowner uses his or her property. Furthermore, it would place serious financial and regulatory burdens on them.
Responding to negative feedback and numerous requests from stakeholders, the EPA has extended the period to comment on the proposed rule to October 20.
Given the implications of the proposed rule, it is essential for stakeholders to communicate their concerns and discontent with it in its current form. The proposed rule can be found on the USPOULTRY Web site at http://bit.ly/WatersoftheUS. Instructions for submitting comments to the EPA can be found on the first page of the proposed rule.