New Developments in Clean Water Act Jurisdiction

There have been several important developments in the ongoing battle over the precise scope of federal jurisdiction over “waters of the United States,” as dictated by the Clean Water Act (CWA).  Most notably, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) sent a draft proposed rule – one that would clarify the definition of waters of the U.S. and their CWA permitting jurisdiction – to the Office of Management and Budget (OMB) for final interagency review. The resulting rule may add countless “water bodies” to the list of federally-controlled waters and make CWA Section 404 permitting an even more onerous and costly proposition. Proposed Rule on Waters of the U.S. Underway The proposed rule comes from increased pressure on the agencies to abandon the strategy of issuing non-regulatory guidance to their regional entities interpreting their CWA jurisdiction. (This joint EPA-Corps guidance has been held up in its own interagency review at OMB since 2012.)  The content of the draft proposed rule is not yet public. It is very likely that this rule will expand federal jurisdiction. The rule from EPA and the Corps would provide greater clarity about which waters are subject to CWA jurisdiction and greater certainty about which activities require federal CWA permits, senior EPA officials wrote in a blog post.  All of this activity stems from a series of U.S. Supreme Court rulings concerning the extent of waters covered by the CWA – most recently Rapanos v. United States. Guidance on Waters of the U.S. Withdrawn In regards to the aforementioned guidance, OMB’s database officially marked the EPA “post-Rapanos” guidance as withdrawn.  EPA has not yet (and likely doesn’t intend to) publicly invalidate the guidance. With the guidance having never been officially finalized, there is nothing to officially withdraw.  But the fact that EPA has withdrawn the guidance from OMB consideration means they won’t be pursuing the guidance and the rule simultaneously, which was one of the construction industry’s biggest concerns.  Working with its coalition partners, AGC provided substantial comments on ways in which the proposed guidance misconstrues Supreme Court cases, is inconsistent with the agencies’ regulations, and expands jurisdiction. Draft Report on Connectivity of Waters out for Comment At the same time the proposed rule went to OMB, EPA release their draft report “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” for public comment. This document contains the scientific review that will support the EPA/Corps assertion of expanded jurisdiction. The report concludes that:

1. “All tributary streams, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers.”
2. “Wetlands and open-waters in landscape … are physically, chemically, and biologically connected with rivers.”
3. Isolated waters “provide numerous functions that can benefit downstream water quality and integrity” but “it is difficult to generalize about their effects on downstream waters from the currently available literature.”

These conclusions support the idea that if all waters are connected (or could be connected), then all waters are essentially “waters of the U.S.” under the Clean Water Act and fall under federal jurisdiction. Rather than first completing the review of the science so that the science properly informs the rulemaking, the public review of this science is happening on a parallel track to the evaluation of the proposed rule by OMB.  EPA is accepting comments on the literature summarized in the report, and its conclusions. AGC will continue to work its industry partners in the Waters Advocacy Coalition to provide industry reaction to the Connectivity science, and will continue to watch for the publication of the proposed rule. Background Clean Water Act permits are required to discharge pollutants and dredged or fill material, into waters of the United States; such as streams, rivers, wetlands, lakes, and other waterbodies. If the waters are not considered “waters of the U.S.,” no federal permits are required under the CWA.  Recent court rulings and interpretations of water laws have sparked confusion and increased uncertainty regarding which waters are protected under the Clean Water Act, especially for some headwaters with ephemeral and intermittent flows, and some other waters such as prairie potholes and vernal pools. The EPA and the Corps are attempting to provide clarification as to what waters are considered jurisdictional and thus under the purview of the CWA.  The regulations aren’t going to be any less controversial than the draft guidance. For more information, please contact Scott Berry at berrys@agc.org or Leah Pilconis at pilconisl@agc.org.