What To Know About The 'Waters Of The United States' Rule

Transcription

1 Portfolio Media. Inc. 860 Broadway, 6th Floor New York, NY Phone: Fax: What To Know About The 'Waters Of The United States' Rule Law360, New York (July 6, 2015, 1:03 PM ET) -- On May 27, 2015, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers jointly issued a Clean Water Rule that defines waters of the United States ("WOTUS"), a threshold term that determines the Clean Water Act s scope and application.[1] The final rule has broad application as it defines jurisdictional waters for many CWA programs. The EPA and Army Corps claim that the scope of the new rule is narrower than existing regulations and results in CWA jurisdiction applying to fewer waters than under existing regulations, but regulated entities have criticized the agencies for overreaching and expanding CWA jurisdiction beyond historical coverage and U.S. Supreme Court precedent.[2] Below are five things you should know about the rule. 1. Final Rule Appears to Assert CWA Jurisdiction Over Dry Lands Andrea M. Hogan In its prior decisions on the scope of CWA jurisdiction, the Supreme Court has limited agency jurisdiction to waters and lands that are wet (i.e., wetlands).[3] Through various definitions, it appears that the final rule arguably sweeps into its ambit lowlands and transitional zones that occur between open waters and upland areas, in addition to wetlands. The final rule defines WOTUS to include waters that would not be independently jurisdictional, but become so upon demonstration that they have a significant nexus to otherwise jurisdictional waters and are either: (a) within 4,000 feet from the high-water mark of a water that is jurisdictional by rule or (b) within a 100-year floodplain.[4] By introducing these numeric limits, the agencies appear to have reinforced concerns that the federal government is asserting jurisdiction over not only the waters within covered areas, but also the landscape. 2. Under the Final Rule There Are Six Per Se Jurisdictional Waters Under existing law, the term waters of the United States includes seven categories of bodies of water.[5] Six of those categories would be retained as WOTUS by rule (i.e., per se jurisdictional waters), and would fall under the jurisdiction of the CWA with no additional required analysis: traditional

2 navigable waters, interstate waters, the territorial seas, impoundments, tributaries and adjacent waters. The first four categories of waters were jurisdictional under existing law. A key change in the final rule is that it makes tributaries and adjacent waters that share a significant nexus to the waters of the United States jurisdictional by rule. The final rule provides a first-ever regulatory definition of the term tributary as small, intermittent and ephemeral tributaries, tributary lakes, ponds and wetlands, man-made and man-altered tributaries.[6] Tributary status is not lost by man-made or natural breaks, so long as the bed, bank and ordinary highwater mark can be identified upstream of the break.[7] Thus, the final rule removes a distinction in the 2008 guidance between permanent and intermittent tributaries.[8] Instead of assessing the duration of a given flow s presence, the final rule requires analysis regarding whether evidence indicates that the flow travels into waters of the United States. [9] The origin of the water whether natural, manaltered or man-made expressly does not matter. The final rule excludes from WOTUS certain kinds of man-made ditches and clarifies that gullies, rills and ephemeral streams that fail to meet the definition of tributary are explicitly excluded from regulation.[10] The term adjacent as in adjacent waters is defined to mean bordering, contiguous or neighboring, [11] and thus remains unchanged from existing regulations.[12] But the term neighboring has now been defined to include waters located, in whole or in part: within 100 feet of the ordinary high-water mark or within the 100-year floodplain and within 1,500 feet of the ordinary high-water mark of a traditional navigable water, interstate water, territorial sea, impoundment or tributary; or within 1,500 feet of the high-tide line of a traditional navigable water or territorial sea or the ordinary high-water mark of the Great Lakes.[13] This represents a change from existing law and the 2008 guidance, which referred to adjacent wetlands and left much of the jurisdictional analysis to case-by-case determinations.[14] 3. Additional Waters May Qualify As Waters of the United States on a Case-by-Case Analysis To qualify as WOTUS, waters in two additional categories must undergo a case-by-case analysis and may be regulated if alone or in combination with other similarly situated waters located in the same region they share a significant nexus to a traditional navigable water, interstate water or the territorial seas.[15] Existing law categorizes the following bodies of water as other waters if those waters could affect interstate or foreign commerce: intrastate lakes, rivers, streams (including intermittent streams), mud flats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes or natural ponds.[16] The final rule abandons the other waters concept and replaces it with two different mechanisms for evaluating them. First, the final rule establishes five explicit categories of waters that are presumptively similarly situated, and must therefore be considered in combination with other similar waters as a system that may have a significant nexus to other jurisdictional waters in the aggregate.[17] These five categories include: (1)

3 prairie potholes, (2) Carolina bays and Delmarva bays, (3) pocosins, (4) western vernal pools and (5) Texas coastal prairie wetlands.[18] Second, waters: (a) within the 100-year floodplain of a traditional navigable water, interstate water or the territorial seas or (b) within 4,000 feet of the high-tide line or ordinary high-water mark of a traditional navigable water, interstate water, territorial sea, impoundment or tributary are subject to case-specific significant-nexus analysis.[19] 4. Significant Nexus Is Defined for the First Time by Regulation and Agencies Assert the Definition Is Science-Based The agencies existing regulations do not define the term significant nexus, which derives from Justice Anthony Kennedy s concurring opinion in Rapanos.[20] In 2008, however, the EPA issued a guidance document that generally explains how the agencies have since interpreted and applied this concept.[21] The final rule provides a first-ever regulatory definition of significant nexus to mean that water at issue which significantly affects the chemical, physical or biological integrity of a traditional navigable, interstate water or territorial sea.[22] Significant effects must be more than speculative or insubstantial.[23] In describing the significant nexus concept, the final rule relies heavily on a peer-reviewed synthesis of published peer-reviewed scientific literature discussing the nature of connectivity and effects of streams and wetlands on downstream waters prepared by the EPA s Office of Research and Development.[24] The final rule adds a list of factors that must be considered in deciding whether a significant nexus exists, including sediment trapping; nutrient recycling; pollutant trapping, transformation, filtering and transport; retention and attenuation of flood waters; runoff storage; contribution of flow; export of organic matter; export of food resources; and provision of life cycle-dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning or use as a nursery area) for species located in a traditional navigable water, interstate water or the territorial seas.[25] While the results of the practical application of these factors remains to be seen, the significant nexus test under the final rule appears to create an impenetrable scientific inquiry that could find significance in even the most remote connections. Such an inquiry seems inconsistent with the significant nexus test articulated by Justice Kennedy, who stated that the required nexus must be assessed in terms of the statute's goals and purposes. [26] Additionally, by relying on a list of scientific factors to evaluate the presence of a significant nexus, the regulated community may justifiably fear that each significant-nexus determination will require a detailed and expensive scientific study. Even after such a study, the agencies are poised to apply their discretion, experience and expertise to make broad jurisdictional determinations. 5. The Future of the Rule Is Subject to Legislative and Litigation Challenges Industry concern regarding the final rule has been widespread and it faces significant political and legal challenges. From a legislative perspective, several currently pending bills would block the final rule, if enacted, including the Regulatory Integrity Protection Act, which passed the House of Representatives on May 12, 2015, the Defense of Environment and Property Act, which was introduced to the Senate in April 2015, and the Federal Water Quality Protection Act, which reported out of the Senate Committee on Environment and Public Works on June 10, 2015.[27] The future of this legislation is uncertain, however,

4 especially given that President Obama has promised to veto it. The final rule will likely face a number of legal challenges as well, including among others, arguments that the final rule exceeds the bounds of the Constitution s Commerce Clause; exceeds the limits of the CWA and is inconsistent with the Supreme Court s interpretation of the CWA; improperly asserts jurisdiction over dry land, when the Supreme Court previously has limited CWA jurisdiction to, in addition to waters themselves, only wet lands adjacent to waters; and is arbitrary and capricious under the Administrative Procedure Act. The final rule will become effective on Aug. 28, It remains to be seen whether congressional opponents or litigants will be successful in blocking or further delaying the rule s implementation. By Andrea M. Hogan, Paul N. Singarella, Daniel P. Brunton and Garrett L. Jansma, Latham & Watkins LLP Andrea Hogan is a partner in Latham & Watkins' San Francisco office. Paul Singarella is a partner and Garrett Jansma is an associate in Latham & Watkins Orange County, California, office. Singarella is a Massachusetts Institute of Technology-educated engineer and former National Science Foundation scholar. Daniel Brunton is counsel in Latham & Watkins' San Diego office. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] EPA and Department of the Army, Corps of Engineers, Clean Water Rule: Definition of Waters of the United States, (Final Rule), 80 Fed. Reg. 37,054 (June 29, 2015). [2] See, e.g., Press Release, Sen. Joe Manchin (D-W.Va.), Manchin Statement on EPA s Final Waters of the U.S. Rule (May 27, 2015), Press Release, U.S. Chamber of Commerce, U.S. Chamber Statement on EPA s Final Clean Water Rule (May 27, 2015), [3] See Rapanos v. United States, 547 U.S. 715 (2006); Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, 474 U.S. 121 (1985). [4] 80 Fed. Reg. at 37,105 (proposed 33 C.F.R. Section 328.3(a)(8)). This section of proposed 33 C.F.R. Part 328, and all further citations in this article to proposed 33 C.F.R. Part 328, also appear in proposed 40 C.F.R. Part 110, proposed 40 C.F.R. Part 112, proposed 40 C.F.R. Part 116, proposed 40 C.F.R. Part 117, proposed 40 C.F.R. Part 122, proposed 40 C.F.R. Part 230, proposed 40 C.F.R. Part 232, proposed 40 C.F.R. Part 300, proposed 40 C.F.R. Part 302 and proposed 40 C.F.R. Part 401, as outlined in the final rule. [5] 33 C.F.R. Section 328.3(a). [6] 80 Fed. Reg. at 37, (proposed 33 C.F.R. Section 328.3(c)(3)).

5 [7] Id.; see also id. at 37,058 (preamble). [8] EPA, Clean Water Act Jurisdiction Following the Supreme Court s Decision in Rapanos v. United States and Carabell v. United States at 6-12 (Dec. 2008). [9] 80 Fed. Reg. at 37,058 (preamble). [10] Id. [11] Id. [12] 33 C.F.R. Section 328.3(c). [13] 80 Fed. Reg. at 37,105 (proposed 33 C.F.R. Section 328.3(c)(2)). [14] 2008 Guidance at 5-6. [15] 80 Fed. Reg. at 37,058-68, [16] 33 C.F.R. Section 328.3(a)(3). [17] 80 Fed. Reg. at 37,071-73, (proposed 33 C.F.R. Section 328.3(a)(7)). [18] Id. [19] 80 Fed. Reg. at 37,059-60, 71, 105 (proposed 33 C.F.R. Section 328.3(a)(8)). [20] Rapanos v. United States, 547 U.S. 715, (2006) (Kennedy, J., concurring). [21] See generally 2008 guidance. [22] 80 Fed. Reg. at 37,106 (proposed 33 C.F.R. Section 328.3(c)(5)). [23] Id. [24] See generally EPA, Connectivity of Streams & Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (January 2015); see also 80 Fed. Reg. at 37, (preamble). [25] 80 Fed. Reg. at 37,106 (proposed 33 C.F.R. Section 328.3(c)(5)). [26] Rapanos, 547 U.S. at 779. [27] Regulatory Integrity Protection Act, H.R. 1732, 114th Congress (2015) (pending before U.S. Senate); Defense of Environment and Property Act of 2015, S. 980, 114th Congress (2015) (referred to Senate Committee on Environment and Public Works on April 16, 2015); Federal Water Quality Protection Act, S. 1140, 114th Congress (2015) (the Senate Committee on Environment and Public Works ordered the act to be reported with an amendment on June 10, 2015). All Content , Portfolio Media, Inc.