FACT SHEET

The Clean Water Act Guidance Changes Agency Regulations, Increases Jurisdiction, Distorts Supreme Court Cases and is Cumbersome and Complicated

 Prepared by Waters Advocacy Coalition 

On May 2, 2011, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) issued “Guidance Regarding Identification of Waters Protected by the Clean Water Act.” The agencies also published a notice inviting comments on the guidance. 76 Fed. Reg. 24,479 (May 2, 2011). The 39-page guidance was prepared for agency field staff to use in identifying “waters of the United States” subject to Clean Water Act (CWA) regulation. The guidance applies to all CWA programs and specifically lists sections 404 (wetlands), 402 (NPDES), 311 (oil spills and SPCC plans), 401 (state water quality certifications) and 303 (water quality standards and TMDLs). The agencies are accepting comments on the guidance for 60 days, or until July 1, 2011, after which time they plan to issue the guidance in final form.

 The agencies’ decision to issue guidance on this topic as opposed to a rulemaking runs contrary to the expressed views of the United States Supreme Court and the requirements of the Administrative Procedure Act (APA). Although the agencies claim in the guidance that they will initiate a future rulemaking on this issue, they give no specifics and make no commitments. By issuing guidance, the agencies shortcut critical rulemaking requirements such as responding on the record to the public’s comments, providing evidence to support the decision and engaging in reasoned decision making that can be subject to judicial review.

 The Guidance Expands Jurisdiction 

The agencies acknowledge that the number of jurisdictional waters “will increase” under the guidance. Guidance at 1. The acknowledgement is appropriate given that the guidance: 

• Applies a broadened view of Justice Kennedy’s significant nexus standard not only to wetlands (as Kennedy did) but also to tributaries and isolated waters;
• Finds that a hydrological connection is not necessary to establish a significant nexus;
• Allows the agencies to “aggregate” the contributions of all similar waters (small streams, adjacent wetlands, ditches or certain otherwise isolated waters) within an entire watershed, thus making it far easier to establish a significant nexus between these small intrastate waters and traditional navigable waters. Indeed, the agencies’ economic analysis assumes that all waters subject to this expanded aggregation principle will be jurisdictional. EA at 6;
• Regulates all roadside and agricultural ditches that have a channel, have an ordinary high water mark and can meet 1 of 5 characteristics (2 of the 5 characteristics include a ditch that has “standing water,” or a ditch that drains a “natural water body.”);
• Defines the “traditional navigable waters” to include all waters that support one-time recreational use. This is not the “traditional” understanding of the term “navigable waters” as used by the United States Supreme Court;
• Gives new and expanded regulatory status to “interstate waters,” equating them with traditional navigable waters, thus making it easier to find jurisdiction for adjacent wetlands and waters judged by the significant nexus test; and
• Makes all waters not in any of the other categories (also known as the “other waters”) subject to the significant nexus standard. According to the agencies’ economic analysis, these other waters were previously assumed “non-jurisdictional.” EA at 7. Now, 17 percent of these waters are assumed to be jurisdictional. Id.

The Guidance Is Inconsistent with the Agencies’ Regulations and the Supreme Court Decisions

• The current regulations say nothing about ditches, but now there is a whole section of regulatory treatment and standards devoted to ditches.
• The agencies’ regulations do not define tributaries. However, the guidance sets forth a new and broad definition that provides federal jurisdiction over most water features that have “channels,” presuming that most features that meet this “new” definition will be jurisdictional. Such a presumption is inconsistent with Justice Kennedy’s opinion in Rapanos, which requires the agencies to conduct a rulemaking to establish that classes of water are jurisdictional.
• The guidance defines a significant nexus as anything that is “more than speculative or insubstantial,” thus, turning Justice Kennedy’s “significant” nexus into an “any” nexus standard. This “any” nexus standard is equivalent in scope to the “any hydrological connection” standard that the court previously rejected.
• The current regulations determine jurisdiction over “other waters” based on certain specific connections to interstate commerce. The guidance replaces this standard with the significant nexus test, which as described above is overly broad.
• The agencies’ regulations include adjacent “wetlands,” not adjacent “waters.” The guidance instead develops a new category of “other waters” and seeks to apply the term “adjacent” to those waters. This change finds no support in the Supreme Court decisions and will sweep in wet areas near other jurisdictional waters.

The Guidance Is Unlawful Because it Violates the APA

• The agencies’ decision to define “the waters of the United States” through informal guidance rather than a notice-and-comment rulemaking violates the APA. The issuance of further guidance on this issue ignores encouragement from all of the Justices of the Supreme Court to undertake a rulemaking. Despite repeated claims by the agencies that they would conduct a rulemaking, they have not. Instead, the agencies continue to make fundamental changes to their regulations and expand their jurisdiction through guidance.
• The agencies claim, on the one hand, that the guidance is not a rule, is not binding, and lacks the force of law. Guidance at 1st. Yet, once finalized, the guidance will be used to make determinations about whether a particular water body is subject to regulation. The guidance and the economic analysis clearly acknowledge that the new guidance will increase CWA jurisdiction. The guidance has the plain effect of changing the law. Many court decisions have made clear that EPA and USACE do not have legal authority to revise their regulations without engaging in a rulemaking.

The Agencies Acknowledge the Significant Economic Impacts of the Guidance

 The agencies undertook an economic analysis to provide an estimate of the possible range of indirect impacts associated with implementing the proposed guidance. Based on EPA’s own assumptions, annual costs from implementation of the guidance are estimated to be between $87 million to $171 million. In addition to these substantial costs, the guidance also will impose new land use restrictions, permitting costs, and increased delays associated with increased federal jurisdiction, none of which is reflected in the EPA cost estimates.

 Conclusion

The agencies claim that the guidance will improve CWA program predictability and clarity. 76 Fed. Reg. at 24,279. But in fact, the guidance will reduce clarity and create great uncertainty by expanding jurisdiction beyond the Clean Water Act, current regulations and Supreme Court decisions, as discussed above. The agencies should withdraw the guidance and instead engage in a formal rulemaking – starting with a notice of inquiry or advanced notice of proposed rulemaking – to explore the need for changes to the current jurisdictional regulations through a more careful and deliberative process.

CONGRESS POISED TO ADDRESS WETLANDS JURISDICTION

The Senate Environment and Public Works Committee is working with environmental groups, state organizations and industry interests to clarify federal jurisdiction over isolated wetlands. The issue has been controversial for many years with the Supreme Court issuing decisions on wetlands that have provided more confusion than certainty to both those seeking permits and regulators.

Senator Russ Feingold (D-Wis.) recently introduced legislation that would amend the Clean Water Act to expand federal jurisdiction of wetlands. The bill, the Clean Water Restoration Act (S. 787), is similar to legislation that was introduced in previous years and would replace the term “navigable waters” with the term “waters of the United States” as the trigger for federal jurisdiction.

Proponents of this legislation believe the change is needed to strengthen the original intent of the Clean Water Act and will increase protections for the nation’s rivers, streams and wetlands. However, others believe that the legislation is ultimately a power grab by the federal government, infringing on state’s rights at the expense of landowners, who will be required to apply for permits for literally all wet areas. These areas include: intermittent streams, mudflats, sandflats, sloughs, prairie potholes, wet meadows and man-made ditches.

The Senate is likely to mark-up the legislation sometime in May, while a specific timeframe has not been announced by the House. Chairman of the House Transportation and Infrastructure Committee, James Oberstar (D-Minn.) is a strong supporter of this legislation and introduced an almost identical version last Congress. He has held several hearings on this topic.

While NAIOP agrees that Congress should offer a legislative fix to clarify federal jurisdiction over wetlands, we believe that isolated man-made ditches from construction sites should not be treated as actual wetlands. Permits for these ditches can have severe costs for developers, while providing little, if any, environmental protection. A balanced approach towards wetlands permitting is needed to protect the integrity of our nation’s wetlands. This approach also needs to clarify that not every wet area in the United States should warrant a permit from the federal government.

US EPA & Corps Leave Existing Guidance In Place

EPA and the Corps of Engineers have determined not to alter current federal regulations or definitions of wetlands.  This apparently leaves stating existing guidance to Corp Districts resulting from a ruling by the Supreme Court that water fowl migration can not be used to establish jurisdiction over wetlands that are not navigable. The EPA had been seeking comments that would have led to rulemaking changes in light of the US Supreme Court ruling in the Solid Waste Agency of Northern of Cook County v. US Army Corps of Engineers (SWANCC).  Comments are being sought on the definition of "waters of the United States" a common phrase used in the Clean Water Act. 

West Houston Association Calls for Clear Definition of "Adjacent" waters

Following is the text of a letter prepared by our Environment Committee and submitted to the Corps responding to the definition of "waters of the US":

"The West Houston Association submits the following comments in response to the Advance Notice of Proposed Rulemaking on the definition of “waters of the United States”.  Since 1979 the Association, a nonprofit group organized to promote responsible growth with acceptable infrastructure has actively participated at all levels of government that have regulatory and statutory authority over environments around the Houston/Galveston Gulf Coast.  We are proud of the record our developer members have established with the Galveston District, one of the fastest growing regions of the United States. 

Our membership consists of a significant number of landowners and others within the category of “potentially regulated entities.” Past experience with the Corp’s 404 permit program and wetland delineations in the Corp’s Galveston District indicates to us that a precise definition of “waters of the United States” be developed. The regulated community in this geographic area has seen a wide variety of areas determined to be wetlands such as portions of abandoned rice fields (isolated wetlands) as well as wetlands that clearly meet the criteria in the 1987 wetlands manual. 

“Marginal” wetland determinations or those which barely meet the wetlands criteria are difficult to accept by private sector. Because of this the SWANCC opinion was very much welcomed in this community. Currently, the Galveston District is using a concept of  “adjacent wetland” which includes areas which meet or marginally meet wetland criteria as long as these areas are located within the 100-year floodplain of a creek, bayou, stream or river. Typically, many floodplains in this area are large in size such that “marginal” wetlands many thousands of feet from a stream can still be determined to be “adjacent” to the stream. 

We urge the Corps of Engineers to develop a concept of “adjacent” that is closer to the ordinary meaning of adjacent which is “lying near or adjoining”. 

This meaning is identical to that ascribed to it by the government when the Riverside Bay View Homes case was being argued before the Supreme Court. 

A review of the court’s question and answer session of that case clearly indicated the government specifically addressed “adjacency” because a member of the court asked the question “What is an adjacent wetland?”  The government’s answer indicates that an adjacent wetland was a wetland that “lies immediately next to or abuts a navigable water. This is a definition the regulated community can accept and depend upon for fairness. The CWA refers to navigable waters and wetlands adjacent thereto (our emphasis). We believe the ordinary language definition of adjacent is the correct one and should become part of the Corps definition of Waters of the U.S."

Legislation Introduced to Recapture Clean Water Act Jurisdiction

On July 25, 2002, Senator Feingold and Congressmen Dingle and Oberstar introduced legislation into the Senate and House respectively to protect isolated wetlands now in jeopardy as a result of a 2001 Supreme Court decision-Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC). The bills, which will be called The Clean Water Authority Restoration Act of 2002, were introduced to restore the protection that existed for all waters and wetlands prior to the SWANCC decision by: 

1) Adopting a statutory definition of "waters of the United States" based on a longstanding definition of waters in the Corps of Engineers' regulations (at 33 CFR 328.3). 

2) Deleting the term "navigable" from the Act to clarify that Congress' primary concern in 1972 was to protect the nation's waters from pollution, rather than just sustain the navigability of waterways. 

3) Including a set of findings that explain the factual basis for Congressional assertion of constitutional authority over waters and wetlands, including those that are called "isolated." 

The bills will be posted to http://thomas.loc.gov In the House the bill will be H.R. 5194. Additional information is available at http://www.naiop.org/membercenter/government/wetlands.shtml