Ever Expanding Federal Authority Under the Clean Water Act

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Ever Expanding Federal Authority Under the Clean Water Act

Pamela H. Silkwood

The federal authority over "navigable waters of the United States" is ever expanding and is no longer restricted to waterways that impair navigation and commerce. Under the Clean Water Act of 1972, the term "navigability" expanded to preventing pollution. In the mid-1970s, "waters of the United States" broadened to include wetlands. More recently, the United States Environmental Protection Agency ("USEPA") is attempting to make sweeping regulation under three fronts: (1) Proposed Rule-Definition of "Waters of the United States" (Docket ID No. EPA-HQ-OW-2011-0880) ("Proposed Rule"); (2) USEPA and U.S. Department of the Army, Army Corps of Engineers’ ("USACE") Interpretive Rule Regarding the Applicability of Clean Water Act section 404f)(l)(A) ("Interpretative Rule"); and (3) Memorandum of Understanding ("MOU") among U.S. Department of Agriculture, U.S. Environmental Protection Agency and U.S. Army Corps of Engineers ("MOU").

Over-Broad Definition of "the Waters of the United States"

The definition of "Waters of the United States" as proposed under USEPA’s Proposed Rule is overly broad and impermissibly expands the authority of the USEPA and USACE. The Interpretive Rule and MOU violated the Administrative Procedure Act by rewriting the 404 exemptions under the guise of an interpretative rule in order to expand their authority beyond waters of the United States to land uses.

Specifically, the Proposed Rule expands the scope of the federal agencies’ regulatory authority by misinterpreting and misapplying the U.S. Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006). The decision produced a 4-vote plurality holding that "navigable waters," as regulated under the Clean Water Act, is defined as follows:

"[T]he waters of the United States" include only relatively permanent, standing or flowing bodies of water. The definition refers to water as found in "streams," "oceans," "rivers," "lakes," and "bodies" of water "forming geographical features." All of these terms connect continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. (Id. at p. 732-733)

Under the 4-vote plurality decision, "the waters of the United States" are not: channels containing intermittent or ephemeral flow, ephemeral streams, wet meadows, storm sewers and culverts, directional sheet flow during storm events, drain tiles, man-made drainage ditches, and dry arroyos. (Id. at 733.)

Instead of following the plurality decision, the USEPA elected to follow the "significant nexus" test set forth by Justice Kennedy in concurring in the judgment. Even if Justice Kennedy’s significant nexus test is followed to define "the waters of the United States,"

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however, the Proposed Rule goes too far. Justice Kennedy’s opinion sets limitations on the definition to ensure that waters with a less significant connection with actual navigable waters would not be subject to federal jurisdiction:

[T]he Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to non-navigable tributaries. Given the potential over-breadth of the Corps’ regulations, this showing is necessary to avoid unreasonable application of the statute. (Id. at 782.)

Expressing concerns of over-reaching federal jurisdiction, Justice Kennedy stated that there must be specific findings before water becomes jurisdictional water. These findings include, but are not limited to, a determination that the water (1) "significantly affect[s] the chemical, physical, and biological integrity of other covered water" and (2) is "significant enough … to perform important functions for an aquatic system incorporating navigable waters." (Id. at 779-780.) Plainly stated, there must be sufficient scientific basis to support significant effect to jurisdictional waters, and the federal agencies cannot simply rely on mere adjacency or intermittent and inconsequential flow to jurisdictional water to pass the significant nexus test.

Ignoring that part of Justice Kenney’s opinion, the Proposed Rule makes an assumption that "significant nexus" exists for entire categories of water (i.e., "tributaries," "adjacent waters," and "other waters," which include those that are dry and/or covered) to assert federal jurisdiction, without providing the required scientific finding to justify that they do in fact have significant effect on jurisdictional waters. Moreover, the Proposed Rule lacks definitions of "neighboring waters," "riparian areas," and "floodplains," which provides added concern of the potential expansion of jurisdictional water on an ad hoc basis.

Under the Proposed Rule, the USEPA and USACE will perform cursory reviews based on aerial photographs, U.S. Geological Survey maps, National Wetlands Inventory Maps, and other maps to make a determination out of whole cloth that these waters have significant effect on jurisdictional waters. The Proposed Rule’s over-broad definition of "water of United States" impermissibly expands the authority of the USEPA and USACE.

B. 404 Exemptions Must Not Be Re-written Under the Guise of An Interpretative Rule

The Proposed Rule should not muddle the 404 exemptions afforded under Title 33 U.S.C. § 1344(f) (1)(A) (i.e., normal farming, silviculture, ranching activities, emergency reconstruction of structures such as dikes and dams, the construction of farm ponds, the construction of irrigation ditches, and the construction of logging roads). The Supplementary Information of the Proposed Rule states, "The rule does not affect longstanding permitting exemptions in the CWA for farming, silviculture, ranching, and other specified activities. Where waters would be determined jurisdictional under the proposed rule, applicable exemptions in the CWA would continue to preclude application of CWA permitting requirements." (79 Fed. Reg. 22189 (proposed April 21, 2014).) Later on in the Supplementary Information of the Proposed Rule, that position is muddled by referencing the NRCS conservation practice standards as follows:

To provide additional clarity to farmers, the agencies are today also issuing an interpretive rule clarifying the applicability of the permitting exemption provided under section 404(f)(1)(A) of the CWA to discharge of dredged or fill material associated with certain agricultural conservation practices based on the Natural Resources Conservation Service conservation practice standards and that are designed and implemented to protect and enhance water quality. This interpretive rule was developed in coordination with the U.S. Department of Agriculture, was signed by EPA and the Army, and became effective immediately. (79 Fed. Reg. 22194 (proposed April 21, 2014).)

The Interpretative Rule is not in fact an interpretation of the exemptions — it is a rewrite of them. The USEPA and USACE do not have the authority to rewrite statutory provisions. The USEPA

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and USACE’s interpretative rule impermissibly rewrites the 404 exemptions so that they only apply if the NRCS conservation practice standards are followed, creating another layer of arbitrary and discretionary authority for the USEPA and USACE, with the NRCS playing the role of a gate keeper. The MOU states, in relevant part,

Discharges in waters of the U.S. are exempt only when they are conducted in accordance with NRCS practice standards…. [T]he landowner has the responsibility to ensure that implementation of the conservation practice is in accordance with the applicable NRCS conservation practice standard.

The statutory language for the exemptions contains no such obligations. Because the Interpretative Rule now binds farmers, ranchers, and others with new legal obligations, the Interpretative Rule is a regulation subject to the Administrative Procedure Act, and the federal agencies violated that Act by attempting to hide the regulation under the guise of an interpretative rule.

Moreover, through the "Interpretative Rule," the agencies are attempting to expand their authority beyond waters of the United States to land uses — such action was specifically admonished by the U.S. Supreme Court in Rapanos. The plurality decision made clear, "The plain language of the statute simply does not authorize this ‘Land is Waters’ approach to federal jurisdiction." (Rapanos, 547 U.S. at 734.) The fifty-six (56) NRCS conservation practices, which include "fence," "brush management," "fuel break," "conservation cover," "prescribed grazing," etc., are land uses outside of the federal jurisdiction. Simply put, land is not water.

Finally, the language of the exemptions is clear and unambiguous and thus, is not subject to the Chevron deference. (Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 at 842 (1984).) Congress created these exemptions that apply to everyday farming activities, such as plowing, harvesting, and minor draining of occasionally inundated farmland, largely in response to concerns that enlarging the USACE’s territorial jurisdiction for the section 404 program would result in obstructing or prohibiting routine farming activities by requiring time consuming application for unnecessary permits. (3 Senate Committee on Environment and Public Works, A Legislative History of the Clean Water Act of 1977: A Continuation of the Legislative History of the Federal Water Pollution Control Act, 95th Cong. 494.) The USEPA and USACE do not have the legal authority to create new obligations by rewriting the clear and unambiguous exemptions.

After the issuance of the Interpretive Rule, the USEPA and the USACE received substantial written and oral comments opposing the new obligations set forth in the Interpretative Rule. Although the agencies stated that the Interpretive Rule was intended to clarify the normal farming exemption, many commenters objected to the changed role of NRCS practices and programs, which have always been voluntary in nature. Commenters also asserted that the Interpretative Rule added more confusion, rather than clarified, what activities were and were not exempt.

On January 29, 2015, the USEPA and the Department of the Army issued a "Memorandum Withdrawing the Interpretive Rule," withdrawing the Interpretative Rule. The Agencies also withdrew the MOU.

Although many are pleased to see the recent withdrawal of the Interpretive Rule, opposition to the Proposed Rule remains. The Proposed Rule is expected to be finalized this spring.

Ms. Pamela Silkwood is a member of Horan Lloyd’s Land Use and Environmental Law Group. She has experience in navigating all aspects of the land use process, including state laws and local regulations governing matters such as general plans, zoning, development permits, environmental impact reports, and development exactions and conditions. She holds a Master of Laws in Environmental Law from Golden Gate School of Law, a J.D. from Monterey College of Law, and a B.S. in Environmental Toxicology from UC Davis. She worked as an environmental toxicologist for ten years prior to her extensive legal practice in land use, water and environmental law, and teaches environmental law at Monterey College of Law. She can be reached at psilkwood@horanlegal.com or (831) 373-4131.

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