Energy and Environment Monitor
EPA Claims it will “Clarify” its Proposed Waters of the United States (WOTUS) Rule
February 10, 2015
By: Blair M. Gardner
The EPA and the Army Corps of Engineers appeared before a rare joint hearing of House and Senate committees on February 4, 2015 to justify the rule the agencies proposed last year to define “waters of the United States.” Notwithstanding a previous justification of the rule as merely providing “clarity” over streams that EPA and the Corps already regulate, EPA Administrator McCarthy conceded that at least one term – “tributary” – in the proposed rule will be the subject of further amendment when the rule is promulgated. The original target date of April for the final rule may be delayed as a result.
EPA’s admission that the meaning of “tributary” requires some revision is interesting for a couple of reasons. As proposed on April 21, 2014, the definition states:
Tributary. The term tributary means a water physically characterized by the presence of a bed and banks and ordinary high water mark, as defined at 33 CFR 328.3(e), which contributes flow, either directly or through another water . . . A tributary, including wetlands, can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches not excluded in paragraph (2)(iii) or (iv) of this definition.
The definition contains much more language, but this portion illustrates the problem.
In the United States Supreme Court’s 2006 Rapanos decision, Associate Justice Kennedy in his concurring opinion used the phrase “significant nexus” to determine if a water remote to a traditionally navigable water can be validly regulated under the Clean Water Act. A plurality of the Court found that a “water of the United States” can include a tributary if that stream has a continuous flow to waters which are traditionally navigable. Justice Kennedy thought that test was too narrow a construction of the authority Congress granted to EPA and the Corps under the Clean Water Act. He wrote, “The required nexus must be assessed in terms of the statute's goals and purposes. Congress enacted the law to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” 33 U.S.C. § 1251(a) . . .” 547 U.S. 715 at 779. Since that time and particularly after 2008, the EPA and Corps have contorted language, law and logic to give content to “significant nexus” without any apparent deference to the context in which Justice Kennedy used the phrase.
Kennedy found the existing Corps’ criteria to assert jurisdiction over a tributary - ‘if it feeds into a traditional navigable water (or a tributary thereof) and possesses an ordinary high-water mark, defined as a “line on the shore established by the fluctuations of water and indicated by [certain] physical characteristics” - ‘to be insufficient for the purpose. 547 U.S. at 781. He explained:
[T]he breadth of this standard—which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water volumes toward it—precludes its adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood. Indeed, in many cases wetlands adjacent to tributaries covered by this standard might appear little more related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act's scope [.] 547 U.S. at 781-82.
Justice Kennedy could not be clearer in stating that an “ordinary high water mark,” by which the Corps has traditionally used to demarcate navigable waters, was not a viable criteria. Nevertheless, EPA continues to propose it as part of its proposed test.
This is not the only example of the agencies disregarding the Court in this rulemaking. Justice Kennedy was clear that “[when] effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.” 547 U.S. at 780. In expressing this view, Kennedy set himself apart from the four dissenting members of the Court in Rapanos who espoused an essentially unlimited view of federal authority over remote waters.
In an attempt to circumvent Kennedy’s concern about the “speculative or insubstantial” effects of activities in streams, EPA delivered the conclusions of its Science Advisory Board in a January 2015 report entitled, “Stream and Wetland Connectivity: A Review and Synthesis.” This 408 page door-stop of a document concludes that because all waters are connected, “streams, individually or cumulatively, exert a strong influence on the integrity of downstream waters.” (Executive Summary at 2). Just how strong that influence is, how it might be measured and whether there is any point within the hydrologic connection at which the influence simply becomes too remote or speculative gets considerably murkier as one winds through the ensuing 203 pages of leaden prose and 182 pages of references. One reads the report and cannot decide if EPA did not understand what Justice Kennedy explained, or if it did not care.
Re-defining “tributary” to recognize some limitation on EPA’s ability to regulate the activities in such channels would at least demonstrate that the agency is taking seriously the principles of Justice Kennedy’s Rapanos concurrence. The more likely explanation for Administrator McCarthy’s statement regarding further changes is the anxiety which the agriculture community across the country has expressed about the rule. Many fields across the Midwest have been altered by tiling and drainage ditches. Try as the EPA and Corps have to disclaim any intention of regulating these features, the farmers do not believe them.
If experience is any guide, nor should they.
This article was authored by Blair M. Gardner, Jackson Kelly PLLC. .