EPA's Clean Water Rule: Congressional Attempt to Stop is Vetoed, but Pending U.S. Court of Appeals' Stay Remains in Effect

by Akerman LLP
Contact

On January 19, 2016, President Obama issued the ninth veto of his presidency, rejecting Joint Resolution 22, a congressional resolution that would have overturned EPA’s recently enacted regulations defining the "waters of the United States" (WOTUS) under the Clean Water Act. Attempted congressional intervention highlights the contentious nature of the new Clean Water Rule, which defines the scope of federal permitting jurisdiction over development and other activities in wetlands.

Background

The new rule is an attempt by EPA to clarify the extent to which activities in and adjacent to waterways require permitting under Section 404 of the Clean Water Act, 33 U.S.C. §§1251-1387 (1972). The text of the statute requires permits for dredging and discharge of materials into "navigable waters," which were initially defined as waters that are or are readily "navigable in fact" or "readily susceptible" to navigation. In 1977, the Army Corps of Engineers expanded the definition to include the "waters of the United States," which were in turn defined broadly to include, among other things, interstate and intrastate waters (e.g. lakes, rivers, streams, intermittent streams) and "adjacent" wetlands. The term adjacent was defined to include wetlands that are separated from the streams, etc. by dikes and in some instances dry land.

In Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court struck this definition. In a plurality opinion, four Justices held that "waters of the United States" could include only relatively permanent or continuously flowing water. Justice Kennedy, in a concurring opinion proposed a test calling for a "substantial nexus" between the area deemed a wetland and a body of water. This led to the need for further regulatory action by the agency.

The Regulations

WOTUS is predicated on more than 1,2000 peer-reviewed scientific studies, conducted by the EPA's Office of Research and Development, which overwhelmingly concluded that small tributaries and wetlands play a significant role in determining the ecological health and purity of downstream water sources. The EPA’s expressed view is that these findings satisfy the "significant nexus" test, articulated by Justice Kennedy in Rapanos, which holds that a body of water or wetland in within the bounds of federal authority, when it by itself or in combination with similar waters, fundamentally impacts the biological, chemical or physical makeup of a downstream body of water.

SCOPE

WOTUS provides a three category water classification system, which decrees that there are bodies of water which are: 1) are inherently jurisdictional or "jurisdictional by rule" 2) are jurisdictional by virtue of their the influential nexus with waters that are jurisdictional by rule, and 3) waters that lack a sufficient nexus with jurisdictional waters to merit inclusion under WOTUS. Strictly excluded from this categorical analysis are waste treatment systems, prior converted cropland, upland ditches, groundwater, gullies, non-wetland swales, storm sewer systems, and water delivery and reuse features. Furthermore, WOTUS has no effect on the exclusion of agricultural stormwater discharges from the definition of "point source" in CWA §502(11) and the exemptions to fill discharge permit requirements provided for under CWA § 404(f).

The first, innately jurisdictional category mandates that traditionally navigable waters, such as interstate waters, territorial seas, and impoundments of these waters are jurisdictional by rule. WOTUS does not differ from prior interpretations of the Clean Water act in this regard; however, WOTUS provides a new definition of "tributaries," which now includes those waters having a bed, bank, high water mark that contribute directly or indirectly to traditionally navigable waters. Additionally, WOTUS offers and encompasses a new definition of "adjacent" waters, which include "bordering, contiguous [with] or neighboring" traditionally navigable waters. This recent expansion of the Clean Water Act’s purview to more clearly include tributaries and adjacent waters has prompted enforcement and regulatory concerns, as well as state sovereignty objections.

Those waters which garner federal oversight as a result of their "influential nexus," acquire this classification on a case-by-case basis. Such isolated or non-adjacent waters, include prairie potholes, Caroline and Delmarva bays, pocosins, western vernal pools in California, and Texas costal prairie watersheds that possess a significant nexus to traditionally navigable waters, interstate waters or the territorial seas.

The final category of waters is comprised of those that cannot be deemed innately jurisdictional or lack a substantial nexus to traditionally navigable waters, which naturally prompt federal oversight. These waters are categorically excluded from "waters of the United States," and include: a) waste treatment systems; b) prior converted cropland; c) hydraulically isolated upland ditches; d) groundwater; e) gullies, swales, storm sewer system components, water delivery, reuse and erosional features; f) agricultural stormwater discharges previously excluded under CWA §502(11); and g) the exemptions to fill discharge permit requirements provided for under CWA § 404(f).

This triad approach to water classification is indicative of an increasingly clear and active federal interest in the use and contamination of even relatively insignificant bodies of water and wetlands. The absence of a minimum area requirement or other quantitative guidelines for the federal assertion of jurisdiction leaves WOTUS open to a myriad constitutional and enforcement challenges. Nevertheless, the ultimate intention of WOTUS is to effectively limit the regulatory ambiguity which has previously hindered determinations regarding which waters and wetlands are subject to federal jurisdiction. While the successful implementation of WOTUS may naturally circumscribe business and development opportunities and profitability on a national scale, by reducing the zone for legal interpretation and offering clear parameters for federal intervention, WOTUS may reduce the federal litigation burden, which has heretofore hindered EPA enforcement of the Clean Water Act and left economic actors uncertain of their corresponding rights and obligations.

Detractors have expressed concern regarding the rule's impact on private water rights, as well as a wide range of key industries, including the agriculture, energy and manufacturing sectors. Criticism voiced by industry and elected representatives, has focused on the economic and states' rights interests, which they perceive as fundamentally threatened by the controversial regulation. Proponents of the measure have suggested that the EPA's Rule making is the exercise of constitutionally sanctioned executive authority, the assertion of which was intended to promote clean water initiatives and greater federal oversight under the auspices of EPA. 

The Current Legal Status

On October 9, 2015, the U.S. Court of Appeals for the 6th Circuit issued a nationwide stay on the implementation of WOTUS, pending a determination of its jurisdiction over challenges to the rule filed by the attorneys general of eighteen states. Thus, despite President Obama’s veto of congressional action aimed at eliminating the rule, WOTUS remains in a legal limbo and will most likely remains so – we won’t know what will happen with WOTUS until we hear from SCOTUS, or there is a different determination by the next POTUS. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Akerman LLP | Attorney Advertising

Written by:

Akerman LLP
Contact
more
less

Akerman LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.