Leaked Draft Rule Increases Federal Power Over Private Lands

by Polsinelli

Federal control over private lands would be expanded significantly under a proposed rule reportedly drafted by the Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("Corps").

Industry groups that develop or excavate property, or discharge to land or water should pay close attention to the proposed rule, not yet officially released. The EPA and the Corps contend the proposed rule clarifies federal power over "waters of the U.S." under the Clean Water Act and will ease permitting delays. However, according to an unofficial draft of the proposed rule, the agencies expand federal jurisdiction over essentially all waters and wetlands that affect navigable waters downstream, including areas far upstream that may be wet only intermittently. In other words, this potential grab for more federal authority over intrastate waters means an increase in costs, burdensome permit requirements, and increased regulatory intrusion into how certain industries currently or in the future conduct their business.

Current EPA Authority

The Clean Water Act gives the federal government jurisdiction over "navigable waters," which the Act defines as "waters of the U.S." Federal jurisdiction over waters means that a permit from EPA or the Corps may be required before a company may dredge, fill, excavate or engage in other activities that could result in a discharge to the waters. The United States Supreme Court has ruled that to qualify as "waters of the U.S.," and therefore subject to federal jurisdiction, waters must have a "significant nexus" to traditional navigable waters, and that a mere connection is not enough to allow federal control. Over the years, however, EPA's and the Corps' interpretations of "significant nexus" have resulted in confusion and inconsistent application, leading parties on all sides of the debate to call for the agencies to amend their regulations to more clearly delineate which types of waters are subject to federal jurisdiction under the Clean Water Act.

Draft Proposed Rule and Report - Expanded Grab

In September, the agencies sent the draft proposed rule to the White House Office of Management and Budget for interagency review; and while it has not yet been officially released, BNA Bloomberg has published what many believe to be the draft proposed rule ("BNA Released Proposed Rule") under review.

Of particular note, the BNA Released Proposed Rule provides new regulatory definition of a "tributary" as a waterbody that either contributes flow directly or through other waterbodies to downstream navigable waters (i.e. waters historically, presently, or have potential to be used in interstate or foreign commerce; all interstate waters and wetlands; and the territorial seas). Regardless of the consistency in which the water flows or the quantity of man-made breaks (culverts, dams, etc.) or natural breaks (debris piles, wetlands, etc.) that cut-off or discontinue the flow, the agencies' position is that all waters in a tributary system are subject to federal regulation.

Additionally, the BNA Released Proposed Rule also asserts jurisdiction over all waters adjacent to jurisdictional waters; as well as any other waters that can be shown to have a significant nexus to downstream waters. Clearly, it appears the agencies are proposing to regulate just about all wet areas that have a possible connection to downstream waters (except those areas subject to limited and hard-to-apply statutory exemptions and exclusions).

The same day the agencies submitted the unofficial draft proposed rule, they officially released for peer review and public input the scientific report titled, "Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence." According to the agencies, this report, when finalized, will support federal control over all tributaries and waters adjacent to jurisdictional waters – per se jurisdiction – and was the basis for the draft proposed rule. The EPA Science Advisory Board ("SAB") will be conducting a review of this draft scientific report during public meetings on December 16-18, 2013 in Washington, D.C.

There is still time to submit comments and concerns to the SAB regarding this draft report at the following mailing address:

Office of Environmental Information ("OEI") Docket (Mail Code: 28221T)
Docket ID No. EPA-HQ-OA-2013-0582
U.S. Environmental Protection Agency
1200 Pennsylvania Ave. NW.
Washington, DC 20460

Many members of Congress have expressed concern over this draft scientific study and unofficial draft proposed rule. Therefore, all comments submitted to the OEI Docket regarding the draft scientific study should also be sent to the respondent's respective congressional delegation, in addition to any comments regarding the unofficial draft proposed rule.

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.

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