Navigating the “Waters of the United States” Conundrum

/ Circle of Chiefs, October/November 2017 / By

Executive order means to define terms in Clean Water Act

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BY KRIS THOEMKE
In a recent email thread, the Chiefs discussed the Trump Administration’s actions related to the environment and natural resources. The new Administration’s initial comments and proposed actions about policies affecting the environment and our natural resources has many people on edge. While the concerns are real, the widespread condemnation of the new Administration’s proposed actions is best described as speculation. The issues the President wants to change are complicated. That means change will not happen quickly. Consider the following example.
One of the hot button issues relates to how the Federal government intends to define the term “waters of the United States.” The mainstream media’s reaction to President Trump signing an Executive Order that will reexamine how to define this term was largely negative. The headlines created an impression that our nation’s waters may not be protected if the Clean Water Rule is rescinded; “Trump will try to sidestep science in rolling back clean water rule” (E & E news); “Trump aims to eliminate clean water rule” (National Public Radio), “EPA and Army Corps seek to rescind clean water rule” (Reuters), Trump administration moves to withdraw clean-water rule” (The Spokesman-Review) and Trump Signs Executive Order to Begin Water Rule Rollback (NBC /News)
What you may not realize is that a clear definition of this term has been at the center of a controversy for the past two decades. To those who know about the issue, the most recent action is one of many efforts to define this term. Here is why this term matters.
Protection of the country’s waters and wetlands is based on the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (CWA) of 1972. This law regulates discharges of pollutants into “navigable waters of the United States.” Authority to do this was vested with the Environmental Protection Agency (EPA). This key piece of federal legislation made it unlawful to discharge any pollutants from a point source into navigable waters unless a permit was first obtained.
One of the most controversial parts of the CWA is how to define which waters and wetlands are included in, “waters of the US.” As an Act of Congress the CWA is a law. Typically, laws do not provide the level of specificity necessary to be effectively implemented. To give agencies the ability to enforce the law, they develop regulations that provide specific guidance on how to uphold the law. These regulations are found in the Code of Federal Regulations. The EPA regulation that defines “waters of the United States” is in Title 40, Part 230.3 (s) of the Code:
The term waters of the United States means:

  1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
  2. All interstate waters including interstate wetlands;
  3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect intestate or foreign commerce including any such waters:
    1. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
    2. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
    3. Which are used or could be used for industrial purposes by industries in interstate commerce;
  4. All impoundments of waters otherwise defined as waters of the United States under this definition;
  5. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
  6. The territorial sea;
  7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.

Some landowners took great exception to this definition. Numerous court challenges arose when EPA and/or the Corps claimed jurisdiction over a parcel of land under the definition of “waters of the US.” This action gives the government the right to regulate development of the land under the CWA. Landowners believed the agencies over-extended the definition of “waters of the US” beyond what the regulation and the CWA intended and took their grievances to the courts. The ability of the Federal government to regulate private land has long been something that strikes fear into the souls of private landowners.
Two Supreme Court decisions shaped the current interpretation on what constitutes “waters of the US.” In 2001 the US Supreme Court issued their ruling on the Solid Waste Agency of Northern Cook County (SWANCC) versus the United States Army Corps of Engineers. SWANCC contended that isolated intrastate, non-navigable waters on their property should not be considered “waters of the US.” The Corps contended that the lands were “waters of the US,” in large part because there were man-made ponds on the property being used by migrating birds. At issue was whether these wetland areas are considered navigable waters under the Clean Water Act.
The Court determined that these wetlands were not connected to “waters of the US” and thus not subject to regulation by the Corps and the Clean Water Act. While the ruling was clear that isolated wetlands are not considered “waters of the US,” the Court’s decision did not render an opinion on whether other waters and wetlands fall under this definition.
The second Supreme Court decision came in the 2006 Rapanos versus United States. The case is complicated and there are numerous case briefs that summarize the decision. The Oyez brief ( https://www.oyez.org/cases/2005/04-1034) is succinct and clearly explains the facts of the case:

“John Rapanos sought to fill in three wetland areas on his property in order to build a shopping center. Rapanos ignored warnings from the Michigan Department of Environmental Quality that the area was protected wetlands under the Clean Water Act (CWA). The CWA allows the government to regulate the discharge of any pollutant (including dirt or sand) into “navigable waters,” which the Act defines as “the waters of the United States.” Under regulations issued by the Army Corps of Engineers (Corps), wetlands are covered by the CWA as long as they are adjacent to traditionally navigable waters or tributaries of such waters. After Rapanos also ignored cease-and-desist orders from the U.S. Environmental Protection Agency, the government brought a civil suit against him. Rapanos argued before the District Court that the CWA gives the government jurisdiction to regulate only traditionally navigable waters. The government countered that Rapanos’s lands were covered by the CWA as “adjacent wetlands” under the Corps’s interpretation of the Act; the sites drained into man-made drains which eventually emptied into navigable rivers and lakes. The District Court rejected Rapanos’s argument and upheld the Corps’s regulations including the wetlands as “waters of the United States.” The Sixth Circuit Court of Appeals affirmed, holding that the “hydrological connection” of the wetlands to the navigable waters qualifies them as “waters of the United States” under the Act.”

When the case reached the Supreme Court, the decision was a rare 4 -1- 4 split decision. Four Justices led by the late Justice Anton Scalia concluded, “The phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams,” “oceans, rivers, [and] lakes,” Webster’s New International Dictionary 2882 (2d ed.), and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps’ expansive interpretation of that phrase is thus not “based on a permissible construction of the statute.” The justices also stated, “A wetland may not be considered “adjacent to” remote “waters of the United States” based on a mere hydrologic connection.”
Justice Stevens wrote a dissent, which was joined by Justices Souter, Ginsburg, and Breyer. The dissent argued that the Corps’ regulations should be upheld as a reasonable interpretation of the Act. The inclusion of all wetlands adjacent to tributaries of navigable waters was most consistent with the CWA’s purpose of eliminating pollution in the nation’s waters.
What makes this decision controversial is that Justice Kennedy’s opinion, while concurring with the Scalia opinion, stated that a wetland does not need to have a continuous surface connection to a continuously flowing body of water to be considered a wetland as defined by the CWA. What Justice Kennedy opined was a wetland that is not adjacent to a traditionally navigable water must have a ‘significant nexus’ with one to be classified as a wetland. To have a significant nexus, the wetland in question must be shown to have a significant effect on the water quality of navigable waters. His decision went so far as to suggest the wetlands that were subject of the Rapanos case might be wetlands if the Corps could demonstrate a significant nexus.
If this summary of these cases leaves you wondering what are or are not “waters of the US,” you are not alone. The SWANCC and Rapanos decisions resulted in considerable confusion about what are “waters of the US” The uncertainty that evolved from interpretation of the decisions created challenges for business and regulators. The EPA and Corps attempted to provide guidance on how to identify “waters of the US” in 2003, 2008 and 2011. These attempts were unsuccessful and contributed to the growing uncertainty arising from the SWANCC and Rapanos decisions.
To resolve this issue, the Obama administration directed the EPA and the Corps to prepare a rule to resolve the ambiguities created by the Supreme Court decisions and other guidance documents. The result was the 2015 Clean Water Rule, also known as the Waters of the US Rule. As stated on the EPA website, (https://www.epa.gov/cwa-404/guidance-identify-waters-protected-clean-water-act), the rule was intended to “provide clearer, more predictable guidelines for determining which water bodies are protected by the Clean Water Act.” Further, the rule would,

“reaffirm protections for small streams that feed into larger streams, rivers, bays and coastal waters. It will also reaffirm protection for wetlands that filter pollution and help protect communities from flooding. Discharging pollution into protected waters (e.g., dumping sewage, contaminants, or industrial pollution) or filling protected waters and wetlands (e.g., building a housing development or a parking lot) require permits. This guidance will keep safe the streams and wetlands that affect the quality of the water used for drinking, swimming, fishing, farming, manufacturing, tourism and other activities essential to the American economy and quality of life. It also will provide regulatory clarity, predictability, consistency and transparency.”

In developing the rule, the authors reviewed over 1200 published peer-reviewed scientific reports. Prior to implementation, it was reviewed by the EPA Science Advisory Board. EPA, the Corps and many environmental organizations believed that the Clean Water Rule would provide the guidance needed to clarify the definition of “waters of the US.” Some of the country’s leading sportsmen’s and conservation groups including the American Fly Fishing Trade Association, Berkley Conservation Institute, Izaak Walton League of America, National Wildlife Federation, Theodore Roosevelt Conservation Partnership, Trout Unlimited and Wildlife Management Institute issued a joint press release supporting the Clean Water Rule.
Not surprisingly, this new attempt to clarify the definition of “waters of the US” met with resistance. The agriculture sector and numerous county governments opposed the new definition. The American Farm Bureau Federation claimed the rule “expands federal jurisdiction beyond what was authorized by Congress, resulting in the imposition of burdensome requirements on farmers and ranchers”. (http://www.fb.org/issues/regulatory-reform/clean-water-act/).
The National Association of Counties expressed concern that the rule would result in roadside ditches, flood control channels and storm water management structures owned and maintained by local governments being declared “waters of the US” and thus under federal jurisdiction. Requiring a permit to maintain these structures would be burdensome and result in lengthy delays that would put public safety at risk.
Notwithstanding the objections, the Clean Water Rule became effective on August 28, 2015. Multiple legal challenges filed immediately after the rule was finalized led to an October 9, 2015 decision of the United States Court of Appeals for the Sixth Circuit to issue nationwide stay on implementing the rule. As of this writing, the Court has not issued an opinion on the legal challenge thus the Clean Water Rule has yet to take effect. Whether the Court will ever rule on the legal challenges is now in doubt.
One of Donald Trump’s campaign promises was to order a review of the Clean Water Rule. On February 28, 2017, the President signed an Executive Order calling for the EPA and the Corps to review the Clean Water Rule and begin the process to either rescind to revise the rule in a manner “consistent with Justice Antonin Scalia’s opinion” in Rapanos v. United States.
The Executive Order set a clear path for what the President wants to accomplish. Section 1 states, “It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth minimizing regulatory uncertainty, ensuring due regard for the roles of Congress and the states under the Constitution.” Sec. 2 directs the EPA and Corps to review the Obama Clean Water Rule for “consistency with the policy set forth in section 1 of this order and publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with law.” It also directed EPA and the Corps to, “review all orders, rules, regulations, guidelines, or policies implementing or enforcing the final rule listed in subsection (a) of this section for consistency with the policy set forth in section 1 of this order and shall rescind or revise, or publish for notice and comment proposed rules rescinding or revising, those issuances, as appropriate and consistent with law and with any changes made as a result of a rulemaking proceeding undertaken pursuant to subsection (a) of this section.” Section 3 states the EPA and Corps “shall consider interpreting the term “navigable waters,” [of the United States] as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”
What the headlines and the stories from both sides of the controversy do not make clear is that rescinding the rule does not eliminate protection to the nation’s waters. No President or Federal agency has the power to make such a unilateral decision. Clearly, President Trump wants the EPA and Corps to take a different approach to defining “waters of the US” than what is in the 2015 the Clean Water Rule.
With the process only beginning, no one can predict what will be the outcome. What we know so far is this. The Executive Order calls for a two-step process. The first step began on July 27, 2017 when EPA and the Corps published their intent rescind the definition of “waters of the US” as it was defined in the 2015 Clean Water Rule. That definition will be replaced by the definition used prior to the new definition’s brief tenure before being stayed by the U.S. Court of Appeals for the Sixth Circuit. Thus, the old definition from Title 40, Part 230.3(s) and the precedents established by the Supreme Court decision are what EPA and the Corps will use to define “waters of the US.” This definition provides continuity and reasonable certainty for the regulated community as it did in the past. Public comments on this step were accepted until August 28, 2017.
The second step will be to undertake rulemaking that substantially reevaluates the definition of ‘‘waters of the United States” as described in the 2015 Clean Water Rule Rulemaking follows a specific process prescribed in the Administrative Procedures Act. Part of the rulemaking process includes public input so there will be opportunities for organizations and individuals to influence the process.
Expect this to be a lengthy and contentious process. By lengthy, I predict two or more years and that does not include the legal challenges that will likely surface once a new rule is developed. Agreeing on definition of the innocuous sounding term, “waters of the US”, will not be easy. If it was, the issues could have been settled many years ago. Special interest groups and individuals will have plenty to say during the rulemaking process.
Those involved will labor and argue over every word. In defining any term, words matter. I say this with confidence based firsthand experience with two previous Corps’ actions that involved highly charged issues. One of them, developing the plan to restore Florida’s Everglades, lasted years and I will never forget the partisan and often heated arguments over wording of the plan that were commonplace in the process. The good news is stakeholders developed a plan to restore the Everglades and it is being implemented.
The same outcome could be true for defining “waters of the US” but it will require a level of cooperation among opposing sides that currently does not exist but must be developed if we want a definition of “waters of the US” that can be implemented. The Obama version of the rule is dead. The Executive Order is a decision that will not be rescinded by this President. That leaves two options during the upcoming rulemaking. One is for a group of stakeholders representing the various views to work together to define “waters of the US” in a way that all sides can support. Admittedly, this is a big challenge. But it is doable. The other option, identifying those with opposing views as “enemies” and fighting them over every detail, will never resolve the issue. Reality is a harsh teacher. ♦
–Kris Thoemke is a consulting marine ecologist and part time professor teaching environmental policy and management classes for American Public University. He is a member of the Circle of Chiefs.
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