More good stuff! Another great report from the Congressional Research Service (CRS): EPA and the Army Corps’ Proposed Rule to Define “Waters of the United States”. Claudia Copeland is the author.
On March 25, 2014, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly proposed a rule defining the scope of waters protected under the Clean Water Act (CWA). The proposed rule would revise regulations that have been in place for more than 25 years. Revisions are proposed in light of Supreme Court rulings in 2001 and 2006 that interpreted the regulatory scope of the CWA more narrowly than previously, but created uncertainty about the precise effect of the Court’s decisions.
In April 2011, EPA and the Corps proposed guidance on policies for determining CWA jurisdiction to replace guidance previously issued in 2003 and 2008; all were intended to lessen confusion over the Court’s rulings. The 2011 proposed guidance was extremely controversial, with some groups contending that it represented a massive federal overreach beyond the agencies’ statutory authority. Most environmental advocacy groups welcomed the proposed guidance, although some would have preferred a stronger document. The 2014 proposed rule would replace the existing 2003 and 2008 guidance, which remains in effect because the 2011 proposed guidance was not finalized.
According to the agencies, the proposed rule would revise the existing regulatory definition of “waters of the United States” consistent with legal rulings—especially the Supreme Court cases—and science concerning the interconnectedness of tributaries, wetlands, and other waters to downstream waters and effects of these connections on the chemical, physical, and biological integrity of downstream waters. Waters that are “jurisdictional” are subject to the multiple regulatory requirements of the CWA: standards, discharge limitations, permits, and enforcement. Non-jurisdictional waters, in contrast, do not have the federal legal protection of those requirements.
This report describes the March 25 proposed rule and includes a table comparing the existing regulatory language that defines “waters of the United States” with that in the proposal. The proposed rule is particularly focused on clarifying the regulatory status of waters located in isolated places in a landscape, the types of waters with ambiguous jurisdictional status following the Supreme Court’s ruling. The proposal does not modify some categories of waters that currently are jurisdictional by rule (traditional navigable waters, interstate waters and wetlands, the territorial seas, and impoundments). Changes proposed in the proposed rule would increase the asserted geographic scope of CWA jurisdiction, in part as a result of the agencies’ expressly declaring some types of waters categorically jurisdictional (such as all waters adjacent to a jurisdictional water), and also by application of new definitions, which give larger regulatory context to some types of waters, such as tributaries. The proposal does not identify specific waters—particular streams or ponds—that would be jurisdictional as a result of the rule.
Beyond the categories of waters that would be categorically jurisdictional under the proposed rule is a category sometimes referred to as “other waters.” The regulatory term “other waters” applies to wetlands and non-wetland waters such as prairie potholes that are not considered traditionally navigable or meet other of the proposed rule’s jurisdictional definitions. Much of the controversy since the Supreme Court rulings has focused on the degree to which “other waters” are jurisdictional. According to the agencies’ analyses, 17% of these “other waters” would be determined to be jurisdictional under changes in the proposal. The proposed rule also lists waters and features that would not be jurisdictional, such as prior converted cropland and certain ditches.
It makes no change to and does not affect existing statutory and regulatory permit exclusions, such as exemptions for normal farming and ranching activities.
The agencies believe that the proposed rule does not exceed the CWA’s coverage or protect any new types of waters that have not been protected historically. That is, while it would enlarge jurisdiction beyond that under the 2003 and 2008 EPA-Corps guidance, which the agencies believe was narrower than is justified by science and the law, they believe that it would not enlarge jurisdiction beyond what is consistent with the Supreme Court’s narrow reading of jurisdiction. Others may disagree. Overall, the agencies estimate that approximately 3% of U.S. waters will additionally be subject to CWA jurisdiction as a result of the proposed rule (including additional “other waters”), compared with current field practice. EPA and the Corps estimate that costs of the proposed rule, resulting from additional permit application expenses, for example, range from $162 million to $279 million annually. Benefits from the rule, including the value of ecosystem services provided by waters and wetlands protected as a result of CWA requirements, such as flood protection, are estimated to range from $318 million to $514 million per year. They acknowledge uncertainties and limitations in the estimate of costs and benefits.