Obama Administration Issues New Rule on Controversial "Waters of the US" Issue

Today, the Army Corps of Engineers and EPA announced in a blog post that the agencies were jointly sending a draft rule to the Office of Management and Budget (OMB) intended to clarify where the jurisdictional oversight of the federal Clean Water Act begins and ends. At issue, is the draft rule's attempt to define the "waters of the United States" and the application of federal law.

The modern regulatory framework established in 1972 under the Clean Water Act limits the federal government’s jurisdictional reach to “navigable waters,” which was defined by statute to mean “the waters of the United States, including the territorial seas.” As with many ambiguities created by Congressional directives, the underlying text did not define the limits of the gray area where regulators, people, and activities intersect – especially in tributaries or isolated waters or with wetlands that may have a potential ecosystem nexus to “navigable waters.” To be considered “waters of the U.S.” under the Clean Water Act they must be:
  •  Traditionally navigable waterways;
  • Interstate;
  • Could affect interstate commerce if used, degraded, or destroyed;
  • Involve impoundment structures like dams in jurisdictional waters;
  • Tributaries of jurisdictional waters;
  • Territorial seas; and
  • Wetlands adjacent to jurisdictional waters
There are specific exclusions from regulation under “waters of the U.S.” for waste water treatment plants and prior converted cropland that is defined under different statutes at the U.S. Department of Agriculture. Several court cases have been brought to try and settle the complex issues that abound when regulated "navigable waters" interact with tributaries and isolated waters or wetlands that have a "significant nexus" to navigable waters because the underlying statute does not include specific statutory definitions. In May 2011, the Obama administration proposed draft guidance with the intent of clarifying the scope of the “waters of the U.S.” and to address concerns about inconsistent interpretation of enforcement in order to improve predictability for states, industries, and other stakeholders; over 230,000 public comments were received on the rules, showing the large interest from the regulated community that will be impacted. For more background on this underlying issue, please view CSG's webinar with EPA and Army Corps staff by clicking here.
According to the joint blog post, "The proposed joint rule will provide greater consistency, certainty, and predictability nationwide by providing clarity for determining where the Clean Water Act applies and where it does not. These improvements are necessary to reduce costs and minimize delays in the permit process and protect waters that are vital to public health, the environment and economy." Today's announcement means the proposed draft guidance issued by the Administration will be replaced by a formal rulemaking process. The basis of the draft rule relied extensively on an EPA report called the "Connectivity of Streams and Wetlands to Downstream Waters," which sought to synthesize the findings of roughly 1,000 different studies describing the link between isolated wetlands and large bodies of water under the Clean Water Act's jurisdiction. The draft report makes three general conclusions of the existing scientific literature:
  • Streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters.
  • Wetlands and open-waters in floodplains of streams and rivers and in riparian areas (transition areas between terrestrial and aquatic ecosystems) are integrated with streams and rivers. 
  • There is insufficient information to generalize about wetlands and open-waters located outside of riparian areas and floodplains and their connectivity to downstream waters. 
According to the agencies, the following current activities and waters falling under existing agricultural operations will retain exemptions from Clean Water Act jurisdiction or permitting: 
Exemptions from Clean Water Act permitting continue for:
  • Agricultural stormwater discharges. 
  • Return flows from irrigated agriculture.
  • Normal farming, silvicultural, and ranching activities.
  • Upland soil and water conservation practices. 
  • Construction and maintenance of farm or stock ponds or irrigation ditches. 
  • Maintenance of drainage ditches. 
  • Construction or maintenance of farm, forest, and temporary mining roads.
Exclusions from Clean Water Act jurisdiction continue for:
  • Prior Converted Cropland, including the role of USDA. 
  • Waste Treatment Systems. 

The proposed rule submitted to OMB for review includes exclusions from Clean Water Act jurisdiction for: 

  • Non-tidal drainage, including tiles, and irrigation ditches excavated on dry land.
  • Artificially irrigated areas that would be dry if irrigation stops.
  • Artificial lakes or ponds used for purposes such as stock watering or irrigation.
  • Areas artificially flooded for rice growing. 
  • Artificial ornamental waters created for primarily aesthetic reasons.
  • Water-filled depressions created as a result of construction activity.
  • Pits excavated in uplands for fill, sand, or gravel that fill with water.