In a proposed rule leaked to public sources on November 14, the U.S. Environmental Agency and Army Corps of Engineers provide a defintion of “waters of the United States” and other terms in support of its definition. The proposed regulation was immediately described by some, including members of Conress, as a “power grab.” It is more accurately a tacit recognition by the agencies of what they have been doing for more than four years. The only real change that will occur from the rule, if adopted, will be to allow the agencies to determine jurisdiction over a particular stream channel based upon a document review. Verification by field examination will no longer be required.
The issue addressed by the proposed rule has been more than a decade in the making and arises from two decisions of the U. S. Supreme Court in In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, (SWANCC) 531 U.S. 159 (2000) and Rapanos v. U.S., 547 U.S. 715 (2006). In both cases, the Supreme Court rejected jurisdiction asserted by the Corps over sites alleged to comprise “waters of the United States” as defined by the federal Clean Water Act (CWA). In the first case the Court denied that the Corps could regulate several acres of small ponds and wetlands created by excavations from sand and gravel pits. It reached its holding based on the lack of any “significant nexus” between those sites and traditionally navigable waters which are the only waters over which the Court has found that Congress historically has asserted a basis fro regulation.
In the second case, Rapanos, the Court could not reach a majority opinion. A plurality of four members asserted a narrow basis for finding federal jurisdiction which required a relatively continuous flow to establish between the traditionally navigable water and any stream or wetland more remote. Justice Kennedy, writing only to concur with the plurality’s judgment to remand the case to the lower court, seized upon the “significant nexus” phrase in SWANCC to hold that any finding by the agency that determined a substantial connection could be the basis for finding jurisdiction under the CWA. In practice, his test has been nearly impossible to apply in a way that has been clear and consistent. Notwithstanding the restrictions that Justice Kennedy applied in his analysis, jurisdictional determinations made by each agency have invariably found jurisdiction between the activity sought to be regulated and the traditionally navigable water.
Justice Kennedy further determined that federal agencies could make the finding based either upon an individual determination or by crafting regulations that established the significant connection. The leaked rule essentially reflects EPA’s acceptance of the Court’s invitation to craft a rule. The passage of almost seven years reflects the attempt by EPA and the Corps to find a scientific pretext to justify the outcome proposed by the rule.
The federal agencies have asserted jurisdiction since 1986 over any surface feature that was wet, even if only seasonally, and could be shown to have some physical connection to a traditionally navigable water, meaning one that had some use in interstate commerce or could have with some reasonable improvement. This was a practical test for use when the stream or wetland had an immediate adjacency to a river or tidal water. As coal operators in the Central Appalachian region know, however, EPA and the Corps have for years sought to apply the definition, and thus the requirement to secure a CWA §404 permit, to any surface channel that moves water hydraulically to a perennially flowing stream. The economic burden of disproving jurisdiction has been substantial, and most operators have acquiesced in the assertion of the agencies’ jurisdiction.
One of the claims made by EPA is that its draft rule is actually narrower, i.e. more restrictive, than its existing regulation. The 1986 regulations are broader in the sense that “tributaries” were jurisdictional without defining precisely what a tributary is. By now defining tributary in the draft regulation, EPA will argue that the proposed regulation actually limits its jurisdiction and, thus, is more narrow. There is, of course, an important assumption here. EPA presumes that since no specific limitation on jurisdiction was expressed in its existing regulation, it hypothetically could have taken an even broader view of jurisdiction than it does in the draft proposal. In practice, it did not do so. There is no practical difference in the jurisdiction that EPA could assert under the two versions. Therefore, it is completely inappropriate to base its economic analysis on what hypothetically could have been done with the complete opposite of what EPA did.
Because of the relevant SWANCC and Rapanos decisions, EPA has had to exercise some care its CWA enforcement. Therefore, while the draft rule theoretically may be less broad than the existing 1986 rule, it actually does restore some of the authority the agencies had, but have been cautious in asserting over the last 14 years. A simple comparison at how many CWA §404 permits the Corps and EPA required now, as opposed to 1986 (and probably 2009-10 as well), shows how disingenuous EPA’s analysis is.
Notwithstanding the agencies’ success in asserting an ever greater authority over an ever decreasing volume of water, it has been far from clear that the basis for federal authority has complied with Justice Kennedy’s admonition that the connection between regulated site and traditionally navigable water be substantial. To provide this link, the EPA announced in September the publication of a document entitled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.” It announced that it was submitting the report to an empanelled Scientific Advisory Board to verify its analysis and conclusions. The report summarizes hundreds of scientific articles and reports, most of which are supposedly peer-reviewed (and many of which are government funded), for the purpose of verifying what is, in fact, common sense. As most persons learned in a general science class, water flows downhill, higher elevation waters are connected by a surface or sub-surface mechanism with waters at lower elevations, and the connections of the two can be measured biologically, chemically or hydraulically. Individually, and especially collectively, these connections may be significant.
It is not surprising that in the proposed rule EPA has announced that it will rely on the findings of the Scientific Advisory Board to justify the “significance” that Justice Kennedy declared must be found in order for federal jurisdiction to exist. Whether the scientific basis that the regulation asserts for the agencies’ statutory jurisdiction in fact will satisfy the Constitutional basis for federal control over land features that historically have been regarded as the exclusive province of the states is another question. As with so many other questions, this is one that the Court eventually will need to take up again, no doubt much to its regret.
This article was authored by Blair Gardner, Jackson Kelly PLLC. For more information on the author, see here.