Responding to a series of Supreme Court decisions that have left lower courts in doubt about how to apply the law, the Environmental Protection Agency (EPA) has issued a new “Waters of the United States” rule, a rewrite of older rules issued to implement Clean Water Act (signed into law in 1972 by then-President Richard Nixon).
While the new rule’s announced scope is modest — the rulemakers say they are just trying to clarify the government’s claims of jurisdiction (see the EPA informational website: “Clear Protection for Clean Water”) — its implications could be widespread. And even before it was published in final form, the EPA’s new rule set off a storm of criticism, with promises from opponents to work against it — pushing to repeal it in Congress, overturn it it federal court, or both.
But for many builders and developers, neither the new rule or the political three-ring circus that surrounds it will create a lot of wiggle room. To some extent, the administration is likely to succeed at its goal of removing the uncertainty about where the federal jurisdiction begins and ends. And projects that fall inside the rule’s scope will encounter the EPA’s
requirements for preventing water pollution from job-site runoff. Builders may be best advised to ignore the noise and focus on what the rules require.
The New York Times reports on the rule here (see: ”Obama Announces New Rule Limiting Water Pollution,” by Coral Davenport). “The rule, which would apply to about 60 percent of the nation’s bodies of water, comes as part of a broader effort by Mr. Obama to use his executive authority to build a major environmental legacy, without requiring new legislation from the Republican-controlled Congress,” writes the Times. “But it also opened up a broad new front for attacks from business interests like farmers, property developers, fertilizer and pesticide makers, oil and gas producers and golf course owners, who contend that the rule would stifle economic growth and intrude on property owners’ rights.”
The new rule grows out of uncertainty on all sides of the controversy about the legally allowable scope of previous existing rules. The Christian Science Monitor describes the history of recent court decisions which have created confusion, here (see: “Why the EPA wants to amend the Clean Water Act,” by Henry Gass).
“At the heart of this confusion are so-called temporary waterways: small streams and tributaries that appear and disappear throughout the year due to rain, snowmelt, and other factors,” the paper reports. Taken individually, each of these small flows is trivial. But in the aggregate, ecologists say, they’re an important key to solving the nation’s water pollution problem.
But it’s not clear whether the federal government has power over those occasional trickles. People facing EPA enforcement have argued that the government’s constitutional authority only applies to literally navigable waters — lakes and rivers that you can float boats on, not seasonal rivulets or puddles. And the Supreme Court has sided with those citizens — up to a point.
Reports the Monitor: “According to the Obama administration, when it came to protecting those waterways, the EPA’s hands were tied by two ‘confusing and complex’ Supreme Court decisions in 2001 and 2006. The 2006 decision, in particular, sided narrowly with a Michigan developer who paved over a wetland to build a strip mall without a permit from the US Army Corps of Engineers. The Clean Water Act says the government can regulate any discharge into ‘navigable waters’ – a term the Army Corps had interpreted broadly since the Act was established. But an unusual 4 to 1 to 4 majority split from the court provided a number of new interpretations. At the time, four justices said the law called for a restrictive view of federal jurisdiction to reach remote wetlands. Four others said the statute permits the government to take upstream actions to prevent downstream degradation of federal water resources, with Justice Anthony Kennedy ultimately siding with the restrictive view of the court. Justice Antonin Scalia and three of his colleagues wrote that the Clean Water Act only protects wetlands ‘with a continuous surface connection’ to navigable water – effectively excluding seasonal waterways. Justice Kennedy offered his own interpretation of where federal jurisdiction ends. He wrote that wetlands are not under government jurisdiction when the effect on water quality is ‘speculative or insubstantial,’ and that the wetland needs to ‘significantly affect the chemical, physical, and biological integrity of other covered waters.’ The split majority led to years of confusion, as lower courts were unsure which interpretation – Scalia's or Kennedy's – they should apply. The EPA, after reviewing more than 1,000 peer-reviewed studies on the issue, hopes the Clean Water Rule will finally put those issues to bed by clearly defining the characteristics of waterways that fall under the EPA’s jurisdiction.”
But not every lawyer thinks the new rule is all that clear. In a series of blog posts, Washington DC attorney Lowell Rothschild of the Washington DC firm Bracewell and Giuliani, lays out his brief view of where the government has — and has not — drawn a bright line. On the one hand, says Rothschild, the EPA replaced an earlier science-based definition of whether an upstream water source significantly affected a downstream body of water with a new distance-based formula (see: The Final Waters of the US Rule: The Administration’s Concessions and Clarifications,” by Lowell Rothschild). Writes Rothschild: “As proposed, the rule would have provided very scientifically-based definitions of ‘floodplain’ and ‘riparian area’ and included waters in those areas as jurisdictional ones. The final rule abandons those two terms, essentially substituting a 100-foot measure for the term ‘riparian area,’ and up to 1,500 feet of the FEMA 100-foot floodplain for the term ‘floodplain.’ This change will make it easier for laypersons to know what waters are jurisdictional under the rule.”
“The agencies have also provided a geographic limit to the case-by-case significant nexus test,” writes Rothschild. “As proposed, any water could potentially be subject to jurisdiction based on a case-by-case analysis of its significant nexus to downstream waters. Under the final rule, only waters within 4,000 of the ordinary high water mark of a tributary can potentially be subject to this test. It’s questionable how great a concession this actually is, but it does provide some measure of clarification.”
But Rothschild says the EPA left some concepts alone that he thinks the government should probably have re-defined. In particular, he says, the new rule leaves some uncertainty about what a “wetland” is, and also about the notion of “traditionally navigable waters.” “Traditionally navigable waters include those that the agencies believe could be used for boat rentals and the like, even if they never have been in the past. That’s not only a fairly expansive list of waters, it is not static,” observes Rothschild.
And in practice, says Rothschild, the rule’s application will still be case by case for anybody whose property falls close enough to a regulated body of water. Property owners will have to figure out for themselves whether the occasional water on their site is sufficiently related to other nearby wet spots in the same watershed to trigger federal jurisdiction (including water that lies on the property of others). Even locating the nearby candidates “will likely need to be done by aerial photography, at least at the preliminary, desktop level,” says Rothschild. “There are not a lot of aerial photography wetland delineation experts in the country, particularly ones with whose conclusions the agencies will always agree.” That problem is difficult enough, Rothschild writes, that many landowners won’t want to take on the battle.
Clear or unclear — for people who want to limit the government’s reach, the rule represents a new battle line. In a typical understatement, House Majority Leader John Boehner called the revision “a raw and tyrannical power grab that will crush jobs,” adding, “the rule is being shoved down the throats of hardworking people with no input, and places landowners, small businesses, farmers, and manufacturers on the road to a regulatory and economic hell” (See “Speaker Boehner on the Latest EPA Power Grab”).
National Association of Homebuilders (NAHB) Tom Woods issued a milder critical comment (see: Statement from NAHB Chairman Tom Woods on EPA Water Rule). Said Woods: “EPA’s final water rule will needlessly raise housing costs and add more regulatory burdens to landowners and industries that rely on a functioning permitting process to spur job and economic growth. The rule significantly expands the definition of a tributary to include any dry land feature that flows only after a heavy rainfall. Such federal overreach goes well beyond congressional intent and the limits of jurisdiction set forth by the U.S. Supreme Court. Regrettably, as a result of these overly broad definitions, this rule will soon wind up in the courts yet again. Ultimately, today’s rule underscores the role that Congress must play in defining the limits of the Clean Water Act.”