Just how geographically broad should the federal government’s role be in regulating water pollution? The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers have released a proposed rule that would amend the existing definition of “Waters of the United States,” as used in 12 sections of the Code of Federal Regulations,* affecting nearly as many different regulatory programs. This term dictates exactly what waters fall under federal jurisdiction and triggers federal water quality limits, standards, permits, enforcement and other reviews. The proposed rule would not only alter permitting programs under the Clean Water Act (CWA) -- regulating dredging, filling and stormwater discharges -- but also would also expand other regulatory obligations, such as the requirement to develop spill prevention, control and countermeasure (SPCC) plans (on the basis that a release of oil could reasonably discharge into jurisdictional waters) and the requirement to report hazardous substances releases.
The two agencies' joint Notice of Proposed Rulemaking (NPR) can be found here at 79 Fed. Reg. 22188. The period for notice and public comment on this proposed rule ends on July 21, 2014.
The proposal is likely to significantly increase the agencies’ control over construction work in waters and wetlands. It adds a definition for “tributary” and expands the meaning of the term "adjacent." Existing regulations cover only adjacent wetlands, whereas the proposed regulations would cover both adjacent waters and wetlands. These new definitions would increase the universe of water that is jurisdictional by rule. In addition, the proposed rule changes the test for the “other waters” category from one based on the impacts to interstate commerce to one based on the ecological impacts (i.e., a “significant nexus” test), thereby expanding a category that courts have already determined was overly broad. Here’s how:
- The proposal starts with an initial list of jurisdictional areas, which includes (a) waters that are, have been, or could be used in interstate commerce, (b) interstate waters and wetlands, and (c) the territorial seas.
- The proposal then adds all tributaries to the categories of waters that would be “jurisdictional by rule.” Tributary gets defined for the first time as any feature with a bed and bank that contributes flow to any water on the initial list. Many features, like dry arroyos and mountain channels, have a bed and bank even though they only flow when it rains or the snow melts.
- The proposal also includes “all impoundments” of the waters identified above.
- The proposal then continues, adding to the list of jurisdictional waters all waters, including wetlands, that are adjacent to the above-listed waters/wetlands and their tributaries. (The agencies have determined that all waters adjacent to tributaries of navigable waters have a “significant nexus” and so are always jurisdictional.)
- Adjacent is “bordering, contiguous or neighboring.” EPA then defines neighboring for the first time to include any water in the floodplain or a riparian area of the initial waters and their tributaries. These also get new definitions. Floodplain is an area along water, formed by sediment deposition and inundated during moderate to high flows. Riparian area is one bordering any water where surface or groundwater “directly influence the ecological processes and plant and animal community structure in that area.” The size and scope of floodplains and riparian areas is not delineated within the rulemaking and is left up to the “best professional judgment of the regulator” on a case by case basis.
- In addition, the agencies have proposed another way to assert jurisdiction: waters can be jurisdictional if, “on a case-specific basis. . . alone, or in combination with other similarly situated waters. . . located in the same region, [they] have a significant nexus” to a traditionally navigable or interstate water or the territorial seas. (This is a case-by-case “significant nexus” test.)
Ditches
The proposed rule, for the first time in regulatory language, categorically claims ditches as “Waters of the United States.” In the rule, manmade ditches fall under the category of “tributary” unless they meet one of two exclusions. These two exclusions are: (1) ditches that are excavated wholly in uplands, drain only uplands, and have ephemeral or intermittent flow; and (2) ditches that do not contribute flow, either directly or through another water, to a traditional navigable water, interstate water, territorial sea or an impoundment of a jurisdiction water. The proposal does not define the term “upland.” Arguably, under the proposal, CWA jurisdiction would reach many ephemeral ditches (e.g., roadside, irrigation, stormwater) that may flow only intermittently and indirectly over a great distance to reach navigable water and could even extend to water bodies like construction detention ponds that ultimately drain to a navigable water. Even ditches that make up the outer extent of an MS4 (municipal storm drainage system) are potentially jurisdictional, allowing EPA to regulate not only what comes out of an MS4, but what goes into it as well. Ditches that function as point sources by discharging pollutants also are subject to CWA Section 402 NPDES (National Pollutant Discharge Elimination System) permit requirements.
AGC Efforts
AGC is still working to evaluate the effects of the rule, as proposed. Initial concerns include the fact that the proposal: provides essentially no limit to federal CWA jurisdiction; is inconsistent with U.S. Supreme Court precedent; would adversely affect jobs and economic growth; prejudges the scientific analysis that is still undergoing peer review; and introduces additional uncertainty into the process.
The agencies are currently in the process of receiving input on the proposed rule from interested parties and are holding discussions across the country. AGC has worked extensively over the past several months in advance of this rulemaking, educating members of Congress, their staff, and policymakers in the administration about the impact expanded jurisdiction has on the construction industry. We have participated in several briefings on Capitol Hill and at the White House Office of Management and Budget during interagency review about the EPA’s rushed science, deeply flawed economic analysis, and unintended scope of the rule. AGC will continue to work with the Waters Advocacy Coalition to submit full comments and AGC will also submit comments of its own. In addition, the AGC Regulatory Action Center will have a template letter available shortly to help AGC members submit company and/or personal comments.
The agencies do not expect to issue a final rule until 2015 given the complex and controversial nature of the proposed rule and the extensive comments expected. The full text of the proposed rule and background documents may be found online at http://www2.epa.gov/uswaters.
For more information, please contact Scott Berry at berrys@agc.org or Leah Pilconis at pilconisl@agc.org.
*The proposed rule proposes identical language for 12 sections of the Code of Federal Regulations:- 33 CFR § 328.3 (Army Corps of Engineers regulations for implementation of Clean Water Act)
- 40 CFR § 110.1 (EPA regulations for discharge of oil)
- 40 CFR § 112.2 (EPA regulations for oil pollution prevention)
- 40 CFR § 116.3 (EPA regulations for designation of hazardous substances)
- 40 CFR § 117.1 (EPA regulations for determination of reportable quantities for hazardous substances)
- 40 CFR § 122.2 (EPA regulations for the NPDES program)
- 40 CFR § 230.3 (EPA regulations for section 404(b)(1) guidelines for specification of disposal sites for dredged or fill material)
- 40 CFR § 232.2 (EPA regulations for exempt activities not requiring section 404 permits)
- 40 CFR § 401.11 (EPA regulations for effluent guidelines and standards)
- 40 CFR § 300.5 (EPA regulations for the National Oil and Hazardous Substances Pollution Contingency Plan)
- Appendix E to Part 300, sec. 1.5 (EPA oil response requirements)
- 40 CFR § 302.3 (EPA regulations for designation, reportable quantities and notification under CERCLA and the Clean Water Act)