By Andrew H. Perellis, Jeryl L. Olson, and Craig B. Simonsen

EPA Administrator, Gina McCarthy, and the Assistant Secretary of the Army (Civil Works), Jo Ellen Darcy, just signed a proposed rule to “clarify” protections under the Clean Water Act for “streams and wetlands that form the foundation of the nation’s water resources.”

We had previously blogged about the Agency’s draft of the proposed rule that was distributed last November, 2013. The draft was supported, in-part, by an EPA Science Advisory Board’s draft scientific report, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (EPA/600/R-11/098B), which it had released for public comment. We had also blogged about the draft scientific report.

According to the EPA, the draft scientific report “represents the state-of-the-science on the connectivity and isolation of waters in the United States.” It makes these conclusions: 

  • 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 are integrated with streams and rivers.

The Agency indicated that the proposed rule will define the scope of waters protected under the Clean Water Act in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview, 474 U.S. 121 (1985), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), and Rapanos v. United States (Rapanos), 547 U.S. 715 (2006). We had previously reviewed Rapanos in a Client Management Alert. EPA believed that the “rule will result in more effective and efficient Clean Water Act permit evaluations with increased certainty and less litigation.”

In an op-ed piece, Administrator McCarty explains that: “over the last decade, the Clean Water Act has been bogged down by confusion. [C]omplex court decisions narrowed legal protections and muddled everyone’s understanding of what waters are — or are not — covered under the law. Protections have been especially confusing for those smaller, vital interconnected streams and wetlands.” She asserted that “our proposed rule will not add to or expand the scope of waters historically protected under the Clean Water Act.”

According to EPA the proposal will clarify the types of waters covered under the Clean Water Act. Specifically, the proposed rule clarifies that under the Clean Water Act:

  • Most seasonal and rain-dependent streams are protected.
  • Wetlands near rivers and streams are protected.
  • Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant. However, to provide more certainty, the proposal requests comment on options protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.

It is notable that in a comment submitted on the draft rule by the U.S. Chamber of Commerce it is said that:

It is clear … that EPA cannot factually certify that the draft rule would not impose a major economic impact on a large number of small entities. Expanding the current definition of “waters of the U.S.” to include “ephemeral” streams, isolated wetlands, and non-connected waters will subject vast areas across the country to regulation under the Clean Water Act for the first time. Expanding CWA jurisdiction would subject property owners, businesses, and communities to stringent new permitting requirements and use restrictions. The process of obtaining permits and use approvals under the Clean Water Act can be very costly and time-consuming. Historically, obtaining a permit to develop in jurisdictional wetlands can take longer than 12 months and cost hundreds of thousands of dollars.

In a statement about the proposed rule the Chamber reiterates: “For decades, the EPA has been attempting to expand its jurisdiction over waters of the U.S., but the Supreme Court has held it in check through key rulings. This latest attempt from EPA to make virtually every river, stream, and creek in the U.S. subject to the authority of the Clean Water Act would put the agency effectively in charge of zoning the entire country. This proposed definition would more than double the miles of waterway EPA regulates, which would have serious economic repercussions. The U.S. Chamber will vigorously oppose this flawed proposal.”

The regulated community — industry, municipalities, developers, builders, and a host of others — should watch, monitor, and participate this rulemaking effort very closely. Despite EPA denials, the resulting rules may add innumerable “water bodies” to the list of “waters of the United States,” and make Clean Water Act permitting an even more onerous and costly proposition.

The proposed rule docket will be open for public comment for 90 days from publication in the Federal Register.