Transcript Clarification or Land Grab? How EPA’s Proposal to Redefine

www.schwabe.com
Clarification or Land Grab?
How EPA’s Proposal to Redefine “Water” to
Include Dry Land
Expands Agency Jurisdiction Beyond
Historical Limits
By
Steve C. Morasch
Schwabe, Williamson & Wyatt
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Portland, OR
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Salem, OR
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Seattle, WA
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Vancouver, WA
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Washington D.C.
www.schwabe.com
New definition of “water”:
• The EPA published a new definition of “water” for
comment.
• The definition determines the EPA and Army
Corps of Engineers jurisdiction for a variety of
regulatory programs under the Clean Water Act,
including:
– Section 404 dredge and fill
– Section 402 pollution control (NPDES)
• Comment period expires November 14, 2014
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Washington D.C.
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What is “water”?
• Clean Water Act adopted in 1972
• Regulates only the "navigable" waters of the United
States
• Traditionally, a "navigable" water was large enough
to float a boat used in commerce
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Over the years. . .
 EPA and Corps (with help of the courts) expanded
the definition of "navigable" far beyond any
traditional concept of navigation
 Agencies often seek to regulate land that is
sometimes saturated with water
(from majority leader
Kevin McCarthy’s webpage)
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What’s the issue?
Water runs downhill,
gathering pollutants
along the way
Effort to stop pollution
at its source by
regulating the outer
capillaries of the
system
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Local vs Federal control
• Many argue that the capillaries of the system are
adequately protected by local regulations
– Washington has the GMA critical areas protections and SMA, which
require habitat protection; Oregon has statewide planning goals 5, 6, 15,
16, 17, 18 and 19
• Definition of “water” applies to more than just
water quality regulations
– Also applies to dredge and fill rules
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Washington D.C.
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Proposed rule has been broadly
criticized. . .
House Appropriations committee chair Harold Rogers
called the new rule “the biggest land grab in history”
Groups opposed to the rule include:
 American Farm Bureau
 Pacific Legal Foundation
 Waters Advocacy Coalition
 National Council of Farmer Cooperatives
 Agricultural Retailers Association
 Congressional Western Caucus
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Eugene, OR
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Portland, OR
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Salem, OR
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Seattle, WA
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Vancouver, WA
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Washington D.C.
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Proposed rule also opposed in its
current form by
• Pacific Northwest Waterways Association (PNWA)
• National Waterways Conference (NWC)
• American Association of Port Authorities (AAPA)
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Eugene, OR
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Portland, OR
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Bipartisan opposition
• Opposed by both democrats and republicans
• H.R. 5078 passed the House with bipartisan
support, and a vote of 262 to 152
• Bill prohibits EPA and ACOE from redefining
“water” without consensus
• President Obama threatens veto
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Portland, OR
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Washington D.C.
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The proposed rule is supported by
• The Obama administration
• Environmental groups
• Seven state AG’s, including Washington
State Attorney General Bob Ferguson
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The Obama administration claims
the “land grab” is a myth. . .
How do we sort out the truth?
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Let’s start with the Supreme Court
decisions:
• 2001: Solid Waste Agency of Northern
Cook County (SWANCC) v. U.S.
Army Corps of Engineers
• 2006: Rapanos v. United States
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SWANCC v. ACOE (2001)
Case involved “isolated waters” – not traditionally
navigable, not adjacent or tributary to a navigable water,
in this case an abandoned gravel pit
Court held “migratory bird rule” - whether a bird lands
there – did not create CWA jurisdiction
Court’s broad rationale cast doubt on CWA jurisdiction
over any “isolated waters”
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Rapanos v. United States (2006)
• The Court noted that these agencies had, over
the years, attempted to expand their jurisdiction
to "any plot of land" containing a drainage
"channel or conduit – whether man-made or
natural, broad or narrow, permanent or
ephemeral – through which rainwater or drainage
may occasionally or intermittently flow"
• EPA and Corps not authorized to undertake such
an "immense" expansion of their jurisdiction
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Seattle, WA
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Washington D.C.
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The Rapanos case involved. . .
• four Michigan wetlands
• which lie near ditches or man-made drains
• that eventually empty into traditional
navigable waters
• located some 11 to 20 miles away
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For filling these wetlands without a
federal permit. . .
 John Rapanos faced 63 months in prison
 And hundreds of thousands of dollars in
criminal and civil fines
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Cost of wetland permitting in the U.S. in
2006
Average applicant for an individual permit spends:
 788 days (over two years)
 $271,596 in permitting and consulting fees
 Plus the cost of mitigating for the loss of the
wetlands
Over $1.7 billion is spent each year in the process of
obtaining federal wetland permits in the U.S.
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Rapanos holding:
Court rules in favor of Mr. Rapanos, stating:
• Corps stretched the term ‘waters of the United
States' beyond parody
• CWA does not authorize 'Land is Waters'
approach to federal jurisdiction
Given the clear and unambiguous language of the
Rapanos decision, why does EPA claim the Court
created uncertainty?
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No majority (4/1/4 decision)
Rapanos was a plurality decision
 Four justices joined the plurality
 Justice Kennedy concurred but for different
reasons (the “significant nexus” test)
 Four justices dissented
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The EPA draft rule expands on the
“significant nexus” test from Justice
Kennedy’s concurrence:
“Significant nexus" – not a scientific term:
• It’s a legal term
• Defined in the draft rule with broad sweeping
language
• Includes any connection to a "navigable" water that
is "more than speculative or insubstantial"
Bend, OR
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Eugene, OR
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Portland, OR
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Salem, OR
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Seattle, WA
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Vancouver, WA
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Washington D.C.
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In simple terms, the draft rule defines
“water” to include:
• Traditionally navigable waters, like navigable
lakes, rivers and seas
Bend, OR
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Eugene, OR
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Portland, OR
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Salem, OR
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Seattle, WA
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Vancouver, WA
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Washington D.C.
www.schwabe.com
In simple terms, the draft rule defines
“water” to include:
• Traditionally navigable waters, like navigable
lakes, rivers and seas
• Interstate waters and wetlands
Bend, OR
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Eugene, OR
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Portland, OR
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Salem, OR
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Seattle, WA
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Vancouver, WA
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Washington D.C.
www.schwabe.com
In simple terms, the draft rule defines
“water” to include:
• Traditionally navigable waters, like navigable
lakes, rivers and seas
• Interstate waters and wetlands
• Tributaries of navigable waters
Bend, OR
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Eugene, OR
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Portland, OR
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Salem, OR
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Seattle, WA
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Vancouver, WA
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Washington D.C.
www.schwabe.com
In simple terms, the draft rule defines
“water” to include:
• Traditionally navigable waters, like navigable
lakes, rivers and seas
• Interstate waters and wetlands
• Tributaries of navigable waters
• Waters that are “adjacent” to navigable waters
or their tributaries
Bend, OR
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Eugene, OR
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Portland, OR
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Salem, OR
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Seattle, WA
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Vancouver, WA
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Washington D.C.
www.schwabe.com
In simple terms, the draft rule defines
“water” to include:
• Traditionally navigable waters, like navigable
lakes, rivers and seas
• Interstate waters and wetlands
• Tributaries of navigable waters
• Waters that are “adjacent” to navigable waters
or their tributaries
• Waters that have a “significant nexus” to
traditionally navigable waters
Bend, OR
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Eugene, OR
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Portland, OR
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Salem, OR
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Seattle, WA
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Vancouver, WA
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Washington D.C.
www.schwabe.com
Tributaries are defined broadly:
• Includes wetlands, lakes and ponds
– even if they lack a bed and banks or a ordinary high
water mark
• Any water that flows directly or indirectly
into a navigable or interstate water
– any hydrological connection is a tributary
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Adjacent waters
• No hydrological
connection
required
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Adjacent waters include:
• Waters that are bordering, contiguous or
neighboring to a navigable water or a tributary
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Adjacent waters include:
• Waters that are bordering, contiguous or
neighboring to a navigable water or a tributary
• Waters, including wetlands that are separated
from navigable waters or tributaries by man
made dikes or barriers, natural berm, beach
dunes, etc.
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Adjacent waters include:
• Waters that are bordering, contiguous or
neighboring to a navigable water or a tributary
• Waters, including wetlands that are separated
from navigable waters or tributaries by man
made dikes or barriers, natural berm, beach
dunes, etc.
• “Neighboring” waters that are located within the
riparian area or floodplain of a navigable water or
tributary or that have a hydrological connection
to such waters
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Significant Nexus means:
• A water or wetland
• That alone or in combination with other
waters
• Significantly affects the chemical, physical
or biological integrity of a navigable water
The effect need only be “more than
speculative or insubstantial”
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Significant Nexus waters are:
• Evaluated on a case by case basis
• Highly discretionary with the agency
• Viewed “in combination” with other waters
So, individually, a significant nexus water might
only have an insubstantial effect, but if it is
combined with other waters that have a “significant”
affect as a whole, it will still be regulated
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The only clarity in the proposed rule is
the exemptions
Waste Treatment Systems that meet the CWA are exempt
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Exemptions
Prior Converted Cropland
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Exemptions
Prior Converted Cropland
What about ditches?
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Exemptions
Prior Converted Cropland
What about ditches?
• EPA has authority to override other agencies’
determinations about prior conversion to cropland
• Normal farming operations on existing farms are exempt
from dredge and fill permits under 40 CFR 232.3(c)(1)
• Farming activities not be exempt from water quality rules
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Ditches exempt?
Only ditches with no hydrological connection are exempt:
• Ditches that are excavated wholly in uplands, drain only
uplands and do not have perennial flow
• Ditches that do not contribute flow, either directly or
indirectly to a navigable or interstate water
A ditch that touches a wetland or that eventually flows into a
navigable water, no matter how remote, is NOT exempt.
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Exemptions continued:
Artificially irrigated uplands
are exempt
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Exemptions continued:
Artificial lakes or ponds created from uplands and used
exclusively for stock watering, irrigation, settling basins or
rice growing are exempt
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Exemptions continued:
• Artificial reflecting or swimming pools created out of dry
uplands are exempt
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Exemptions continued:
Small ornamental ponds in dry uplands are exempt
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Exemptions continued:
• Water filled depressions created incidental to
construction activity are exempt
• Groundwater is exempt
• Gullies, rills and non-wetland swales are exempt
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Washington D.C.
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Conclusion:
Outside of these narrow exemptions, the
draft rule broadly defines “waters” to allow
EPA and ACOE great discretion to assert
CWA jurisdiction over virtually any piece of
land that, when viewed in combination with
other lands, has anything more than a
speculative or insubstantial effect on
navigable waters.
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Seattle, WA
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Vancouver, WA
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Washington D.C.
www.schwabe.com
Questions?
Comment period expires November 14, 2014
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