There has been considerable interest in the Hill Country about the EPA’s new Waters of the US (WOTUS) rules clarifications. The debate revolves around the EPA including more waterways into its jurisdiction under the Clean Water Act than it traditionally has. (We should remember that the rules explicitly exempt Agricultural uses.) A good explanation of the evolving rules comes from a recent University of Texas School of Law forum on the topic. Read more from Colleen Schreiber:
December 3, 2015
Panel Discussion Confirms No One Really Understands WOTUS
By Colleen Schreiber
AUSTIN — If you are confused about just where things stand on the Waters of the U.S., you are likely not alone.
A few weeks back the Senate fell three votes short of the 60 required to force the Obama administration to redo the rule. When that failed, Joni Ernst, R-Iowa, initiated a disapproval resolution which only needed a simple majority to proceed. The Senate voted 55-43 to take it up. Regardless, it’s said that both votes were largely symbolic, because even if Congress manages to get something done legislatively, the White House has vowed to veto any legislation that attempts to repeal the new rule. So that’s the legislative front.
On the litigation front, it’s perhaps more confusing. There are two parallel tracks of challenges ongoing — those in the district courts and others in the courts of appeals. For example, a district court in North Dakota issued a stay that applied to 13 states, and subsequently a circuit court of appeals decided that the case should be handled in the Sixth Circuit of Appeals. The Sixth Court issued a nationwide stay of the rule while it assesses whether it has jurisdiction. Thus the practical issue of who is going to decide the challenges is still up in the air.
Those attending a recent continuing legal education forum on Texas water law sponsored by the University of Texas School of Law heard differing assessments from a panel of speakers on just what WOTUS means if it goes forward as it currently stands. A spokesperson from EPA’s region VI in Dallas was there to explain the rule in EPA-speak; the Texas Farm Bureau was there to explain the practical and legal deficiencies of the rule, and the Natural Resources Defense Council was there to speak in support of the rule with some changes.
Not surprisingly, the opinions of the panelists covered both ends of the spectrum and the discussion did little to clarify much of anything.
EPA’s Tucker Henson opened the discussion, telling listeners that the new rule came to be in part because there were substantial uncertainties under the previous regulation, and certain court decisions only made that uncertainty more confusing.
“The Clean Water Rule seeks to alleviate much of this uncertainty,” insisted Henson.
In the Clean Water Act there are certain categories of waters that are jurisdictional by rule, making them “waters of the U.S”. These particular categories, he noted, have not changed from the previous rule. The first, referred to as the A1 category, are navigable waters, both commercial and recreational. A2 waters are interstate waters, and A3 waters are territorial seas.
Category four are impoundments. The Clean Water Rule, he told listeners, keeps the prior language regarding impoundments.
“An impoundment does not remove a jurisdictional water from regulation despite the fact that there may be no flow below the impoundment, and it doesn’t sever upstream jurisdictional waters,” Henson told listeners.
For waters outside those categories there may be certain exclusions, Henson noted.
“Some exclusions are unchanged; some are new, and some were not in the previous regs but were generally excluded under our practice,” he told listeners.
The two relevant exclusions that remain in the new rule are prior converted cropland and waste water treatment systems.
“They were excluded, and they remain excluded under the current regulatory definition of Waters of the U.S., and the rule does not change these exclusions, nor does it change how they’re implemented,” Henson stated.
The remaining part of his statement is where the so-called clarity began to rapidly fade. He noted that the new rule has exclusions for certain types of ditches.
“Ditches are a concern to the regulatory community,” Henson told listeners. “Many of these ditches have been considered non-jurisdictional under existing interpretations, but the Clean Water Rule codifies these exclusions and modifies the wording to make sure that it’s easier to understand.”
The ditches that are excluded now, he said, are ditches with ephemeral flow that are not in a relocated tributary or excavated within a tributary. Ditches with intermittent flow that are not relocated or excavated within a tributary and do not drain wetlands are also excluded. Furthermore, ditches that don’t flow into an A1 through A3 water are likewise excluded.
He then discussed other waters that have generally been considered non-jurisdictional whose exclusions have been formalized in the new regulations.
“You’ll be pleased to know that after receiving numerous comments, we have specifically excluded puddles from jurisdiction,” Henson told listeners.
One of the exclusions of particular interest, he added, is erosional features.
“An erosional feature does not have a bed and banks, nor does it have an ordinary high water mark, and the definition from the previous rule hasn’t changed.”
Also on the list of exclusions is groundwater.
“It’s always been understood that groundwater is not regulated under the Clean Water Act, and under the Clean Water Rule this general understanding has been codified.”
A few additional exclusions, added in large part to response from states, municipalities and local governments, include storm water control features and waste water recycling features.
Then he went into those categories that have been determined to have “significant nexus” under the new rule that do not require a case-specific analysis, the first of which is tributaries.
He explained that tributaries are jurisdictional if they meet the definition of tributary within the rule.
“The previous rule did not provide a definition. That created a lot of variability in the application,” Henson told listeners. “By providing this definition, the agencies are attempting to add more predictability than exists today.”
The definition, he explained, is based upon a peer reviewed scientific study and scientific advisory board review.
“That definition concludes that tributary streams including perennial, intermittent and ephemeral streams, are typically physically and biologically connected to downstream waters and influence the integrity of downstream waters.”
He went on to say that tributaries require “flow of sufficient frequency, duration and magnitude to develop an ordinary high water mark and a bed and banks.”
Henson reiterated that ditches excavated in a tributary or a relocated tributary remain jurisdictional. The “portion of the ditch with intermittent flow that drains a wetland” is also jurisdictional.
Ditches with perennial flow into a tributary or an A1-A3 water are likewise jurisdictional.
Another category that is jurisdictional by rule is adjacent waters.
“Existing peer-reviewed scientific literature supports the conclusion that adjacent waters categorically have a significant nexus,” he told listeners.
The new rule says that waters adjacent to A1-5 waters are waters of the U.S. Adjacent is defined as “bordering, contiguous or neighboring.” Henson pointed out that the final rule also defines limits on “neighboring” for the first time. Under this new definition of neighboring, riparian and flood plains are included. He added that the focus is really upon the 100-year flood plain and “reasonable proximity with specific distance limits from an ordinary high water mark or the high tide line of a jurisdictional water.”
“We received a lot of comments saying there was a lot of ambiguity within these terms,” Henson told listeners. “In response to these comments we took the definition of neighboring and modified it to include more bright lines.”
He explained those so-called bright lines, telling listeners that the agency put “measurable limits” on what could be considered neighboring. Specifically, waters within 1500 feet of an A1-A3 water and waters within 100 feet of an A1-A5 are jurisdictional, as well as waters within 100-year flood plain that are within 1500 feet of an A1-A5 water.
He told listeners that the definition of a wetland did not change.
“It’s worth noting that for adjacent wetlands under the Clean Water Rule a wetland can be an interstate water, an adjacent water, or it can be subject to a case-specific significant nexus.”
He added that waters used for normal farming, agriculture, ranching or forestry activities are not subjected to the adjacent definition and significant nexus. A significant nexus is “water that alone or in contribution with other similarly situated waters within the region significantly affects chemical, physical or biological integrity of traditionally navigable water, interstate water or a territorial sea.”
The significant nexus, he explained, is a three-step process. First the Corps of Engineers determines what waters within the watershed drain into the nearest A1 to A3 water. Next agencies must determine what waters are similarly situated, which means what waters are functional or sufficiently close to function together to affect downstream water. Finally, the Corps evaluates whether any of these functions alone or in combination significantly contribute to chemical, physical or biological integrity of the nearest A1 through A3 water.
He explained that certain waters are considered “similarly situated” by rule. The first subset of these waters has been determined to function alike and are sufficiently close in function to affect downstream waters.
“These waters are not per se jurisdictional, however they’ll be evaluated together for their significant nexus on downstream waters.”
Another subset of waters subject to case-specific significant nexus analysis is those that are not considered adjacent but are located within the 100-year floodplain of A1-3 water or they’re located within 4000 feet of the ordinary high water mark of A1-5 water.
Hansen concluded by saying that the rule became effective August 28. However, given that it is currently subject to a nationwide stay, jurisdictional determinations are being made under the previous rule.
“Presuming the stay is lifted, we’ll begin to operate under the new regulatory definition.”
Panelist Jay Bragg, associate director of commodity and regulatory activities for the Texas Farm Bureau, said that TFB has concerns about some of the changes that were made to the rule between the draft version and the final version.
“None of the things about the distances were included in the draft rule,” he told listeners.
Bragg said the first three categories classified as waters of the U.S. are straightforward and easily discernable. As for the fourth category, impoundments, he said TFB has some concerns. Another issue, and a “big one” with respect to tributaries, adjacent waters, neighboring waters and the other similarly situated waters, he said, is that they are all predicated on their distance from the tributaries.
“We’ve done some mapping in some of the states with the 4000 feet from a tributary stipulation, and based on what our interpretation of the rule is, we’re looking at 97 to 98 percent of the country being waters of the U.S.,” Bragg told listeners.
He also noted that while prior converted cropland is not considered waters of the U.S. based on the stipulations, the final authority rests with the EPA. There are still other stipulations. He pointed out that ditches, for example, are not waters of the U.S. as long as it’s not a ditch that is a tributary or a diverted tributary. Other concerns are artificially irrigated areas that revert to dryland should the application of that water cease, as well as constructed ponds and lakes created in dryland.
The latter is of particular concern, he explained, because in Texas farm ponds are not built on the side of a hill.
“They’re built where there is drainage, so they’ll actually catch water,” Bragg told listeners.
As for the connectivity report, the one statement that particularly concerns TFB is this: “Streams regardless of their size or frequency of flow are connected to downstream waters and strongly influence their function.”
“Based on that statement, all waters are connected and therefore significant,” said Bragg.
On the definition of a tributary, specifically that part that discusses the presence of a bed and bank and an ordinary high water mark, this guidance, he stressed, is subject to change based on the interpretation of the agency. For example, Corps guidance for an ordinary high water mark means “a line on the shore established by fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris …”
“One could make the argument that after several days of rain, a planted field that has water running through it that there is a defined line because we leave leaf litter to prevent erosion, and the vegetation that is there is going to be matted down,” said Bragg.
Also, the way it is worded, ag nonpoint source pollution is excluded, meaning that if a farmer puts down pesticide or herbicide, anything that washes into say an erosion diversion because of rainfall is not an issue.
“However, when farming across the top (of an erosion diversion) anything that falls in is a point source pollution and would be regulated,” he told listeners.
Most telling were some slides he provided of a farm in Tennessee where the Corps was asked to do a jurisdictional determination. On the 250-acre farm, the Corps determined there were eight streams and seven wetlands that would be considered waters of the U.S.
He showed an aerial photo of that determination with boxes outlining where those wetlands and streams were, and then he showed pictures of these so-called designated streams at ground level. At ground level these streams and wetlands were not at all discernable, but rather looked like nothing more than some slight but normal erosion following a rain event.
He also showed a picture of an erosion diversion, a waterway built in the corn field that was not planted to corn but was instead covered in grass.
“If a farmer has erosion going on, he wants to get it fixed as quickly as possible. So now do we have to get a 404 permit to do that?” Bragg asked. “We haven’t gotten clear guidance on that yet.”
Finally, Bragg mentioned playa lakes and prairie potholes.
“These will hold water, but usually not for a significant amount of time,” he pointed out. “We have significant concerns about what you can do with those and how connected they are to other waters.”
Bragg told listeners that the jurisdictional determination is subjective and “relies on the best professional judgement.”
Perhaps even more troubling is that there is no appeals process.
Jen Sorenson, an attorney with the Natural Resources Defense Council from San Francisco, told listeners that NRDC supports and defends the rule.
“It is a rule that is desperately needed,” said Sorenson.
She contended that after the Clean Water Act was first implemented in 1972 and for the first few decades after, the courts, the EPA and the Corps applied the law “broadly.” Then the SWANCC and Rapanos cases were handed down by the Supreme Court in 2001 and 2006, respectively.
“The SWANCC case had a very narrow holding, and Rapanos didn’t result in majority opinion, but these rulings injected a great deal of uncertainty into the kinds of waters the Clean Water Act protects,” she opined.
Sorenson also opined that the agencies made things worse by adopting informal policies that went far beyond what the Supreme Court cases called for. She contended these informal policies made it even more difficult to apply the Act to protections to certain kinds of waters. For example, after SWANCC, she said, the agencies required preapproval from the EPA and Corps to protect isolated waters. And, after Rapanos, the agency required “a time-consuming” case by case review for non-navigable streams and adjacent wetlands even though the Rapanos decision didn’t involve the status of streams.
“This legal mess left critical waters throughout the country vulnerable,” Sorenson stated. “Of the roughly 110 million acres of wetlands in the U.S. that could be considered isolated and non-navigable, tributaries make up more than half the nation’s stream miles.”
She went on to point out that more than a third of all Americans, including “1.5 million Texans” get some or all of their drinking water from public water systems that rely on, in part, intermittent, ephemeral, or headwater streams. She contended that this is a major concern because there is all kinds of “legal uncertainty” over whether the Clean Water Act protects such waters.
“There are major pollution investigations of companies that have contaminated lakes, rivers and other waters that have not been prosecuted,” she insisted. “According to the EPA, 489 enforcement cases have been affected by jurisdictional uncertainty.”
Sorenson told listeners that she and her husband are thinking more about their two year-old who wants to play in the stream when they go camping because “rarely do I know what’s upstream of that creek. Happily for me and for other parents of water-loving kids, the EPA and the Corps finally issued the Clean Water Rule.”
NRDC also supports the rule, Sorensen told listeners, because the “EPA did its homework.”
“EPA scientists developed the connectivity report that summarizes more than 1200 pieces of peer-reviewed scientific literature examining the physical, chemical or biological linkages for various waters.
“The connectivity report, which not only went out for peer review but was also evaluated by EPA’s independent science advisory board, concluded that tributary streams and nearby waters have multiple important connections to downstream waters.”
She went on to say that the rule also “enormously improves clarity” about which waters are in and which waters are out, in part by adding definitions of tributaries and neighboring waters for the first time.
“That makes implementation and enforcement a lot more efficient and predictable,” said Sorensen.
Despite all the good that the new rule supposedly would do, NRDC filed a complaint in district court for the District of Columbia that challenges three “limited” aspects of the rule.
“All three of the provisions we’re challenging are places where the rule departs from the science and the legal principles that underlie the rest of the rule,” Sorensen told listeners.
The first rule they’re challenging is the “carve out” from the definition of adjacent waters.
“The rule excludes from the definition waters being used for normal farming, ranching and silviculture activities.
“These farming activities are already currently exempt from the Clean Water Act permitting requirements,” said Sorensen. “The new rule does not change that.”
The new rule, she opined, also does not exclude these waters from protection altogether, as they can still be found to meet a significant nexus standard on a case by case basis.
“There is not a scientific basis for jurisdiction for distinguishing between waters used for farming and waters not used for farming, and our complaint alleges that exclusion is arbitrary and capricious,” Sorensen told listeners.
NRDC is also challenging the existing exclusion for waste water treatment systems.
“This contradicts a fundamental principle of the Act, which is that our nation’s waters are not to be used as waste dumps,” said Sorenson. “It also contradicts the agency’s express determination that impoundments of waters of the U.S. have a significant nexus to traditional navigable waters or territorial seas.”
Finally, NRDC is challenging the final rule because it establishes that certain non-adjacent waters cannot be found to be waters of the U.S. even on a case by case basis.
Sorensen concluded her remarks by saying that NRDC is not asking the court to vacate the rule, but rather they are asking the court to vacate and remand the “defective parts.”
If the court determines the defective parts aren’t severable, then NRDC wants the court to leave the rule in place.
“That’s again because we largely support the rule; we believe it was desperately needed,” she concluded.
During the question and answer session, moderator Molly Cagle, partner with Baker Botts of Austin, questioned Sorensen more on the connectivity issue.
“My read of the connectivity report is that each and all water meets the definition of connectivity,” said Cagle. “Would you agree that report would support even puddles being waters of the U.S.?”
“No, I disagree,” Sorensen responded. “The report says that there is a gradient of connectivity. It expresses strong support for the connectivity of streams, for example, which inevitably reach downstream waters. More distant waters they found would have to be found jurisdictional on a case by case basis.”
Someone in the audience questioned the determination of “neighboring waters”, noting that in the past, both the Corps and the EPA have used broad discretion in making determinations. He pointed specifically to uplands.
“An upland by its very nature acts as a sediment or pollutant trap. That’s what they do; they contain sediment, in particular, from getting into designated streams. With such broad guidelines, how will these determinations be made?” he asked.
EPA’s Henson dodged the question, saying, “I’m just a lawyer,” but then added that the Corps and EPA rely on the scientific expertise within.
“What has been shown through the science and their experience is that certain areas meet certain qualifications.”
TFB’s Jay Bragg added again that this particular provision calls into question some of the conservation structures — terraces, sediment traps — those kinds of things designed to prevent runoff.
“Certainly these provisions could bring those into the fold,” said Bragg. “It’s a scary thing.”
Another attendee asked again for clarification about whether the various conservation programs that involve terracing and the like would now require a 404 permit.
Bragg told listeners that in the past, USDA has had an agreement with the Corps, and NRCS has not been required to make these kinds of determinations.
“I don’t know if that will be the case going forward.”
Cagle questioned Henson again about puddles.
“The rule specifically excludes puddles.”
“Yes, that’s correct,” Henson responded.
“Do you really think when the legislature passed the Clean Water Act that they were ever considering a puddle to be a Water of the U.S.?”
“We had several comments that were specifically targeted towards puddles,” said Henson, “so we felt it was appropriate to clarify that puddles were not considered a water of the U.S.”
“Well, we have some pretty big puddles out in West Texas,” quipped Bragg.
“Was anyone in Corsicana or on I-45 recently?” Cagle asked. “Do you think Corsicana is now jurisdictional? What about I-45?”
The questioning then turned to the court cases. One participant wanted to know how the jurisdiction issue with the district court and court of appeals would likely be resolved.
“This is a very unusual situation,” responded NRDC’s Jen Sorensen. “The Sixth Circuit issued a nationwide stay of the rule, but it did explicitly note that it hadn’t determined yet if they had jurisdiction. It also explicitly found that the states who were asking for the stay had not shown irreparable harm,” she told listeners. “Typically, when the court has found a jurisdiction, they do it to preserve their jurisdiction in case someone is going to be irreparably harmed while the case is being litigated. So it was very unusual for a court to issue a stay without finding irreparable harm,” she opined.
Sorensen reminded that even if the Sixth Circuit’s decision removes some uncertainty, it won’t necessarily be the last word.
“There are 15 different district court cases pending,” she noted. “Plus, there is also a case in the 11th Circuit of Appeals because some parties sought a preliminary injunction in the Southern District Court of Georgia. That court held it didn’t have jurisdiction, and they appealed to the 11th Court of Appeals.”
Sorenson told listeners that the case law has tended to hold more often that district courts have jurisdiction over review of Clean Water Act regulations where the Sixth Circuit has tended to hold that appellate courts have jurisdiction.
“I don’t think anyone is certain what’s going to happen.”
Meanwhile, the district court cases are proceeding.
“It’s a big mess,” said Sorensen.
Cagle added more commentary, noting that at the moment there are cases in the 8th, 6th and 11th circuits.
“All are trying to decide whether the fundamental rule is an effluent guideline which needs to be appealed to the circuit court,” explained Cagle. “If it doesn’t meet that narrow definition, then it can get tried in the district court.”
She also noted that with the multi-district litigation panel, EPA argued that they ought not to have to try this case in multiple district courts.
“The multi-district panel turned them down, so it’s going to get decided in one or more circuit courts either that the circuit has jurisdiction, or if they decide they don’t have jurisdiction, then it will be a race …,” said Cagle. “It is in 15 different district courts. Not surprisingly, everyone went to their favorite local district to try to get a proper appellate ruling.”
The bottom line is nothing is going to be known for quite a while.