The Foundation filed extensive comments critiquing the Environmental Protection Agencys proposed rule Waters of the United States Under the Clean Water Act, 79 Fed. Reg. 22188, et seq. (April 21, 2014) (the Proposed Rule). The stated purpose in promulgating the new rule is to further clarify the scope of the term waters of the United States as defined in 33 C.F.R. 328.3, and as applied by the two federal agencies that have jurisdiction to enforce the Clean Water Act, the EPA and the U.S. Army Corps of Engineers (Corps), with the goal of decreasing the number of case-specific rulings. The proposed rule purports to follow Justice Kennedys concurrence in Rapanos v. United States, 547 U.S. 715 (2006), using a broad significant nexus test, while also expanding the scope of the term adjacent in order to increase the range of automatic jurisdiction.
The Foundations comments criticized the proposed rule for defining Waters of the United States (WOTUS) too broadly, unnecessarily expanding federal jurisdiction over, and interference with, state and local land use regulation.
The issue of federal wetlands jurisdiction is controversial because it enables two federal agencies, EPA and the Corps, which have concurrent Clean Water Act enforcement jurisdiction, to extensively and intensively regulate land use down to individual lots, and, in effect, to override local zoning and land use regulation and to use their permitting process to micro-manage development on private land throughout the country, even in areas that are not, at least in the common-sense meaning, wetlands.
The Foundation has participated in numerous cases involving federal Clean Water Act regulation, such as Sackett v. EPA, 132 S. Ct. 1367 (2012) and Rapanos v. U.S. (2006).
Under the Commerce Clause, the jurisdictional scope of the Clean Water Act is limited to “navigable waters of the United States. This is defined in section 502(7) of the statute as waters of the United States, including the territorial seas. See Definition of Waters of the United States Under the Clean Water Act, at 22189. According to EPA and the Corps, this definition has generally not been limited to traditional navigable waters with respect to both legislative history and case law.
The proposed rule, while presented as a modest clarification or modification of the current definition of jurisdictional waters under the Clean Water Act, could result in a substantial extension of federal jurisdiction.
The key issue is whether water bodies adjacent to traditional waters of the United States are also within federal jurisdiction. The Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006) left the lower courts with conflicted guidance on how broadly to define the term “waters of the United States. The Court split 4-4-1. The four-justice plurality, in an opinion by Justice Scalia, held that waters of the United States included only relatively permanent, standing, or continuously flowing bodies of water connecting to traditionally navigable waters. Id. at 739. Moreover, only wetlands with a continuous surface connection to a traditional water of the U.S. would be considered adjacent to such waters under the Clean Water Act. Id. at 742.
The four dissenters, in an opinion by Justice Stevens, joined by Breyer, Souter and Ginsburg, would have deferred to the agencys broad interpretation.
Justice Kennedys nebulous concurring opinion said that the term WOTUS should encompass wetlands that possess a significant nexus to waters that (1) are or were navigable in fact or (2) that could reasonably be so made. Significant nexus could be found if the wetlands either alone or in combination with similarly situated [wet]lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable, if this relationship is more than speculative or insubstantial.
Since there was no majority opinion, it is unclear which Rapanos holding is persuasive. The Seventh, Ninth, and Eleventh Circuits have ruled that Kennedys concurring opinion is controlling, while the First and Eighth Circuits have held that either Kennedys concurrence or the plurality holding may be applicable. One district court has held the plurality holding alone is determinative.
While it does not appear that the proposed rule would facially expand on the significant nexus test in Justice Kennedys concurrence in Rapanos, since it purports to be written in the spirit of the concurrence (the rule summary makes repeated references it), it would almost certainly not meet the criteria in the plurality opinion. Moreover, even if the proposed rule were adopted, it might well be applied in a manner inconsistent with the intent of Kennedys concurrence, especially Kennedys statement that the impact of the subject wetlands on navigable waters must be more than speculative or insubstantial.
The proposed rule will also increase the types of water bodies that fall within the jurisdiction of both the EPA and USACE by expanding the term adjacent wetlands, giving both agencies increased discretion. Under the proposed rule sub-surface hydrologic connections may now fulfill the adjacency requirement, clearly disregarding the Rapanos plurality holding. For any waters that do not fall within the requirements for per se jurisdiction, the proposed rule allows the courts to engage in case-specific analysis for whether there is a significant nexus and to defer to agency expertise.
The Foundations comments on the Proposed Rule assert that EPAs proposed rule is unreasonably broad, rendering virtually all water bodies with few exceptions subject to the jurisdiction of the USACE and the EPA and that it conflicts with the more concrete and limited plurality test in Rapanos.
To view the Foundations comments, please click here.