For the first time since passage of the Clean Water Act, U.S. EPA and the Army Corps of Engineers are conceding that some wetlands and ponds are too remote from the tributary system to warrant federal protection.
The geographic limits set in the Obama administration’s final "Waters of the U.S." rule unveiled yesterday represent a compromise aimed at offering more clarity to developers, energy companies and other entities regulated under the 1972 law, while still protecting streams and wetlands that have an important effect on larger downstream waters.
"If you’re outside of those boundaries, there is no way to bring a water into the jurisdiction of the Clean Water Act," Ken Kopocis, the top official in EPA’s water office, said in an interview. "We do think it’s a pretty big deal; we think that it was highly responsive to the comments that we received."
Lawyers and policy experts who have worked on Clean Water Act issues for years say this is a major milestone.
"That’s a huge concession," a former high-level EPA water office official said, speaking on the condition of anonymity. "The agency has always been reluctant to draw a line because they were afraid they’d leave something out."
The move is a marked change from the agencies’ current approach — and from the one initially proposed by the Obama administration last spring.
Even in the wake of two Supreme Court decisions in which the justices ruled that federal authority is not limitless, neither the agencies nor Congress has been able or willing to specify where federal jurisdiction ends. Instead, regulators in the field have been left to do laborious, case-by-case analyses of individual streams and wetlands to determine whether they have a significant impact on bigger rivers and lakes downstream.
In practice, this has meant that property owners can hardly ever rest assured that a stream or wetland on their property isn’t subject to federal regulation without going through one of these analyses.
That these open-ended case-specific analyses remained in the proposed rule, which the Obama administration said was aimed at clearing up uncertainty, was a top criticism of industry groups. The Waters Advocacy Coalition, a group of industries opposing the water rule, said in its public comments that the provision "opens the door to essentially limitless jurisdiction" (Greenwire, Nov. 25, 2014).
The rule finalized by the Obama administration yesterday expands the types of waters that today can be considered automatically jurisdictional. That de facto protection newly applies to all tributaries, as well as all wetlands, ponds and other waters within a certain distance of a jurisdictional water. But beyond these categories, the rule limits case-by-case analyses to just two situations.
The first is for five special categories of wetlands and waters that the agencies say merit special consideration. These waters — prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands — are still subject to case-by-case analyses to see if they are important enough to warrant protection, but their importance is to be considered not individually, but for the system of which they are a part.
Kopocis said the agencies did not think they had enough scientific grounding to rule these waters automatically in, as many conservationists had wanted. But the former EPA Water Office official said that for all intents and purposes, the new rule will count most of them.
"As a practical matter, all those waters are going to be jurisdictional," he said. "So even though it doesn’t say they’re per se jurisdictional, as a practical matter it’s going to be very easy for EPA and the corps to say those have a significant nexus," the official said.
The agencies estimate a nearly 16 percent increase in jurisdiction thanks to this provision.
The second scenario under which case-by-case analyses can be conducted is when a water is in the 100-year floodplain of a jurisdictional water or within 4,000 feet of its channel.
In comments on the proposed rule, some groups had argued that the agencies should use the 100-year floodplain as a rule of thumb because it is well-mapped and generally understood.
Kopocis said the agencies looked to a number of sources in deciding where to draw those lines.
"It’s part science, it’s part experience and expertise, and it’s part policy," he said.
How much these new limits will actually rule out is unclear, though. Kopocis said the agencies deemed it less likely that waters outside of the floodplain or the 4,000-foot mark would qualify for jurisdiction under the current approach anyway. In their economic analysis, the agencies estimate a 1.7 percent increase in jurisdiction under the overall provision that contains these limits.
Owen McDonough, who manages environmental policy programs for the National Association of Home Builders, said the fact that the rule defines tributaries broadly and makes them automatically jurisdictional means that not much on the landscape will fall outside of these new limits.
"When you start to extend categorical jurisdiction to those dry channels that are even above the headwaters, you create a landscape that is crisscrossed with many, many, many ephemeral features, and if those are categorically jurisdictional, it becomes harder and harder and harder to get to those 4,000-feet limits," he said.
For this reason, he said that while industry groups "won a few small battles" with the final rule, they "lost the war."
Enviros weigh the consequences
Environmentalists, who spent the first half of yesterday celebrating the rule’s release rather than diving into its legal details, are still wrapping their heads around what these limits could mean on the ground.
"It’s going to take some close analysis of what that means in the field to figure out what that impact is going to be," said Jon Devine, a senior attorney with the Natural Resources Defense Council who has spent the last decade working on jurisdictional issues.
Devine said he doesn’t consider any of these waters unimportant, but that drawing a bright line could also have the benefit of better protecting waters that are within it.
"We care about things that can effect water quality, and that’s what these features do, even if that’s over longer distances or longer periods of time," he said. "But what I think the rule does is make it much clearer when things like that will be in and out, and I think it will be easier for people who might be discharging into those kinds of features to figure out how close they are to a protected water, what the flow regime is and those kinds of things, and whether or not they’ve got responsibility under the Clean Water Act."
Not all environmental groups are happy with the compromise, though.
The Waterkeeper Alliance yesterday came out in opposition, arguing that the final rule leaves too many streams and wetlands uncovered.
"The final rule inexplicably rolls back protections for streams and rivers, which feed into our water supplies," Marc Yaggi, executive director of Waterkeeper Alliance, said in a statement. "Since only waters that are included within the final rule can be protected under the core water quality protections and pollution prohibitions of the Clean Water Act, it is frightening to think what this will mean for the tributaries that are no longer covered."
To be sure, although the distance limits the final water rule imposes for jurisdiction are a first, certain types of waters and certain activities — particularly related to agriculture — have long been excluded from Clean Water Act regulation. Those include wetlands that were drained for farming before a specified date, and treatment ponds and lagoons.
The rule finalized yesterday adds specific exclusions for ditches that go further than those initially proposed.
"They asked us about ditches. They asked us about ditches. And then they asked us about ditches," EPA Administrator Gina McCarthy said on a call with reporters yesterday, highlighting the intense concerns raised by farmers and ranchers over the rule’s potential implications.
The final rule offers a more plain-language take on the ditches that aren’t covered — those that flow only after precipitation and those with only occasional flow, as long as they aren’t channelized streams and don’t drain wetlands.
"When you put all the language together, I think it’s pretty clear that ditches are very frequently going to be no longer subject to protection," said William Buzbee, a professor at the Georgetown University Law Center who has testified in support of the Obama administration’s rule.
The rule also offers new exemptions for stormwater control features and water-delivery systems — infrastructure that agency officials said they never intended to regulate, but that municipal officials from across the country had raised concerns about.
State and local governments, however, are free to extend protections further than the federal government does under the Clean Water Act. The agencies note this frequently in documents supporting the water rule and say they are prepared to offer additional support for them to do so.