Muddy waters: EPA, Army Corps Seek to Define More Jurisdiction as Federal

By Bobbie Frank, Executive Director, Wyoming Association of Conservation Districts

The conservation districts in this state are definitely committed to watershed health and water quality work, and their commitment is evident through their actions: conservation district employees who are several months pregnant wade streams in the winter to collect water samples, and retired conservation district supervisors volunteer their time to help with water quality monitoring and implementing water quality management practices.

Many landowners, community leaders and homeowners have and continue to volunteer hundreds of hours working on watershed plans, and then they work hard to implement those plans. There is no shortage of dedicated and concerned citizens working to maintain and improve the water quality of this state, and every two years the Wyoming Association of Conservation Districts (WACD) publishes its “Watersheds Progress Report” to show all of the incredible efforts at the local level across Wyoming. The 2009 edition is available on our website.

Highlighting the dedication to water quality is important to recognize, in the context of this discussion, because, inevitably, when one starts debating the issue of regulatory jurisdiction – federal versus state – if one leans toward less federal intervention and regulation, then it is easy for others to try to paint one as anti-clean water. As one district supervisor put it, “The only conservation that matters is that which gets put on the ground.”  

In April 2011 the Environmental Protection Agency (EPA) published draft guidance that would replace previous agency guidance issued in 2003 and 2008, detailing modifications to which waters EPA and the Army Corps of Engineers (Corps) would regulate under the Federal Water Pollution Control Act (commonly referred to as the Clean Water Act). Who should have the authority over water quality issues, the federal government or the respective states, continues to be a hot topic of debate. Key Supreme Court decisions have refined the EPA’s and the Corps’ authority over the regulation of certain types of waters.

In the past several years there have also been attempts in Congress to advance legislation to redefine “waters of the United States.” These bills would have resulted in a definition that would have included a number of waters that are currently not subject to federal regulation, or are in a “gray” area. These attempts did not move forward. As a result, that which cannot be done through the appropriate processes, i.e. legislation and or rules, apparently will be done through the development of “guidance.”

The two primary decisions, the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. United States (Rapanos), resulted in restricting federal authority over certain types of waters.

First, the SWANCC decision removed from federal regulation isolated wetlands by nullifying the “migratory bird rule.” In a nutshell, the agencies, via regulation, exerted jurisdiction over these types of isolated waters by arguing that isolated wetlands will have waterfowl in them that would fly to another state and land in another isolated wetland, hence there was interstate commerce occurring on these waters to render them under federal jurisdiction.

The other suit, Rapanos, resulted in what is argued by the agencies to be a complicated and unmanageable approach to determining jurisdiction. Many lauded the decision as a win for reining in the heavy hand of the agencies. In Rapanos, the court addressed CWA protections for wetlands adjacent to non-navigable tributaries, and issued five opinions with no single opinion commanding a majority of the court. The plurality opinion, authored by Justice Scalia, stated that “waters of the United States” extended beyond traditional navigable waters to include “relatively permanent, standing or flowing bodies of water.” There is a lot more detail to this opinion, but suffice it to say, the outcome was additional limitations placed on federal jurisdiction.

A comparison of the December 2008 memorandum issued by EPA and Corps guiding agency personnel on which waters would be jurisdictional and this new proposed guidance, provides for some significant changes in what waters would be regulated. The agencies specifically state in the draft guidance: “However, after careful review of these opinions, the agencies concluded that previous guidance did not make full use of the authority provided by the CWA to include waters within the scope of the Act, as interpreted by the Court.”

The 2008 guidance established a “significant nexus” standard, whereby the agency would have to determine on a fact-specific basis whether certain types of waters, such as wetlands, tributaries or traditional navigable waters, fell under federal jurisdiction. This significant nexus standard would contemplate the flow functions of the tributary itself and the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters. The significant nexus also included consideration of hydrologic and ecologic factors.

This 2011 draft guidance takes the same type of approach, but expands on the significant nexus approach by establishing that waters that are in “close proximity” or “proximate other waters” to traditional navigable waters will also fall under jurisdiction. Basically, the guidance establishes a watershed approach to determining significance. In essence, based on our analysis, most waters in a watershed draining to a “traditional navigable water” or interstate water, would ultimately meet the “significant nexus” test and be subject to federal regulatory oversight.

There is a list of certain types of waters that would “generally” not fall under federal jurisdiction. Note the term “generally.” There is a potential that some of the specifically exempt waters, such as reflecting pools, ornamental waters, gullies, etc., could also be jurisdictional.

Also of import is the application of the above as it pertains to the different provisions of the Clean Water Act. The agencies acknowledge in the guidance that “although SWANCC and Rapanos specifically involved section 404 of the CWA and discharges of dredged or fill material, the term ‘waters of the United States’ must be interpreted consistently for all CWA provisions that use the term. These provisions include the section 402 National Pollutant Discharge Elimination System (NPDES) permit program, the section 311 oil spill program,5 the water quality standards and total maximum daily load programs under section 303, and the section 401 State water quality certification process.”

This issue is not about whether our water resources should be protected or not, which is often the spin on this issue. It is about whether the authority to regulate certain types of waters should lie with the federal government or should be retained by the states. WACD’s comments reflect the opinion that, on those waters falling outside of the traditional “navigable,” interstate waters’ realm should be regulated by the states. It has been our experience that those closest to the issue are typically most knowledgeable and capable of common sense, cost effective approaches to resource protection and management.

WACD and the conservation districts have a solid record of projects that do successfully protect water quality in a common sense, cost effective approach that benefits all water users and the state. The EPA’s 2011 draft guidance document hinders our ability to continue this mission by oftentimes placing districts in a position of reacting to federally driven requirements and priorities versus the highest priority resource issues in our communities.

Thanks to Senator Barrasso for his diligent efforts on this issue. We appreciate his work to ensure that the federal agencies don’t try to evade the appropriate processes and expand their authorities.

For a full copy of the draft guidance and information on how to submit comments, visit water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm. The original comment deadline was the end of June, but it was extended to July 31. WACD’s comments are available at conservewy.com.