Born in conflict—enacted by Congress in 1972 over President Nixon’s veto—the Clean Water Act (CWA) has served for more than four decades as the foundation for protecting water quality in the United States. The Act’s jurisdiction is far reaching, inviting the scrutiny of every sector. The statute itself may have created some opportunity for conflict because it uses terms such as “navigable waters” (78 times) and “waters of the United States”(11 times) without precise definition.
The U.S. Environmental Protection Agency (EPA) has further defined “waters of the United States” in the CWA regulation (40 CFR 230.3(s) to guide implementation. Case law also has shaped the application of CWA jurisdiction. Most notably, two recent U.S. Supreme Court cases narrowed CWA jurisdiction with respect to isolated wetlands (Rapanos v U.S. (2006) and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001)).
EPA and the U.S. Army Corps of Engineers are now revisiting the CWA jurisdictional rule with the intent of “…clarifying current uncertainty concerning the jurisdiction of the Clean Water Act that has arisen as an outgrowth of recent Supreme Court decisions. EPA and the Corps are focusing on clarifying protection of the network of smaller waters that feed into larger ones, to keep downstream waters safe from upstream pollutants.
The agencies are also clarifying protection for wetlands that filter and trap pollution, store water, and help keep communities safe from floods.” Further, EPA states: “The proposed rule does not propose changes to existing regulatory exemptions and exclusions ….[and]… will enhance the ability of the Clean Water Act and USDA’s conservation programs to work in tandem to protect water quality and improve the environment by encouraging expanded participation in conservation programs by farmers and ranchers.”
Nevertheless, the proposed rule has raised concerns from agricultural interests. The American Farm Bureau Federation (AFBF) is opposed to “…proposals to fundamentally change the CWA by expanding jurisdiction of the federal government to intrastate waters, including groundwater, ditches culverts, pipes, desert washes, sheet flow, erosional features, farm and stock ponds, and prior converted cropland.” Although AFBF supports rulemaking that reflects the jurisdictional limits imposed by Supreme Court cases, it is opposed to changes that would grant EPA the authority to regulate all waters within a state regardless of size or connectivity.
The Office of Management and Budget is coordinating interagency review of EPA’s proposed rule, which should be available for public comment this spring. This is an opportunity to craft workable policy founded on clear and well-defined terms that provides certainty for the potentially regulated community. What is purported to be the draft proposed rule was allegedly leaked and is now posted on the House Science, Space and Technology website.
Be part of the discussion and comment on the proposed rule when it’s published for comment in the Federal Register.
American Farm Bureau Federation Issue Paper.
Wetlands Study funded by the U.S. Fish and Wildlife Service, the National Oceanic and Atmospheric Administration and the U.S. Environmental Protection Agency.
EPA memorandum to EPA Regions and the Corps regarding implementation of the Supreme Court’s decision on Rapanos and Carabell.
EPA website with information on the draft proposed rule sent to OMB