Muddied Waters: What CAN be Regulated Under Clean Water Act?

 “It isn't pollution that's harming the environment. It's the impurities in our air
and water that are doing it.”

Vice President Dan Quayle

If you passed by a stream, would you know just by looking at it whether or not it is protected by the Clean Water Act?

That sounds like a silly question, but with all things legal, how something is defined determines whether or not a particular law or regulation applies to it. While a battle has been raging about what “waters” the federal government can or cannot regulate, EPA has recently issued a new rule that attempts to define regulated waters.

Under the Clean Water Act, it is illegal to discharge any pollutant or to discharge dredge or fill material into the navigable waters of the United States. The term “navigable waters” means “the waters of the United States, including the territorial seas.” These regulated waters also include wetlands and things that one wouldn’t normally associate with a stream, like intermittent streams, gullies or swales. So, in addition to forbidding the discharge or pollutants into waters without a permit, activities like building structures or roads become regulated activities.

In 2006, the waters became muddier when the Supreme Court tried to determine the extent to which the Clean Water Act allows the regulation of “waters” (in this case, wetlands) that may or may not be adjacent to navigable waters in a case titled Rapanos v. United States. The case was decided by a plurality of Justices, meaning that no one position won out.

Five justices decided to send the matter to a lower court for reconsideration of determining whether the area in question was regulated by the Clean Water Act, while four justices agreed with the federal government that the area was regulated by the Clean Water Act. However, one of the justices in the majority (Justice Kennedy) rejected the reasoning of the majority and proposed his own test, which the four dissenting justices would have agreed with, at a minimum. So, instead of making the question of what waters were regulated by the Clean Water Act clearer, it only added to the confusion.

In the years after the Rapanos decision, Justice Kennedy’s test seems to have carried the day with the lower courts and the federal regulators. Known as the “significant nexus” test, jurisdiction exists “if the wetland, either alone or in combination with similarly situated lands in the region, significantly affects the chemical, physical, and biological integrity of other covered waters more readily understood to be ‘navigable.’” That is, on a case-by-case basis, regulators must determine if an activity will affect an area considered to be connected to a navigable water, and if so, whether that activity requires a permit.

So, the regulators in question, the Environmental Protection Agency and the Army Corps of Engineers, got together to understand the science between connectivity of waters. Based on the data generated, the regulators developed a rule that defines “waters of the United States” under the Clean Water Act. The rule purportedly narrowed the previous definition under which the federal regulators operated.

Published in April 2014, the proposed rule garnered thousands of public comments. Many of the comments opposing the new definition raised concerns about its potential expansiveness. EPA tried to address some of the comments, but the criticism continued.

As the federal government marched on toward promulgating the new definition, Congress did not sit by idly. The House of Representatives recently passed a bill reversing the rule. The Senate is also taking up a bill designed to amend the rule. Even brewers are chiming in.

The new rule attempts to apply the science and identify what waters are covered by the Clean Water Act. Some waters are categorically regulated, like rivers and streams and wetlands adjoining or near those regulated rivers and streams. More problematic are those that have an uncertain connection with regulated waters, regulation of which will depend on a case-by-case analysis. There are also exemptions for certain agricultural practices, ditches and waste treatment systems.

Despite congressional efforts, it is unlikely that any bill reversing the new rule will survive a presidential veto. Yet, the long slog from Justice Kennedy’s “significant nexus” test to federal rule to congressional action demonstrates how something so simple on its face like defining what “waters” are can become a significant legal kerfuffle.

Thousands of hours and millions of dollars have been spent developing and challenging the rule. With the publication of the new rule, regulators and courts will still have to apply it on a daily basis, which will in turn result in legal challenges further clarifying its scope.

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