Proposed rule would extend federal reach

By Carl Portman

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers jointly released a controversial proposed rule last month which would bring nearly all U.S. rivers and streams, as well as most wetlands near them, under the jurisdiction of the Clean Water Act (CWA).

Western lawmakers, governors, business groups, and industry associations charged that the proposed rule is a prime example of federal overreach. The agencies claim the rule is aimed at clarifying which waters receive protections under the CWA following two Supreme Court decisions.

Federal regulators and environmental groups insist that headwater streams need protection because they serve to protect fish habitat and are interconnected to nearby wetlands. Those streams end up flowing into larger rivers downstream.

Western states, congressional Republicans, and industries have blasted the proposal as the largest federal power grab ever, arguing it will produce more uncertainty, muddle permitting for construction, mining, farming, home building, and other activities, and lead to more litigation.

“At first blush, this appears to be an unprecedented expansion of federal jurisdiction over waters not covered by the Clean Water Act,” said RDC Board member Dr. Edmond Packee, Jr., a senior scientist with Travis/Peterson Environmental Consulting, Inc. “A list of what is excluded helps to understand the true scope of the proposed changes,” Packee added. “Proposed changes are intended to reassert jurisdiction over areas where the courts have curtailed it since 2001. EPA clearly intends to make the changes without legislation or Congress.”

While the agencies claim that the proposed rule is intended to clarify the CWA’s reach after years of confusion and uncertainty, the sweeping coverage afforded by the proposed rule, if finalized, would represent a significant expansion of federal jurisdiction. The agencies will accept public comments on the proposed rule for 90 days.

According to an update from the law firm Perkins Coie, the proposed rule would assert CWA jurisdiction over most seasonal and rain-dependent streams and nearby wetlands. The firm said that other types of waters with a more uncertain connection with downstream waters would be evaluated through a case-specific analysis of whether the connection is significant or not. Perkins Coie said the agencies are seeking comment on options to protect similarly situated waters in certain geographic areas and on adding to the categories of waters that would be protected without the need for a case-specific analysis. The proposed rule would preserve the existing exemptions and exclusions under the CWA for agricultural activities.

The agencies claim that the proposed rule does not cover new types of waters that have not historically been covered under the CWA. “But it is clear that the proposed rule would broadly interpret the ‘significant nexus’ test used by Justice Kennedy in his concurring opinion in Rapanos v. United States,” Perkins Coie noted. “Under that test, CWA jurisdiction extends to streams and wetlands only when there is a ‘significant nexus’ to a navigable water, interstate water or the territorial seas.”

The agencies claim that the proposed rule’s broad application of the significant nexus test is supported by the latest peer-reviewed science, including EPA’s draft report on connectivity of streams and wetlands to downstream waters. The draft, which was published in September, is intended to provide the scientific basis for the proposed rule.

Although the proposed rule will not be finalized until the final version of the report is complete, many have advocated that no proposed rulemaking should go forward until the public comments on the draft report have been analyzed and the EPA Science Advisory Board has completed its review of the draft report.

The proposed rule’s greatest impact would likely be in western states.

“Expansion of the significant nexus test will include more mining and forestry activities within the scope of the CWA, subject water management operations to greater regulation, and increase the federal permitting requirements for development projects,” Perkins Coie warned.

U.S. Senator Lisa Murkowski slammed the proposed rule. “While I certainly agree that the federal regulatory process needs greater efficiency and certainty, it appears unlikely that this new rule will help meet either of those goals,” Murkowski said. “Instead, it appears that the EPA is seeking to dramatically expand its jurisdictional reach under the Clean Water Act. If allowed to stand, this could result in serious collateral damage to our economy, for a wide range of states, and for a wide range of individuals – including our nation’s sportsmen.”

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