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New Clean Water "WOTUS" Rule Covers Vernal Pools

The federal government issued its long-awaited "Waters of the United States," or WOTUS, definition yesterday, extending federal authority to California's vernal pools and other naturally forming pockets of water. However, the new rule does not regulate groundwater nor many subsurface flows and states it will maintain existing provisions for stormwater systems and some ditches.

However, business and Congressional opposition to the rule remains fierce. The Association of California Water Agencies expressed disappointment with the rule, saying "ACWA remains concerned that the final rule is too broad and our requests that water conveyance systems and water infrastructure adjacent to 'navigable waters' be excluded from the proposed rule was not met."

Developers and local officials as well as agricultural and industrial businesses had sought to limit the "Waters of the United States" definition for fear it might impose Clean Water Act permitting processes on construction and water management proposals that had hitherto required only local approvals. The rule does make concessions to concerns from business, real estate and rural local governments that existing drainage systems and permit exemptions might be disrupted. California voices were very much included in this pattern, and many California local governments expressed anxiety about their stormwater discharge permits.

As the "WOTUS" abbreviation suggests, the rule has been strongly identified with the Obama Administration by its opponents; the White House backed the rule with a supportive statement from the President. It cross-posted a position paper from the EPA, which prefers to call it the "Clean Water Rule."

But it's debatable whether the new final rule expands federal authority or merely restores some of the scope intended by Congress before the question of the Clean Water Act's application to smaller waters was muddied by ambiguous Supreme Court rulings and the EPA's interim attempts to apply them practically. 

The rule itself states it defines a narrower "scope of jurisdiction" than "under the existing regulation." 

As anticipated, it applies federal Clean Water Act regulation to many small and intermittent water sources, such as marshes, small streams, California's vernal pools and the Eastern peat bogs known as pocosins. At the same time it emphasizes waters' status as tributaries to larger flows. It requires a tributary to have a "bed, bank and ordinary high water mark" and protects other waters through the logic of "significant nexus" to navigable waters. It says it "does not add any additional permitting requirements on agriculture". 

Clean water advocates from arid regions may be disappointed by a logic that views the nature of headwaters in terms of tributaries rather than groundwater. It states it "does not regulate shallow subsurface connections nor any type of groundwater, erosional features, or land use." 

The most favorable news for public officials and real estate developers may be a statement in the EPA's announcement summary that ditches are only covered if they could carry pollution downstream and that the rule "maintains the status of waters within Municipal Separate Storm Sewer Systems." The rule's preamble says it does not change exemptions from existing federal stormwater permitting requirements.

As noted in an early commentary from the Allen Matkins law firm, the new rule limits itself to new jurisdictional determinations, locking in most existing decisions on Clean Water Act applicability.

The EPA's opening assurances suggest the new final rule may not do much to change the terms of �402 National Pollutant Discharge Elimination System (NPDES) permit for runoff or wastewater, but it might well broaden the applicability of �404 permit requirements for "discharge of dredged or fill material" into "waters" that can include wetlands and ditches. Other potentially affected areas include state and federal water quality standards and the coordination between them, oil spill prevention programs, pesticide permits and Total Maximum Daily Load (TMDL) standards for specified pollutants in waterways. (Quantities of trash in urban waterways are increasingly regulated under TMDL standards in California.)

The full 297-page rule, in pre-publication form, is available on the conspiciously user-friendly Web page that the EPA has devoted to the "Waters Of" rulemaking process. It was expected to appear in the Federal Register imminently.

Bitter National Publicity Campaign

In recounting California's bad bygone days, Carey McWilliams relates a story that the land baron Henry Miller used to take title to public acres by claiming they fell under laws for distribution of "swamp and overflow lands" -- and would bolster those claims by having himself dragged over the land in a boat by teams of horses. Lately agribusiness, industry and real estate groups, and a fair percentage of Congress as well, have accused the EPA of claiming public jurisdiction over private lands by nearly similar standards.

For a year and more, large-scale agricultural and industrial business groups, especially the American Farm Bureau Federation, have framed the "Waters Of" rule as a leading current menace in their campaigns against federal regulatory authority in general and the EPA in particular. By some accounts more than a million public comments were filed on the rulemaking.

The EPA has responded by promoting the rule publicly to an extent that has drawn criticism in light of federal lobbying rules. The competing Twitter hashtags #ditchtherule and #ditchthemyth call up separate large clouds of commentary with predictably different moods. Similarly, the EPA page mirrors the Farm Bureau's "Ditch The Rule" Web site.

The National Resources Defense Council (NRDC) was prominent among environmental groups treating the rulemaking process as an occasion to broaden EPA jurisdiction. Environmental advocates' comments on the rule were often phrased in somewhat muted and technical language and often spoke in terms of public health rather than stewardship of natural habitats. This was presumably to avoid offering targets to right-wing indignation. Initial NRDC reaction to the May 27 announcement took the form of a blog post by president Rhea Suh. Reflecting the sense of an ongoing campaign rather than a victory, it was captioned, "Americans Need the Clean Water Rule to Keep Our Drinking Water Safe".

The Farm Bureau's initial reaction to the final rule said "we find little comfort in the agency's assurances that our concerns have been addressed in any meaningful way," attacked the EPA's "aggressive advocacy campaign," and said that in reviewing the rule "we are looking in particular" at the rules on ephemeral waters.

Difficult Legal History

The two main court cases in the "Waters Of" interpretive tangle -- Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (known as SWANCC) and Rapanos v. U.S., 547 U.S. 715 (2006) -- both involved choices to fill in wetlands that had formed at distances from the "navigable waters" that are at the core of Clean Water Act jurisdiction. 

The SWANCC ruling held the EPA could not stop plans to dump municipal garbage in a former gravel pit despite the EPA's argument that ponds in the pit had become a habitat for federally protected migratory birds. The much-debated split decision in Rapanos concerned a property owner's unilateral act of filling in a wetland that was miles from any "navigable" water.

Rules derived from SWANCC and Rapanos, however, have not been limited to such stark changes in landscapes. For example, the National Association of Counties warned in a briefing on the issue last year that �404 permits have been required for maintenance of ditches, including ditches managed by county governments.

In the text of the new rule, the EPA and Corps read Rapanos as showing agreement among the Justices that the Clean Water Act applies beyond "navigable waters." They grant importance to a rule stated by Justice Anthony Kennedy in a concurrence that added the tiebreaking fifth vote to an opinion otherwise stated more conservatively by Justice Antonin Scalia writing for four justices. Kennedy's much-debated rule would apply the Clean Water Act to peripheral waters or wetlands that have a "significant nexus" with navigable or potentially navigable waters. The EPA and Corps apply this "significant nexus" principle in stating distinctions under the rule.

Opposition in Congress

Bills are pending in Congress to block the rule from taking effect -- and those are only the latest of several efforts at legislative overruling. An initial attempt to stop the EPA and Corps rulemaking trajectory passed last year's House as H.R. 5078. That bill died with the session but the "Cromnibus" year-end budget bill forced the EPA to withdraw a March 2014 "interpretive rule" from the "Waters Of" proposal that would have addressed farm conservation activities.

The bills moving to block EPA over the past several weeks are H.R. 1732 and S. 1140. (Politico has detailed coverage of recent reactions and maneuvers in Congress and anticipated lawsuits.) 

The leading bill on the matter in Congress, H.R. 1732, passed the House on May 12. It would specifically invalidate the new rule and would require the EPA and Corps to start the rulemaking over in mandatory detailed consultation with state and local officials and "stakeholders". 

S.B. 1140 was a recent subject of hearings before the Senate Environment and Public Works Committee's  Subcommittee on Water and Wildlife. It would invalidate any interpretive rule on the "Waters Of" question to the extent it failed to comply with new rules for consultation with state and local officials and restrictions on content including avoidance of "intrusive Federal oversight". 

Sen. John Barrasso, R-Wyoming, said in introducing H.R. 1140 last month, "What the administration is proposing now simply makes no sense. Under ... the new rule they are proposing, isolated ponds could be regulated as waters of the United States. This is the kind of pond that might form in a low-lying piece of land with no connection to a river or a stream. It could be in someone's back yard."

But at the hearing, which was dominated by supporters of H.R. 1140, Prof. Patrick Parenteau of Vermont Law School protested that the bill was "based on bad science, bad law, and bad policy," particularly in assumptions that some water bodies could be "isolated" or that a stream could be fairly defined as a "natural channel" considering the existence of structures such as the lower Los Angeles River.

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