Tthe Supreme Court issued its decision in Rapanos almost 8 years ago and EPA has been struggling ever since to figure out what “waters of the United States” are within the meaning of the Clean Water Act. After several failed attempts at guidance, EPA finally acknowledged that this issue is too important and too contentious for guidance – and that it merits formal notice and comment regulation. On March 25, EPA sent a proposed rule for publication in the Federal Register. It’s only 370 pages. Sounds like guidance to me.
Although one might have thought that defining waters of the United States shouldn’t be so difficult, one would have been wrong. Summarizing the rule and the issues is certainly beyond the scope of this space. I will note some highlights:
As we noted when the draft rule was leaked last fall, EPA proposes to include certain key areas within the meaning of “waters of the United States” by rule. These include:
(1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(2) All interstate waters, including interstate wetlands;
(3) The territorial seas;
(4) All impoundments of waters identified in paragraphs (a)(1) through (3) and (5);
(5) All tributaries of waters identified in paragraphs (a)(1) through (4); and
(6) All waters, including wetlands, adjacent to a water identified in paragraphs (a)(1) through (5).
For example, any wetland adjacent to a tributary of an impounded waterbody that used to be used in interstate commerce would be subject to CWA jurisdiction as a matter of law.
EPA also included a Rapanos catch-all category – other waters that have a “significant nexus” to any of the first three categories. Importantly, such “significant nexus” waters will not be jurisdictional as a matter of law, but will be subject to case-by-case review.
Finally, I’ll note that EPA has finally gotten religion and seems to be taking the regulatory process quite seriously. EPA has invited comment on a number of key issues – and I’m sure that it will receive many! – including whether it may be possible to refine any of these categories and create either more or fewer jurisdictional waters. It is also exploring whether, over time, waters in the catch-all category can move into the jurisdictional by rule category.
My last thought is one that is probably terrifying for House Republicans and large landowners. Because the science is so complex, and because EPA has undertaken formal notice and comment rulemaking, I’m going to go out on a limb now and say that, unless Justice Kennedy is replaced by someone more conservative before this rule reaches the Supreme Court, any rule EPA promulgates that is anywhere close to what is in this proposed rule will withstand judicial review. It’s just hard to see under Chevron why EPA’s interpretation wouldn’t get deference.
See, EPA; I told ya. Regulation, not guidance.