As May came to a close, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) announced their final rule to clarify the jurisdictional reach of the Clean Water Act (CWA). The rule text was published in the Federal Register on June 29. As indicated earlier this year, the final rule exempts both stormwater control features (created on dry land) and some ditches from the definition of “waters of the United States.” These changes aligned with a League-approved federal advocacy goal and the League's filed legal comments that called for clarification of the EPA's proposed definition. Specifically, the comments requested the exemption from the rule of man-made ditches and Municipal Separate Storm Sewer Systems (MS4s).
Clean Water Act jurisdiction is an important issue to cities because it triggers CWA regulatory actions, such as permitting, that apply to projects that cities undertake such as road-building and construction of water, wastewater, and stormwater infrastructure.
Specifics of Final Rule
In the final rule, the ditches exempted from the rule include those:
- with ephemeral flow that are not a relocated tributary or excavated in a tributary;
- with intermittent flow that are not a relocated tributary, or excavated in a tributary, or drain to wetlands;
- that do not connect to a traditional navigable water, interstate water, or territorial sea either directly or through another water, regardless of flow.
In regards to stormwater control features, the final rule included a new exclusion for those features constructed to convey, treat, or store stormwater that were created on dry land. EPA stated in its preamble to the rule that “this exclusion responds to numerous commenters who raised concerns that the proposed rule would adversely affect municipalities’ ability to operate and maintain their stormwater systems..." The agency also said it wanted to address confusion around practices in this area, explaining that this approach matched EPA's and the Corps' longstanding view that stormwater control measures not built in "waters of the United States" were non-jurisdictional. Further, to avoid unintentionally limiting the exclusion, the agencies did not include a list of excluded features in the rule. Instead, they stated that the rule's stormwater exclusion language was written broadly to exclude from regulation "the diverse range of control features that are currently in place and may be developed in the future."
One additional exemption in the final rule of interest to municipalities was the exclusion of wastewater recycling structures constructed on dry land. This new exclusion clarified the agencies’ current practice that such waters and features used for water reuse and recycling are not jurisdictional when constructed on dry land. EPA stated that all the exclusions it incorporated into this rule reflected the agencies’ current practices, and the exemptions' inclusion in the rule “furthers the agencies’ goal of providing greater clarity over what waters are and are not protected under the CWA."
History of the Rule
EPA and the Corps released the long-awaited proposed rule in late March of 2014, stating an intention to clarify which wetlands and smaller waters were considered "waters of the United States" and therefore "jurisdictional," or subject to federal permitting and other regulatory actions. The jurisdiction issue has long been in dispute and uncertain because of competing U.S. Supreme Court tests and conflicting EPA guidance.
The Supreme Court, in Rapanos v. United States, issued a plurality decision in 2006 that set two tests for determining if waters were jurisdictional. The first test holds that only "relatively permanent" waters with a "continuous surface connection" to a traditionally navigable water of the United States can be considered jurisdictional. The second test holds that waters sharing a "significant nexus" with jurisdictional waters can also be regulated under the CWA.
The agencies stated in the proposed rule that the court precedent resulted "in the agencies evaluating the jurisdiction of waters on a case-specific basis far more frequently than is best for clear and efficient implementation of the CWA." The agencies described the lack of clarity resulting from the conflicting court opinions and agency guidance, stating, "This approach results in confusion and uncertainty to the regulated public and results in significant resources being allocated to these determinations by federal and state regulators."
Exemptions and Clarity Requested
In November, the League filed comments requesting that EPA and the Corps specifically exclude man-made ditches from the definition of “waters of the U.S.," highlighting that municipalities were responsible for implementing many of the CWA's requirements, and therefore, they needed to have a clear understanding of the full effect of any changes to the definition of “waters of the U.S.”
In its comments, the League expressed concern over ambiguity of terms and the proposed rule's effect on MS4s. Specifically, the League commented that EPA did not explicitly exempt many aspects of a MS4 system (ditches, channels, conveyance, etc.), which meant that those features could therefore be considered jurisdictional. If considered jurisdictional, the rule would subject these components of the MS4 system to CWA Section 404 permits, as well as state Water Quality Standards, causing large, unnecessary public expenditures. The League requested that MS4s and their component man-made parts be categorically excluded from the definition of a “waters of the U.S.” because EPA already regulated them under the National Pollutant Discharge Elimination System (NPDES) stormwater permitting program.
Fortunately, the changes made in the final rule aligned with the League's requests for clarification of the EPA's proposed definition and exemptions for man-made ditches and Municipal Separate Storm Sewer Systems (MS4s).
Next Steps: Legal Challenges and Congressional Action
The final rule becomes effective at the end of August. However, the final rule is still highly controversial, as shown by the many lawsuits attacking the rule's validity that publication of the rule triggered. Some parties argued the rule exceeded the agencies' CWA authority and the U.S. Constitution because it rewrote water law, while others argued it violated the Administrative Procedure Act by not giving enough time for public input, or that it violated the National Environmental Policy Act review requirements. In addition, the U.S. House protested the rule in May by passing H.R. 1732, which would force EPA and the Corps to withdraw their current rule defining the scope of the CWA and issue a revised rule after extensive consultation with stakeholders.
To learn more about the history of this rulemaking and the League's involvement, see the following previous EcoLINC articles:
