ACA: On Sept. 9, the U.S. House of Representatives passed H.R. 5078, the Waters of the United States Regulatory Overreach Protection Act, by a vote of 262–152. The legislation would prohibit the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers from “developing, finalizing, adopting, implementing, applying, administering, or enforcing” the proposed waters of the U.S. rule or any associated guidance that attempts to clarify the scope of the Clean Water Act.
H.R. 5078 requires the EPA and the Corps to revisit the proposed rule with direct consultation with state and local officials to determine which bodies of water should be covered under the Clean Water Act.
EPA and the Army Corps of Engineers jointly released a proposed rule on April 21, “Definition of Waters of the United States Under the Clean Water Act,” designed to clarify which waterways are subject to the Clean Water Act (CWA) discharge permitting requirements. Because the CWA affects many aspects of federal and state regulation, some are calling this proposed rule the most significant CWA development in years.
EPA has stated that the proposed rule does not protect any new types of waters that have not been covered under the CWA, and will reduce confusion about CWA protection since the landscape has been complex following Supreme Court decisions in 2001 and 2006. EPA issued a press release stating that the proposed rule will benefit businesses by increasing efficiency in determining coverage of the CWA.
According to EPA, the proposed rule clarifies protection for streams and wetlands. “The proposed definitions of waters will apply to all Clean Water Act programs. It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction,” EPA stated in a press release.
The also stated that the proposed rule clarifies that under the CWA and based on science:
[*] Most seasonal and rain-dependent streams are protected;
[*] Wetlands near rivers and streams are protected;
[*] Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case-specific analysis of whether the connection is or is not significant.
This new category known as “other waters”— waters that do not fit into any predefined categories — essentially gives EPA the authority to determine that a body of water falls within the “waters of the U.S.” jurisdiction if it shows, either alone or in combination with other “similarly situated” waters in the region, that the water has a “significant nexus” to traditional navigable waters. The proposed rule also creates definitions for “tributary” and “neighboring waters.” Furthermore, the definitions now include adjacent wetlands and “waters,” which were formerly just adjacent wetlands.
Many industries, as well as members of Congress, have criticized that this proposed rule does not simply clarify CWA jurisdiction, but that it is effectively an expansion of CWA jurisdiction and would expand federal authority over streams, ditches, ponds, and other local water bodies, and they have also expressed concerns with the ambiguity of some of the proposed definitions. In particular, the fact that the proposal would allow for EPA to define, on a case-by-case basis, any waters as being within their jurisdiction has created serious concerns among industry. Industries have also indicated that the proposal would deviate from the spirit of current law that applies specifically to truly “navigable waters.”
ACA and its Environmental Management Committee are closely monitoring the proposed rule and its potential impact on our industry, particularly issues relating to storm water, wastewater, and EPA’s Spill Prevention, Control, and Countermeasure (SPCC) Rule.
