EPA issues final Clean Water Rule, but Sixth Circuit stays rule pending further determination
In the spring of 2015, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“USACE”) released the final Clean Water Rule in order “to clearly protect from pollution and degredation the streams and wetlands that form the foundation of the nation’s water resources.” According to the EPA’s news release:
The rule ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry. The rule is grounded in law and the latest science, and is shaped by public input. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.
Up and until the EPA and the USACE acted to pass the final Clean Water Rule, “[p]rotection for many of the nation’s streams and wetlands [had] been confusing, complex, and time consuming as the result of Supreme Court decisions in 2001 and 2006.” Accordingly, the EPA and USACE took action to release the final Clean Water Rule “to provide clarity on protections under the Clean Water Act after receiving requests for over a decade from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists, and the public for a rulemaking.”
At the outset, it is very important to understand what the new Clean Water Rule does and does not do. First, the rule clearly defines and protects tributaries that impact the health of downstream waters. “The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection,” and “[t]he rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.”
Second, the rule provides certainty in how far safeguards extend to nearby waters. “The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters,” and “[t]he rule sets boundaries on covering nearby waters for the first time that are physical and measurable.”
Third, the rule provides protection for the nation’s regional water treasures. Specifically, “[t]he rule protects prairie potholes, Carolian and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.”
Fourth, the rule focuses on streams, not ditches. “The rule limits protection to ditches that are constructed out of streams or function like streams an can carry pollution downstream.” Thus, ditches that are not constructed in streams and only flow after a rainstorm are not protected under the rule.
Fifth, the rule maintains the status of waters within Municipal Separate Storm Sewer Systems and encourages the use of green infrastructure. Finally, the rule reduces the use of case specific analysis of waters. Before the release of the new rule, “almost any water could be put through a lengthy case-specific, even if it would not be subject to the Clean Water Act.” Now, “[t]he rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.”
In terms of what the Clean Water Rule does not do, the EPA and the U.S. Army corps of Engineers has said the rule does not: 1) protect any types of waters that have not historically been covered by the Clean Water Act; 2) add any new requirements for agriculture; 3) interfere with or change private property rights; 4) regulate most ditches; 5) change policy on irrigation or water transfers; 6) address land use; 7) cover erosional features such as gullies, rills and non-wetland swales; and 8) include groundwater, shallow subsurface flow and tile drains.
As it relates specifically to agriculture, “[t]he final rules recognizes the vital role that U.S. agriculture serves in providing food, fuel, and fiber at home and around the world.” As a result, “[a]ctivites like planting, harvesting, and moving livestock have long been exempt from Clean Water Act regulation, and the Clean Water Rule doesn’t change that.” Instead, “[t]he Clean Water Rules provides greater clarity and certainty to farmer and does not add economic burden on agriculture.”
Following the release of the Clean Water Rule, the EPA Administrator Gina McCArthy and the Army (Civil Works) issued a joint memorandum to their respective staffs instructing the agencies to work together to improve implementation of the national Clean Water Act section 404 program. The joint memorandum was issued to help “improve transparency, strengthen the coordination processes between the agencies, increase public participation, promote the use of the best available science and technical data for making case-specific significant nexus determinations, and promote public health and environmental protection for all Americans who depend on reliable and abundant sources of clean water.”
However, in October 2015, the Sixth Circuit Court of Appeals issued a stay of the Clean Water Rule nationwide, until federal courts could review the rule. Eighteen states have challenged the validity of the Clean Water Rule. These states contend that the rule expands the agencies’ regulatory jurisdiction and alters the balance of federal/state collaboration. Furthermore, the states argue that the rule, which seeks to define “significant nexus to navigable waters,” is inconsistent with the law as defined by the United States Supreme Court. In response, the EPA contends that the states did not make a requisite showing to justify a stay.
The Sixth Circuit ultimately concluded that the states had demonstrated a substantial possibility of success on the merits of their claims. The states took issue with the way the rule was promulgated administratively. Initially, the proposed Clean Water Rule did not include distance limitations in its treatment of “adjacent waters,” and waters having a “significant nexus,” as was provided in the final rule. Therefore, the proposed Clean Water Rule was not a logical outgrowth of the final rule, as required by 5 U.S.C. §553. Second, the Sixth Circuit concluded that the irreparable harm factor was not determinative for each side. Neither the states would be harmed by the rules continued application, nor was there any indication that the nation’s waters would be harmed without it. Finally, and more importantly, the Sixth Circuit noted the nationwide burden on private parties and government bodies—state and federal—implicated by the Clean Water Rule’s effective redrawing of jurisdictional lines.
Then, in January 2016, President Obama vetoed Joint Resolution 22, a congressional resolution that would have overturned the EPA’s Clean Water Rule. Thus, for now, the Sixth Circuit’s stay remains in force pending a determination regarding the Sixth Circuit’s jurisdiction over challenges to the rule. Currently, the U.S. Supreme Court in, United States Army Corps of Engineers v. Hawkes Co., Inc., is set to determine whether the United States Army Corps of Engineers’ determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, constitutes “final agency action for which there is no other adequate remedy in a court,” and is therefore subject to judicial review under the Administrative Procedure Act.