As a Facebooking, Tumblr-ing, news-reading environmental scientist, it’s been impossible in the past few days to ignore the news of South Dakota Judge Erickson’s injunction of the EPA 2015 update to the 1972 Clean Water Act (CWA). I saw it while checking the news over breakfast, and decided to do some research. Of course, being a fundamentally lazy person at 7 AM I read the EPA fact sheets first; they’re well designed and expound on all the advantages of an expanded scope of jurisdiction of the CWA. However, they didn’t give me the information I really wanted about how that jurisdiction would be defined under the new Clean Water Rule (I’ll call it the CWR).
I eventually gave in and took the time to start reading through the 75 page CWR. This hopefully will be the first of several posts in this series as I try to puzzle my way through how the CWA will be changed by the CWR, and what that might mean for my clients with related permits, such as the National Pollutant Discharge Elimination System (NPDES). I also hope this can help those who don’t feel like dealing with the three columns of size 6 font that the CWR was published in.
First up: What waters will be under CWA jurisdiction?
The CWR recognizes jurisdiction for three basic categories of waters:
Waters that are jurisdictional in all instances. These are broken down into:
- Navigable waters, interstate waters, and territorial seas. These definitions haven’t changed since the original CWA, and I’ll refer to them as “DWOTUS” for “Definitely Waters of the United States”
- Tributaries: The CWR has modified this definition to be more precise. Now, a tributary is defined as a water leading into a DWOTUS that has physical indicators of flow (bed, bank, high water mark). Note that this definitions means that even tributaries which do not have water year-round are under jurisdiction. This includes “ditches functioning as tributaries”, ditches that drain wetlands, and ditches that relocate tributaries.
- Adjacent waters: means “bordering, contiguous, or neighboring*, including waters separated from other ‘‘waters of
the United States’’ by constructed dikes or barriers, natural river berms, beach dunes and the like.” (Why ‘and the like’, EPA? That’s impossibly vague.) This explicitly includes wetlands, ponds, lakes, and oxbows. It explicitly does NOT include ponds used for farming, silviculture, and ranching.
*Let’s take a moment and define “neighboring”. The CWR defines “neighboring” as :
- waters located within 100 feet of the high-water mark of a DWOTUS or tributary
- Waters located BOTH in the 100 year flood plain of a DWOTUS or tributary AND within 1500 feet of its high water mark
- Waters located within 1,500 feet of the high tide line of a DWOTUS or the Great Lakes.
All right, so all of those waters mentioned above fall into the ‘Waters that are jurisdictional in all instances” category. Let’s move on to:
Waters that are excluded from jurisdiction: basically, any water that dos not fall into the first or third category. There are also a few specific exclusions:
- Ditches with ephemeral flow that are not a relocated tributary, or excavated in a tributary, or draining wetlands.
- Erosional features (I’d be really curious to see the EPA’s definition of this…)
- Storm water control features
- Cooling ponds (for example, for thermoelectric plants)
The final, and most controversial, category is:
“A narrow category of waters subject to case specific analysis” (quoted). The EPA calls this a narrow category, but it has the potential to be far from “narrow”.
5 specific kinds of Water are mentioned by name.
- Prairie Potholes
- Carolina and Delmarva bays
- Western Vernal Pools in California
- Texas Coastal Prairie Wetlands
Additionally, a water is eligible for case-by-case evaluation if:
A) The water is within the 100 year floodplain and further from 1,500 feet from the high water mark (if it were within 1,500 feet it would count as “adjacent” and be automatically under jurisdiction)
B) The water is within 4,000 feet of the high-tide or high-water line of DWOTUS and tributaries.
The “bright-line” (legalese for “objective”) boundary of both the CWA and the CWR is defined by the 100 year floodplain and the 4,000-feet-from-DWOTUS line. Anything further from DWOTUS than that cannot be considered under the jurisdiction of the Clean Water Act.
Of course, given how many waterways exist in the United States, this is still a huge area. One of the fundamental points of the CWR that I’m struggling with is its concurrent claims to both expand the CWA to include headwaters and further protect American Citizens from pollution, but at the same time narrow the scope of jurisdiction in comparison to prior regulations. This complaint has been much more elegantly posed by the National Federation of Independent Businesses (NFIB) in a recent docket and by the Pacific Legal Foundation. I’m planning on covering more about my questions and my responses to both the NFIB and PLF publications in later posts.
One final note as I’m wrapping up this post: I support the mission of the EPA. I believe that we owe current and future generations clean, unpolluted water, and I believe that national government oversight will be needed to do that, barring any miraculous enlightenment of the general public. I am, however, worried about what the combination of two unnecessary features of this plan – vague regulatory requirements and astronomical costs of permits – could do for small and medium-sized businesses in the US. My goal is to critically read these documents in order figure out what could be improved on and how we could do it.