Waters of the US Comments Extended

Swamp Stomp

Volume 14, Issue 24

On June 10, 2014 the US Army Corps of Engineers issued a press release announcing that the public comment period for the new Waters of the US rules has been extended. The original published due date for comments was July 21, 2014. It has been revised to October 20, 2014.

In case you were wondering what this was all about, on April 21, 2014, the USEPA and the Corps of Engineers (Corps) published for public comment a proposed rule defining the scope of waters protected
under the Clean Water Act (CWA). This was issued in response to the U.S. Supreme Court cases in
U.S. v. Riverside Bayview, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), and Rapanos v. United States (Rapanos). Each of these cases resulted in a further limitation of what was defined as a Waters of the US.

Each time a case was brought before the Supreme Court further limitations of what defines a waters of the US were established. For example in the SWANCC case the Supreme Court established that isolated wetlands were not waters of the US. All of these interpretations have been made on the basis of a limited form of federal jurisdiction. This is based upon the water body in question ability to effect interstate and foreign commence. Article 1, Section 8 of the US Constitution is the basis for this federal oversight.

In the Rapanos case, Justice Kennedy issued a lone opinion that created the need for the establishment of a significant nexus to a water that has a commerce connection. It is important to note that in this case there was no majority opinion and that the case was remanded to the lower court. However, the concept of the significant nexus stuck and we have been using it ever since.

In a more recent decision Justice Scalia called on Congress in the Sackett case to establish a clear definition of a waters of the US. The new proposed rules are not issued by Congress. They are in fact issued by executive power from the President. Both the EPA and the Corps have published these new rules under the direction of the President. This is his privilege.

There seems to be two areas of contention with these new rules. First, the need to establish a significant commerce nexus has been diminished. It has been replaced with the assumption that all water quality degradation results in a negative impact to interstate and foreign commerce. Consequently, with rare exception all bodies of water and similarly situated areas that may affect water quality are subject to regulation under the Clean Water Act. The need to be a wetland or even an actual water body is not necessary required to be subject to these new rules. This assumption is exemplified in the new concept of categorical jurisdiction based upon ecosystem type. There is no need for the documentation o f a significant nexus if the site is meets one of the categorical definitions. Prairie potholes hare a prime example of this.

The second area of concern relates to the states rights as defined in the Clean Water Act. The new rules seem to blur the line between section 404 federal jurisdiction and section 401 state water quality review. Simply put, there is a system of checks and balances in place between the federal government and the states. Section 404 relates to placement of fill material into a waters of the US. This is solely (except NJ and MI) a federal review and permit. Section 401 is where the state gets to weigh in on whether the placement of material will adversely impact the waters of the state. It is a water quality determination. However, under these new rules this state role is more or less irrelevant as there are new federal rules that in many cases go well beyond what a given state has established under section 401.

I will offer on last observation. The Supreme Court had consistently ruled that the Clean Water Act is limited to only those waters that have the potential to affect interstate or foreign commerce. The premise for the new rules is to roll back to the original unlimited federal jurisdiction that was thought to exist prior to those inconvenient Supreme Court decisions. It would seem that the Corps, the EPA and the President feel that the Supreme Court was wrong in its opinions. What happens when a federal agency openly and directly defies the Supreme Court? I really do not know. What do you think?

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