The Clean Water Act
The law at issue is the federal Clean Water Act, passed in 1972, which makes the discharge of any pollutant from a point source into “navigable waters” unlawful without a federal permit. The act defines “navigable waters” as “waters of the United States.”
Surprisingly, the Clean Water Act does not provide a definition of what constitutes a “water of the United States.” For decades, this lack of statutory definition has led to a great deal of conflict and litigation attempting to define these terms.
Multiple times, this issue has reached the U.S. Supreme Court. Most recently, the court heard the 2006 case of Rapanos v. U.S. Army Corps of Engineers, issuing a ruling with five separate written opinions, none of which collected a majority of votes from the nine justices. The result of these disputes is a definition of “waters of the United States” that is murky at best.
The EPA’s new rule
It is with this background that the EPA and Army Corps of Engineers proposed a draft rule to “clarify” the scope of “waters of the United States” pursuant to the Clean Water Act. Although most would likely agree this was a noble goal, when the draft rule was released in April 2014, reception was far from warm.
Opponents argued that rather than merely clarifying the meaning of “waters of the United States,” the proposed rule went much further, instead broadening the scope of what is considered a “water of the United States” and, consequently, increasing federal jurisdiction over surface water across the country.
The EPA solicited public comment, held public hearing and made certain modifications to the proposed rule before releasing the final rule in May 2015.
When the final rule was released, tempers flared yet again, with opponents claiming the final rule clearly (and unlawfully) extends the scope of the Clean Water Act beyond that which was intended by statute. Two of the primary changes in the final rule are discussed below:
-
Definition of “tributaries.” Although “waters of the United States” has always included tributaries, the term was not defined in the Clean Water Act.
The proposed rule broadly defines this term as a water that contributes flow either directly or through another water (including an impoundment) identified as a navigable water, interstate water or territorial sea, that is characterized by the presence of a bed and banks and ordinary high-water mark.
A water meeting the definition of a tributary does not lose its status, as such, if there are one or more constructed or natural breaks so long as the bed and banks and ordinary high-water mark can be identified upstream of the break.
Similarly, status is not lost if it flows through a water not considered a water of the U.S. Opponents argue this extremely broad definition extends the scope of the Clean Water Act.
-
Adjacent waters. Previously, the EPA rule provided that “waters of the United States” included “wetlands adjacent” to the other jurisdictional categories. The final rule changes this definition to include “all waters adjacent to” the other jurisdictional categories, including wetlands, ponds, lakes, oxbows, impoundments and similar waters.
Opponents point out that the prior rule included only “wetlands adjacent” to other waters, and that the final rule’s inclusion of “all waters adjacent” is clearly much broader.
For those interested in a more detailed, thorough analysis of the final rule and its changes, the National Association of Counties published a very helpful chart and the American Farm Bureau a detailed article walking through each term. Both are available online.
Where the dispute stands now
Publication of the final rule opened the floodgates for lawsuits against the EPA. As of July 13, lawsuits had been filed against the EPA by more than half of the states (27) challenging the rule.
Likewise, a coalition of industry groups including the American Farm Bureau, American Petroleum Institute, American Road and Transportation Builders, National Alliance of Forest Owners, National Corn Growers, National Mining Association and several others filed suit as well.
The U.S. Congress has considered the issue as well, with the House passing a bill that would invalidate the final rule as written and require the EPA to go back to the drawing board and revise the rule, taking into account input from shareholders and other concerned groups. A similar bill has been introduced but not yet voted on in the Senate. 
Tiffany Dowell Lashmet is an assistant professor at Texas A&M AgriLife Extension Service.
PHOTO: Staff photo.
