On Thursday, May 27, 2015, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers released the final rule defining “waters of the United States” (WOTUS), which the agencies have renamed the Clean Water Rule. The final rule will become effective 60 days after publication in the Federal Register, which is expected in the coming days.
Originally proposed on April 21, 2014, the rule is concerning to many industry sectors because it would significantly expand Clean Water Act (CWA) jurisdiction for the agencies. In particular, it proposed extending jurisdiction to broad definitions of tributaries and adjacent waters, and also codified the ability of the agencies to make subjective determinations of what constitutes WOTUS under a “significant nexus” determination.
The proposed rule defined tributaries as any water with a bed, banks and ordinary high water mark which contributes flow directly or through other water bodies to a traditional WOTUS. This interpretation would have made many ditches jurisdictional under all CWA programs. While the final rule maintains the same general definition of tributary, the agencies expanded the types of ditches excluded from the definition, including ditches that are not excavated in or relocate a tributary and ditches that do not drain a wetland. Though it does not explicitly exclude roadside ditches, the agencies assert that the final rule will exclude the vast majority of roadside and other transportation ditches.
Adjacent waters to be considered jurisdictional were defined in the proposed rule as bordering, contiguous or neighboring waters, and the term “neighboring” was defined vaguely. The final rule does establish a more detailed definition of “neighboring,” and further lays out three circumstances under which waters would be classified as such.
The final rule also limits waters that can be assessed under a case-specific evaluation to determine whether a significant nexus exists. The rule allows the agencies to evaluate whether these waters, either alone or in combination with other similarly situated waters in the region, significantly affect more traditional WOTUS. Under the final rule, waters are similarly situated when they perform similar functions and are located sufficiently close together.
Reaction and Response
Lawmakers, industry and environmental groups reacted quickly. The chairs of the House and Senate Agriculture Committees, Rep. Mike Conaway (R-TX-11) and Sen. Pat Roberts (R-KS), were critical of the final rule, as were Senate Majority Leader Mitch McConnell (R-KY) and House Speaker John Boehner (R-OH-08). Ag industry groups such as the American Farm Bureau Federation and National Cattlemen’s Beef Association, which have been leading opponents, were critical of the final rule, while environmental groups such as the Natural Resources Defense Council were supportive.
In Congress, legislative efforts were already afoot to prevent the agencies from finalizing and implementing the WOTUS rule. In addition to provisions written into funding legislation that would block the rule from moving forward, stand-alone legislation has been considered in both the House and Senate. On May 12, the House passed H.R. 1732, the Regulatory Integrity Protection Act of 2015, which would order the Army Corps of Engineers and EPA to withdraw the WOTUS rules. In the upper chamber, Sen. John Barrasso (R-WY) has introduced a bill — S. 1140, the Federal Water Quality Protection Act — that would similarly require the agencies to withdraw and rewrite the WOTUS rule. The latter bill has yet to be passed out of the Senate Environment and Public Works Committee, though a subcommittee markup has been completed and Committee Chair Jim Inhofe (R-OK) indicated that the full committee is likely to vote on it soon.
Chairman Rob Bishop of the House Natural Resources Committee criticized the regulation saying its changes would be unrecognizable by the founders of the Clean Water Act. Because the administration is likely to veto any stand-alone legislation to prevent the WOTUS rule from being implemented, however, must-pass appropriations legislation gives Congress the greatest likelihood of successfully blocking the regulation. The House already passed energy and water appropriations legislation that includes a provision to block the WOTUS rule. The Senate is likely to address appropriations legislation in June, when the legislative response to WOTUS is likely to play out.