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If a new proposed federal government rule is finalized, a number of dry areas could actually be considered by the government to be in or near water and wetlands. The work could then require one of several Clean Water Act (CWA) permits, and failure to get them could mean exposure to significant monetary (and possibly even criminal) penalties.

The rule, proposed by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE), is the culmination of more than a decade of uncertainty about what areas are subject to federal jurisdiction under the CWA. The CWA is a broad program covering standard end-of-pipe discharges, oil spill planning and, most significant for construction projects, stormwater discharges and wetland fills.

The Controversy

The agencies are responsible for implementing the CWA in all “waters of the United States.” The USACE originally interpreted this phrase narrowly and did not even regulate wetland fills. In 1986, the pendulum swung the other way and the agencies adopted regulations covering, among other things, any waters in which a migratory bird landed or could land. The Supreme Court struck down this “migratory bird rule” in 2001 and since then the agencies have been trying to identify a new standard.

After another Supreme Court decision in 2006, the agencies have finally proposed a standard that is simultaneously very expansive and fairly unclear. Put another way, if finalized as proposed, the rule would extend the reach of the CWA to many areas that appear dry, but do so in a fashion often requiring scientific expert advice.

The Proposal

The proposed rule is based on a test put forth in the 2006 Supreme Court decision: that a water can be jurisdictional if it has a "significant nexus" to a traditionally navigable water. The proposed rule does two things:

  1. it identifies several classes of waters that are deemed to always have a significant nexus, and therefore always be jurisdictional; and
  2. it adopts the "significant nexus" for use on a case-by-case basis for waters not covered by the first part of the test.
The first part (waters that would be deemed to always have a significant nexus) is quite broad. It starts with a "core" group of waters, including interstate and traditionally navigable waters and the territorial seas. (For "traditionally navigable," think navigable by canoe, not riverboat.) Jurisdiction over this core group is noncontroversial.

The next parts are more controversial. The rule would assert jurisdiction over "tributaries" of the core waters and defines tributaries as any feature with a bed and bank and ordinary high water mark. Water is not a requirement. Thus, dry features that only contain water when it rains or the snow melts are considered tributaries (e.g. dry arroyos in the southwest desert).

The rule does not stop there, though. Any waters "adjacent" to these dry areas are also jurisdictional. Here, the test becomes more obscure and unintuitive; waters can be considered "adjacent" if they are in the "floodplain" or "riparian area" of a core water or its tributary. Rather than use the standard FEMA definitions for floodplains, the agencies would define a floodplain as an area along a water, formed by sediment deposition and inundated during moderate to high flows.

Similarly obscure is the proposed definition of riparian area as an area bordering any water where surface or groundwater “directly influence the ecological processes and plant and animal community structure in that area.” Thus, determination of whether a water is in the floodplain or riparian area is beyond the capability of a layperson and requires significant scientific expertise, and may even require multiple scientists (e.g., a biologist and geologist).

Additional complexity is added by the fact that some of these waters are hard to identify; for example, a wetland need only be wet 5 percent to 12 percent of the growing season to be considered a wetland.

While there are other nuances that make the rule even more expansive, recall that this is only the first part of the test. In the second part, the agencies will consider a water jurisdictional if “a water, including wetlands, either alone or in combination with other similarly situated waters in the region. . . [that] significantly affects the chemical, physical, or biological integrity of a [traditionally navigable or interstate water or the territorial seas].” One must determine chemical, physical and biological effects, because any one of these may be sufficient. And the analysis is not just for the area at issue; it is for every other “similarly situated” area in “the region.” These tests are broad, nebulous and complex.

The Risk

The rule will not be finalized until sometime next year. When it is, though, it will be broad, and the full breadth will not be decided by the EPA and the USACE, but by the courts. Individual citizens can sue under the CWA, alleging violations of the act even where the agencies do not. It will then be up to the courts, on a case-by-case basis, to determine the full extent of these nebulous tests. In some cases, the courts will determine that areas are wet even though they appear dry and rule that permits were needed but not obtained. But in all such cases, the result will be delay, expense and uncertainty--all of which are bad for business.

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