You have undoubtedly heard of the controversy concerning the regulatory redefinition of the Waters of the U.S. (WOTUS) by the U.S. Environmental Protection Agency, Department of the Army and the U.S. Army Corps of Engineers. It relates to the extent of the jurisdiction of federal versus state regulations relating to the Clean Water Act (CWA) implementation. It is an extremely complex and convoluted legal and policy issue. The resolution might have an impact on wastewater discharges from some of your facilities, so it might be worth at least keeping track of the legal and regulatory issues, especially if the outcome might affect your business. Certainly, hundreds of state, federal and industry lawyers, judges and their staffs have been engaged in the action. It will probably be decided ultimately by the U.S. Supreme Court.

What are Waters of the US (WOTUS)?

The 1972 Clean Water Act made it unlawful to discharge any pollutant from a point source into “navigable waters,” unless a permit was obtained. The National Pollutant Discharge Elimination System (NPDES) program and other elements of the law control direct (to surface waters) and indirect (through publicly owned waste treatment plants) discharges to surface waters from industrial and municipal facilities. The stated national goal was to eliminate the discharge of pollutants into navigable waters by 1985.

The regulatory definition of navigable waters and WOTUS since 1987/1988 is already very expansive and has been addressed in numerous litigation actions over the years. The U.S. EPA CWA regulations in 40 CFR 230.3(s) describe the traditional to-date definition condensed below as:

  1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce.
  2. All interstate waters including interstate wetlands.
  3. All other waters where the use, degradation or destruction of which could affect interstate or foreign commerce. These include waters that are or could be used by interstate or foreign travelers for recreational or other purposes; from which fish or shellfish could be taken and sold; and which are or could be used for industrial purposes.
  4. All impoundments of waters otherwise defined as WOTUS under this definition.
  5. Tributaries of waters identified in 1 through 4.
  6. The territorial sea.
  7. Wetlands adjacent to 1 through 6 are included; waste treatment systems including treatment ponds and lagoons, with some exceptions are excluded. WOTUS does not include prior converted cropland.

Subsequently, the EPA has provided additional regulations and guidance reflecting intervening litigations. The final “Definitions of the WOTUS rule” was proposed in 2014 and promulgated June 29, 2015, in 40 CFR 110, 112, 116, 117, 122, 230, 232, 300, 302 and 401, and 33 CFR 328. Subsequently, 31 states and several other parties sought judicial review of the new regulation in several District Courts. The 6th Circuit Court of Appeals stayed the regulation nationwide. The Utility Water Act Group of the National Association of Manufacturers has asked the Supreme Court to determine whether the appellate court should have national jurisdiction or whether the District Courts should.

The states and industry suits are arguing generally that numerous features of the rule are confusing and ambiguous and would extend the reach of the federal government beyond the congressional intent in the CWA legislation. Thus, rather than a continuing partnership with the states, the rule would further limit the states’ prerogatives and create many complexities that would lead to more appeals and litigation. Some of the negative reactions might have been due to misunderstandings of the content.

The National Association of Counties, among others, has analyzed the WOTUS regulation and identified numerous ambiguities and implementation problems that they feel could result from several of the defined terms, including the very broad definition of adjacent waters, tributaries, ditches, converted cropland, traditionally navigable waters, the wastewater treatment exemption interpretation, jurisdictional inclusion of the 100-year floodplain, and definitions of significant nexus and dry land.

On the other hand, apart from the substance of the impacts and presumed disruptions that might occur which are central to those suits, it may be that the most obvious and fatal flaws in the regulation are some post-proposal and comment period decisions that EPA included in the final rule. Significant changes that were not subject to notice and public comment are inconsistent with the requirements of the Administrative Procedure Act (APA) and are a basis for remand of the rule back to the EPA for reconsideration.

According to an analysis by Professor Patrick Parenteau of the Vermont School of Law, the rule includes several “bright line boundaries” for implementation decisions. The apparent intent was to remove ambiguities, provide consistency and eliminate some of the conflicts that would normally occur in the issuance of site-specific permits. One key part of the final WOTUS rule is an exclusion of lakes, ponds and wetlands that are more than 4,000 feet from the ordinary high-water mark or mean high tide of jurisdictional waters. This numerical limitation was not described as an option in the proposed rulemaking, so there was apparently no “notice and comment” as required in the APA. This appears to be a technicality, but lack of adequate notice and comment is a clear basis for judicial remand of any rulemaking action. Such an error can be the basis for a decision that the rule was “arbitrary and capricious.”

The final rule did not attempt to describe a scientific or historical basis for selection of a 4,000-foot exclusion zone. Thus, it was likely an arbitrary decision in that respect. While generally supporting the proposed rule, EPA’s Science Advisory Board (SAB) in its review stated that adjacent waters and wetlands should not be defined solely on the basis of geographical proximity or distance to jurisdictional waters. The SAB was also critical of the rule’s definition of tributaries, exclusion of groundwater and ditches and narrow definition of adjacent waters. EPA’s response was that the decision was informed by the SAB report and comments, but not dictated by them.

In addition, the Corps of Engineers pointed out that the rule excludes from jurisdiction numerous water bodies that have been regulated since 1975 as “jurisdictional waters.” Thus, those that were beyond the 4,000-foot cutoff would lose federal CWA protection. They estimated that it could amount to as much as 10 percent of the current jurisdictional waters. In fact, the Corps expressed serious concerns that the draft they reviewed contained contradictions with legal principles and generates multiple legal and technical consequences that would be fatal to the rule in its current form. So, EPA, apparently and in spite of not comporting with some notice and comment requirements of the APA, disagreeing with its own SAB without providing a scientific rationale and being put on notice by the Corps of Engineers, established an arbitrary 4,000-foot cutoff that would have removed CWA protections from numerous water bodies currently covered.

The EPA recently released an additional Economic Analysis of the impact of the 2015 regulation that differed significantly from the original analysis. The original rule analysis estimated costs as high as $476.2 million and benefits as high as $586 million dollars. While pointing out numerous estimates and uncertainties, the reanalysis anticipates cost savings of repealing the 2015 rule as up to $3.5 billion at a 7 percent discount rate and up to $5.2 billion at a 3 percent discount rate. My conclusion is that economic impact analyses of regulations are a function of who is preparing them, which assumptions are applied, and what is being rationalized. Thus, they should always be critically evaluated and taken with a significant degree of skepticism.

Be that as it may, and apart from the legal challenges and some internal fatal flaws, the WOTUS regulation has probably become a moot issue. On March 6, 2017, the EPA and the Army Corps of Engineers announced in the Federal Register an advance notice of proposed rulemaking with the intent to review and rescind or revise the WOTUS Clean Water Rule. EPA said it will re-codify the status quo prior to the 2015 regulations, to provide continuity and certainty for the states, EPA staff and the public. In a second step, it will initiate a new rulemaking to conduct a substantive re-evaluation of the definition of “waters of the United States.” The notice states that through the new rulemaking, the EPA and the Army seek to provide greater clarity concerning the definition of “waters of the United States.” It also states that the agencies will consider interpreting the term “navigable waters” as defined in a manner with the opinion of Justice Scalia in the Rapanos case. The repeal proposal was issued on July 27, 2017.

“… through the new rulemaking, the EPA and the Army seek to provide greater clarity concerning the definition of ‘waters of the U.S.'”

In spite of the angst and dismay emitting from some organizations, it is clear that the 2015 WOTUS regulation was likely doomed from the onset by the combination of the EPA’s legal procedural blunders and the implementation problems that have been pointed out by the many state litigants, as well as the Corps of Engineers. After many years of effort and probably millions of words in the regulation development process and studies that triggered the litigation, it is going back to the drawing boards. I wonder how many millions of dollars were expended in the process and how many awards were given to those who produced it?

As Casey Stengel, the revered manager of the “Amazin” New York Mets, was reported to have once said during the dismal 1962 losing season: “Can’t anybody here play this game?”

References

  1. Definition of “Waters of the United States” – National Association of Counties http://www.naco.org/sites/default/files/June2%20Chart%20Master%20WOTUS_FINAL%20rule%20chart.pdf 40 CFR 230.3(s).
  2. “A Bright Line Mistake: How EPA Bungled the Clean Water Rule,” Patrick Parenteau, https://law.lclark.edu/live/files/21899-46-2parenteau.
  3. Letter from David T. Allen to Gina McCarthy, EPA-SAB-14-007 September 30, 2014. https://yosemite.epa.gov/sab/sabproductnsf/0/518D4909D94CB6E585257D6300767DD6/$File/EPA-SAB-14-007+unsigned.pdf
  4. Memorandum from Lance D. Wood to John W. Peabody, U.S. Army Corps of Engineers, April 24, 2015.
  5. Federal Register/Vol.82, No. 42/Monday, March 6, 2017.
  6. Rapanos v. United States, 547 US 715 (2006).
  7. “Economic Analysis for the Proposed Definition of “Waters of the United States” – Recodification of Pre-existing Rules,” https://www.epa.gov/wotus-rule/economic-analysis-proposed-definition-waters-united-states-recodification-pre-existing
  8. “Can’t Anybody Here Play this Game?” Jimmy Breslin, Viking Press, Ivan R.Dee, publisher, April 28, 1963.

Joseph Cotruvo, Ph.D., BCES, is president of Joseph Cotruvo and Associates LLC, water, environment and public health consultants, and technical editor of Water Technology. He is a former director of both the EPA Drinking Water Standards and the Risk Assessment Divisions.