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Seeking clarification Proposed new rule for US waters would impact federal permitting in Alaska Alan Bailey Petroleum News
On March 25 the Environmental Protection Agency and the U.S. Army Corps of Engineers published a proposed rule aimed at clarifying some prevailing confusion over what constitutes the “waters of the United States.” This apparently esoteric question is of fundamental importance in determining where the federal agencies have jurisdiction over waterway and wetlands permitting, especially in Alaska with the state’s myriad rivers, creeks, lakes and swamps. If a planned project will impact water deemed to be under federal jurisdiction, federal permits will be required. And with those permits come a National Environmental Policy Act review, a federal environmental assessment and possibly an environmental impact statement that may take a couple of years to complete.
Which water? At its core, the concept of U.S. waters is straightforward: They are waters that could be used for interstate or foreign commerce, including traditional navigable waters and the territorial seas around the country. But since these waters include, for example, navigable rivers, the question arises of the source of the water in the navigable water body — pollution in a water source can flow into the navigable water and hence pollute the waterway. Consequently, tributaries of navigable rivers have also fallen within the scope of U.S. waters, as have wetlands connected to those tributaries, and so on.
Confusion over exactly where waters of the U.S. end and state waters begin has inevitably led to litigation, with individual federal decisions over the scope of water permitting being challenged through the courts. But, when a dispute over federal water jurisdiction reached the U.S. Supreme Court in 2006, the justices did little to settle the water-borne confusion when they failed to reach a majority decision, instead publishing two distinct opinions on the subject.
Since then the EPA and the Corps of Engineers have only proposed non-binding guidance on the jurisdiction question. But, with their March 25 announcement, the agencies have now proposed a firm rule that would govern future jurisdiction decisions.
Proposed rule Under the proposed rule, all territorial seas, navigable waters, interstate water and tributaries of these waters, would be considered to be U.S. waters, as would navigable water impounded behind a structure such as a dam. And the rule provides a definition of what is meant by a tributary.
In addition, all waters, including wetlands, adjacent to this first tranche of water categories would also fall within the U.S. waters definition — the rule defines “adjacent” to mean “bordering, contiguous or neighboring,” and the rule specifies what it means by “neighboring.”
The rule says that any body of water within the above categories would automatically be considered to come under federal jurisdiction without further analysis in a permitting situation.
Other waters However, there are “other waters” that may or may not be waters of the U.S., depending on whether they have what is termed “a significant nexus” to a navigable water, interstate water or territorial sea, the proposed rule says. These waters would require individual determinations of whether they fall under federal jurisdiction, on a case-by-case basis. The agencies accept that “significant nexus” is not a scientific term, but they say that the term refers to “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 any territorial sea, interstate water or navigable water.
The proposed rule also spells out specific types of water bodies which will not come under federal jurisdiction, including permitted waste treatment systems and water in certain types of agricultural situation.
Seeking suggestions The agencies say that they are seeking suggestions on other ways of determining “other waters” that might come under federal jurisdiction. To this end, the agencies are inviting the public to submit comments, scientific data, technical data and examples from case law that might add further clarity to the “other waters” specification. The agencies are also looking for suggestions for other categories of water that might be excluded from federal jurisdiction.
The agencies say that they will be publishing their proposed rule in the Federal Register, with a 90-day public comment period.
Varied comments Sen. Lisa Murkowski, R-Alaska, ranking member of the Senate Energy and Natural Resources Committee, slammed the proposed rule, saying that it would place most rain-dependent and seasonal pools, as well as wetlands near rivers and streams, under federal permitting jurisdiction.
“While I certainly agree that the federal regulatory process needs greater efficiency and certainty, it appears unlikely that this new rule will help meet either of those goals,” Murkowski said. “Instead, it appears that the EPA is seeking to dramatically expand its jurisdictional reach under the Clean Water Act. If allowed to stand this could result in serious collateral damage to our economy, for a wide range of states, and for a wide range of individuals — including our nation’s sportsmen.”
Sen. Mary Landrieu, D-La., chair of the Senate Energy and Natural Resources Committee, described the new rule as an example of “agency overreach” that “will hamper our nation’s efforts to increase domestic energy production, create jobs, reduce our dependence on foreign oil and break the oppressive grip of tyrants and dictators across the globe.”
Environmental organizations have praised what they characterize as improved and better defined protection for the nation’s water.
“This is good news for boaters, anglers, swimmers and families who rely on clean drinking water,” said Peter Lehner, executive director of the Natural Resources Defense Council. “EPA took an important step to finally rescue these waters from legal limbo. Even though these are common-sense protections, the polluters are sure to attack them. People who care about clean water need to make their voices heard in the comment period.”
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