I originally intended this post to be a list of the issues on which the EPA and USACE have specifically requested comments in the draft rule proposing to redefine “waters of the US” for purposes of the Clean Water Act. But the list is too long for a post. So I will instead provide a very broad overview of the comments the agencies hope you will file. If you want the full compilation, please send an Email to mark@texasenvironmentallaw.com and I will send you that PDF.
The agencies see the world of water in three categories: (1) those clearly subject to CWA jurisdiction; (2) those clearly not subject to CWA jurisdiction; and (3) “other waters”, the jurisdiction of which must be determined on a case-by-case basis. In the most general terms, the agencies want a rule that eliminates as many of these class-3 “other waters” as possible.
On one hand, the agencies want to write a rule that provides predictable, consistent “yes” or “no” answers to the jurisdictional question, reasoning that this certainty is more efficient for both the regulators and the regulated. Without countervailing considerations, such a rule would be fairly easy to write.
But on the other hand, the agencies want to include as a “water of the US” every water the federal government has power to regulate under the Commerce Clause, in order to fulfill their CWA responsibilities. Since the exact outer limit of Commerce Clause power is clear as mud, these two highest priorities are incompatible from the get-go.
Within these priorities, the agencies have proposed a series of new and pre-existing defined-water-feature terms. They generally want comments as to how the rule could better differentiate between these terms, which include “tributaries”, “wetlands”,“ditches”, “gullies”, “rills”, and “swales.” They seem to want a specific water feature to clearly fit only one of these definitions. Obviously, these types of comments are more in the wheelhouse of hydrologists and environmental consultants. However, the definition of “tributary” also tests the outer boundaries of Commerce Clause jurisdiction.
This draft rule also includes old and new defined terms that describe how one water feature relates to other water features. These terms include “adjacent”, “region”, “neighboring”, “riparian area,” “floodplain”, “bordering” areas, and waters with a “significant nexus” to other waters in the relevant watershed/basin. I think these definitions seem to mostly answer the question “do I [the agency] have legal jurisdiction over this water feature?” These are blended legal and scientific queries.
In regard to the case-by-case category of jurisdiction, i.e. “other waters with a significant nexus”, the agencies want as many suggestions as possible which propose to identify classes and categories of waters within this category that could instead be jurisdictional or non-jurisdictional by rule. The agencies will even consider different rules for different areas of the country. For example, the agencies are considering whether to determine by rule that prairie potholes, Carolina and Delmarva bays, pocosins, Texas coastal prairie wetlands, and western vernal pools, either alone or in combination with ‘‘other waters’’ of the same type in a single point of entry watershed, have a significant nexus and are jurisdictional (or, perhaps, non-jurisdictional).
Finally, in their ideal world, the agencies want a rule that “rolls with the changes.” By this I mean they want a rule that automatically expands their CWA jurisdiction in the future as new scientific research identifies more connections between water features. If this rule proposal hasn’t challenged you enough yet, this concept should get your noodle gyrating.
As I said at the outset, this is a very, very broad overview of what types of comments the agencies hope you will file. For the more complete compilation (which has much more detail), please send an Email to me at mark@texasenvironmentallaw.com and I will forward you my list.
