The Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) published a final rule on May 27, 2015, that purports to clarify the definition of “waters of the United States” under the Clean Water Act (“CWA”). The rule applies to CWA Section 404, which requires a permit from the Corps and concurrence by EPA for filling of wetlands that are determined to be “waters of the United States.” In addition, the rule applies to CWA Section 402, which requires an EPA permit for all discharges of pollutants to “waters of the United States.” Because the CWA defines the term “pollutant” very broadly, many in the agricultural community feared the rule would bring normal farming activities within the jurisdiction of the CWA. As a result, the rule caused considerable consternation within the agricultural community. EPA purportedly addressed concerns in crafting the final rule, but whether it has in fact done so will not be known for some time.
The rulemaking effort was a reaction to several United States Supreme Court decisions, culminating in Rapanos v. United States, 547 U.S. 715 (2006). These decisions led to confusion regarding the definition of “waters of the United States.” A fractured and divided Court in Rapanos created two tests for determining whether a body of water constituted “waters of the United States.” These tests were fact-intensive and required a time-consuming, case-by-case analysis. The result of the Rapanos decision has been bureaucratic confusion and lengthy litigation. During the rulemaking process, EPA repeatedly emphasized that the new rule was crafted to remove the confusion and clarify the analysis of what constitutes a “water of the United States.”
Under the new rule, the definition of “waters of the United States” is limited to: 1) traditional navigable waters; 2) interstate waters; 3) the territorial seas; 4) impoundments of waters otherwise defined as “waters of the United States”; 5) tributaries of traditional navigable waters, interstate waters, and the territorial seas; 6) adjacent waters to those described in (1)-(5); and 7) waters with “a significant nexus” to traditional navigable waters, interstate waters, and the territorial seas.
In response to farmers’ concerns, EPA expressly excluded artificially irrigated areas, farm and stock watering ponds, and irrigation ponds from CWA jurisdiction. EPA also excluded from CWA jurisdiction those ditches with ephemeral or intermittent flow—that is, ditches that carry water only when it rains. To fall within the rule, a ditch must have the physical features of flowing water. Specifically, the ditch must have a bed and banks, as well as an ordinary high water mark. Moreover, the ditch must contribute flow directly or indirectly through another waterway to a traditional navigable water, an interstate water, or the territorial seas. However, the rule covers ditches constructed out of or functioning as streams, as well as ditches that drain wetlands or are able to carry pollutants downstream.
Farmers may take some comfort that the rule continues exemptions for activities such as planting, harvesting, and moving livestock across a stream. The rule also exempts agricultural stormwater discharges and return flows from irrigated agriculture. But the rule still requires a case-by-case determination of what constitutes a “water of the United States.” Only time will tell whether EPA and the Corps have achieved the goal of clarifying the definition of “waters of the United States” while protecting agricultural and other business interests.
Additional information and a link to the final rule may be found on EPA’s website, or by contacting a Dorsey Food and Agribusiness Industry Group lawyer: http://www.dorsey.com/food-and-agribusiness/.