Monday, June 15, 2015
Joan Darling, Ph.D., Environmental Assessment
In order to understand why the U.S. Environmental Protection Agency (EPA) developed the Clean Water Act (CWA) rule, it’s important to understand some of the history of the CWA, which was enacted in 1972 in response to the terribly polluted condition of many of the nation’s rivers and lakes. The law established regulations to protect water quality in “Waters of the United States” (WOUS), and included, among other things, funding for wastewater treatment plants and regulations on discharges of industrial waste and dredged or fill material.
The law, unfortunately, didn’t define what WOUS actually were. It’s commonly known that water runs from small streams to large streams to rivers and ignores state boundaries. In order to control pollution into waters that were important for interstate commerce, such as navigable rivers or large lakes, the regulations reached upstream to pretty much anything that had water in it, including wet areas such as swamps, bogs, and marshes. Regardless of where these were located, or how far from a navigable waters they were, the U.S. Army Corps of Engineers (Corps) took jurisdiction over it and required a CWA Section 404 permit for discharge of fill material.
The courts get involved
In 2001, waters regulated under the CWA changed. The Solid Waste Agency of Northern Cook County in Illinois (SWANCC) wanted to use an abandoned quarry as a landfill. However, since there was water in the bottom of the landfill, they applied for a 404 permit. The Corps denied it, saying that the site, which was clearly isolated and not draining to any waters, was within their jurisdiction because migratory birds (which could be hunted across state borders) nested in it. SWANCC went to court and the Supreme Court said that the migratory bird rule could not be used to pull isolated waters in as WOUS. Furthermore, they directed the EPA and the Corps to define what waters were—and waters were not—WOUS.
This case lead to five years of uncertainty, because no definitions were forthcoming and many were uncertain what was considered WOUS. In 2006, the Supreme Court agreed to hear two other cases, Rapanos vs. United States and Carabell vs. Corps, dealing with impacts to isolated waters. A severely divided Supreme Court could not reach a majority decision on whether these were jurisdictional or not. Justice Kennedy fell in the middle, proposing to use the “significant nexus” (or “connection”) test.
In addition, the Supreme Court was very critical that EPA and the Corps had not yet clarified the definition of WOUS and, thus, these cases were coming to them. In response, the agencies developed guidance in 2008 on what was WOUS. However, to a great extent, the guidance was on a “case-by-case” basis with few clear rules to go by. All sorts of new terms had to be considered that had vague or no definitions. These terms included “adjacent,” “relatively permanent waters,” and “traditionally navigable waters.” These cryptic terms were in addition to the still mysterious “significant nexus” term, and were among items consultants had to consider in determining if clients had WOUS on their properties.
here.The illustration at the right shows the complexity of trying to determine a WOUS prior to the 2015 rule. To view a larger image of this illustration, please click