Waters of the United States, 2021/2022 Edition, Part II

Robin Kundis Craig

June 16, 2021

This is the second of of a two-part post. Part I is available here.

In the first part of this post, I briefly touched on the chaotic history of the EPA and Army Corps' definition and regulation of "waters of the United States" under the Clean Water Act. I also pointed out that this definition and its varying interpretations across courts and administrations can have significant impacts on water pollution prevention and the protection of our nation's waterways. With the Biden administration tackling a redo of the "waters of the United States" rule, court challenges are sure to follow. In this post, I'll explore three approaches to the rule that might help it survive judicial review.

  1. Openly Acknowledge that Section 404 of the Clean Water Has Hijacked the “Waters of the United States” Discussion and Provide a Corrective

    The Clean Water Act, for better or for worse, uses a single phrase — “discharge of a pollutant” — and a single set of definitions to trigger both of its permit programs. The three Supreme Court cases on “waters of the United States” have all arisen in the context of Section 404, which prohibits discharges of dredged or fill material into navigable waters without a permit. This permit program applies to people developing their private properties by filling wetlands and other soggy features and hence resonates through several other political and constitutional quagmires, from state authority to regulate land use, to takings of private property, to government interference with individual rights — all of which factored into the Solid Waste Agency of Northern Cook County and Rapanos cases.

    However, anything the Justices say about “waters of the United States” in the context of Section 404 also applies to the Act’s Section 402 National Pollutant Discharge Elimination System (NPDES) permit program. NPDES permits are what keep industry and sewage treatment plants from fouling headwaters and wetlands and all other waters in the United States with whatever they feel like dumping — an impulse to pollute, by the way, that led to rivers catching on fire well into the 20th century and to the County of Maui’s attempt to bypass the permit requirement by sending its sewage through groundwater and onto coral reefs. There are, in other words, two sides to the “waters of the United States” story, and the agencies need to underscore the Clean Water Act’s most basic role in keeping polluting activities in check.

  2. Use the County of Maui Decision to Discuss “Waters of the United States” and Point Sources Simultaneously

    If you listen to the rhetoric attacking the 2015 “waters of the United States” rule, you’d think that there was only one element to Clean Water Act jurisdiction: a jurisdictional water. The minute a waterway on your property (specifically, in a lot of the politicizing, your farm) became a water of the United States, you were subject to the whims of the Army Corps.

    It's time to call bull on that, and the County of Maui decision makes that call in the next “waters of the United States” rule legally tenable and arguably even legally necessary.

    Once you get through the Clean Water Act’s somewhat byzantine set of definitions, there are five elements to Clean Water Act jurisdiction: (1) a person (2) adds (3) a pollutant (4) to jurisdictional waters, of which the waters of the United States are one set, (5) from a point source. 33 U.S.C. §§ 1331(a), 1362. County of Maui technically interpreted “from a point source,” concluding that pollution didn’t have to go directly from a point source to a jurisdictional water if it was the functional equivalent of a direct discharge. As such, the Court strongly hinted, the County of Maui’s discharge of sewage into wells and through groundwater to the Pacific Ocean was the functional equivalent of a direct discharge into the Pacific Ocean and hence needed a permit. (Notably, County of Maui was an NPDES case, with the Justices in the majority emphasizing the Act’s larger purpose of restoring the nation’s waterways.)

    There’s no getting around the fact that County of Maui must influence the next regulatory definition of “waters of the United States.” At the very least, as noted, the 2015 and 2020 categorical exclusions of groundwater have been eviscerated. Similarly, smaller waterways and even dry ditch-like features that meaningfully convey pollutants from a point source to a jurisdictional water are similarly back within the scope of Clean Water Act jurisdiction, albeit technically within the point source element.

    The less appreciated side of County of Maui, however, is that it gives the EPA and the Army Corps an opportunity to discuss the jurisdictional water and point source elements together and hence to deflect misleading propaganda about what a “waters of the United States” definition means for individual property owners. Should some ditches and canals qualify as waters of the United States? Almost certainly – but irrigation ditches are off the hook, because “agricultural stormwater discharges and return flows from irrigated agriculture” aren’t point sources, thanks to Congress. 33 U.S.C. § 1362(14). A discharge can’t be “from” a point source under County of Maui if the source can’t be a point source, regardless of what it pollutes. And, while they’re at it, the agencies might remind the general public of all the other exemptions from the Act, including the ones in Section 404(f) and those created under the Water Transfers Rule.

    In other words, County of Maui is an open invitation to the EPA and Army Corps to talk about Clean Water Act jurisdiction in its totality instead of focusing legal and political attention solely on what should qualify as a water of the United States. The agencies should accept that invitation eagerly.

  3. Use Science to Put a New Emphasis on Hydrological Connectivity

    In the same executive order in which he flagged the Navigable Waters Protection Rule for review, President Biden also re-committed the federal government to relying on science. That bodes well for the next “waters of the United States” rule, especially in the wake of County of Maui.

    Like Justice Kennedy in Rapanos, the majority in County of Maui emphasized connectivity and flow — the fact that pollutants move around even before they reach a jurisdictional water. Going back to a definition of “waters of the United States” that emphasizes hydrological connectivity, backed by science demonstrating that connectivity, would go a long way toward assuaging five Justices and the American public — especially in connection with a revitalized emphasis on the NPDES permit program.

    As noted, the 2015 rule did have a significant peer-reviewed scientific report behind it, although the rule itself did not use that report as well as it might have. The report itself, which should have been the focus of judicial review, got lost in the multiple litigation conniptions. In contrast, the EPA’s own Scientific Advisory Board found the 2020 Navigable Waters Protection Rule scientifically deficient. This evaluation, the prior report, and the peer review commentary on the prior report give the EPA and the Army Corps excellent starting points to develop a scientifically supported regulation that identifies “waters of the United States” based on connectivity and downstream effects, even if the rule must rely on indicators and case-by-case analysis rather than repeating the 2015 rule’s flawed attempt to identify and define new categories.

So, once more into the breach.

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