Overregulated: Waters of the United States

Impact: The attempt to impose new definitions of water flows under federal regulation, with a corresponding permitting system, raises forest management operational expenses, increases uncertainty in planning, and potentially withdraws land from forest management.

The Issue: The definition of so-called “jurisdictional waters”—meaning those water bodies subject to federal control distinguished from those left to state and local authorities—has been disputed for several years. The federal Clean Water Act is very clear that any discharge to a navigable waterway requires a federal permit. However, another provision of the Act is not as clear: the requirement of a federal permit for any activities resulting in a discharge to a waterbody that has a “significant nexus” to a navigable waterway. Defining such a “significant nexus” has prompted conflicting court decisions, followed by Congressional attempts to settle the matter—so far, without success.

On May 27, 2015, EPA published its final rule, which forestry interests have evaluated as:

  • Resolving some of the key issues with respect to classification of water in industrial facilities, such as forest product mills, clarifying that wastewater treatment ponds and other waters on mill-sites are exempt from consideration as WOTUS, specifically exempting log-cleaning ponds.
  • Still providing insufficient clarity with respect to waters on forest lands, affirming an exemption from WOTUS for many ditches and wetlands within normal silvicultural operations but
  • Treating “intermittent” and “ephemeral” streams differently from each other and failing to provide clarity in distinguishing those two categories—and providing EPA with a right to review any landowner’s determination in categorizing them.
Status: EPA published its final WOTUS rule on May 27, 2015, and it went into effect on August 28, 2015.

However, following extensive challenges from state authorities, and mixed lower court decisions, on October 9, 2015, the Sixth Circuit Court of Appeals suspended the WOTUS rule nationwide, “pending further order of the court.” The ruling states that “petitioners have demonstrated a substantial possibility of success on the merits of their claims,” pointing to ambiguous prior judicial precedent and vagueness in the terms of the rule, itself.

Prior to publication of the Final Rule, both House and Senate introduced legislation to address the expected implications of the new rule. The Regulatory Integrity Protection Act (HR 1732) would give EPA and the Army Corps of Engineers 30 days to withdraw the current rule and then three months to consult with state and local officials on how to address the Clean Water Act regulatory morass. Although it passed the House on May 12, 2015, there is concern that if it does become law, the agencies would simply repropose a similar rule.

In the Senate, Senators John Barrasso (R-Wyoming) and Joe Donnelly (D-Indiana) introduced S 1140, the Federal Water Quality Protection Act, attracting 47 co-sponsors as of April 7, 2016. This bill would require EPA to withdraw the rule and to undertake procedural requirements that were skipped when the rule was first proposed (such as analyzing small business impacts, providing for consultation under the Federalism Executive Order, and other stipulations) before proposing a new rule. The bill also includes a number of principles to guide the re-proposal, including a section clearly indicating certain waters that should be included as WOTUS and others that should not.

On November 3, 2015, S 1140 was brought to the Senate floor but failed to obtain the 60 votes needed to avoid filibuster, and the Senate instead passed a motion to “disapprove” the WOTUS rule by a 53-44 majority—a strong showing but not a veto-proof one. On January 13, 2016, the House passed the same motion to “disapprove” by a strong 253-166 vote, sending the Joint Resolution to the President, who vetoed it.

Although language blocking enforcement of the “Waters of the United States” rule had strong support in both chambers, an agreement among House and Senate leadership to strip environmental riders out of the Appropriations Omnibus resulted in this provision’s deletion from the bill passed and sent to the President in mid-December 2015.