Client:

A municipal water industry trade association

Issue:

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) issued a proposed rule defining “waters of the United States” for the purpose of defining the scope of waters protected under the Clean Water Act (CWA). (See 79 Fed. Reg. 22187, April 21, 2014).

The scope of waters protected is critical in determining whether permits are required from the Corps under Sections 402 of the Act for discharging pollutants into such waters and under Section 404 of the Act for dredge and fill activities in such waters. The proposed rule represented a significant expansion of the historical scope of federal jurisdiction. Under the proposal, all tributary and adjacent waters would now be “jurisdictional by rule,” the definition of “tributary” and the scope of what is “adjacent” would both expand, a new concept of “neighboring waters” would be incorporated and the significant nexus test would allow for a watershed scale determination of jurisdiction. Many of the dry arroyos, washes, ditches and ephemeral or intermittent water bodies so common in the arid West would become the subject of federal oversight.

Challenge:

The challenge was to persuade EPA and the Corps that their proposed definition was too broad and violated the congressional delegation of authority to the agencies to regulate waters under the Act.

The importance of this change to municipal utilities lies primarily in its relationship to sections 404 and 402 of the CWA. If a water feature is determined, either per se or on a case-by-case basis, to be a “water of the U.S.,” the dredge and fill permit provisions of section 404 and the point source permit provisions of section 402 are potentially triggered by a variety of municipal undertakings. Invoking these provisions can, in turn, implicate the need for a section 401 water quality certification from the state and, more importantly, may necessitate a costly and time consuming review of the local initiative under the National Environmental Policy Act. Finally, the need for the issuance of federal approvals may, in turn, also trigger consultation requirements under the federal Endangered Species Act.

Solution:

Perkins Coie was very active in legislative and regulatory initiatives to properly define the scope of jurisdictional waters under the Act. On November 14, 2014, we submitted comments on the proposed rule providing alternative language that would meet the terms of the Act and providing supporting rationale.

In addition to our public comments and due to our close ties to the agencies, we met with EPA staff and the Office of Management and Budget to make our concerns known. We also met with other federal agencies concerning the rulemaking and commented on EPA and Corps guidance documents implementing the CWA.

Based on this extensive background, Perkins Coie remained very concerned about implementation of the Final Rule published on June 29, 2015, (80 Fed. Reg. 37053). We subsequently met with EPA officials to recommend interpretations of the Final Rule that would address the remaining concerns and were successful in getting agreement to certain interpretations satisfactory to our client.