Intermittent Tribulations (Turbulent ‘Waters of the U.S.’)
Benjamin H. Grumbles

Wetlands, streams and the politics surrounding them are once again front page and center stage, as federal agencies and national groups strive to find greater certainty, effectiveness and fairness under the Clean Water Act (CWA), since the Supreme Court muddied the waters in 2001 and 2006.

On March 25, 2014, the Obama Administration took the important step of proposing a formal rulemaking—and issuing a separate interpretive rule—to clarify CWA jurisdiction over some of the most controversial aspects left in the wake of Supreme Court wrangling over navigable waters and not-so-navigable tributaries and wetlands. 

Classification Confusion

What is at issue, and not at issue, these days? No one disputes that the CWA covers traditionally navigable waters and their tributaries. If the tributary waters are perennial or even intermittent, i.e., seasonally flowing, to the extent of being “relatively permanent,” that is good enough. If you can float a boat (or a legal opinion, as lawyers joke) or could in the past or in the future through “reasonable improvement,” or if the waterway is subject to the ebb and flow of the tide, it generally is in CWA jurisdiction. If a wetland is adjacent to one of those waters, it is “in” too. It is not in if it is isolated to such an extent that the U.S. Environmental Protection Agency (EPA) or Army Corps could have only asserted jurisdiction based solely on the presence of migratory birds (the 2001 SWANCC v. Army Corps of Engineers case). It also was established that groundwater and upland ditches are not covered.

The rub comes in determining “tributariness”—whether some periodic and low-flow streams, creeks, washes and ditches amount to being tributaries, and also determining “connectivity” within a watershed so that certain wetlands have enough of a relationship—a “significant nexus”—with jurisdictional waters to be included themselves. In the 2006 Rapanos v. United States case, as Justice Anthony Kennedy put it: Does the wetland “either alone or in combination with similarly situated lands in the region significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable?” Some fear this can lead to a slippery slope where just about any headwater trickle can be regulated by “aggregating” all waters, no matter how trivial or isolated, and essentially arguing that no water or wetland is isolated but connected holistically—fighting words to some, no doubt. 

So, if you want to impress your friends who are not steeped in “waters of the U.S.” law and policy, you can tell them that most of the mud wrestling is over the ephemeral (or rain-dependent) tribulets (my word, not Webster’s or EPA’s) and over wetlands that are not directly adjacent to navigable waters, but somehow have a sufficient nexus looking at the hydrology and biology, among other things.

Potential Impact

What is at stake? According to EPA, 60% of America’s streams are intermittent or ephemeral, adding up to 2 million stream miles. Ninety-four percent of Arizona’s and 88% of New Mexico’s stream miles fall into those categories as well. One hundred and seventeen million Americans get their drinking water from public water systems that depend in part on these ephemeral and intermittent streams. CWA protections will help people, plants and wildlife.

The proposed EPA and Army Corps regulation would include tributaries and adjacent wetlands automatically by rule. It also would impose a case-by-case significant nexus determination for “other waters” that are not so clearly jurisdictional. 

EPA and Army Corps also surprised some by issuing at the same time and in close coordination with USDA’s Natural Resources Conservation Service an “Interpretive Rule” on permitting exemptions involving farming under section 404(f) of the CWA. The rule went into effect immediately but was subject to public comment afterward, and undoubtedly will be subject to revision in the coming months. It is essentially the agencies interpreting their existing rules and practices under the CWA, without creating new duties or liabilities, and giving greater detail on the types of agricultural conservation practices—in this case 56 of them—that do not trigger permitting requirements. The problem, though, is that many in agriculture are seeing the glass half empty while the agencies see it half full: They fear that many other practices, not explicitly listed, now will be subject to potential permitting or other burdensome procedures. 

This “packaging” with the controversial regulatory proposal clearly was meant to soften harsh criticism in the agricultural sector and allay fears of new regulation, and there is nothing wrong with that. Congress itself did it to reach a broad and functioning compromise back in 1977 when it reauthorized the CWA. To win over many in agriculture, who had wanted but did not get a reduction in EPA’s and Army Corps’ jurisdiction over waters and wetlands, Congress included qualified exemptions from permitting for “normal farming, ranching and silviculture”—the so-called 404(f) exemptions, which are the focus of the 2014 Interpretive Rule. 

Because Congress is not likely or able to clarify and improve the CWA any time soon, the next best thing is for the federal agencies to issue a rule through a formal, inclusive, participatory process, and aim for greater certainty, effectiveness and “fairness.” That last goal is the toughest, as fairness is as subjective as beauty; it differs drastically, depending on whether the beholders’ eyes are those of property owners, environmental advocacy groups, businesses, local governments or regulators. Small waters often carry the hopes and dreams of civilizations and ecosystems so the periodic debates over big issues—such as, how small is too small and which level of government should regulate—are necessary to reach some blessed closure. Let the games begin, and may the strongest arguments on the field and in the stream win.