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Bar News - September 16, 2015


Environmental, Telecomm, Utilities & Energy Law: Cleaning the Muddy Waters by Clarifying ‘Water’

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The Environmental Protection Agency (EPA) and Army Corps of Engineers in May published a final rule clarifying the Clean Water Act’s definition of “waters of the United States,” including clearer definition of “tributary” and “adjacent” and describing certain situations where sufficient “connections” create a “water of the United States.” In doing so, they turned to existing law, science, and public input to construct a controversial new rule.

The new Clean Water Act rule was scheduled to go into effect Aug. 28, but on Aug. 27, North Dakota US District Court Judge Ralph Erickson issued a temporary injunction.

The case, brought by 13 states, alleges the EPA exceeded its authority in issuing the rule and that the EPA “failed to comply with APA [Administrative Procedures Act] requirements when promulgating the Rule.” Although noting that he was hampered in his review “because of a lack of access to the complete administrative record,” Erickson’s review of internal memoranda and other technical documents found that they revealed “a process that is inexplicable, arbitrary, and devoid of a reasoned process.” In his ruling, Erickson found that the “risk of irreparable harm to the States is both imminent and likely.”

The ruling appears to temporarily stop the changes to the Clean Water Act from taking effect only in the 13 states that were part of the suit, so the ruling should not impact New Hampshire.

The rule as initially written clarifies which waters are and are not “waters of the United States.” This phrase is important because whether something is a “water of the United States” determines whether the government has the authority to require a permit. If, as a result of the new rule, a water becomes a “water of the United States,” it means that certain activities in and around that water will require a permit. The rule does not change which types of activities require permits. For instance, certain agricultural activities have always been – and continue to be – exempt from the permitting requirements. The rule also does not change how landowners may use their property or what rights they have to their property.

Each state differs on who is charged with ensuring its waters stay clean. In some states, an agency of the state has assumed the responsibility of managing the Clean Water Act (CWA) permitting program; in others, the EPA and the Army Corps determine which projects require and receive permits.

In New Hampshire, the EPA manages the CWA’s National Pollutant Discharge Elimination System permit program (often referred to as NPDES permits) for projects that will add pollutants to “waters of the United States.” The Army Corps manages the permitting program for projects that will include such activities as dredging and filling waters and bank stabilization. To avoid duplication between the federal and New Hampshire’s permitting requirements, the corps created a programmatic general permit. New Hampshire’s Department of Environmental Services (DES) has the authority to issue this permit to minimal, non-controversial projects. The corps reviews larger projects before they receive a permit.

Before the EPA, Army Corps, or DES may issue any CWA permits, the permit applicant must receive a Water Quality Certification from DES, certifying that the project will not violate New Hampshire’s water quality standards, which apply to “surface waters” as defined by New Hampshire law and “waters of the United States” as defined by the new rule.

The new rule will not affect these relationships or the authority of the EPA, Army Corps, and DES to require and issue permits. The new rule will also not change the CWA’s requirement for permits for certain activities affecting traditional navigable waters, interstate waters, the territorial seas, and impoundments of these waters.

Prior to the new rule, the CWA extended to tributaries or adjacent wetlands. However, following three United States Supreme Court cases, questions arose over what constitutes a “tributary” or “adjacent” wetland, which the rule seeks to clarify.

The new rule more clearly defines “tributary” and “adjacent,” and specifies that they too are “waters of the United States.” The new rule indicates that certain types of waters, such as prairie potholes or waters within the 100-year floodplain, will be “waters of the United States” in certain circumstances. The permitting agency will look at these waters on a case-by-case basis to determine whether they serve such functions as preventing sediment or pollutants from entering a “water of the United States” or provide habitat for a species that lives in such a water.

Lastly, the new rule excludes such features as prior converted cropland, puddles, artificial swimming pools, and certain ditches from being subject to the CWA permitting requirements.

Overall, the EPA describes the goal of the rule as ensuring “that waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand.” Larger water bodies will continue to receive the same protection, and protecting smaller waters, such as streams or wetlands, should become simplified.


Amy Manzelli

Alexis Peters and Amy Manzelli co-authored this article while Alexis interned at BCM Environmental & Land Law in Concord. Amy is a member and part-owner of BCM. She practices environmental, conservation, and land law across New Hampshire. Alexis is a third-year law student in Vermont Law School.

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