On April 27th 2011 U.S. EPA and the U.S. Army Corps of Engineers released draft guidance on expanding the scope of the Clean Water Act. The guidance, now in effect, will be used for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. The public comment period was open from May 2-July 1 2011. The proposal prompted 300,000 comments the majority of which were organized by environmental groups and are supportive; however wastewater compliance community also had many concerns. However, the comments were really immaterial because the EPA is not required to address public concerns to guidance documents and no changes contemplated or made to the draft and the guidelines are now final.
The Clean Water Act (CWA) of 1972 makes it a crime to discharge pollutants into the "navigable waters of the United States." However, what constitutes a "pollutant" or "navigable water" has been open to interpretation and a series of guidance documents over the years have expanded the definition of “navigable waters of the United States” until it is now defined by the US EPA and the Army Corps of Engineers as:
Traditional navigable waters
Tributaries to navigable waters and interstate waters
Seasonal tributaries, steams or creeks
Wetlands adjacent to any of the above
And finally, the other category that seems to include everything but swimming pools, fountains, irrigation ditches and ponds or stock watering systems.
The Guidance broadened a recent Supreme Court decision that created a “significant nexus” standard for wetlands to include all tributaries and isolated water and allow functions of waters to demonstrate a “significant nexus” exists. The list of functions is extremely broad and the Guidance allows for decisions to be based on general scientific literature describing functions that generally apply to the types of waters in question, in lieu of actual case-specific analysis of the water itself. Essentially, this guidance creates federal jurisdiction over everything but swimming pools, fountains, irrigation and stock watering ditches and ponds that would revert to dry upland. Guidance places us all within the whim of regulators, and we all may find ourselves in the position of Chantell and Michael Sackett.
In 2005 the Sacketts purchased less than an acre of land to build a home near to but not adjoining a lake. After obtaining building permits from the county, they began the building process by spreading fill material over the lot. Two people from the U.S. EPA and one person from the Army Corps of Engineers appeared and issued the Sacketts an “Administrative Compliance Order” (ACO), alleging the land was a wetland subject to the Clean Water Act jurisdiction and ordered the Sacketts to restore the land to its original condition or face nearly $50,000 in fines per day. The Sackett family appealed for a hearing believing that their land was not a wetland, but was denied by EPA and the federal court.
In addition under an agreement between the U.S. EPA and the Army Corps of Engineers the Sacketts could not obtain a permit (even if they wanted to) until the open enforcement action was concluded. The site must be restored to its previous condition to apply to the Army Corps of Engineers for a permit to place fill material on a wetland. However, under the new guidance the EPA and Army Corps of Engineers can determine a site is a wetland subject to the Clean Water Act based on “general scientific literature,” in lieu of actual case-specific analysis of the water itself.
The case is scheduled to be heard by the U.S. Supreme Court in January 2012. The Supreme Court will consider whether the Sacketts may seek pre-enforcement judicial review of ACOs and whether petitioners’ current inability to seek pre-enforcement judicial review of the ACO violates their rights under the Due Process Clause of the U.S. Constitution. The regulations, procedures, and guidance on judicial review of Administrative Compliance Orders were created before the federal regulations and power were expanded by the 2011 Guidance to include any conceivable naturally occurring water.
The National Cattlemen’s Beef Association (NCBA) and the Public Lands Council (PLC) recently filed an amicus (friend of the court) brief to the U.S. Supreme Court in the Sackett case because according to NCBA Deputy Environmental Counsel Ashley Lyon, this case could have far-reaching impacts on farmers and ranchers and all private landowners. Few of us can afford the legal resources to address an EPA enforcement action, or afford to restore properties to apply for a Clean Water Act permit if our property is deemed to be subject to the Clean Water Act under the guidance. The guidance is open to inconsistent interpretation and could be used unfairly. There is no provision to obtain a decision that land is not subject to Clean Water Act before an ACO or enforcement action by the EPA. There are no objective standards to determine which waters fall under the act. There should be standards like distance, hydrologic connection, flow connection, size of watershed and storm impact that can be measured and considered in a consistent and quantified way so that a determination could be easily made and reviewed. The EPA Guidance has divorced the law from fact and this must be restored.