The Final Clean Water Rule and
Its Policy Considerations
LOWELL ROTHSCHILD
Senior Counsel
[email protected]
T: +1.512.494.3616 | T: +1.202.828.5817
M: +1.512.739.2352 | F: +1.800.404.3970
BRACEWELL & GIULIANI LLP
111 Congress Avenue, Suite 2300 | Austin, TX | 78701-4061
2000 K Street NW, Suite 500 | Washington, DC | 20006-1872
The Waters of the US Rule –
History
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Before 2001 – Migratory Bird Rule
SWANCC
2001 to 2006 – extension of the “tributary” approach
Rapanos
“Significant Nexus” and Perennial Waters
2007 and 2008 guidance
Proposed 2011 guidance
2014 Proposed Rule
The Waters of the US as Finalized
3 classes of waters – “Core Waters”
– Always significant nexus, so always jurisdictional
• Tributaries of core waters
• Adjacent areas, by distance
– Case-by-case significant nexus test
• 5 classes of waters that are always grouped
• Others, by distance, possibly grouped
Plus, Impoundments of all waters
Bed and Bank and OHWM
From American Farm Bureau (TN)
Case-by-Case Significant Nexus
water[s], including wetlands, [that] either alone or in
combination with other similarly situated waters in the
region (i.e., the watershed that drains to the nearest [core]
water. . . ) significantly affects the chemical, physical, or
biological integrity of a [core] water. . . For an effect to be
significant, it must be more than speculative or insubstantial.
“Similarly Situated”
Other waters, including wetlands, are similarly situated
when they function alike and are sufficiently close
together or sufficiently close to function together in
affecting downstream waters.
Significant Nexus Outcome
The agencies expect that where waters are
determined to be similarly situated in a single
point of entry watershed, such similarly situated
waters will often be found jurisdictional through
the case-specific analysis of significant nexus.
p. 37,094
(i.e., the “region” will not typically be a restricting factor)
“Similarly Situated”
Other waters, including wetlands, are similarly situated
when they function alike and are sufficiently close
together or sufficiently close to function together in
affecting downstream waters.
Significant Nexus Functions
Functions relevant to the significant nexus evaluation are:
• Sediment trapping
• Nutrient recycling,
• Pollutant trapping, transformation, filtering, and transport,
• Retention and attenuation of flood waters,
• Runoff storage,
• Contribution of flow,
• Export of organic matter,
• Export of food resources, and
• Provision of life cycle dependent aquatic habitat (such as foraging,
feeding, nesting, breeding, spawning, or use as a nursery area) for species
located in a core water
Functions in Practice
• The rule – “A water has a significant nexus when any single function
or combination of functions performed by the water, alone or
together with similarly situated waters in the region, contributes
significantly to the chemical, physical, or biological integrity of the
nearest [core] water.”
• see also, preamble, page 37,067 – ”The effect of an upstream water
can be significant even when a water, alone or in combination, is
providing a subset, or even just one, of the functions listed.”
• and preamble, page 37,068 – ”It is important to note, however, that
a water or wetland can provide just one function that may
significantly affect the chemical, physical or biological integrity of
the downstream water.”
Significant Nexus in Practice
• Identify the nearest traditionally navigable or
interstate water or the territorial sea.
• Identify what types of waters are “similarly situated.”
• Preliminarily locate these other waters
• Determine the size and function of these
photographically-identified similarly-situated waters
• Pay a contractor to prepare a comprehensive report
summarizing all of the above, probably with the
assistance of an attorney
Practical Impacts
• The range of automatically-jurisdictional
waters is quite broad
• Added to this is the range of waters most
likely to be jurisdictional
• Then, there are all the waters that are likely to
be jurisdictional after application of the
significant nexus test
Practical Impacts
The significant nexus test is applied case-by-case, requiring
• Identification of the nearest TNW, interstate water or
territorial sea.
• Identification of other potentially similarly situated waters,
most not be on the applicant’s property
• Determination of the size and function of these
photographically-identified, similarly-situated waters (and
confirmation they are actually similarly situated)
• Hiring a contractor (and lawyer?) to prepare a report
summarizing all of the above
This burden typically falls on the regulated entity, not the
agencies
Practical Impacts
The process of identifying nonjurisdictional waters
will still require:
• Negotiating with the Corps and then with EPA about
the scope of waters not subject to jurisdiction
• Arguably, no judicial review, but
• The possible defense of this determination from
third-party challenges by project opponents.
Practical Impacts
• There not is a great likelihood that going
through this process will result in the Agencies
identifying nonjurisdictional waters
• “The agencies expect that where waters are
determined to be similarly situated in a single
point of entry watershed, such similarly
situated waters will often be found
jurisdictional through the case-specific
analysis of significant nexus.”
Public Policy Questions
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Extent of Acceptable Costs
Degree of Administrative Deference
Acceptable Administrative Burden
Allowable Reduction in the Efficiency of Administration
Indirect (unintended, adverse) Effects
These burdens/questions apply to all forms of energy
Solar, wind, gas, crude, coal
And to all forms of transmission
electrical, pipeline, rail, road
Acceptable Costs
• Costs of Compliance
• Costs of Determining Applicability
Costs largely fall on the regulated entity, not the
agencies
Administrative Deference
• What is “navigable”? (Congressional term)
• What is a “significant nexus”? (Supreme Court
term)
• What is “adjacent”? (Regulatory term)
Acceptable Administrative Burden
• Costs of compliance and of determining
applicability
• When is the regulatory action appealable?
– Sackett
– Belle Company / Hawkes Co.
Reduction in Administrative Efficiency
• Fewer Nationwide Permits
• More Individual Permits
• Limited Funding
Fewer NWPs
• IPs currently constitute only about one in every
ten wetland authorizations issued by the Corps
and they take almost seven times longer to
process than NWPs.
• Thus, if the Corps had to process every wetland
permit individually, it would have approximately
seventy times as much permitting work as it
currently has.
Indirect Effects
• More Wetland Impacts?
• Less Wetland Enforcement?
Fewer NWPs
• “Another important benefit of the NWP program. . . is the incentive
for project proponents to design their projects so that those
activities meet the terms and conditions of an NWP.”
• “The Corps believes the NWPs have significantly reduced adverse
effects to the aquatic environment because most applicants modify
their projects to comply with the NWPs and avoid the delays and
costs typically associated with the individual permit process.”
• “If this NWP is not available, substantial additional resources would
be required for the Corps to evaluate these minor activities through
the individual permit process, and for the public and Federal, Tribal,
and state resource agencies to review and comment on the large
number of public notices for these activities.”
Corps NWP 29 decision document (2012)
The Public Policy “Hypothetical”
Always “Similarly Situated”
the agencies have identified by rule, five specific
types of waters in specific regions that science
demonstrates should be subject to a significant
nexus analysis and are considered similarly
situated by rule because they function alike and
are sufficiently close to function together in
affecting downstream waters
Always “Similarly Situated”
• Prairie potholes. A complex of glacially formed wetlands, usually
occurring in depressions that lack permanent natural outlets, located in
the upper Midwest.
• Carolina bays and Delmarva bays. Ponded, depressional wetlands
that occur along the Atlantic coastal plain.
• Pocosins. Evergreen shrub and tree dominated wetlands found
predominantly along the Central Atlantic coastal plain.
• Western vernal pools. Seasonal wetlands located in parts of California
and associated with topographic depression, soils with poor drainage,
mild, wet winters and hot, dry summers.
• Texas coastal prairie wetlands. Freshwater wetlands that occur as a
mosaic of depressions, ridges, intermound flats, and mima mound
wetlands located along the Texas Gulf Coast.
TX Coastal Prairie Wetlands
Along the Gulf of Mexico from western Louisiana to
south Texas, freshwater wetlands occur as a mosaic of
depressions, ridges, intermound flats, and mima
mounds. . . The term Texas coastal prairie wetlands is
not used uniformly in the scientific literature but
encompasses Texas prairie pothole (freshwater
depressional wetlands) and marsh wetlands that are
described in some studies that occur on the Lissie and
Beaumont Geological Formations, and the Ingleside
Sand.
TX Coastal Prairie Wetlands
Source: USGS
The Final Clean Water Rule and
Its Policy Considerations
LOWELL ROTHSCHILD
Senior Counsel
[email protected]
T: +1.512.494.3616 | T: +1.202.828.5817
M: +1.512.739.2352 | F: +1.800.404.3970
BRACEWELL & GIULIANI LLP
111 Congress Avenue, Suite 2300 | Austin, TX | 78701-4061
2000 K Street NW, Suite 500 | Washington, DC | 20006-1872