Restoring Existing Regulation of Waters of the United States

Forest landowners are urging Congress to restore reasonable boundaries to U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) jurisdiction over Waters of the U.S. (WOTUS) on private forest lands.

The Clean Water Act (CWA) regulates the water quality of, and pollution discharges to, Waters of the United States WOTUS. Identifying a WOTUS invokes permit requirements, water quality standards, and, potentially, Total Maximum Daily Loads (TMDLs). All of these are costly to develop, administer and apply, and are subject to enforcement through citizen lawsuits. Over the years, EPA and the Corps have attempted to define WOTUS in regulations and guidance.

In two decisions (SWANCC (2001) and Rapanos (2006)), the U.S. Supreme Court rejected the agencies’ expansive WOTUS interpretation but was unable to provide clear and precise criteria beyond the requirement for a “significant nexus” to identify the subset of waters subject to the CWA. EPA and the Corps, after alleging that the definition of WOTUS had become hopelessly confused, published a proposed rule on April 2014 and a final rule on June 29 2015 that significantly expands what constitutes a WOTUS. The rule went into effect August 28.

Several lawsuits have now challenged the WOTUS rule. NAFO, along with thirteen other multi-industry groups, filed one of the lawsuits on July 2, 2015, in the U.S. District Court for the Southern District of Texas against the EPA and Corps The lawsuit asserts that the final regulations are inconsistent with the Clean Water Act and exceed the agencies’ authority under the Constitution to regulate interstate commerce, that EPA and the Corp failed to provide adequate economic analysis, that the agencies failed to provide adequate opportunity for the public to comment prior to adopting changes in the final rule, and that the agencies engaged in unlawful public advocacy for the rule.

As of October 15, fifteen lawsuits have been filed in eleven different district courts – five by states representing 31 states in all, seven by industry groups, and three by environmental groups. The government asked that they all be consolidated in one court. The Multi-District Panel denied the government’s motion on October 13.

Current Status

  • The U.S. Court of Appeals for the Sixth Circuit suspended the effectiveness of the rule nationwide on October 9 until it decides whether to retain jurisdiction over the challenges to the rule.
  • The Sixth Circuit has established a briefing schedule ending November 4 for motions to dismiss for lack of jurisdiction while the 11th Circuit set a briefing schedule ending September 30 on the same issue.
  • The Multi-District Panel denied the government’s motion to consolidate all the district court cases before a single court on October 13.

The rule expands WOTUS jurisdiction well beyond the prior regulations.

  • The rule expands the list of water features categorically subject to regulation under the CWA, including:
    • man-made ditches and ephemeral and intermittent streams, based on “physical indicators” of bed and banks and high water marks; and
    • all “adjacent” waters within a specified distance from another categorical water.
  • The rule authorizes the use of notoriously unreliable modeling programs to identify WOTUS without physical verification.
  • The rule excludes some man-made ditches with less than permanent flow based on factors open to inconsistent application.
  • The proposed rule also includes a variety of “other waters" as WOTUS if they have a broadly-defined "significant nexus" to categorical waters on a case-specific basis.

The expansion increases regulatory burdens and uncertainty.

  • The expanded list of WOTUS increases legal uncertainty and costly administrative burdens as states are required to determine the location and scope of quality standards, TMDLs and mandatory permits.
  • The expanded definition will create considerable uncertainty over where mandatory Best Management Practices (BMPs) for certain forestry activities will apply. For example, expanding a WOTUS designation to an entire floodplain will create significant uncertainty regarding the extent of mandatory BMP applications for wetlands, particularly in areas where mandatory BMPs are unnecessary.
  • The rule’s expanded regulatory reach will impose new economic burdens and legal uncertainty on forestry operations with little to no environmental benefit.
  • The expanded definition will increase the reach of certain permit requirements, such as the use of herbicides in forest management into or over a WOTUS.

The expansion increases litigation exposure.

  • The expansion of WOTUS invites citizen lawsuits by categorically including water features that were previously considered individually for inclusion as WOTUS.
  • The expansion also invites litigation over the ambiguities of how far the expansion extends and how it applies to forestry operations.
  • Citizen lawsuits can be costly and disruptive to forestry operations, and can create significant and prolonged economic uncertainty.

The expansion threatens the loss of forestland.

  • Added administrative burdens and legal uncertainties associated with the expansion can drive down forestland values and hasten forest conversion to other uses.
  • Forest retention and expansion is an important tool for preserving water quality. By increasing pressure on forest conversion, the proposed expansion could ultimately reduce water quality protections in forested areas.