This material originally appeared in INSIDE EPA, October, 16, 2002

INSIDE EPA ARTICLE: ACTIVISTS FACE HIGH HURDLES IN FORCING EPA TO WITHDRAW WETLANDS GUIDE

Date: September 24, 2004 - Environmentalists could face an uphill battle in forcing the Bush administration to withdraw a controversial guidance that activists say narrowly interprets what waters are subject to federal regulation, despite arguments in a recent EPA legal filing that support a broad definition of waters protected under the Clean Water Act (CWA).

The activists say EPA’s Sept. 15 brief in oil industry litigation over the agency’s oil spill prevention rule makes the case for broader protection of waters under the CWA than specified in the guidance the agency and the U.S. Army Corps of Engineers have been using since January 2003 to determine their CWA jurisdiction over wetlands.

However, environmentalists say it could be difficult to use the EPA brief to challenge the guidance on its face because it will likely be difficult to prove the agencies are using it to decline jurisdiction. “It may be somewhat difficult to prove that the guidance is the determining factor,” one environmentalist says. “Unless they have a memo in a file, it won’t be a clear case.”

But environmentalists say EPA’s brief will likely be helpful in challenging the guidance on a case-by-case basis because the brief strengthens their argument that the guidance is inconsistent with the

CWA. One environmentalist says groups could raise the facts presented in EPA’s brief in a recently filed notice to sue over the Corps’ failure to regulate wetlands affected by a Tennessee airport expansion project.

The source says this case, and potential future challenges to Corps’ decisions not to regulate wetlands, could collectively show the flaws in the guidance and reaffirm federal appellate court rulings that say EPA and the Corps have broad jurisdiction over isolated waters.

“It if becomes apparent case by case that the guidance has no real relevance to what is required by law, it de facto makes it obsolete,” the source says. “EPA would have to shelve it and come up with something better.”

The issue over the appropriate level of CWA protection for isolated waterbodies with remote connections to navigable waters has been significant since the Supreme Court’s 2001 ruling in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. The high court ruled in SWANCC that EPA and the Corps could not cite the presence of migratory birds to regulate otherwise isolated waters.

The outcome of the oil spill rule case could have broad implications for EPA’s CWA jurisdiction because the definition of protected waters in the spill prevention rule is identical to definitions contained in other major CWA rules, including those governing wetlands and clean water permits.

Specifically, EPA argues in its brief in American Petroleum Institute,

et al. v. Leavitt that isolated, or “interstate, non-navigable” waters with very remote connections to navigable waters, are protected under the CWA. “Courts have long held the definition of ‘navigable waters’ under the CWA encompasses a range of non-navigable waters,” EPA says in the brief. “The Supreme Court’s . . . decision in SWANCC did not change this conclusion.” Relevant documents are available on InsideEPA.com.

The environmentalists say this definition of protected waters sharply contrasts with what EPA and the Corps deem as jurisdictional in the 2003 guidance. The guidance instructs Corps field offices to consult with Corps headquarters before asserting jurisdiction over any isolated waters.

“In view of the uncertainties after SWANCC concerning jurisdiction over isolated waters that are both interstate and non-navigable . . . field staff should seek formal project-specific headquarters approval prior to asserting jurisdiction over such waters, including permitting and enforcement actions,” the guidance says.

Environmentalists say Corps field offices have been using the 2003 guidance to decline jurisdiction over many acres of wetlands that should be protected. The environmental groups Earthjustice, Natural Resources Defense Council, National Wildlife Federation (NWF) and Sierra Club published a report in August that describes 15 cases where the groups say the Corps has used the guidance to decline CWA protection. (Note: As reported in last month’s issue of Wetland Breaking News the report is available at www.sierraclub.org/cleanwater (click on New Feature "The Reckless Abandon Report"). http://www.nwf.org/news/story.cfm?pageId=5393C03D%2DBF20%2D5544%2D5FC7257CF19D184A

Since the SWANCC decision, there has been great uncertainty about which isolated waters still qualify for federal protection. A number of federal appellate courts have attempted to clarify the issue through rulings in cases that involve whether virtually isolated waterbodies -- such as ditches located miles from navigable waters -- qualify for protection. Appeals courts in the 4th, 6th, 7th and 9th circuits have generally concurred that such waters are jurisdictional, with only the 5th Circuit adopting a more narrow view of protection.

Environmentalists say EPA’s brief in the oil spill rule case, coupled with the appellate court decisions, make it clear that the agency and the Corps must regulate isolated waters with only remote connections to navigable waters.

At issue in the oil spill rule case is the definition of which waters should be subject to EPA’s 2002 oil spill prevention, control and countermeasure (SPCC) rule. EPA says in its brief that the waters protected under that rule are the same as those protected by any other CWA regulations -- such as those governing National Pollutant Discharge Elimination System and wetlands permitting programs. EPA also argues in favor of broad protection, citing the recent appellate court decisions as evidence of expansive jurisdictional authority over waterbodies with remote connections to navigable waters.

EPA’s filing responds to a brief the oil groups filed in June arguing that the SPCC rule should protect fewer waterbodies than other CWA regulations because Congress included a narrower definition of navigable waters when writing the original SPCC regulations in 1973. The companies say the original definition excluded waters that were not “navigable-in-fact,” as well as those that lacked adjacency or another “significant nexus” to navigable waters.

EPA’s SPCC rule requires facilities that produce, store, transport and distribute oil to take precautions against oil spills into protected waters and other areas, as well as develop plans for addressing potential accidents. In drafting the 2002 rule, EPA broadened the definition of protected waters from an earlier version to mirror other CWA programs.

The litigation over the scope of protected waters is the only unresolved issue in the SPCC rule following EPA’s settlement with industry earlier this year that clarified several other provisions. EPA last year delayed compliance with the rule until 2005 to address provisions industry called confusing and burdensome. -- Natalie Baughman

Source: Inside EPA via InsideEPA.com

Date: September 24, 2004

Issue: Vol. 25, No. 39

INSIDEEPA-25-39-16