Do you know whether your property or business is subject to the Federal Clean Water Act ?
By Michael K . Reer
On June 27 , 2017 , the U . S . Environmental
Protection Agency and the U . S . Army Corps of Engineers published a proposed rule in the Federal Register that would amend the scope of the agencies ’ claimed jurisdiction under the Clean Water Act . The Clean Water Act prohibits the discharge of any pollutant , dredge , or fill material into “ waters of the United States .” Although the Clean Water Act does not define “ waters of the United States ” – the agencies have historically promulgated definitions of the phrase in order to clarify which waters are regulated under the Act .
The proposed rule announces a two-step process for reviewing and revising the definition . First , the agencies have proposed to rescind the controversial 2015 definition of “ waters of the U . S .” and to recodify the pre-2015 definition . Many industry and trade associations view the 2015 definition as impermissibly expanding the scope of the Clean Water Act regulations beyond that allowed by the statute . For example , under the 2015 definition , prairie potholes , western vernal pools , and Texas coastal prairie wetlands are considered jurisdictional .
Second , the agencies announced that they will conduct a substantive re-evaluation of the definition , considering the principles outlined by Justice Scalia in the Rapanos plurality opinion . Rapanos is widely considered one of the most significant cases in Clean Water Act jurisprudence . In a plurality opinion , Justice Scalia opined that the agencies have historically extended the prohibitions of the Clean Water Act to waters that are not , in fact , jurisdictional .
Instead , Justice Scalia would have limited the scope of the Act to only relatively permanent , standing , or continuously flowing bodies of water forming streams , oceans , rivers , and lakes . The principles outlined by Justice Scalia in Rapanos would specifically exclude intermittent and ephemeral streams , which are at times considered jurisdictional under both the pre- and post-2015 definitions . Intermittent and ephemeral streams may have water flow during certain times of the year or after rainfall but do not have consistent flow . Moreover , Justice Scalia would only consider wetlands jurisdictional if there is no “ clear demarcation ” between the wetlands and waters that are otherwise jurisdictional .
Given the significant criminal and civil penalties associated with even inadvertent discharges to jurisdictional waters , EPA and ACE encourage builders and construction companies to carefully consider whether any jurisdictional waters might be present before breaking ground on a new project . In some instances , the Fort Worth District of ACE may be willing to provide a “ jurisdictional determination ” to assist a project proponent in determining whether jurisdictional waters are present . ACE also maintains a jurisdictional determinations database which , although incomplete , contains many jurisdictional determinations previously issued by the agency . Landowners or project proponents can use the database to view previous jurisdictional determinations on an interactive map to determine whether EPA or ACE have asserted jurisdiction over any nearby waters .
This article is for informational purposes only and not for the purpose of providing legal advice . You should contact an attorney to obtain advice with respect to any particular issue .
Michael K . Reer is an associate with Harris , Finley & Bogle , P . C . and is licensed to practice in Texas and Pennsylvania . He can be reached at mreer @ hfblaw . com or at 817-870-8741 .
SEPTEMBER 2017 PARKER COUNTY TODAY
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