Waters of the United States' and the Agricultural Production Sector: Sweeping Change or More of the Same?

Date01 September 2016
Author
9-2016 NEWS & ANALYSIS 46 ELR 10743
A R T I C L E S
“Waters of the
United States”
and the
Agricultural
Production
Sector: Sweeping
Change or More
of the Same?
by Emily Taylor
Emily Taylor holds a 2016 J.D., Vanderbilt Law
School. She will be starting as an Associate in the
Environmental Practice Group at Porter Wright Morris
& Arthur LLP in Columbus, Ohio, this fall.
Summary
EPA and the Corps’ promulgation of a new deni-
tion of “waters of the United States” under the CWA
has prompted a erce rhetorical and legal debate. EPA
maintains that the agencies’ jurisdiction may actually
be limited by the new denition, while agricultural
organizations maintain that jurisdiction is increased
in violation of the agencies’ statutory authority. While
heavily engaged in public dialogue, neither side has
attempted to oer a systematic legal analysis compar-
ing the scope of jurisdiction under the preexisting rule
to its scope under the nal rule. is A rticle engages
in such an analysis and ultimately shows that the agen-
cies’ jurisdiction under the new denition is, if at all
changed, more limited than under the preexisting rule.
Americans may now be at peak awareness of the
importance and vulnerability of our nation’s water
resources. e recent crisis in Flint, Michigan,
illustrates just how central clean water is to the viability of
a community. A n entire city’s water supply was contami-
nated with lead from corroded pipes, with lead levels mea-
sured at above ve parts per billion in some areas, posing
an especially high health risk to children.1 President Barack
Obama’s declaration of a federal emergency in Flint high-
lights how vital it is to ensure access to safe drinking water.2
Additionally, the ongoing water shortage in the western
states illustrates how important it is to have access to water
for a gricultural use as the key ingredient in the produc-
tion of safe food. For exa mple, farmers in California, “the
nation’s biggest agricultural engine,” have suered signi-
cantly as a result of the ongoing drought.3 Just a few of the
problems their inability to access water ha s caused include
“farm layos, restrictions on residential and agricultural
water use, and hard times for all manner of ancillar y busi-
nesses, like tractor dealerships and roadside diners.4 Farm-
ers and California state decisionmakers agree that “keeping
California’s agricultural land in production depends on
xing its growing water problems.”5
Both of these stories illustrate a nationwide need to
address how water resources should be protected. Both
environmental groups and agricultura l communities obvi-
ously agree water is central to the nation’s well-being,
and both desire to preserve our nation’s waters to ensure
access to safe drinking water and food production.6 eir
1. See Jeremy C.F. Lin, e Reach of Lead in Flint’s Water Supply, N.Y. T
(Jan. 15, 2016), http://www.nytimes.com/interactive/2016/01/15/us/int-
lead-water-michigan.html.
2. See Associated Press,        -
taminated Water, N.Y. T (Jan. 16, 2016), http://www.nytimes.
com/2016/01/17/u s/federal-emergen cy-is-declared-in- int-over-contam-
inated-water.html?_r=0.
3. See Jesse McKinley, , N.Y.
T (Oct. 8, 2008), http://www.nytimes.com/2008/10/09/us/09water.
html.
4. Id.
5. Justin Gillis, California Wants to Store Water for Farmers, but Struggles
    , N.Y. T (Dec. 21, 2015), http://www.nytimes.
com/2015/12/22/science/californi a-wants-to-store-water-for-farmers-b ut-
struggles-over-how-to-do-it.html.
6. See U.S. Envtl. Prot. Agency (EPA), Statements on the Clean Water Rule,
1, https://www.epa.gov/sites/production/les/2015-05/documents/state-
ments_clean_water_rule.pdf (last visited Mar. 27, 2016). (is resource
quotes Prairie Fruits and Creamery co-owner Wes Jarrell from May 27,
2015. “Nobody appreciates the value of clean, abundant water more than
a farmer[.] Clean water is absolutely essential to the success of our busi-
ness. is rule levels the playing eld so that responsible land managers are
not competing with irresponsible managers.”). See also Robert Daguillard,
U.S. EPA, 
    (2015), http://yosemite.epa.gov/opa/
    
the amazing support and guidance he provided in the writing of
this Article. e author can be reached for questions or comment at
emrtaylo19@gmail.com.
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
46 ELR 10744 ENVIRONMENTAL LAW REPORTER 9-2016
views dier, however, on just how to protect these water
resources, including wetlands, in order to keep them clean
and safe, while not inhibiting the agricultural community’s
ability to use them in its very important task of providing
the nation with its food supply.7
e U.S. Environmental Protection Agency (EPA) and
the U.S. A rmy Corps of Engineers’ (the Corps’) recent
promulgation of a new denition of “waters of the United
States” under their Clean Water Act (CWA)8 authority
has brought to a head the debate over just how this bal-
ance should be struck. While the agencies maintain that
the rule protects water resources, the agricultural produc-
tion sector strongly opposes the rule, claiming the agen-
cies have exceeded their statutory authority in t heir eorts
to make these regulatory amendments.9 e Clean Water
Rule10 is of particular importance to the agricultural sec-
tor, which has voiced the loudest and most ardent criticism
of t he changes that the nal rule makes to the preexist-
ing regulations. Its representatives a rgue that the agencies’
jurisdiction to regulate waters used in agricultura l produc-
tion may have increased through changes to the denition
of “waters of the United States.” If t he agencies’ jurisdic-
tion was increased in the nal rule, agricultural production
actors c ould be subject to more permitting requirements
and operational limitations if waters on their lands or used
in their operations are deemed jurisdictional under the
new denition.11
e specic problem this Article addresses is the lack of
systematic legal analysis of the changes the nal ru le does
or does not make to the scope of the agencies’ jurisdiction
under the CWA. EPA maintains in its public statements, as
well as throughout the text of the nal rule, that the scope
of the agencies’ jurisdiction may actually be limited by the
new denition of “waters of the United States,” while agri-
cultural organizations such as the American Farm Bureau
admpress.nsf/0/62295CDDD6C6B45685257E52004FAC97 (“Clean and
reliable water is an economic driver, including for manufacturing, farming,
tourism, recreation, and energy production.”).
7. See Daguillard, supra note 6. EPA maintains that
[t]he rule protec ts clean water necessary for farming, ranching,
and forestry and provides greater clarity and certainty to fa rm-
ers about covera ge of the Clean Water Act. Farms across America
depend on clean and reliable water for lives tock, crops, and irriga-
tion. e nal rule speci cally recognizes the vital role that U.S.
agriculture s erves in providi ng food, fuel, and ber at home and
around the world.
American Farm Bureau Fed’n, It’s Time to Ditch the Rule, http://di tchthe-
rule.fb.org/custom_page/its-time- to-ditch-the-rule/ (last visited Mar. 27,
2016) [hereinafter Farm Bureau, Time] (“However, EPA’s ‘clarication’ is
also a broad expansion of the types of wate rs and lands that would be
subject to federal permit requirements a nd limits on farming practices and
other land-uses.”).
8. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.
9. See Daguillard, supra note 6; Farm Bureau, Time, supra note 7.
10. Clean Water Rule: Denition of “Waters of the United States,” 80 Fed. Reg.
37054 (June 29, 2015) (to be codied at 33 C.F.R. pt. 328 and 40 C.F.R.
pts. 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401).
11. See Timothy Cama,        ,
T H (Apr. 22, 2014, 5:14 PM), http://thehill.com/policy/energy-
environment/204096-farm-bureau-pledges-to-ght-epas-water-rule (“e
American Farm Bureau Federation has promised to ght the Environmental
Protection Agency (EPA) through multiple avenues on its proposed new
denition of which bodies of water are under its jurisdiction, saying the rule
could ‘impose unworkable regulations on the nation’s farms.’”).
Federation (Farm Bureau) maintain that jurisdiction is
increased in violation of the agencies’ statutory authority.12
Neither side of the conversation has attempted to oer a
systematic legal a nalysis comparing t he scope of the agen-
cies’ jurisdiction under the preexisting rule to its scope
under the nal rule. In fact, the rule has generated so much
public dialogue that the conversation seems to have all but
buried its legal underpinnings.
is Article engages in such a systematic lega l analysis,
and ultimately shows that the agencies’ jurisdiction under
the new denition of “waters of the United States” is, if at
all changed, more limited than under the preexisting rule.
e changes made in the nal rule seem to have been moti-
vated not by concerns over jurisdictional scope, but rather
by other concerns related to jurisdictional determinations
themselves, mostly the complexity and unpredictability of
the preexisting rule’s application, especially as related to
the extremely high number of case-specic determinations
made each year by various court s and agency authorities.13
In the nal ru le itself, the most repeated justication for
the changes is the intent to achieve greater “clarity” with
respect to the bounds of jurisdiction, and the structure of
the new denition reects that aspiration with new, very
specic categories of what waters are and are not jurisdic-
tional by rule, and which waters can and cannot be subject
to case-specic determinations at all.14
is Article will periodically return to the very impor-
tant idea, largely absent in the public dialogue, that just
because the nal ru le more clearly identies which waters
are jurisdictional as “waters of the United States” than was
12. See Daguillard, supra note 6 (“e rule signicantly limits the use of case-
specic analysis by creating cla rity and certainty on protected wa ters and
limiting the number of similarly situated water features.”); U.S. EPA,
   , 1, http: //www2.epa.gov/cleanwaterrule/
clean-water-rule-factsheets (“e rule limits protection to ditches that are
constructed out of streams or function like streams and can carry pollution
downstream. So ditches that are not cons tructed in streams and that ow
only wh en it rains are not covered.”); Farm Bureau, Time, supra note 7
(talking about “the agencies’ attempt to expand their control over farmers’
and other landowners’ use of their land,” and claiming “EPA’s ‘clarication’
is also a broad expa nsion of the types of waters and lands that would be
subject to federal permit requirements a nd limits on farming practices and
other land-uses.”).
13. See Denition of “Waters of the United States” Under the Clean Water Act,
79 Fed. Reg. 22188, 22191 (Apr. 21, 2014) (to be codied at 33 C.F.R. pt.
328 and 40 C.F.R. pts. 110, 112, 116, 117, 122, 230, 232, 300, 302, and
401):
e proposed rule will reduce documentation requirements and
the time currently required for making jurisdictional determina-
tions. It will provide needed clarity for regulators, stakeholders and
the regulated public for identifying waters as “waters of the United
States,” and reduce time and resource demanding case-specic
analyses prior to determining jurisdiction and any need for permit
or enforcement actions.
14. See Clean Water Rule, supra note 10:
e scope of jurisdiction in this rule is narrower than that under the
existing regulation. Fewer waters will be dened as “waters of the
United States” under the rule than under the existing regulations,
in part because the rule puts important qualiers on some exist-
ing categories of tributaries. In addition, the rule provides greater
clarity regarding which waters are subject to CWA jurisdiction, re-
ducing the instances in which permitting authorities, including the
states and tribes with authorized section 402 and 404 CWA permit-
ting programs, would need to make jurisdictional determinations
on a case-specic basis.
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
9-2016 NEWS & ANALYSIS 46 ELR 10745
done in the preexisting rule, it does not necessari ly mean
the scope of jurisdiction has increased. e Article arg ues
that under t he preexisting rule, the agencies already had
at least the scope of jurisdiction in the new rule, or per-
haps even greater, and that it is actually just the clarity with
which the rule newly denes that jurisdiction that has con-
tributed to concerns over increased jurisdiction.
e Ar ticle is organized in six parts. Par t I prov ides a
short overview of the relevant regulations i mplementing
the CWA that are aecte d by the new rule, as well a s an
overview of how “waters of the United St ates” has been
interpreted over time, including the three most re levant
U.S. Supreme Court decisions interpreting the preexist-
ing den ition.15
Part II introduces the proposed version of the rule,16 as
well as the react ions from both the agricultural sector and
the agencies. is part identies some of the most promi-
nent actors in the debate over the validity of the proposed
changes, as well as the specic objections and responses
given by both sides during the notice-and-comment period.
Part III discusses how the new denition of “waters of
the United States” determines if a water is jurisdictional
under the CWA.17 is section includes the changes incor-
porated into the nal rule based on comments the agencies
received during the notice-and-comment period from the
agricultural production sector.
Part IV illustrates the changes made to the preexisting
rule in the nal rule, and analyzes the signicance of those
changes as they relate to the scope of the agencies’ jurisdic-
tion. is part includes two distinct analyses to determine
whether the nal r ule has expanded the agencies’ jurisdic-
tion: by comparing the language of the preexisting rule
itself to that of the nal rule; and by comparing the three
existing Supreme Court interpretations of the preexisting
rule to the text of t he nal rule. In doing so, it addresses
both ways of asking whether the agencies have u nlawfully
expanded their jurisdiction: rst, whether the text of the
nal rule actually expanded the agencies’ jurisdiction at
all; and second, if there has been an expansion, whether it
exceeds the Supreme Court’s interpretation of the limits of
the agencies’ statutory authority.
Part V tests the conclusion that the changes made in
the nal rule do not expand the agencies’ jurisdiction. is
part assumes that a hypothetical, future administration
will attempt to apply the nal rule as aggressively as pos-
sible, and illustrates the limited eect such administrative
action could have on the agricultural production sector.
Special attention is paid to the idea that increa sed clarity
in the denition of the agencies’ jurisdictional boundaries
does not necessarily mean increased scope.
15. Rapanos v. United States, 547 U.S. 715, 36 ELR 20116 (2006); Solid Waste
Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 31
ELR 20382 (2001) (); United States v. Riverside Bayview Homes,
474 U.S. 121, 16 ELR 20086 (1985).
16. See Denition of “Waters of the United States” Under the Clean Water Act,
79 Fed. Reg. at 22188.
17. See Clean Water Rule: Denition of “Waters of the United States,” 80 Fed.
Reg. at 37054.
Part V I provides a summary of the nal rule’s current
legal status, as well as a short legal analysis of the likely fail-
ure of challenges to the rule’s validity as beyond the scope
of the a gencies’ statutory authority. e Article concludes
with some thoughts about what the Clean Water Rule rule-
making process says about the larger attitude toward agri-
cultural and water policy in the United States.
I. The Clean Water Act: Background and
Preexisting Regulatory Def‌inition of
“Waters of the United States”
is part provides a brief history of the CWA and identies
the specic sections aected by the Clean Water Rule. e
brief history includes an overview of the three Supreme
Court cases that have interpreted the statutory and regula-
tory denitions of “waters of the United States.” is part
also independently outlines the exist ing statutory deni-
tion of “waters of the United States,” as well as the agencies’
previous regulatory denition.
A. Evolution of the CWA
e history of the CWA and its important Supreme Court
interpretations lend va luable insight into understanding
the debate about the scope of the agencies’ statutory author-
ity. e original Federa l Water Pollution Control Act was
passed in 1948, a nd later signicantly reorganiz ed as the
CWA in 1972.18 is was the rst major legislation focused
on protecting and regulating the nation’s water resources.19
Its purpose is to “restore and maintain the chemical, physi-
cal, and biological integrity of the Nation’s waters.”20 e
statute does not set out to achieve this purpose by granting
EPA and the Corps jurisdiction over all waters, but instead
only over “navigable waters.”21 e Act goes on to dene
“navigable waters” as “waters of the United states, includ-
ing the territorial seas.”22
In 1985, the Supreme Court decided what was to
become the rst of three major ca ses interpreting the de-
nition of “waters of the United States” put forth in agency
regulations.23 In 
18. See U.S. EPA, Summary of the Clean Water Act, http://www.epa.gov/laws-
regulations/summary-clean-water-act (last visited Mar. 28, 2016) (“e ba-
sis of the CWA was enacted in 1948 and was called the Federal Water Pollu-
tion Control Act, but the Act was signicantly reorganized and expanded in
1972. ‘Clean Water Act’ became the Act’s common name with amendments
in 1972.”).
19. See U.S. EPA,      , htt p://www.epa.gov/laws-
regulations/histo ry-clean-water-act ( last visited Mar. 28, 2016) (“e
Federal Water Pollution Control Act of 1948 was the r st major U.S.
law to address water pollution. Growing public awareness and concern
for controlli ng water pollution led to sweeping amendments in 1 972. As
amended in 1 972, the law becam e commonly known as the Clean Water
Act (CWA).”).
20. See 33 U.S.C. §1251(a) (2015). See also Rapanos, 547 U.S. at 759.
21. For Corps jurisdiction, see 33 U.S.C. §1344(a), (c), (d) (2015). For EPA
jurisdiction, see 33 U.S.C. §§1311(a), 1342(a), 1344(c) (2015).
23. See Rapanos, 547 U.S. at 765 (Kennedy, J., concurring) (Justice Anthony
Kennedy’s characterization of the number of times the Supreme Court had
previously construed the term “navigable waters”).
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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