EPA’s interpretation of definition within WOTUS proposal troubling

On Monday, Oct.6,  I had the opportunity to travel with Directors of the American Soybean Association along with staff members from other states to discuss the proposed waters of the United States rule with officials with the EPA. ASA directors Ed Erickson (ND), Ron Moore (IL), Davie Stephens (KY), and Richard Wilkins (DE) discussed the rules impact on their own farms.

Joe Smentek

Joe Smentek

Ken Kapocis, Deputy Assistant Administrator in the Office of Water at EPA explained that the EPA has had over 300 meetings to discuss the proposed rule. The group discussed the conflicting nature of some of the proposed definitions. Other topics that were discussed focused on tile drainage, the exemptions, groundwater, any appeals available, and Corp of Engineers enforcement of the rule. 

One of the most troubling aspects of the new rule to me is one small word in the definition of “significant nexus.” The EPA has stated in its “Questions and Answers-Water of the U.S. Proposal” that the new rule simply tries to have the rule align with Supreme Court cases. Specifically, they cite Rapanos v. U.S., 547 U.S. 715 (2006).  However, when using that decision they do not use the judgment of the Court as laid out in the plurality opinion of Justice Scalia.

The EPA uses the test laid out by Justice Kennedy in a concurring opinion. Justice Kennedy’s language regarding “significant nexus” cites prior cases and the stated goals of the Clean Water Act to determine that in order for jurisdiction to exist, “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.”” Rapanos at 780.  Justice Kennedy used the statutory language that, “the objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”  33 U.S. Code § 1251(a). 

Justice Scalia wrote in the plurality decision of the Court, “to begin with, Justice Kennedy’s reading of “significant nexus” bears no easily recognizable relation to either the case that used it (SWANCC) or to the earlier case that purported to be interpreting (Riverside Bayview).”  Rapanos at 753. 

The troubling thing with the proposed definition to me is that the EPA has changed a significant word in the Clean Water Act and in Justice Kennedy’s opinion. Under a fact specific analysis now a water would have to affect the chemical, physical, AND biological integrity in order to be considered to have a “significant nexus” and for there to be jurisdiction. The EPA has changed that in the definition of “significant nexus” and stated that it means a water that, “significantly affects the chemical, physical or biological integrity of a water…” Or, not and, was used in their definition.

Mr. Kapocis inadvertently highlighted the difference to the group when he explained that jurisdictional wetlands must exhibit all three characteristics laid out in statute hydrology, hydrophytes, and hydric soils. However, another federal agency, the U.S. Fish and Wildlife Service requires that the wetland have one or more of the attributes listed above. That leads the USFWS to see more areas as wetlands.

For example if I were to tell you that you could only wear an NFL football jersey if it contained the colors orange, black and white you would be limited to the Cincinnati Bengals. By contrast, almost every team has a white jersey or white numbers on their jersey so that if the condition was changed to one that contained orange, black or white all NFL team jerseys are now an option. This subtle change from AND to OR will drastically change the waters that are seen as having a “significant nexus.”  There will no longer be three hurdles to jump, only one. 

In their document “Questions and Answers-Water of the U.S. Proposal” they state that, “the proposed rule clearly applies the “significant nexus” test as contemplated by Justice Kennedy.”  The proposed rule does not clearly apply Justice Kennedy’s test.  It has fundamentally changed the test laid out by Justice Kennedy by lowering the threshold he stated and that laid out in the Clean Water Act itself.

 The deadline to submit comments to the EPA on their Waters of the United States proposed rule has been extended until Nov. 14.