Army Corps of Engineers and EPA Poised to reach into your backyard and regulate that puddle

By Steve Neugebauer

Editor’s Note: We are pleased to welcome back Mr. Steve Neugebauer, an expert hydrologist, geological, engineering consultant.

This is not the first time the Corps (Army Corps of Engineers) and USEPA (United States Environmental Protection Agency) have tried to regulate more than true navigable waters and it will not be the last unless the congress reasserts that jurisdictional waters are those that are truly navigable considering it is the commerce clause of the United States Constitution that is used to enforce the Clean Water Act (33 U.S.C. § 1251).  One of the Corps’ attempts to regulate “all waters’ was to use the “migratory bird rule” claiming that because migratory birds landed in navigable waters and also landed in isolated or non-navigable waters that this created a jurisdictional link that allowed the Corps (and USEPA) to regulate all waters as jurisdictional.  However, this was challenged in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 171 (2001)(“SWANCC”), with the Supreme Court of the United States (SCOTUS) finding that the Corps had overextended its “reach” with the migratory bird rule.

The Corps and USEPA were not daunted and found new ways to extend the reach of their jurisdiction when the Corps cited a property owner named John Rapanos for filling three wetlands without a permit.  In this case there were four wetlands lying near ditches or man-made drains that eventually empty into traditional navigable waters.  In the syllabus of the Rapanos v the United States (SCOTUS 2006), it states:

The District Court found federal jurisdiction over the wetlands because they were adjacent to “waters of the United States” and held petitioners liable for CWA violations. Affirming, the Sixth Circuit found federal jurisdiction based on the sites’ hydrologic connections to the nearby ditches or drains, or to more remote navigable waters. In No. 04–1384, the Carabell petitioners were denied a permit to deposit fill in a wetland that was separated from a drainage ditch by an impermeable berm. The Carabells sued, but the District Court found federal jurisdiction over the site. Affirming, the Sixth Circuit held that the wetland was adjacent to navigable waters.  Held: The judgments are vacated, and the cases are remanded.

Justice Antonin Scalia

It should be noted that the USEPA and Corps want to include ephemeral drainage systems as “tributaries” to Navigable Waters of the United States AGAIN, even though this appears to have been addressed in Rapanos as was the issue of “adjacent”.  I’m not an attorney, but it is pretty clear that this has already been addressed by the SCOTUS in Rapanos, it is unclear why the USEPA believes that the proposed rule will not face the same scrutiny by the SCOTUS when it is challenged in court (again).

I advise that people who really want to know what the SCOTUS discussed regarding ephemeral drainage systems, what are navigable waters, what is a point source, and other pertinent information, read what Justice Scalia wrote for the plurality in Rapanos (http://www.supremecourt.gov/opinions/05pdf/04-1034.pdf). Scalia discusses ephemeral drainage systems in detail and clearly states that these are not Navigable Waters of the United States).  However, I have included some excerpts below.

Again, I encourage everyone to read what Scalia said in Rapanos because he makes the best arguments I can think of regarding the Corps proposed new rule and he uses somewhat strong words, such as: “the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot.”  Scalia expounds on the Corps and USEPA’s determination to make everything jurisdictional (sound familiar?):

The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act—without any change in the governing statute—during the past five Presidential administrations. In the last three decades, the Corps and the Environmental Protection Agency(EPA) have interpreted their jurisdiction over “the waters of the United States” to cover 270-to-300 million acres of swampy lands in the United States—including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit—whether man-made or natural, broad or narrow, permanent or ephemeral—through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated “waters of the United States” include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory “waters of the United States” engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a “water of the United States.”

Scalia also discusses “Navigable Waters”:

From USGS presentation

The Corps’ current regulations interpret “the waters of the United States” to include, in addition to traditional interstate navigable waters, 33 CFR §328.3(a)(1) (2004),“[a]ll interstate waters including interstate wetlands,” §328.3(a)(2); “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” §328.3(a)(3); “[t]ributaries of [such] waters,” §328.3(a)(5); and “[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands),” §328.3(a)(7). The regulation defines “adjacent” wetlands as those “bordering, contiguous [to], or neighboring” waters of the United States. §328.3(c). It specifically provides that “[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’” Ibid

Scalia discusses the Corps propensity to repeatedly expand its reach to all of the United States:

Following our decision in Riverside Bayview, the Corps adopted increasingly broad interpretations of its own regulations under the Act. For example, in 1986, to “clarify” the reach of its jurisdiction, the Corps announced theso-called “Migratory Bird Rule,” which purported to extendits jurisdiction to any intrastate waters “[w]hich are or would be used as habitat” by migratory birds. 51 Fed. Reg. 41217; see also SWANCC, supra, at 163–164. In addition, the Corps interpreted its own regulations to include “ephemeral streams” and “drainage ditches” as “tributaries” that are part of the “waters of the United States,” see33 CFR §328.3(a)(5), provided that they have a perceptible “ordinary high water mark” as defined in §328.3(e). 65 Fed. Reg. 12823 (2000). This interpretation extended “the waters of the United States” to virtually any land feature over which rainwater or drainage passes and leaves a visible mark—even if only “the presence of litter and debris.” 33 CFR §328.3(e). See also U. S. General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on Government Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction, GAO–04–297, pp. 20–22 (Feb. 2004) (hereinafter GAO Report), http://www.gao.gov/new.items/d04297.pdf (all Internet materials as visited June 9, 2006, and available in Clerk of Court’s case file). Prior to our decision in SWANCC, lower courts upheld the application of this expansive definition of “tributaries” to such entities as storm sewers that contained flow to covered waters during heavy rainfall, United States v. Eidson, 108 F. 3d 1336, 1340–1342 (CA11 1997), and dry arroyos connected to remote waters through the flow of groundwater over “centuries,” Quivira Mining Co. v. EPA, 765 F. 2d 126, 129 (CA10 1985).

Scalia saw what we are seeing now, the Corps and USEPA are repeating what they have done in the past even when the court tells them not to:

Following our decision in SWANCC, the Corps did not significantly revise its theory of federal jurisdiction under §1344(a). The Corps provided notice of a proposed rule-making in light of SWANCC, 68 Fed. Reg. 1991 (2003), but ultimately did not amend its published regulations. Because SWANCC did not directly address tributaries, the Corps notified its field staff that they “should continue to assert jurisdiction over traditional navigable waters . . .and, generally speaking, their tributary systems (and adjacent wetlands).” 68 Fed. Reg. 1998. In addition, because SWANCC did not overrule Riverside Bayview, the Corps continues to assert jurisdiction over waters “‘neighboring’” traditional navigable waters and their tributaries. 68 Fed. Reg. 1997 (quoting 33 CFR §328.3(c)(2003)).

Scalia discusses how the Corps continues to expand its reach even after the SCOTUS decisions such as SWANCC:

Even after SWANCC, the lower courts have continued to uphold the Corps’ sweeping assertions of jurisdiction over ephemeral channels and drains as “tributaries.” For example, courts have held that jurisdictional “tributaries” include the “intermittent flow of surface water through approximately 2.4 miles of natural streams and manmade ditches (paralleling and crossing under I–64),” Treacy v. Newdunn Assoc., 344 F. 3d 407, 410 (CA4 2003); a “roadside ditch” whose water took “a winding, thirty-two-mile path to the Chesapeake Bay,” United States v. Deaton, 332  F. 3d 698, 702 (CA4 2003); irrigation ditches and drains that intermittently connect to covered waters, Community Assn. for Restoration of Environment v. Henry Bosma Dairy, 305 F. 3d 943, 954–955 (CA9 2002); Headwaters, Inc. v. Talent Irrigation Dist., 243 F. 3d 526, 534 (CA9 2001); and (most implausibly of all) the “washes and arroyos” of an “arid development site,” located in the middle of the desert, through which “water courses . . . during periods of heavy rain,” Save Our Sonoran, Inc. v. Flowers, 408 F. 3d 1113, 1118 (CA9 2005).2

These judicial constructions of “tributaries” are not outliers. Rather, they reflect the breadth of the Corps’ determinations in the field. The Corps’ enforcement practices vary somewhat from district to district because “the definitions used to make jurisdictional determinations ”are deliberately left “vague.” GAO Report 26; see also id., at 22. But district offices of the Corps have treated, as “waters of the United States,” such typically dry land features as “arroyos, coulees, and washes,” as well as other “channels that might have little water flow in a given year.” Id., at 20–21. They have also applied that definition to such manmade, intermittently flowing features as “drain tiles, storm drains systems, and culverts.” Id., at 24 (footnote omitted).

In addition to “tributaries,” the Corps and the lower courts have also continued to define “adjacent” wetlands broadly after SWANCC. For example, some of the Corps’ district offices have concluded that wetlands are “adjacent” to covered waters if they are hydrologically connected “through directional sheet flow during storm events,” GAO Report 18, or if they lie within the “100-yearfloodplain” of a body of water—that is, they are connected to the navigable water by flooding, on average, once every 100 years, id., at 17, and n. 16. Others have concluded that presence within 200 feet of a tributary automatically renders a wetland “adjacent” and jurisdictional. Id., at 19. And the Corps has successfully defended such theories of “adjacency” in the courts, even after SWANCC’s excision of “isolated” waters and wetlands from the Act’s coverage. One court has held since SWANCC that wetlands separated from flood control channels by 70-foot-wide berms, atop which ran maintenance roads, had a “significant nexus” to covered waters because, inter alia, they lay “within the 100 year floodplain of tidal waters.” Baccarat Fremont Developers, LLC v. Army Corps of Engineers, 425 F. 3d 1150, 1152, 1157 (CA9 2005). In one of the cases before us today, the Sixth Circuit held, in agreement with “[t]he majority of courts,” that “while a hydrological connection between the non-navigable and navigable waters is required, there is no ‘direct abutment’ requirement” under SWANCC for “‘adjacency.’” 376 F. 3d 629, 639 (2004) (Rapanos II). And even the most insubstantial hydrologic connection may be held to constitute a “significant nexus.” One court distinguished SWANCC on the ground that “a molecule of water residing in one of these pits or ponds [in SWANCC] could not mix with molecules from other bodies of water”—whereas, in the case before it, “water molecules currently present in the wetlands will inevitably flow towards and mix with water from connecting bodies,” and “[a] drop of rainwater landing in the Site is certain to intermingle with water from the [nearby river].” United States v. Rueth Development Co., 189 F. Supp. 2d 874, 877–878 (ND Ind. 2002).

 Scalia focuses on what are “Waters of the United States” (v “Navigable Waters of the United States):

The Corps’ expansive approach might be arguable if the CSA defined “navigable waters” as “water of the United States.” But “the waters of the United States” is something else. The use of the definite article (“the”) and the plural number (“waters”) show plainly that §1362(7) does not refer to water in general. In this form, “the waters” refers more narrowly to water “[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,” or “the flowing or moving masses, as of waves or floods, making up such streams or bodies.” Webster’s New International Dictionary 2882 (2d ed.1954) (hereinafter Webster’s Second).⁴ On this definition, “the waters of the United States” include only relatively permanent, standing or flowing bodies of water.⁵ The definition refers to water as found in “streams,” “oceans,” “rivers,” “lakes,” and “bodies” of water “forming geographical features.” Ibid. All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. Even the least substantial of the definition’s terms, namely “streams,” connotes a continuous flow of water in a permanent channel—especially when used in company with other terms such as “rivers,” “lakes,” and “oceans.”⁶ None of these terms encompasses transitory puddles or ephemeral flows of water.

The restriction of “the waters of the United States” to exclude channels containing merely intermittent or ephemeral flow also accords with the commonsense understanding of the term. In applying the definition to “ephemeral streams,” “wet meadows,” storm sewers and culverts, “directional sheet flow during storm events,” drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term “waters of the United States” beyond parody. The plain language of the statute simply does not authorize this “Land Is Waters” approach to federal jurisdiction.

In addition, the Act’s use of the traditional phrase “navigable waters” (the defined term) further confirms that it confers jurisdiction only over relatively permanent bodies of water. The Act adopted that traditional term from its predecessor statutes. See SWANCC, 531 U. S., at 180 (STEVENS, J., dissenting). On the traditional understanding, “navigable waters” included only discrete bodies of water. For example, in The Daniel Ball, we used the terms “waters” and “rivers” interchangeably. 10 Wall., at 563. And in Appalachian Electric, we consistently referred to the “navigable waters” as “waterways.” 311 U. S., at 407– 409. Plainly, because such “waters” had to be navigable in fact or susceptible of being rendered so, the term did not include ephemeral flows. As we noted in SWANCC, the traditional term “navigable waters”—even though defined as “the waters of the United States”—carries some of its original substance: “[I]t is one thing to give a word limited effect and quite another to give it no effect whatever.” 531 U. S., at 172. That limited effect includes, at bare minimum, the ordinary presence of water.

Scalia discusses what are not waters of the United States (point sources):

Most significant of all, the CWA itself categorizes the channels and conduits that typically carry intermittent flows of water separately from “navigable waters,” by including them in the definition of “‘point source.’” The Act defines “‘point source’” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U. S. C. §1362(14). It also defines “‘discharge of a pollutant’” as “any addition of any pollutant to navigable waters from any point source.” §1362(12)(A) (emphases added). The definitions thus conceive of “point sources” and “navigable waters” as separate and distinct categories. The definition of “discharge” would make little sense if the two categories were significantly overlapping. The separate classification of “ditch[es], channel[s], and conduit[s]”—which are terms ordinarily used to describe the watercourses through which intermittent waters typically flow—shows that these are, by and large, not “waters of the United States.”

Scalia discusses the State’s rights to regulate waters:

Left to government–
a protected puddle.

Moreover, only the foregoing definition of “waters” is consistent with the CWA’s stated “policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution, [and] to plan the development and use (including restoration, preservation, and enhancement) of land and water resources . . . .” §1251(b). This statement of policy was included in the Act as enacted in 1972, see 86Stat. 816, prior to the addition of the optional state administration program in the 1977 amendments, see 91 Stat. 1601. Thus the policy plainly referred to something beyond the subsequently added state administration program of 33 U. S. C. §1344(g)–(l). But the expansive theory advanced by the Corps, rather than “preserv[ing]the primary rights and responsibilities of the States,” would have brought virtually all “plan[ning of] the development and use . . . of land and water resources” by the States under federal control. It is therefore an unlikely reading of the phrase “the waters of the United States.”⁸

Even if the phrase “the waters of the United States” were ambiguous as applied to intermittent flows, our own canons of construction would establish that the Corps’ interpretation of the statute is impermissible.

As we noted in SWANCC, the Government’s expansive interpretation would “result in a significant impingement of the States’ traditional and primary power over land and water use.” 531 U. S., at 174. Regulation of land use, as through the issuance of the development permits sought by petitioners in both of these cases, is a quintessential state and local power. See FERC v. Mississippi, 456 U. S. 742, 768,  n. 30 (1982); Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 44 (1994). The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land—an authority the agency has shown its willingness to exercise with the scope of discretion that would befit a local zoning board. See 33 CFR §320.4(a)(1) (2004). We ordinarily expect a “clear and manifest” statement from Congress to authorize an unprecedented intrusion into traditional state authority. See BFP v. Resolution Trust Corporation, 511 U. S. 531, 544 (1994). The phrase “the waters of the United States” hardly qualifies.

Scalia discussed how the Corps’ interpretation stretches the outer limits of the Congress’s commerce power:

Likewise, just as we noted in SWANCC, the Corps’ interpretation stretches the outer limits of Congress’s commerce power and raises difficult questions about the ultimate scope of that power. See 531 U. S., at 173. (In developing the current regulations, the Corps consciously sought to extend its authority to the farthest reaches of the commerce power. See 42 Fed. Reg. 37127 (1977).) Even if the term “the waters of the United States” were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988).⁹

In sum, on its only plausible interpretation, the phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] . . . oceans, rivers, [and] lakes.” See Webster’s Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps’ expansive interpretation of the “the waters of the United States” is thus not “based on a permissible construction of the statute.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984).

Scalia discusses why ephemeral drainage systems can actually be classified as point sources:

In fact, many courts have held that such upstream, intermittently flowing channels themselves constitute “point sources” under the Act. The definition of “point source” includes “any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  

U. S. C. §1362(14). We have held that the Act “makes plain that a point source need not be the original source of the pollutant; it need only convey the pollutant to ‘navigable waters.’” South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 105 (2004). Cases holding the intervening channel to be a point source include United States v. Ortiz, 427 F. 3d 1278, 1281 (CA10 2005) (a storm drain that carried flushed chemicals from a toilet to the Colorado River was a “point source”), and Dague v. Burlington, 935 F. 2d 1343, 1354–1355 (CA2 1991) (a culvert connecting two bodies of navigable water was a “point source”), rev’d on other grounds, 505 U. S. 557 (1992). Some courts have even adopted both the “indirect discharge” rationale and the “point source” rationale in the alternative, applied to the same facts. See, e.g., Concerned Area Residents for Environment v. Southview Farm, 34 F. 3d 114, 118–119 (CA2 1994). On either view, however, the lower courts have seen no need to classify the intervening conduits as “waters of the United States.”

The bottom line is that the Corps and USEPA keep coming back trying to expand federal regulation of everything, including ephemeral drainage systems (the environmental reasons Corps and USEPA are trying to use in the proposed rule were addressed in SWANCC), which Scalia spent a lot of time discussing and even indicates that ephemeral drainage systems have been identified as point sources in the lower courts.

What we are seeing, to quote Yogi Berra, is “deja vu all over again”, with the Corps and USEPA expanding their grasp on everything, including Horton overland flow, which means that there will be nothing left for the states to regulate.  This is a massive federal takeover of each State’s sovereignty and is inconsistent with the congress’s intent with the Clean Water Act (according to Scalia), but is consistent with what the Corps and USEPA have been doing for years (e.g., the migratory bird rule”) and also seems consistent with how Justice Scalia describes the Corps: “the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot”.

It is clear that what the USEPA and Corps are proposing in their rule is nothing new, it is more of the same, despite the legal precedents that have been established by the SCOTUS. The congress needs to revisit the Clean Water Act and it needs to specify the “navigable waters of the United States” means those waters that are truly navigable (for commerce) now (not waters that are no longer navigable now, such as our Black River in Puget Lowlands of Washington State).

Read a U.S. Senate Minority report expose on EPA.  It’s pretty amazing

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To contact Mr. Steve Neugebauer please visit his company SNR’s website: http://www.snrcompany.com/index.html  ENVIRONMENTAL, ECOLOGICAL, HYDROGEOLOGY, AND ENGINEERING GEOLOGY CONSULTANTS

Prior CJ article by Mr. Neugbauer: https://citizensjournal.us/epas-clarification-only-confirms-they-are-making-a-grab-for-water-rights/

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