United States: Rapid Changes to Water Quality and Wetlands Regulation

U.S. EPA is developing a draft water quality plan intended to make waters "twice as clean by 2015." Strategies to accomplish this task include watershed based permitting and water quality trading, continued development of TMDLs, and strengthening partnerships with states to identify waters that require action.

U.S. EPA’s action comes at a time when the Illinois EPA is also changing the way it lists waters as non-attainment. At its public meeting in November 2003, Illinois EPA disclosed changes to the criteria it has traditionally used to prepare these listings, which could increase the number of waters not meeting water quality standards and make it harder for state waters to meet existing standards. Changes include adjusting the IBI scoring procedures, eliminating trend analysis, and eliminating confidence levels from the scoring criteria. Illinois EPA is seeking comments on its proposal. In addition, Illinois EPA has announced its intention to continue preparing TMDLs for waters that are in part impaired for nutrients notwithstanding criticism arising from the lack of nutrient standards. Illinois EPA is citing continued pressure from U.S. EPA Region 5 and environmental groups.

In a surprise news conference on December 16, 2003, the U.S. Environmental Protection Agency announced that is would not following through on a promised rulemaking to clarify the scope of wetlands regulation following the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). The news conference was particularly surprising because the Army Corps of Engineers and the Department of Justice had reportedly drafted a rule that was recently circulated, which would have limited jurisdiction to navigable waters and their tributaries, as well as wetlands adjacent to each, so long as those tributaries have "regular and recurrent flows" to a navigable body of water. But it is U.S. EPA that has rulemaking authority under the Clean Water Act. Its decision is very disappointing.

One recent judicial decision did apply a reasonable scope to jurisdiction following SWANCC, albeit under the Oil Pollution Control Act rather than the CWA. In United States v. Needham, the Court upheld government claims of jurisdiction over a bayou adjacent to a navigable water, to which an oil spill had migrated.

Nevertheless, in discussing the "expansive" interpretation of SWANCC by the Fourth and Sixth Circuits in Deaton and Rapanos, which allowed a seemingly limitless theory of federal wetlands jurisdiction, the Needham court stated that "in this circuit the United States may not simply impose regulation over puddles, sewers, roadside ditches and the like." The court noted that the term "adjacent" cannot include every possible source of water that eventually flows into a navigable-in-fact water, but necessarily implies a significant nexus. The bayou, which flowed directly into a navigable-in-fact water, fit this bill.

Other significant judicial decisions include one from a District Court in Washington, D.C. declining to review a challenge to broad requirements that would be better imposed by regulation subject tonotic and comment in Nationwide Permits issued by the Corps’ Chief of Engineers. The court declined to review the challenge because the challenge was not "ripe" without a specific permittee. If these restrictions were properly imposed by regulations, they would be challengable on their face in court. Objectionable provisions include buffer requirements around wetlands. Illinois landowners are likely familiar with the use of general permits to impose similar restrictions.

Illinois House Bill 0422 passed the Illinois General Assembly in Spring 2003. HB0422 is opposed by a broad coalition of business, labor, and other interests. If passed by the Illinois Senate and signed by Governer Blagojevich, HB0422 would regulate isolated wetlands in Illinois by explicitly approving various county stormwater ordinances, allowing other counties to enact their own standards, and enacting standards for the rest of the state to be implemented by the Illinois Department of Natural Resources. The bill is currently pending before the Illinois Senate and has been assigned to the Senate’s Environment and Energy Committee. Senator James Clayborne, the chair of that committee, has also proposed an isolated wetlands bill, Senate Bill 2130, which, while still regulating isolated wetlands, will result in less expense, red-tape and delay in issuance of permits. The major difference between HB0422 and SB2130 is the turf battle among various county stormwater management commissions to maintain their existing programs. A variety of business interests have long maintained that these stormwater management commissions were using limited statutory authority to promote interests other than sensible stormwater management, including regulating land use in a frequently arbitrary and confiscatory manner. The Senate Bill would place all isolated wetlands under one set of clear protections under the authority of the Illinois Environmental Protection Agency.

Landowners in Florida face restrictive wetlands policies similar in strength to those imposed on Illinois landowners. Yet those landowners are reportedly having some success in reducing the confiscatory nature of federal wetlands regulation while also achieving better treatment of stormwater from development. Stormwater and water quality have become the catch-all rationale for restrictions on private property rights, including proposals for isolated wetlands legislation at the state level, but this rationale generally has not been supported by specific scientific data. A report by Environmental Research and Design, Inc., a professional environmental firm, is reportedly challenging the view that restrictive wetlands preservation results in better treatment of stormwater than constructed stormwater systems. The study argues that because wetlands contain pollutants, developers need only install replacement stormwater systems to treat down to that level, rather than to remove all pollutants. Regional officials have already cited the study to approve two Corps permits for developments in southwest Florida, and are reportedly considering making the methodology the standard for approving or disapproving all future wetlands permits. Florida officials may also use the study as the standard to evaluate applications for wetlands permits.

Copyright 2004 Gardner Carton & Douglas.

This article is not intended as legal advice, which may often turn on specific facts. Readers should seek specific legal advice before acting with regard to the subjects mentioned here.