Be wary of new EPA guidance on the clean water act

Arkansas Business, July 2, 2007 by Charles Darwin Davidson

Developers and businesses alike should be aware of the water features on their land, no matter how small, and recent changes to what types of water features fall under the Clean Water Act (CWA). The CWA's purpose is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." One of the ways the CWA does this is to prohibit discharging any pollutants, which includes fill material (i.e. rock, sand, soil, clay, plastics, construction debris, wood chips, and overburden from mining), into "navigable waters" unless you first meet certain requirements, such as obtaining a permit issued by the U. S. Environmental Protection Agency (EPA) or the U.S. Army Corps of Engineers.

The CWA began as the Federal Water Pollution Control Act Amendments of 1972, and has since undergone numerous changes. However, since the CWA's initial passage there have been debates over where it applies. The CWA defines "navigable waters" as "waters of the United States, including the territorial seas." Does this mean every ditch and stream, no matter how small? That was the issue in a the recent U.S. Supreme Court decision of the consolidated cases of Rapanos v. United States and Carabell v. United States, 126 S. Ct. 2208 (2006) (Rapanos). Many hoped that the Court would finally determine whether a wetland or tributary is a "water of the United States." Unfortunately, the five opinions delivered in the case, which had no majority, only brought more confusion to the issue.

In response to Rapanos, the EPA and U.S. Army Corps of Engineers issued guidance on June 8, 2007, interpreting the jurisdiction of these two agencies under the CWA (available at http://www.epa.gov/owow/wetlands/guidance/). The guidance is no clearer than the rules in Rapanos' three controlling opinions it is attempting to follow. In addition, the EPA has stated that the new guidance does not supersede their previous guidance on the same issue.

The bottom line for developers or expanding business owners is to get expert advice on EPA jurisdiction and CWA compliance before making significant plans. The new guidance indicates that the EPA's jurisdictional status and whether the CWA applies will be determined on a case-by-case basis relying on any of the three new standards, or on previous standards. For instance, under one standard the drainage ditch on your property may fall under the CWA and require a permit if it has a "hydrologic connection" that creates a "significant nexus" to navigable-in-fact waters. Even those experienced in making these types of determinations will be daunted by the new guidelines. Therefore, it is essential that appropriate lead time is included in your next project for determining EPA jurisdiction.

by Charles Darwin "Skip" Davidson, Davidson Law Firm, Ltd.

DAVIDSON LAW FIRM

Cantrell at State

Little Rock, Arkansas 72203

374-9977

www.davidsonlawfirm.net