Earlier this year, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published a new definition of waters of the United States that determines the extent of federal control over land and water (the WOTUS rule). I have been clear that I believe that this rule unlawfully encroaches on the rights of states, municipalities, farmers, and other private citizens.
This concern is shared by 31 states, which have sued EPA to overturn the rule, and by Judge Erickson of the U.S. District Court for the District of North Dakota, who stayed the rule in 13 states because he found that the rule is causing irreparable harm and that the state plaintiffs are likely to win their lawsuit. On October 9, the U.S. Court of Appeals for the Sixth Circuit joined this chorus of disapproval by issuing an order that stays the rule in all 50 states, finding that the plaintiffs had demonstrated a “substantial possibility of success on the merits” of their claim that the rule is unlawful.
This concern also is shared by many local governments. The U.S. Conference of Mayors, the National League of Cities, the National Association of Counties, and the National Association of Regional Councils all have told me that they have significant concerns about the rule and believe that it will increase the types of public infrastructure considered jurisdictional under the Clean Water Act.
The concerns of state and local governments are well founded. A primary example is the treatment of ditches and other water management systems in the final rule. EPA claims that it has exempted ditches, storm water control features, and wastewater recycling structures from regulation; however, the agency fails to mention that the exemptions do not apply if a ditch or other water management system was a former stream or if the system was not built on “dry land.” With this interpretation, EPA and the Corps are claiming the authority to regulate not only current streams and wetlands but also locations where streams and wetlands may have existed in the past.
Many of our communities were developed long ago, and in earlier times, it was common practice to construct city sewer and storm water systems and even streets in former streams and marshes. As a result, communities must now worry about the status of their Your Sewers and Streets Could Be Waters of the United States municipal infrastructure.
Washington, DC, provides many examples. In the 18th and 19th centuries, a stream named Tiber Creek emptied into a marsh located in what is now the National Mall. Tiber Creek originated in northeast Washington. It was navigable for small boats up to what is now Florida Avenue. By 1880, Tiber Creek was paved over and turned into an underground sewer that is now known as the Flagler Place Trunk Sewer, a combined sewer that discharges into the Anacostia River.
In 1815, part of Tiber Creek became the Washington Canal. The canal connected the Potomac River to the Anacostia River. Eventually, the Washington Canal was filled in to become Constitution Avenue.
Washington, DC, was full of other waterways as well. There was a lake or marsh at 11th and Harvard Streets. Union Station was built on top of a stream, and another stream that formerly ran through Judiciary Square and Indiana Avenue was piped in 1821 and then used to build a reservoir in 1828.
24 Municipal Water Leader According to the preamble to the WOTUS rule, the agencies will rely on historic records to regulate the “unpermitted alteration of streams” because the physical characteristics of a stream may no longer exist. A summer intern for my committee easily found such historic records for DC, and similar records are likely available for many communities. However, what the final rule fails to admit is that these so-called “unpermitted alterations” occurred long before any permits were required.
What should communities do? Must they stop using their sewers and storm water systems? Do they need a permit to maintain them? Apparently, not even the Corps has the answers. Among the “USACE Implementation Challenges” identified in an April 24 memorandum prepared by the Chief of the Corps’ Regulatory Program is how to determine whether a ditch is a “relocated tributary.” Among the questions asked are, “How far back in history does a regulator need to go? If it can’t be determined definitively, who bears the burden of proof?”
In August, I sent a letter to Jo Ellen Darcy, assistant secretary of the Army, and Ken Kopocis, deputy assistant administrator in the EPA’s Office of Water, asking them about the status of former waters. I have not received a response.
If the stay of the rule is lifted, communities around the country will face enormous legal uncertainty. Under the WOTUS rule, a regulated tributary includes water that flows through pipes and waste treatment systems. If pipes were built in the location of a former stream, then these sewers may be regulated waters of the United States and cannot be used to protect public health and welfare.
Even if EPA decides not to sue, communities remain vulnerable to citizen suits. Under the final rule, a litigant could try to force a city to spend its limited resources to build an entirely new sewer system by asking a court to declare that the city’s sewers are waters of the United States.
We all want to protect human health and the environment. Proper management of wastewater and storm water is part of that protection. Wasting scarce municipal resources for no environmental benefit is not. As chairman of the Senate Committee on Environment and Public Works, I have been shining a light on the flaws of this ill-conceived rule through oversight, and I have been working to advance legislation to give our communities the protection and certainty they need.