On March 25, 2014, the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (collectively, Agencies) jointly issued their long-awaited proposed rule to, in their words, “clarify” the definition of “waters of the United States” (the Proposed Rule) under the Clean Water Act (CWA). The revised definition would apply to all CWA programs. The Agencies propose for the first time to define various terms, including “tributary” and “significant nexus.” The Proposed Rule was published in the Federal Register on April 21, 2014, and comments are due on or before July 21, 2014.
The Proposed Rule follows the EPA’s release of its draft science report, Connectivity of Streams and Wetlands to Downstream Waters: A Review of and Synthesis of Scientific Evidence (Report), for comment on September 24, 2013. A summary of the Report can be found here. The Agencies rely on the Report as scientific support for the Proposed Rule.
“Waters of the United States” Defined
The Agencies claim that the Proposed Rule will bring greater certainty and fewer case-by-case decisions on the jurisdiction of waters and wetlands following the Supreme Court’s decisions inRapanos v. United States, 547 U.S. 715 (2006) (Rapanos) and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). The Proposed Rule essentially has two tests for CWA jurisdiction: (1) waters that qualify as “waters of the United States” by rule; and (2) “other waters” that are shown on a case-by-case basis to meet the “significant nexus” test.
Under section (a) of the Proposed Rule, the following six categories of water would be “waters of the United States” by rule, and would fall under the CWA’s jurisdiction without any additional analysis: (1) traditional navigable waters; (2) interstate waters (including interstate wetlands); (3) the territorial seas; (4) impoundments of waters in (1) through (3); (5) all tributaries of waters in (1) through (4); and (6) waters and wetlands adjacent to waters in (1) through (5). The “by rule” test would ensure that waters and wetlands that fit within the revised definition of “waters of the United States” would always be jurisdictional, unless specifically excluded elsewhere.
Important new definitions that compliment the Proposed Rule’s definition of “waters of the United States” include, but are not limited to, “adjacent,” “neighboring,” and “tributary”:
If a water body does not fit within the six categories of jurisdictional waters by rule, it may nonetheless fall under the CWA’s jurisdiction under the seventh category of waters, identified as “other waters,” on a case-by-case basis. “Other waters” fall under the CWA’s jurisdiction when the case-specific analysis demonstrates that such waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a traditional navigable water, an interstate water, or the territorial seas. “How these ‘other waters’ are aggregated for a case-specific significant nexus analysis depends on the functions they perform and their spatial arrangement within the ‘region’ or watershed.” Proposed Rule at 90-91.
The Agencies interpret “region” as an area “within which similarly situated waters would be aggregated as the watershed that drains to the nearest traditional navigable water, interstate water, or the territorial seas.” Proposed Rule at 92. The Proposed Rule further defines the scope of “significant nexus” in terms of connectivity, as waters that significantly affect the chemical, physical, or biological integrity of a traditional navigable water, an interstate water, or the territorial seas. Proposed Rule at 31-32.
Waters and Features that are not “waters of the United States”
The Agencies state that the Proposed Rule does not change the exemptions for waste treatment systems and prior converted cropland, or other statutory exemptions from CWA permitting requirements. Specifically, section (b) of the Proposed Rule states the following waters and features are not “waters of the United States”:
Proposed Rule at 23-34.
Although the Proposed Rule proposes to clarify and specify the exclusions to provide more certainty, actual application of the exclusions and their applicability to different industries should be considered carefully.
The Proposed Rule appears to expand the CWA’s jurisdiction to automatically include waters that previously would have required additional analysis before being designated jurisdictional. This issue will likely be raised in several comments, as well as questions regarding the Proposed Rule’s consistency with Rapanos and SWANCC. The regulated community should review the implications of the Proposed Rule carefully.
Further information regarding the Proposed Rule and the process for commenting on the rule can be accessed here.
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