UPDATE, June 10, 2014: EPA and the Corps announced today they are extending the public comment period for the Waters of the U.S. proposed rule from July 21 until October 20, 2014, an additional 91 days. The agencies have also extended the public comment period on the interpretive rule by 30 days to July 7

 

What is a “water of the United States”? It seems like a simple enough question, but it has proven to be anything but.

On March 25, 2014, the US Environmental protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) made their latest attempt to define the term,  jointly releasing a proposed rule under the Clean Water Act (Act) outlining the types waters that do, and do not, fall under federal jurisdiction and may be subject to National Pollutant Discharge Elimination System (NPDES), Section 404 “dredge and fill,” or other permitting programs. 79 Fed. Reg. 22187 (Apr. 21, 2014).

The Act prohibits discharges from point sources into “navigable waters,” a term the Act unhelpfully defines as “waters of the United States.” 33 U.S.C. §§ 1311(a), 1342(a), 1362(12)(A).  EPA and the Corps regulations have long defined “waters of the United States” (see e.g., 33 CFR § 328.3, 40 CFR 230.3(s)), but the precise reach of the rules and the Act itself, particularly over “marginal” waters such as certain intrastate wetlands, has been disputed for decades. Two divided Supreme Court decisions–Solid Waste Agency of Northern Cook Cty. (SWANCC) v. Army Corps of Engineers, 531 U.S. 159 (2001), and Rapanos v. U.S., 547 U.S. 715 (2006)–and several proposed (but never finalized) agency guidance documents, only confused the issue, leaving regulated parties and state agencies guessing as to the Act’s jurisdictional scope. Thus, the agency’s proposed rule has been highly anticipated, to say the least.

In a 370-page preamble, the agencies claim the proposed definition of “waters of the United States” merely “clarifies” the Act’s reach over streams and wetlands in line with the Rapanos “significant nexus” test. However, many observers believe the rule may result in more waters being subject to the Act. This is in part because, in an effort to reduce costly case-by-case jurisdictional decisions, the agencies have established categories of waters that are by default jurisdictional. In addition to waters undisputedly subject to the Act—traditionally navigable waters used in interstate commerce, interstate waters, and the territorial seas—the proposed rule would also make “tributaries” of, and waters “adjacent” to, traditionally jurisdictional waters presumptively subject to the Act. The proposed rule defines these terms such that all streams, ponds, and wetlands located in floodplains and riparian corridors of traditionally jurisdictional waters would themselves be deemed jurisdictional.

The proposed rule establishes "default" categories of waters that are automatically subject to the Clean Water Act (Source: www.epa.gov/region9/mediacenter/wetlands)

The proposed rule establishes “default” categories of waters that are presumptively subject to the Clean Water Act (Source: http://www.epa.gov/region9/mediacenter/wetlands)

In addition to these “default” jurisdictional categories, the proposed rule establishes a category of “other waters.” For these waters, jurisdiction will be evaluated on a case-specific basis to determine if the waters “alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus” to traditionally jurisdictional waters. In September 2013, EPA released a draft “connectivity” study synthesizing existing scientific literature on the connectivity or isolation of streams and wetlands relative to large water bodies such as rivers, lakes, estuaries, and oceans. The report, once finalized, will no doubt be frequently referenced in evaluating whether “other waters” exhibit the required “significant nexus” to bring them within the scope of the Act.

Finally, concurrently with the proposed rule, the agencies also promulgated a final “interpretive” rule setting forth specific agricultural conservation practices the agencies consider exempt from permitting under section 404(f)(1)(A) of the Act, which exempts from the Act discharges of dredged or fill material from “normal farming, silviculture, and ranching activities.” 79 Fed. Reg. 22276 (Apr. 21, 2014). For the most part, the interpretive rule simply formalizes existing agency policy.

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