On May 27, 2015, the US Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly released a long-awaited final rule under the Clean Water Act (Act) defining what waters fall under federal jurisdiction and may be subject to NPDES, Section 404, or other permitting programs. The rule was officially published in the Federal Register on June 29, 2015. 80 Fed. Reg. 37054. In a press release, Assistant Secretary for the Army (Civil Works) Jo-Ellen Darcy highlighted the significance of the new rule:

Today’s rule marks the beginning of a new era in the history of the Clean Water Act. This is a generational rule and completes another chapter in history of the Clean Water Act.

 

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, SWANCC and Rapanos, 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.

Scientists debate whether the mysterious Carolina Bays dotting the southeastern Atlantic seaboard were created by forces within the Earth gouged by pieces of an exploding comet. EPA and the Corps take on an equally vexing question: whether the bays are subject to federal jurisdiction under the Clean Water Act.

Scientists debate whether the mysterious Carolina Bays dotting the southeastern US seaboard were created by forces within the Earth or gouged by pieces of an exploding comet. In the final water jurisdictional rule, EPA and the Corps attempt to answer an equally vexing question: whether the bays are subject to the Clean Water Act. (Source:  www.srelherp.uga.edu/)

 

The final rule retains most of the provisions of the April 2014 proposed rule (79 Fed. Reg. 22187); however, the agencies did make some noteworthy changes in response to the over one million comments they received. (See EPA’s web page on the rule for fact sheets and other documents relating to the rule.) The agencies’ stated intention with the new definition of “waters of the United States” was to “clarify” the Act’s reach over streams and wetlands in line with the Rapanos “significant nexus” test and to provide greater regulatory clarity. To this end, the rule establishes “bright-line” categories of jurisdictional waters. In addition to waters undisputedly subject to the Act—traditionally navigable waters used in interstate commerce, interstate waters, and the territorial seas—the new rule also makes “tributaries” of, and waters “adjacent” to, traditionally jurisdictional waters presumptively subject to the Act.

Besides these “default” jurisdictional categories, the final rule also makes certain types of waters jurisdictional when, on a case-by-case basis, they are found to have a “significant nexus” to traditionally jurisdictional waters. This part of the final rule represents the most notable change from the proposed rule. Whereas the proposed rule brought within its scope all “other waters” with a significant nexus to traditionally jurisdictional waters, the final rule is more specific. First, it identifies five types of marginal waters that are jurisdictional if they have—individually or in combination with other such waters in the same watershed—a “significant nexus” to traditionally jurisdictional waters: prairie potholes, Carolina & Delmarva bays, pocosins, western vernal pools in California, & Texas coastal prairie wetlands. Second, the final rule provides that any water with a significant nexus to traditionally jurisdictional waters is itself jurisdictional if it is located (a) within the 100-year floodplain of a traditionally jurisdictional water, or (b) within 4,000 feet of a traditionally jurisdictional water, an impoundment, or a tributary. “Significant nexus” means, in relevant part, that “a water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a [traditionally navigable water, interstate water, or territorial sea].”

The agencies maintained the proposed rule’s exceptions to jurisdiction in the final rule but made some notable changes—for example, rewriting the much-discussed ditch exceptions and clarifying the exceptions for water-filled depressions and artificial ponds. The final rule also added exceptions for stormwater control features, water recycling structures, and—to the relief of many—puddles.

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