sboxermanFeatured Expert Column – Environmental Law and Policy

by Samuel B. Boxerman, Sidley Austin LLP with Lisa Jones, Sidley Austin LLP

On March 25, 2014, the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) (“the Agencies”), released a long-awaited Proposed Rule defining the scope of “waters of the United States” governed by the Clean Water Act (CWA or Act). Since its release, the proposal has been praised by some, questioned by many others, and already was the subject of hearings on Capitol Hill. If finalized, the proposal will most likely end up in court—and if it were allowed to stand as is, would most certainly cause significant impacts across multiple sectors of our economy, from agriculture to housing to energy.

Decades in the making, the Proposed Rule would supersede existing agency guidance, and replaces the Obama Administration’s previous effort to issue its own “waters of the United States” guidance. The 370-page notice proposes to define “waters of the United States” by regulation, after allowing agency guidance documents and various Supreme Court decisions* to define the phrase on a case-by-case basis since 1975. The definition is critical, because the scope of the “waters of the United States” is the cornerstone of the Clean Water Act; it sets the parameters of the jurisdiction Congress established in the Act. Thus, the breadth of this definition will determine when EPA and the Corps may regulate all manner of development under the Act.

At its core, the Proposed Rule would presumptively determine that certain waters are subject to regulation under the Act, based in part upon a controversial draft EPA report that considers studies of the connectivity of streams and wetlands to downstream waters. If finalized, the Proposed Rule would have expansive consequences for all developers and users of land across the United States, as the proposal will set the table for determining which wetlands, ponds, and other waters would fall within the jurisdictional reach of the CWA—and, in turn—would be subject to the permitting and enforcement authorities of EPA and the Corps.

Defined Categories of “Waters of the United States.” In the Proposed Rule, the Agencies propose to define the following categories to be “waters of the United States”:

  • Traditional navigable waters. These are tidal waters or waters that are, have been or could be used to transport interstate or foreign commerce.
  • Interstate waters. These are waters that cross state lines.
  • The territorial seas. These are a belt of waters surrounding the United States shoreline.
  • Tributaries of traditional navigable waters, interstate waters, or the territorial seas. The proposal includes all natural and man-made tributaries adjacent to or near those waters.
  • All waters, including wetlands, that are adjacent to traditional navigable waters, interstate water, the territorial seas, impoundments, or tributaries.
  • Impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters.

Although these categories largely track the framework used in earlier guidance, the proposal has new and expanded definitions of key terms which could result in expanded federal jurisdiction. “Tributaries,” for example, are newly defined to include any land with a bed and bank and an ordinary high water mark that contributes flow to any water, meaning land that is dry for much of the year could be covered. Likewise “adjacent” waters are defined as “bordering, contiguous or neighboring” waters, where a “neighboring” water includes a nearby floodplain or “riparian” area—an area expansively defined as where surface or groundwater “directly influence the ecological processes and plant and animal community structure in that area.” The waters that meet these new definitions would be jurisdictional waters of the United States—no additional analysis of the nexus of such waters to downstream waters would be required.

“Significant Nexus” Test for Addressing “Other Waters.” For any “other waters” that do not fall under the listed categories, the agencies propose a process under which those waters could be found to be “waters of the United States.” The test would be whether the water has a “significant nexus” to jurisdictional waters under the Supreme Court’s ruling in Rapanos. Under the proposal, on a case-by-case basis, the Agencies could determine whether the aggregate effect of geographically isolated wetlands and other waters significantly affect the physical, biological, and chemical integrity of federally protected downstream waters. This process could greatly expand federal jurisdiction on a case-by-case basis in a way which injects great uncertainty into the process and makes it very hard to predict what “other” waters are regulated.

Certain Categories Are Excluded. The proposal does expressly exclude certain specified waters and features. Of note for many land developers, under certain circumstances, the proposal would exclude “ditches”—but only if the ditches are excavated wholly in uplands, drain only uplands, and have less than perennial flow, and the ditches do not contribute flow, either directly or through another water, to a traditional navigable water, interstate water, the territorial seas or an impoundment of a jurisdictional water. Other artificial waters would likewise be excluded, such as irrigated areas that would revert to uplands and artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for certain listed purposes. Water-filled depressions created incidental to construction activity, as well as gullies, rills, and non-wetland swales, would also be excluded.

There will be a 90-day public comment period from the day the proposal is actually published in the Federal Register, although there have been calls for a longer comment period. Stay tuned.

*U.S. v. Riverside Bayview, 474 U.S. 121 (1985); Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001); and Rapanos v. United States, 547 U.S. 715 (2006).