EPA and Army Corps of Engineers Propose Clarifications to Scope of Clean Water Act Protection

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) are proposing a new rule which they say will clarify the scope of waters protected under the Clean Water Act (CWA).  The question of which isolated streams and wetlands qualify for protection under the CWA has been in dispute for more than a decade following Supreme Court decisions in 2001 and 2006 that narrowed the prior view that virtually any water body was subject to jurisdiction.   In the aftermath of those decisions, the agencies have expended significant resources doing case-by-case evaluations to determine jurisdiction over water bodies.  Guidance issued by the Bush administration in an attempt to clarify jurisdictional issues following the Supreme Court decisions was faulted as being too narrow by environmental groups, who have been lobbying to expand CWA coverage ever since.  The March 25, 2014 announced proposal is intended to clarify the CWA’s jurisdictional coverage once and for all. 

According to the preamble, the proposed rule would “increase CWA program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States’ protected under the Act.”  The proposal clarifies that under the Clean Water Act:

• Most seasonal and rain-dependent streams are protected.

• Wetlands near rivers and streams are protected.

• Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant.

Specifically, the agencies propose to define “waters of the United States” for all sections of the CWA to mean: traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands. Waters in these categories would be jurisdictional “waters of the United States” by rule – no additional analysis would be required.

“Other waters” – being those water bodies not fitting in any of the above categories – could be determined to be “waters of the United States” through a case-specific showing that, either alone or in combination with similarly situated “other waters” in the region, they have a “significant nexus” to a traditional navigable water, interstate water, or the territorial seas.

The agencies are seeking input on the best way to determine what “other waters” are jurisdictional, noting that they are particularly interested in comments, scientific and technical data, case law, and other information that would further clarify which “other waters” should be considered similarly situated for purposes of a case-specific significant nexus determination.

Similarly, the agencies seek comment on how to determine which waters should be non-jurisdictional, noting that their final decision on how best to address jurisdiction over “other waters” will be informed by a yet-to-be finalized US EPA report synthesizing published peer-reviewed scientific literature on the nature of connectivity and effects of streams and wetlands on downstream waters and other available scientific information.

No changes are proposed to existing exclusions for waste treatment systems designed consistent with the requirements of the CWA and for prior converted cropland, and no change is proposed to the regulatory status of water transfers, either.  The proposal also would not affect longstanding permitting exemptions for farming, silviculture, ranching and other specified activities.  All of the agricultural exemptions and exclusions that have existed for nearly 40 years have been retained with clarification, and another 53 conservation practices have been identified and will also be exempted from permitting requirements.  The proposal would also expressly exclude from regulation certain waters and features over which the agencies have never asserted CWA jurisdiction as a policy matter.  While the rule would keep the existing regulatory definitions of the terms “adjacent” and “wetlands,” it would, for the first time, define the terms “neighboring,” “riparian area,” “floodplain,” “tributary,” and “significant nexus.”

According to the agencies, the 371-page proposal does not broaden coverage of the Clean Water Act or protect any new types of waters.  Moreover, the agencies claim that the benefits of the new rule will outweigh the costs of implementation – a claim that has been questioned by industry groups since a draft of the proposal was leaked last fall.  According to information on US EPA’s website, the proposed rule would provide an estimated $388 million to $514 million of benefits to public on an annual basis by reducing flooding, filtering pollution, providing wildlife habitat, supporting hunting and fishing, and recharging groundwater, while costing anywhere from $162 million to $279 million per year to implement.

While democratic lawmakers, environmental advocates and sportsmen’s groups largely welcomed the Obama administration’s proposal, the announcement drew swift opposition from Republican legislators.  Industry groups such as the National Mining Association and the National Association of Homebuilders quickly issued statements voicing their concerns and questioning the purported benefits to business.  In addition, the Western Governors’ Association has already sent a letter to lead officials at both US EPA and the Army Corps of Engineers, expressing frustration at the fact that they were not sufficiently consulted on the proposed regulation, which would significantly increase the number of streams in their states that fall under federal jurisdiction.

The proposed rule has not yet been published in the Federal Register.  Once published, there will be a 90 day public comment period.  The proposed rule and additional information is available here, at US EPA’s website.

Kathy Milenkovski is an energy and environmental lawyer. She helps clients comply with complex state and federal regulatory programs and represents clients in litigation, appearing in administrative, state and federal courts.
» See more articles by Katerina E. Milenkovski
» Read the full biography of Katerina E. Milenkovski at Steptoe & Johnson