Yesterday, the Obama administration finalized the waters of the US rule it proposed last spring. There’s a lot to be said about the final rule, and so this will be the first in a series of blog posts (just like for the proposal). But because the new rule creates a few immediate obligations, we’ll start this series with the punchline.
The rule remains broad, but is somewhat more clear
In our view, the rule remains a very broad expression of the Administration’s view of it’s authority under the Clean Water Act. The good news is that, compared to the proposal, the final rule provides a level of additional clarity about what’s jurisdictional and what’s not because the Administration has substituted several distance-based definitions for the science-based ones originally proposed. For example, the term “floodplain” is now based on the FEMA 100-year floodplain; the term “adjacent” is now based on the distance from the ordinary high water mark of the associated tributary.
The broad categories of jurisdictional waters in the final are very similar to the proposal
The set of jurisdictional waters is generally the same in the final as in the proposal:
- Those that have been, are, or could be used in interstate commerce
- Interstate waters (those crossing state borders)
- The territorial seas
- Tributaries of the above
- Waters adjacent to the above
- Waters with a significant nexus to number 1, 2,or 3.
- Impoundments of the above.
The immediately-jurisdictional waters
As a result of the additional clarity in the final rule, we can say for sure that, under the rule, waters are jurisdictional starting at interstate waters and the territorial seas, as far up tributaries as there is an ordinary high water mark and a bed and bank and outward from that bed and bank at least 100 feet (and up to 1,500 feet if in the FEMA 100-year floodplain). In addition, waters within 1,500 feet of a high tide line or the ordinary high water mark of a Great Lake are always jurisdictional.
As with the proposed rule, there is no requirement that any of these upstream “waters” actually contain water – the bed and bank and ordinary high water mark, along with the distance from that feature is sufficient.
A few impacts of the rule
While we’re (probably) not your lawyers and this is definitely not legal advice to you (nor should you interpret it that way), you would be wise to see how these new definitions affect you. If you’re applying for a wetland permit, your consultants may need to modify the method you are using to identify jurisdictional waters. If you have a Spill Prevention, Control, and Countermeasures (SPCC) plan, you may need to modify it to cover any newly-additional jurisdictional waters. And if you don’t have an SPCC plan, you may need to implement one if your operations have the potential to impact areas formerly thought to be “dry” that are now considered wet.
As we said, there’s much to be said about the rule, and this was the easy part. Tomorrow, we’ll start the deeper dive, with an examination of the waters that by definition are not always jurisdictional, but in practice probably are.