Yesterday, the U.S. Environmental Protection Agency (EPA) released the final version of the Clean Water Rule (CWR), which defines categories of water that are now subject to regulation without the need to perform a case-specific “significant nexus” determination.1 In doing so, the EPA stated that the primary purpose of the new rule is to limit the sometimes slow, confusing and costly process of determining whether a “water” is subject to EPA regulation under the Clean Water Act (CWA) on a case-by-case basis.

However, by limiting the confusing and costly case-specific “significant nexus” determination, the EPA now imposes an equally onerous burden on those seeking to demonstrate that their “waters” are not “waters of the United States.” For instance, the CWR specifically indicates that all “tributaries” are subject to the EPA’s jurisdiction and then explains what constitutes a “tributary.”2 Consequently, the rule requires a complicated case-by-case analysis to determine whether a body of water is a “tributary.”

1. The Old Standard Compared to the New Rule

With the U.S. Supreme Court’s 2006 decision in Rapanos v. United States, 547 U.S. 715 (2006), the EPA – and many federal courts – has applied a “significant nexus” standard. In deciding Rapanos, the court issued five separate opinions, leaving Chief Justice Roberts to state, “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.”

In a concurring opinion, Justice Kennedy espoused a broader view and found that “to constitute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” 547 U.S at 759. In 2008, in an effort to clarify how to make jurisdictional determinations, the EPA issued the Rapanos guidance, which included a list of those waters that were not jurisdictional and a list of waters that would be analyzed using Justice Kennedy’s “significant nexus” standard.3

With the new rule, the EPA sought to “clarify and simplify implementation of the CWA consistent with its purposes through clearer definitions and increased use of bright-line boundaries to establish waters that are jurisdictional by rule and limit the need for case-specific analysis.” 80 Fed. Reg. at 37055. To do so, the EPA established eight jurisdictional categories. Half of the categories are “jurisdictional by rule in all cases” and include traditional navigable waters, interstate waters, territorial seas and impoundments of jurisdictional waters. Id. at 37058. Two are “jurisdictional by rule, as defined” and include tributaries and adjacent waters. Id. The final two categories are not jurisdictional by rule and require a “case-specific analysis” to determine if they have a “significant nexus” to traditional navigable waters, interstate waters or territorial seas. Id.; see also 40 C.F.R. §§ 122.2(1)(vii)-(viii); 230.3(3)(v);232.2(3)(v).

With respect to “tributaries” and “adjacent waters,” the CWR eliminates the need for a “significant nexus” test by creating an explicit definition for each that automatically makes water bodies that meet the definition subject to the EPA’s jurisdiction. While this may very well eliminate the need for a case-specific “significant nexus” analysis for tributaries, the CWR’s definition of “tributary” is nevertheless vague and creates a number of problems discussed below — one being that the need for a case-specific analysis has not been eliminated.

2. Tributary Defined

The CWR defines a tributary as:

"[A] water that contributes flow, either directly or through another water (including an impoundment identified in [40 C.F.R. § 230.3(o)(1)(iv)]), to a water identified in [40 C.F.R. §§ (o)(1)(i) through (iii)] that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark and thus to qualify as a tributary. A tributary can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, canals, and ditches not excluded by [40 C.F.R. § 230.3(o)(2)]."4  

80 Fed. Reg. at 37117; 40 C.F.R. § 230.3(o)(3)(iii).

In addition to the definition, the new rule states that a tributary:

 "... does not lose its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams) or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break."

Id.

Based on this definition, the flow of water does not need to be navigable or flow year-round, so perennial, intermittent and ephemeral flows may be sufficient to create the presence of physical indicators. In essence, the primary focus has shifted from determining whether a “significant nexus” exists to determining whether a body of water is a tributary due to “the presence of the physical indicators of a bed and banks and an ordinary high water mark.” Yet, as discussed below, making this determination is not simple, clear or expedient.

3. Indicators of a Bed and Banks and an Ordinary High Water Mark

Under the CWR, a water body qualifies as a tributary under the EPA’s jurisdiction rule if it contributes flow, directly or indirectly, to another jurisdictional water and has “the presence of the physical indicators of a bed and banks and an ordinary high water mark.” Id. Thus, the rule requires two physical indicators of flow: there must be a bed and banks, and there must be an indicator of an ordinary high water mark. Accordingly, under the new rule, one way to demonstrate that your water is not a regulated tributary is to show that the “physical indicators” of a “bed and banks” or an “ordinary high water mark” are not present. How does the rule define these terms?

The rule does not specifically provide a definition for “bed and banks” to be included in the Code of Federal Regulations. Rather, a definition is provided in the rule’s narrative — apparently drafted by the U.S. Army Corps of Engineers (Corps). See 80 Fed. Reg. at 37076. There, the Corps states that “bed and banks” means “the substrate and sides of a channel between which flow is confined. The banks constitute a break in slope between the edge of the bed and the surrounding terrain, and may vary from steep to gradual.” Id. The narrative goes on to provide:

"Current Corps regulations and guidance identify bed and banks as indicators of the ordinary high water mark. The definition of 'tributary' in this rule requires the presence of a bed and banks and an additional indicator of ordinary high water mark such as staining, debris deposits, or other indicator identified in the rule or agency guidance. In many tributaries, the bed is that part of the channel below the ordinary high water mark, and the banks often extend above the ordinary high water mark. For other tributaries, such as those that are incised, changes in vegetation, changes in sediment characteristics, staining, or other ordinary high water mark indicators may be found within the banks. In concrete-lined channels, the concrete acts as the bed and banks and can have other ordinary high water mark indicators such as staining and debris deposits. Indicators of an ordinary high water mark may vary from region to region across the country."

Id.

The rule does provide a specific definition for “ordinary high water mark,” stating that the term means:

"[T]he line on the shore established by fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas."

40 C.F.R. §§ 122.2(3)(vi); 230.3(o)(3)(vi); 232.2(3)(vi).

The rule’s narrative discusses two methods that may be used to determine whether “bed and banks” and an “ordinary high water mark” exist. The first method is simple and understandable — direct field observation. The second method, however, relies on the virtual identification of these traits. These virtual methods include “several reliable, well-established remote sensing sources of information or mapping … that can assist in establishing the presence of water,” such as:

  • USGS topographic data.
  • The USGS National Hydrography Dataset.
  • A Natural Resources Conservation Service Soil Survey.
  • State or local stream maps.
  • Analysis of aerial photography.
  • Light detection and ranging (also known as LIDAR) data.
  • “Desktop tools” that provide for “the hydrologic estimation of a discharge sufficient to create an ordinary high water mark, such as a regional regression analysis or hydrologic modeling.”

80 Fed Reg. at 37076-77.

However, the legal headache of applying the EPA’s new CWR does not end with the Procrustean definitions of “bed and banks” and “ordinary high water mark” or the “reliable” methodologies for assessing their presence. Under the new definition of “tributary,” it is quite possible that there is no need for the presence of an actual bed and banks or an actual ordinary high water mark in order for the EPA to assert jurisdiction. Rather, all that is required is the “presence of physical indicators of a bed and banks and an ordinary high water mark.” 40 C.F.R. §230.3(o)(3)(iii) (emphasis added). Thus, even if there currently is no bed and banks or ordinary high water mark, a body of water may still be defined as a “tributary” if there is evidence these physical characteristics previously existed or exist during parts of the year.

4. Problems Presented by the New Definition of “Tributary”

a. It is unclear whether desktop tools used to identify past or invisible physical indicators outweigh direct field observations.

The new rule is ambiguous regarding how the EPA will identify the existence of a physical indicator of a bed and banks or an ordinary high water mark. The language of the rule suggests that there must be the presence of a physical indicator before a body of water is classified as a tributary. However, the rule also suggests that these physical indicators do not need to be visible to the naked eye or even currently in existence.

When no physical characteristics can be identified through direct field observation, virtual desktop tools can still be used to determine that these physical indicators either currently exist or previously existed. This creates a problem of authority: is a field observation trumped by a desktop analysis even though there is currently no physical presence of the bed and banks or ordinary high water mark? The rule does not answer this question, let alone explain what weight the EPA will give to each type of evidence.

b. It is unclear how to determine the upper limit of a tributary.

The new rule states that “a natural or constructed break in bed or banks or other indicator of ordinary high water mark does not constitute the upper limit of a tributary where the bed and banks and other indicator of ordinary high water mark can be found farther upstream.” 80 Fed. Reg. at 37077. The rule does not state how far upstream one must keep looking for these indicators to determine the upper limit of a tributary before concluding that the EPA’s jurisdiction over the water body has ceased. It is also unclear when a “break” is so large that it constitutes the upper limit. The rule only states that a break does not end jurisdiction.

c. The problem of case-by-case specific analysis continues.

The EPA indicated that the purpose and goal of the new rule is to reduce the time-consuming, costly practice of determining jurisdiction under the CWA on a case-by-case basis. Although the new rule specifically indicates which water bodies are under the EPA’s jurisdiction, ambiguities in the definitions of the CWR will likely lead to additional analysis regarding whether a specific water body meets a particular definition. If the EPA’s goal is to limit the use of case-specific analysis, the new rule does not appear to accomplish it.

5. Conclusion

The CWR will go into effect on Aug. 28, 2015, and will be considered issued for purposes of judicial review as of 1 p.m. Eastern time on July 13, 2015. Industry, local governments and private developers will clearly be affected by these new rules. And, given the impacts and ambiguities discussed above, it is likely that the CWR will be immediately subject to judicial review.

Devin Spencer