Today the U.S. Environmental Protection Agency (EPA) released a prepublication version of its rule defining the waters of the United States, also referred to as the Clean Water Rule (the Rule). The EPA issued this Rule to provide clarity on what waters are subject to federal jurisdiction and regulation under the Clean Water Act in light of the U.S. Supreme Court’s decisions in U.S. v. Riverside Bayview HomesSolid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States.

Waters that meet the criteria set forth in the Rule are subject to the Clean Water Act. The Rule only intends to protect waters that have historically been covered by the Clean Water Act. This Rule does not establish new regulatory or permitting requirements, but will impact all statutes and rules that rely on the definition of “waters of the United States.”

The EPA intends for the final Rule to accomplish the following:

  • Define tributaries that impact downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The Rule says that a tributary must show physical features of flowing water – a bed, a bank, and an ordinary high water mark – to be included in the Rule. The Rule includes in its definition headwaters that have these features and science shows can have a significant connection to downstream waters.
  • Provide certainty in how far safeguards extend to nearby waters. The Rule includes waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The Rule intends to establish boundaries that are physical and measurable to determine whether nearby waters are covered.
  • Include specific water features that impact downstream waters. The Rule covers prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
  • Focus on streams, not ditches. The Rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. Ditches that are not constructed in streams and that flow only when it rains are not covered.
  • Maintain the status of waters within municipal separate storm sewer systems. The Rule does not change how those waters are treated and encourages the use of green infrastructure.
  • Reduce the use of case-specific analysis of waters. Previously, almost any water could be subjected to a lengthy case-specific analysis, even if not covered by the Clean Water Act. However, the new Rule intends to limit the use of case-specific analysis by defining waters that are regulated.

The Rule is not intended to regulate most ditches or groundwater, shallow subsurface flows, or tile drains. It also excludes from jurisdiction artificially irrigated areas that are otherwise dry land, artificial lakes, ponds or reflecting pools created in dry land, and water-filled depressions created as a result of construction activity. The Rule also does not apply to erosional features such as rills, gullies or non-wetland swales, pits excavated in upland for fill, sand or gravel, or artificial ornamental waters created in dry land for primarily aesthetic reasons.

The Rule will be effective 60 days after it is published in the Federal Register.