On April 21, 2014, the United States Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Army Corps”) issued a joint proposed rule1 designed to clarify which water bodies are subject to Clean Water Act (“CWA”) jurisdiction. The proposed rule states that it is aimed at assisting the regulated community and saving agency resources by limiting the need for fact-intensive determinations regarding the jurisdictional scope of water bodies. Comments on the proposed rule are due no later than Oct. 20, 2014.2

The scope of CWA jurisdiction has been a heavily contested and litigated issue in recent years. At the center of this ongoing dispute has been the murky meaning of the term “waters of the United States” under the implementing regulations for the CWA. The U.S. Supreme Court weighed in on the issue in several well-publicized cases,3 ultimately requiring the EPA and Army Corps to evaluate the issue on a case-specific basis. The need to resort frequently to a fact-intensive analysis on whether certain waters are subject to CWA jurisdiction has led to great uncertainty among the regulated community and a drain on agency resources spent litigating the issue. The new proposed rule is supposed to provide clarity as to whether individual water bodies are jurisdictional (and thus subject to permitting requirements for discharges) or not jurisdictional (and thus not subject to permitting requirements for discharges).

The proposed rule aims to achieve this clarity by: (1) creating a per se jurisdictional definition for “waters of the United States,” which would not require a fact-intensive inquiry to determine CWA jurisdiction; and (2) identifying the “other waters” of the United States, which may still be found to be jurisdictional but only after a fact-intensive inquiry. Thus, the proposed rule first defines “waters of the United States” for all sections of the CWA to mean:

  • Traditional navigable waters.
  • Interstate waters, including interstate wetlands.
  • Territorial seas.
  • Impoundments of traditional navigable waters, interstate waters, the territorial seas or a tributary.
  • Tributaries of traditional navigable waters, interstate waters, the territorial seas or impoundments.
  • All waters, including wetlands, adjacent to a traditional navigable water, interstate water, the territorial seas, impoundments or tributaries.

The proposed rule then defines “other waters” (i.e., those not fitting in any of the above categories for “waters of the United States”), which could still be considered “waters of the United States” but only after a case-specific showing.  Under the proposed rule, this case-specific showing dictates that “other waters” still qualify as “waters of the United States” if 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. A “significant nexus” would exist under the proposed rule if the subject water (either alone or in combination with other similarly situated waters) significantly affects the chemical, physical or biological integrity of a “water of the United States.”

The proposed rule retains the existing regulatory definitions for “adjacent” and “wetlands,” but it proposes definitions for the first time for “neighboring,” “riparian area,” “floodplain,” “tributary” and “significant nexus.” Longstanding CWA exemptions for farming, silviculture, ranching and other activities are not changed by the proposed rule, nor does it change regulatory exclusions for waste treatment systems and prior converted cropland. The proposed rule also does not change the regulatory status of water transfers.

The EPA and Army Corps are accepting comments regarding the proposed rule and its effect on regulated entities until Oct. 20, 2014.