The U.S. Environmental Protection Agency ("EPA") and Army Corps of Engineers ("Corps") have released a controversial proposed rule which the two agencies claim will help to clarify the regulatory jurisdiction of the Clean Water Act ("CWA"). If the proposed rule is promulgated as drafted, it would significantly ease the burden on federal agencies in establishing CWA jurisdiction and, at the same time, effectively expand the scope of CWA jurisdiction well beyond that previously established by the CWA and prior agency guidance.
Under the CWA and existing regulations and guidance, the agencies have jurisdiction over traditional navigable waters, interstate waters, and territorial seas, as well as "tributaries" to those waters, and "adjacent wetlands." However, the proposed definitions of "tributary" and "adjacent" would expand CWA jurisdiction to automatically include a number of waters that previously would have required additional analysis before being designated jurisdictional.
The proposed rule also provides that "other waters" may be jurisdictional waters of the United States, if, either alone or in combination with other similarly situated waters located in the same region, there is a "significant nexus" to traditional navigable waters, interstate waters, or territorial seas. Whether a significant nexus exists for other waters must be addressed on a case-by-case basis.
The term "significant nexus" stems from the Supreme Court's 2006 decision in Rapanos v. United States, where a 4-1-4 plurality held that isolated wetlands could not be considered "waters of the United States" for CWA purposes. In a concurring opinion, Justice Kennedy wrote that CWA jurisdiction could be imposed if there was a significant nexus between the wetlands in question and traditional navigable waters. According to Justice Kennedy, a significant nexus existed if the wetlands significantly affected the "chemical, physical, and biological integrity" of traditional navigable waters. Under the proposed rule, wetlands and other water bodies are deemed to be tributaries or adjacent waters if they contribute flow directly or indirectly to waters of the United States, and these waters are presumed to have a significant nexus (and are thus subject to CWA jurisdiction) without requiring a case-specific significant nexus determination.
These tributaries and adjacent waters would also not lose their status as jurisdictional waters when there are man-made breaks (e.g., bridges, culverts, pipes, and dams) so long as a bed and banks and ordinary high water mark exist upstream of the break. Moreover, the proposed rule explains that a tributary's flow "may be ephemeral, intermittent or perennial" so long as the tributary drains, or is a part of a network of tributaries that drain, into waters of the United States. Ephemeral and intermittent streams do not flow year round and are instead rain or seasonal dependent.
Under the existing regulations and guidance, such waters did not always fall under CWA jurisdiction. Instead, the agencies were often required to prove that a significant nexus to traditional navigable waters existed. The proposed rule would reverse this position, and would effectively shift the burden onto industry and property owners to demonstrate that these waters do not have an impact on downstream jurisdictional waters.
The proposed rule has not yet been officially published but is expected to be published shortly. Once the rule is published in the Federal Register, it will be open for public comment for 90 days.