On March 25, 2014, the U.S. EPA and the Army Corps of Engineers jointly announced a proposed rule that, if finalized, would revise the scope of the Clean Water Act by expanding its jurisdictional reach to some tributaries, ephemeral streams and wetlands not previously covered. The proposed rule arises from the aftermath of two U.S. Supreme Court Decisions, Solid Waste Agency of Northern Cook County v. U.S. (2001) and Rapanos v. U.S (2006). Those decisions resulted in great debate among the regulated community and uncertainty among the courts over the reach of CWA to certain streams and waterways that are non-navigable. With this proposed rule, it appears that EPA and the Corps are taking the opportunity to provide more certainty by expanding the reach to rain dependent streams and tributaries that previously may not have been subject to federal regulation.
EPA’s carefully crafted press release accompanying the new rule states that the proposed rule “does not protect new types of waters that have not historically been covered under the Clean Water Act.” A review of the proposed rule, however, shows that for the first time EPA specifically lists all tributaries, ephemeral and intermittent streams and adjacent waters as covered under the CWA without any further analysis needed. Even in its press release, EPA admits that, under the proposed rule, “most seasonal and rain-dependent streams are protected” and that “wetlands near rivers and streams are protected”.
The proposed rule further states that “other waters” not expressly covered by the proposed rule are subject to jurisdiction based upon a case specific analysis showing that the specific water alone or in combination with similarly situated waters have a significant nexus to traditional navigable waters, interstate waters or the territorial seas. The proposed rule seeks public comment and input on how the case specific analysis should be developed.
EPA explains its rationale for the increased jurisdiction stating “the health of rivers, lakes, bays and coastal waters depend on the streams and wetland where they begin.” EPA further states that “about 60% of stream miles in the U.S. only flow seasonally or after rain, but have a considerable impact on the downstream waters.”
The likely impact to individuals and businesses is the potential for additional regulatory approval (i.e. permits) for activities such as construction or development of property. Any time there is increased regulatory involvement one can expect additional costs and delays particularly in instances where EPA works through the potential case specific situation.
It is important to note that the rule is not yet gone into effect. The public will have 90 days from the date of publication in the Federal Register to offer comments before the proposed rule becomes final. The rule has not yet been published in the Federal Register but is available for viewing here http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm.