A long-awaited rule proposal to govern jurisdictional determinations for waters under the Clean Water Act (CWA) was published in the Federal Register by the EPA and the Corps of Engineers (Corps) on April 21, 2014. 79Fed. Reg. 22188. The proposed rule would revise the regulatory definition of “waters of the United States” as currently stated in several locations in regulations of the EPA and the Corps. The proposal is anticipated to be a highly controversial rulemaking. Comments on the proposed rule will be accepted through July 21, 2014.

Whether a water body is determined to be included in “waters of the United States” (WOTUS) as referenced in Section 502(7) of the CWA, 33 U.S.C § 1362(7), has become uncertain and contentious in the wake of the two most recent Supreme Court decisions to address the topic: Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001) and Rapanos v. United States (Rapanos), 547 U.S. 715 (2006), which for the first time established certain constraints on the reach of the CWA. The Rapanos decision has been a source of controversy and uncertainty, spawning numerous lawsuits over governmental actions related to asserted jurisdiction under the CWA, as a result of the highly split decision.

Differences Proposed from the Existing Definition of WOTUS

The proposed definition would make no change to the following three of the seven categories of jurisdictional waters in the existing definition:

  1. all waters that currently are used, were used in the past, or are susceptible of use in interstate or foreign commerce;
  2. all interstate waters, including interstate wetlands; and
  3. the territorial seas.

A fourth category, currently described as “[a]ll impoundments of waters otherwise defined as waters of the United States”, would be retained by the Proposed Definition but would appear to be slightly narrowed by not including impoundments of waters in adjacent wetlands, certain “other waters” or the territorial seas.

While a fifth category of “waters” in the existing definition, “tributaries” of most waters identified in the definition, appears to be retained without change, differences do arise from the supplemental definitions of “Tributary” and other terms included within the proposed definition, when compared to the existing law under Rapanos. Under the proposed definition, Justice Kennedy’s significant nexus criterion for assessing qualifications of waters for WOTUS status is implicitly incorporated and extended to provide a per se status for tributaries. 

Another category of “waters” in the existing definition, “wetlands adjacent to waters . . . identified in [other parts] of this definition”, would be expanded somewhat in the Proposed Definition to include “[a]ll waters, including wetlands, adjacent to a water identified” in other parts of the definition except for other adjacent waters or “other waters”. 

Finally, the proposed definition would delete the third category of the existing definition, something of a catchall category, consisting of “all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, “wetlands”, sloughs, prairie potholes . . . the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce.” This catchall category would be replaced with a different category applying to “other waters, including wetlands” that are determined, on a case-by-case basis, either alone or in combination with other similarly situated waters located in the same region, to have a significant nexus to waters listed in one of the first three categories.

Proposed Additional Exclusions from WOTUS

In addition to the changes relating to waters included in WOTUS, the proposed definition also would add three categories of waters to the two existing categories excluded from WOTUS. Two of the proposed additions involve ditches. These include: 

  1. ditches excavated wholly in uplands, that drain only uplands and have less than perennial flow; and 
  2. ditches that do not contribute flow, either directly or indirectly, to the first three categories of included waters. 

The third category of excluded waters comprise a miscellaneous grouping of waters, most of which would cause surprise if they were proposed to be included in WOTUS. These proposed exclusions will generally have little impact on jurisdictional determinations, and are not particularly surprising. What may be surprising is that the EPA and the Corps would seriously consider waters such as “small ornamental waters created by excavating . . . dry land for primarily aesthetic reasons” as a matter of possible question for jurisdiction under the CWA. A potentially more significant exclusion, but one that has been historically followed by the agencies is “groundwater.”

Among the concerns most likely to emerge from the rulemaking on the proposed definitional changes is what the overall impact will be on the net gain or loss of waters included in WOTUS and what type of waters are involved in the gain or loss. Interested persons have until July 21, 2014, to comment on the proposed rule.