Background

On March 25, 2014, the U.S. Environmental Protection Agency (U.S. EPA) and the U.S. Army Corps of Engineers (Corps) made available for public comment a proposed rule redefining the scope of waters protected under the Clean Water Act (CWA), in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview Homes, Solid Waste Agency  of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. United States (Rapanos). See http://www2.epa.gov/uswaters/ definition-waters-united-states-under-clean-water- act for a copy of the proposed rule.

Pursuant to section 101(a) of the CWA, the objective of the Act is to restore and maintain the chemical, physical and biological integrity of the nation’s water.  In light of the foregoing, the jurisdictional scope of section 404 of the CWA applies to navigable waters, a term which is defined by the CWA as “waters of the United States, including the territorial seas.”

Definition of Waters of the United States

Existing regulations define waters of the United States to include traditionally navigable waters, such as waters used in interstate or foreign commerce, as well as other waters that could affect interstate or foreign commerce. Notably, the scope of the Corps’ jurisdiction over these other waters has been the subject of several court cases and has been debated. In light of the foregoing controversy, the meaning of this term is the subject of U.S. EPA’s and the Corps’ (referred to herein as the “Agencies”) newly proposed rule.

Crafting its proposed rule based upon the opinions of the U.S. Supreme Court in U.S. v. Riverside Bayview Homes, SWANCC and Rapanos, the Agencies have proposed to define waters of the United States to mean “traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas and adjacent waters, including the adjacent wetlands.” Under the proposed rule, EPA has made clear that these waters would be automatically jurisdictional by rule, with no additional analysis required. However, for other waters that do not fit within any of the above categories, the Agencies are proposing to consider these waters as jurisdictional if, after a case-specific analysis, the Corps determines that these waters have a significant nexus. This means that the Corps will look for a specific showing that, 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. The definition of “significant nexus” is specifically proposed by U.S. EPA to mean, in relevant part, as follows:

. . . a water, including wetlands, either alone or in combination with other similarly situated waters in the region (i.e., the watershed

that drains to the nearest water identified in paragraphs (a)(1) through (3) of this section), that significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (a)(1) through (3) of this section. For an effect to be significant, it must be more than speculative or insubstantial. Other waters, including wetlands, are similarly situated when they perform similar functions and are located sufficiently close together or sufficiently close to a “water of the United States” so that they can be evaluated as a single landscape unit with regard to their effect on the chemical, physical, or biological integrity of a water identified in paragraphs (a)(1) through (3) of this section.1

U.S. EPA is seeking comment on the above- referenced revisions, with specific attention to how the use of science could inform these case-specific significant nexus determinations. Further, U.S. EPA believes that as science develops, the Agencies could determine that there are additional categories of “other waters” that have a significant nexus.

In that regard, U.S. EPA’s Office of Research and Development plans to publish peer-reviewed scientific literature discussing the nature   of connectivity and effects of streams and wetlands on downstream waters. However, this publication has not yet been finalized.

Note that the proposed rule does not affect the previously offered exemptions in the CWA for farming, silviculture, and ranching and further does not change the regulatory exclusions for waste treatment systems and prior converted croplands. Further, it does not affect the regulatory status of water transfers.

U.S. EPA will accept comments on the proposed rule until July 21, 2014.