The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have proposed a new rule defining the scope of waters protected under the Clean Water Act (CWA). The proposal sets forth several categories of waters to be included in the definition as well as established waters that are subject to the Act. This proposed rule was made in light of the Supreme Court cases in U.S. v. Riverside Bayview, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States -- regarding the determination of which streams and which wetlands were subject to the Clean Water Act protection.
The goal behind the proposed rule is to minimize the number of case-by-case determinations of which waters are protected under the Act; namely on the category of waters referred to as “other waters.” The agencies propose to define waters of the United States to mean:
- All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
- All interstate waters, including interstate wetlands;
- The territorial seas;
- All impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary;
- All tributaries of a traditional navigable water, interstate water, the territorial seas or impoundment;
- All waters, including wetlands, adjacent to a traditional navigable water, interstate water, the territorial seas, impoundment or tributary; and
- On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a traditional navigable water, interstate water or the territorial seas.
The proposed rule states that the term “significant nexus” means that a water, including wetlands, either alone or in combination with or similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a jurisdictional water body. 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 protected water.
The proposed rule also excludes specified waters from the definition of “waters of the United States.” Some of these exclusions are:
- Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.
- Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with the EPA.
- Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.
- Ditches that do not contribute flow, either directly or through another water, to a traditional navigable water, interstate water, the territorial seas or a jurisdictional impoundment;
- Groundwater, including groundwater drained through subsurface drainage systems
Some believe the proposed rule simplifies the process of determine what waters are considered jurisdictional waters, and thereby protected by the CWA. However, others believe the proposed rule could potentially broaden what types of “other waters” next to “waters of the U.S.” are considered jurisdictional. Perhaps the more important question is, will federal courts suddenly be over flooded with new CWA cases? This debate will only be settled over time.