On May 27, 2015, the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) (the Agencies), released a Final Rule defining the scope of “waters of the United States” governed by the Clean Water Act (CWA or Act).1 The Final Rule, which will take effect 60 days after it is published in the Federal Register, will have significant impact on many sectors of the economy from agriculture to housing development. Importantly, all aspects of the energy sector, including production, development, transportation and renewable energy, are likely to be impacted.
The Final Rule supersedes previous agency guidance,2 and replaces the Obama Administration’s previous effort to issue its own “waters of the United States” guidance.3 The 297-page preamble and Final Rule define “waters of the United States” by a more detailed regulation, which is a change in the existing practice in which the phrase has been defined mostly in agency guidance documents and several Supreme Court decisions.4 The definition is critical because the scope of the “waters of the United States” is the cornerstone of the Clean Water Act and sets the parameters of the jurisdiction Congress established in the Act. Thus, the breadth of this definition determines when land use is subject to the permitting and enforcement authorities of EPA and the Corps.
1. Defining Waters of the United States. Compared to current practice, the Final Rule asserts a goal of significantly reducing the number of situations that are subject to case-by-case analysis. But any certainty is achieved at the expense of the Final Rule adopting a broader definition of “waters of the United States” that encompasses many isolated non-navigable intrastate waters as well as “tributaries” that flow only intermittently or indirectly into a traditional navigable water, interstate water or territorial sea.
Two key sources of controversy with the Proposed Rule—which in turn define the vast scope of the regulatory reach—are the definitions of “tributaries” and “adjacent” waters. The Final Rule follows the Proposed Rule in broadly defining “tributaries”—a key definition that determines the scope of the Rule’s reach—as any water with a bed and bank and an ordinary high water mark that contributes flow directly or indirectly to a navigable water, interstate water or territorial sea. This means that land that is dry for much of the year can be subject to the CWA.
The definition of “adjacent” waters is also extremely broad, although here the Final Rule attempts to provide more clarity than the Proposed Rule did. Whereas the Proposed Rule defined “adjacent” waters to include waters in some unspecified floodplain or vaguely defined “riparian” area, the Final Rule instead includes waters that are “bordering, contiguous, or neighboring,” including waters separated by constructed dikes or barriers or natural river berms or beach dunes. The Final Rule in turn defines “neighboring” waters to include three categories that may overlap in some instances: (1) all waters within 100 feet of the ordinary high water mark of a traditional navigable water, interstate water, territorial sea, tributary or impoundment thereof; (2) waters within the 100-year floodplain of a traditional navigable water, interstate water, territorial sea, tributary or impoundment thereof, and not more than 1,500 feet from the ordinary high water mark of such water; and (3) all waters within 1,500 feet of the high tide line of a traditional navigable water or territorial sea and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. “Adjacent” waters also include waters that connect or are located at the head of traditional navigable waters, interstate waters, territorial seas, tributaries or impoundments thereof. The waters that meet these new definitions are jurisdictional waters of the United States—no additional analysis of the nexus of such waters to downstream waters will be required.
2. Retaining “Significant Nexus” Test for Addressing “Other Waters.” The Final Rule also applies to “other waters” that are not covered under the definition of “tributary” or “adjacent” waters, specifically (1) all waters within the 100-year floodplain of a traditional navigable water, interstate water or territorial sea; (2) all waters within 4,000 feet of the high tide line or ordinary high water mark of a traditional navigable water, interstate water, territorial sea, tributary or impoundment thereof; and (3) prairie potholes, Carolina bays and Delmarva bays, pocosins, Western vernal pools and Texas coastal prairie wetlands. For these “waters,” the Agencies will undertake a case-by-case analysis that asks whether the water has a “significant nexus” to traditional navigable waters, interstate waters or territorial seas. “Significant nexus” means that the water, including wetlands, either “alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical or biological integrity of” a traditional navigable water, interstate water or territorial sea.
In making this determination, the Agencies will consider the function of the water in sediment trapping, nutrient recycling, pollutant trapping, transformation, filtering or transport, retention and attenuation of flood waters, runoff storage, contribution of flow, export of organic matter or food resources, and provision of aquatic habitat for species located in traditional navigable water, interstate water, or territorial sea. This process could greatly expand federal jurisdiction on a case-by-case basis in a way which injects great uncertainty and delay into the process and makes it difficult to predict what “other” waters are regulated.
3. Excluding Certain Waters. The Final Rule expressly excludes certain specified waters and features. Of note for many land developers, under certain circumstances, the Rule excludes three types of “ditches”—those with ephemeral flow that are not a relocated tributary or excavated in a tributary, those with intermittent flow that are not a relocated tributary, excavated in a tributary or drain wetlands, and those that do not flow directly or through another water into a traditional navigable water, interstate water or territorial sea. Other artificial waters that are excluded include irrigated areas that would revert to dry land, storm water control features and wastewater recycling structures created in dry land, and artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for certain listed purposes. Water-filled depressions created incidental to construction or mining activity, as well as gullies, rills and non-wetland swales that do not meet the definition of “tributary” are also excluded.
4. Effect on Previously Issued Jurisdictional Determinations. Under existing regulations and guidance, approved jurisdictional determinations generally are valid for five years. The Agencies say they will not reopen existing approved jurisdictional determinations unless requested to do so by the applicant or unless new information warrants revision of the determination before the expiration period, and approved jurisdictional determinations associated with issued permits and authorizations are valid until the expiration date of the permit or authorization. The Agencies also say that they do not anticipate being able to complete new jurisdictional determinations submitted after the Final Rule is published in the Federal Register and before it becomes effective 60 days later. As a result, requesters seeking jurisdictional determinations after the Final Rule is published should expect the determination will be made consistent with the Final Rule.
5. Prospects for Litigation. Given the breadth of the expanded definition of “waters of the United States” adopted in the Final Rule, and the legal consequences that flow from the Agencies’ assertion of jurisdiction over such waters, litigation challenging the Final Rule is quite probable. Among the issues that may be litigated are:
- Challenges to the exclusive reliance on Justice Kennedy’s “significant nexus” test. The Final Rule rests almost exclusively on the “significant nexus” test adopted in Justice Kennedy’s concurrence inRapanos v. United States, 547 U.S. 715 (2006) and that was joined by no other justice. Parties may contend that Justice Kennedy’s concurrence cannot establish the legal basis for the broad jurisdiction asserted in the Final Rule.
- Challenges to jurisdiction over “isolated” waters. The Final Rule asserts jurisdiction over many landforms that are not connected to a navigable water. For example, the Final Rule specifically finds prairie potholes and pocosins may be considered “waters of the United States.” Parties may contend that assertion of jurisdiction over such isolated waters without any physical connection to a navigable water violates Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001).
- Challenges to the scope of the Agencies’ definition of “tributary” and “adjacent.” Parties may likely contend that the Agencies have violated Rapanos by effectively finding that all tributaries are waters of the United States and all waters “adjacent” to a traditional navigable water or its tributary are “waters of the United States.”