Regulatory Scope of “Waters of the United States” to be Clarified

Last week, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“Agencies”) jointly released a proposed rule that further defines the scope of waters protected under the Clean Water Act (“CWA”). The proposed rule revises the definition of “waters of the United States” and also adds new definitions for the terms “neighboring,” “riparian area,” “floodplain,” “tributary,” and “significant nexus.” The impetus behind this rule is an attempt to reduce the confusion and uncertainty generated in the wake of two U.S. Supreme Court decisions that added complexity, rather than clarity, to the determination of whether a water body was a jurisdictional “Water of the United States” regulated under the CWA. See Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng’rs., 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).

The stated purpose of the proposed rule is to clarify that most seasonal and rain-dependent streams are jurisdictional; that wetlands near rivers and streams are jurisdictional; and that other types of waters where the connections to downstream waters are unclear will be evaluated on a case-specific basis. For the first time, the rule also proposes to exclude certain categories of waters and features over which the Agencies have not traditionally asserted CWA jurisdiction. However, the longstanding permitting exemptions and exclusions for farming, silviculture, ranching, and other specified activities remain unchanged. As the Agencies explain, the proposed rule is intended to provide the long-awaited “clarity, certainty, and predictability for the regulated public and the regulators.”

The Agencies appear hopeful that the proposed rule will reduce the number of case-specific jurisdictional determinations and permitting inefficiencies that resulted post-SWANCC and Rapanos. The proposed rule essentially sets forth bright line categories of waters that are and are not per se jurisdictional, but also includes a category for “other waters” that may be jurisdictional depending on a case-by-case analysis. Specifically, the Agencies propose the revised definition of “waters of the United States” to include and exclude the following:

(a)        For purposes of all sections of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (b) of this section, the term “waters of the United States” means:

(1)        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;

(2)        All interstate waters, including interstate wetlands;

(3)        The territorial seas;

(4)        All impoundments of waters identified in paragraphs (a)(1) through (3) and (5) of this section;

(5)        All tributaries of waters identified in paragraphs (a)(1) through (4) of this section;

(6)        All waters, including wetlands, adjacent to a water identified in paragraphs (a)(1) through (5) of this section; and

(7)        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 water identified in paragraphs (a)(1) through (3) of this section.

(b)       The following are not “waters of the United States” notwithstanding whether they meet the terms of paragraphs (a)(1) through (7) of this section –

(1)        Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.

(2)        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 EPA.

(3)        Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.

(4)        Ditches that do not contribute flow, either directly or through another water, to a water identified in paragraphs (a)(1) through (4) of this section.

(5)        The following features:

(i)         Artificially irrigated areas that would revert to upland should application of irrigation water to that area cease;

(ii)        Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;

(iii)       Artificial reflecting pools or swimming pools created by excavating and/or diking dry land;

(iv)       Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons;

(v)        Water-filled depressions created incidental to construction activity;

(vi)       Groundwater, including groundwater drained through subsurface drainage systems; and

(vii)      Gullies and rills and non-wetland swales.

As noted above, the Agencies also propose to define new terms, such as “tributary” in order to lend further clarity to the above definition. (See Proposed Rule, pp. 327-329.) The proposed rule defines “tributary” as:

[A] water physically characterized by the presence of a bed and banks and ordinary high water mark, as defined at 33 CFR § 328.3(e), which contributes flow, either directly or through another water, to a water identified in paragraphs (a)(1) through (4) of this section. In addition, wetlands, lakes, and ponds are tributaries (even if they lack a bed and banks or ordinary high water mark) if they contribute flow, either directly or through another water to a water identified in paragraphs (a)(1) through (3) of this section. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if, for any length, there are one or more man-made breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands at the head of or along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. A tributary, including wetlands, can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches not excluded in paragraphs (b)(3) or (4) of this section.

According to the Agencies, the definitions in the proposed rule provide enhanced protection for streams that do not flow year-round or are completely dependent on rain and wetlands, but do not expand the scope of waters historically protected under the CWA. If adopted as written, however, this proposed rule would likely expand federal oversight over many bodies of water that were previously in jurisdictional limbo. It remains to be seen what impact the new definitions will have on the regulatory landscape.

The proposed rule will be open for public comment for 90 days once it is published in the Federal Register, during which time the Agencies intend to launch a “robust outreach effort” to gather input from the public necessary to shape the final rule.  The Docket Number for the Proposed Rule is Docket No. EPA-HQ-OW- 2011-0880 and more information is available here.