On March 25, the Corps and EPA jointly issued their long-awaited rule to, in their words, “clarify” the definition of Waters of the United States under the Clean Water Act. The purpose of the proposed rule is to bring more certainty and less case-by-case decisions on which waters and wetlands are or are not jurisdictional following the Supreme Court cases of SWANCC and Rapanos, which both limited Corps jurisdiction. The rule does meet that goal, but it does so by erring on the side of expanding the jurisdictional reach of the Corps. EPA expects to finalize the rule within a year.
The political response to this rule has been swift, with many members of Congress expressing their dismay with the rule. Senate Minority Leader Mitch McConnell has declared it an overreach and has questioned EPA’s authority to draft the regulation. Another senator, John Barasso, called it a massive land grab.
The new rule proposes to define “Waters of the United States” as:
Traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, and tributaries, as defined of such waters; tributaries, as defined, of traditional seas; and adjacent waters, including adjacent wetlands and 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.
Other important definitions proposed in the new rule that complement the prime definition of “Waters of the United States” are “neighboring,” “riparian area,” “tributary” and “significant nexus.”
Waters and wetlands that fit within this “Waters of U.S.” definition are always jurisdictional unless specifically excluded elsewhere. The category of “other waters” will be determined upon a case-by-case basis to determine if the waters in question have a significant nexus with a traditional navigable water. If so, then such waters would be jurisdictional. The agency discussion of how that nexus would be determined clearly shows that jurisdiction would expand from what is currently legally regulated. For instance, isolated wetlands that would not have been jurisdictional after the SWANCC Supreme Court decision, now can easily be determined to be jurisdictional simply by being near a jurisdictional wetland or located within the floodplain of a jurisdictional water, even if there is no direct hydrologic connection.
Two areas that remain exempt from jurisdiction are waste treatment systems designed to meet CWA standards and prior converted cropland. Ditches are also listed as exempt, but only under limited circumstances, such as ditches excavated and that drain only uplands and ditches that do not contribute any flow, directly or indirectly, to a traditional navigable water.
The Corps and EPA have spent a great deal of time explaining the scientific basis for why they believe that wetlands and water that might have been non-jurisdictional before should now be considered jurisdictional. Of particular importance is the EPA’s Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, which was published in September of 2013 and is still under review. The attempt to heavily rely on a scientific basis (for all things other than the definition of “significant nexus,” which they admit is a subjective standard) is a preview of how EPA and the Corps will defend this rule once it is subject to the inevitable lawsuits.
The rule is open for public comment for 90 days. Please contact us if you would like more information regarding the proposed rule and the increase in jurisdictional reach contained within it.