The final Waters of the United States rule, jointly proposed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers last spring, was signed on May 26, 2015, and aims to clarify the federal government’s authority to regulate certain water bodies pursuant to the 1972 Clean Water Act (CWA).

The CWA gives the government broad authority to limit pollution in “waters of the United States,” which has been defined under a prior Corps rule to include traditional navigable waters and their tributaries, as well as wetlands adjacent to such jurisdictional waters. However, neither the term “tributary” nor “adjacent” was clearly defined in that prior rule. Moreover, the prior rule only addressed certain isolated waters, the use, degradation or destruction of which could affect interstate or foreign commerce, but the rule did not define these waters. In the absence of clear definitions, the jurisdictional analysis for many potentially covered water bodies required a case-specific determination as to whether a “significant nexus” exists between the water body in question and a downstream water body more readily understood as “navigable.” By addressing these ambiguities in the regulations, EPA and the Corps hope to reduce the need for permitting authorities to make jurisdictional determinations on a case-specific basis.

The new rule will clarify the extent of the government’s authority to regulate smaller streams and headwaters, wetlands, and certain isolated waters. First, the rule defines “tributaries” as waters characterized by the presence of physical indicators of flow: a bed, banks, and ordinary high water mark. EPA and the Corps have found that these physical characteristics are created by “sufficient volume, frequency and duration of flow,” even when that flow is “perennial, intermittent, or ephemeral.” When waters with these physical characteristics contribute flow directly or indirectly to a traditional navigable water, interstate water, or territorial sea, even only intermittently, then they are “waters of the United States,” and are therefore jurisdictional by rule.

Second, the rule defines “adjacent” as “bordering, contiguous, or neighboring.” The term “neighboring” is specifically defined, based on an “adjacent” water body’s distance from the ordinary high water mark or high tide line of a jurisdictional water body. Waters falling within this definition of adjacent are “waters of the United States,” and are also jurisdictional by rule.

Third, the rule identifies five categories of waters (prairie potholes, Carolina and Delmarva bays, pocosins, California western vernal pools, and Texas coastal prairie wetlands) which should remain subject to the case-specific “significant nexus” analysis. Additionally, waters should remain subject to the “significant nexus” analysis when they fall outside of the new definition of adjacent, but lie within a 100-year floodplain and/or within 4,000 feet of the ordinary high water mark or high tide line of jurisdictional waters. The preamble acknowledges that “waters that are closer to a jurisdictional water are more likely to be connected to that water than waters that are farther away.” Thus, the case-specific analysis for waters located within 4,000 feet of the ordinary high water mark or high tide line of jurisdictional waters “allows such waters to be considered jurisdictional only where they meet the significant nexus requirements” (i.e., significant chemical, physical, or biological connections with a jurisdictional water). Nevertheless, this 4,000-foot catchall authorizes a significant nexus analysis for an enormous amount of area, particularly in the East, where streams are plentiful.

The new rule also categorically excludes from the definition of “waters of the United States” any waste treatment systems, prior converted cropland, certain ditches, groundwater, gullies, rills and non-wetland swales, as well as constructed components of Municipal Separate Storm Sewer Systems. The new rule also excludes various artificial water bodies such as “lakes or ponds created by excavating and/or diking dry land such as farm and stock watering ponds, irrigation ponds, settling basins, log cleaning ponds, cooling ponds, or fields flooded for rice growing.”

Thus, the new rule creates three groups of waters: (1) those which are jurisdictional by rule (traditional waters, tributaries and adjacent waters); (2) those which are not jurisdictional by rule but which may be jurisdictional waters if they are one of five specified types or are within the 4,000-foot catchall and are found on a case-specific basis to have a significant nexus; and (3) those which are a type of water that is categorically excluded from jurisdiction regardless of location or any other factor.

The new rule is expected to impact various industries and business interests including agriculture, property development and construction, and oil and gas development. It is possible that the new rule may broaden the circumstances in which restriction will be imposed on these industries under CWA programs such as the National Pollutant Discharge Elimination System permit program or the Section 404 permit program for discharge of dredged or fill material. For example, permitting may be required for the land use associated with these industries whenever they are located near previously unregulated land features such as dry stream beds and ditches which only channel water downstream during times of rainfall.  Consequently, industry groups are expected to challenge the rule.

The rule will be published in a forthcoming Federal Register and will become effective 60 days after publication.

Ballard Spahr's Environment and Natural Resources Group advises on national and regional compliance, permitting, rulemaking, development, business planning, and contamination matters. The Group also provides representation in litigation, during investigations, and for transactions. For more information, please contact Brendan K. Collins at 215.864.8106 or collins@ballardspahr.com.


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