New Proposed Rule for the Definition of “Waters of the United States” Under the Clean Water Act

Vicki CasteelDoes It Simplify or Complicate Determining Jurisdictional Waters? What the New Rule Does

The Clean Water Act (CWA), administered by the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps), protects the quality of our nation’s waterways. It regulates discharges of pollutants into US waters and sets quality standards for surface waters. Due to its widespread applicability and the costs associated with meeting its requirements, some see the CWA as overreaching. The most recent controversy surrounding the CWA is the introduction of a new proposed rule (published in the April 2014 Federal Register) that is intended to clarify the law’s regulations by:

  • Defining the term “waters of the United States” more clearly.
  • Clarifying protections for those waters.

These clarifications are intended to make the process for determining the jurisdictional status of various types of waters simpler.

Key Elements of the Proposed Rule

Based on our 20-year practice, the CWA clarifications:

  • Are consistent with definitions and applications under which we have worked.
  • Do not address new types of waters.
  • Include the same exemptions and exclusions currently in place.

Frustration with the Proposed Rule: Is it Fair?

A quick internet search shows widespread frustration with the proposed rule. Many are wary that the new rule will expand the types of waters the CWA regulates, and therefore increase public and private development costs. However, while the proposed rule appears to be more inclusive regarding the types of waters protected under the CWA as compared to the original definition of waters of the US in the United States Code (33 USC §1251 et seq.) and Code of Federal Regulations (40 CFR 122.2), it is not significantly different from the way the Corps and EPA have operated. Essentially, the rule would officially recognize many of the practices the Corps and EPA currently follow. It should be noted that some states, such as Washington, Oregon, Idaho, Utah, and California, regulate wetland dredge and fill impacts or wetland water quality impacts with rules as stringent, or in some cases more stringent, than applicable federal laws.

As for its effect on costs, the EPA and the Corps expect the proposed rule to actually reduce costs because a clear definition of the requirements will standardize understandings necessary for project-specific determinations and by diminishing costs associated with unnecessary mitigation of impacts to streams and wetlands under the Corps’ jurisdiction.

A comparison of key features of the existing regulations and the changes contained in the proposed rule are presented below.

Current Implementation of CWA Regulations

To fully understand the proposed rule and its implications, it’s important to understand how the CWA is currently implemented. The official laws and regulations regarding the CWA are found in the United States Code (33 USC §1251 et seq.) and in the Code of Federal Regulations (40 CFR 122.2). However, the current practice followed by the Corps and EPA regarding waters that are protected under the CWA is based not only on the official definition of waters of the US as written in the USC and CFR, but also evolving guidance documents and relevant case law. Based on these factors, waters currently recognized by the Corps and the EPA as jurisdictional (and therefore protected under the CWA) include:

  • All traditional navigable waters (TNWs)
  • All interstate waters including wetlands
  • The territorial seas
  • Impoundments of jurisdictional waters
  • Tributaries that have a significant nexus to a jurisdictional waters (e.g., a TNW, interstate waters, territorial seas, or an impoundment). This includes relatively permanent waters (i.e., contain water at least seasonally) and ephemeral waters (i.e., contain water only after storm events).
  • Wetlands that are adjacent to and have a significant nexus to a jurisdictional waters
  • “Other waters” (e.g., intrastate lakes and ponds, mudflats, sandflats, sloughs, prairie potholes, wet meadows,etc.) that have a significant nexus to a jurisdictional waters
  • Man-made or natural ditches that receive flows from a jurisdictional waters and have a significant nexus to a downstream jurisdictional waters

Currently, swales, erosional features, and upland ditches are not regulated. In addition, exemptions to waters include certain agricultural and forestry activities; waste treatment systems; artificial upland excavation (e.g., golf course ponds); non-abandoned mined areas; and abandoned stock ponds.

Clarifications Contained in the Proposed Rule

The following is a summary of the main clarifications presented in the proposed rule:

  • Protection continues for all TNWs; interstate waters (including wetlands); and the territorial seas.
  • The term “TNW” is clarified to include interstate waters without imposing a requirement that interstate waters be TNWs themselves or be connected to TNWs.
  • Tributaries that meet the regulatory definition of “tributary” are jurisdictional by rule—no additional analysis would be required. A tributary is defined based on presence of bed and bank and “ordinary high water mark.” This includes intermittent and ephemeral tributaries.
  • All waters (not just wetlands) that meet the regulatory definition of “adjacent” are jurisdictional by rule—no additional analysis is required. The term “adjacent” is defined as “bordering,” “contiguous,” or “neighboring” jurisdictional waters. Waters, including wetlands, separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are “adjacent waters.”
  • “Other waters” must be evaluated case by case and deemed jurisdictional if they have a significant nexus to a TNW. The rule says a “significant nexus” is present when a 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 TNW, interstate water, or the territorial seas. For an effect to be significant, it must be more than speculative or insubstantial. “Other waters” may be aggregated where they perform similar functions and are located close together in the same watershed.
  • Identifies features that are not jurisdictional, including, for example, erosional features, upland ditches, rills, and non‐wetland swales.
  • Continues the current exemptions.

No matter what impacts the proposed rule brings, Logan Simpson is equipped to help our clients through the process, including coordination with the Corps to achieve project compliance in a cost-efficient and timely manner. Our knowledge and experience allow us to ask the right questions and maneuver efficiently through the process. More information regarding the proposed rule, including the publication in the Federal Register, is available on the EPA website. The public comment period is set to close on Friday, November 14, 2014.