“Clearing” the Waters – U.S. EPA and the Army Corps Finalize “Waters of the United States” Definition
The issuance of the final Clean Water Rule was swift by regulatory rulemaking standards, coming only a little over a year after the rule was initially proposed. The rule is currently available only in its prepublication version (available here), but is expected to be published in the Federal Register in the near future and will become effective 60 days after its publication. Once finalized and in effect, this rule will impact a number of sectors, including agriculture, development, oil and gas recovery, and utilities.
Final Rule Comes After Turbulent History
The definition of “waters of the United States” under the CWA has created controversy and spawned litigation for decades. Even the U.S. Supreme Court has weighed in on this issue in two recent, seminal cases: Solid Waste Agency of Northern Cook County v. Army Corps of Engineers and Rapanos v. United States. Unfortunately, the most recent decision — Rapanos v. United States, decided in 2006 — did not have a majority opinion, leading to ambiguity over the CWA definition of “waters of the United States.” The plurality opinion, written by Justice Scalia, held that waters must be “relatively permanent, standing or continuously flowing bodies of water” to fall under federal jurisdiction. The concurring opinion, written by Justice Kennedy, stated that waters would be within federal jurisdiction if there is a “significant nexus” between the water in question and “navigable waters in the traditional sense,” such as an interstate river. The resulting confusion over which standard to apply created a difficult regulatory climate for the agencies and industry alike.
In an attempt to clarify the definition, U.S. EPA and the Corps published a guidance document in 2008 setting forth their post-Rapanos approach to regulating “waters of the United States.” This approach utilized a case-by-case significant nexus test for non-traditionally covered waters such as certain seemingly isolated wetlands or non-navigable tributaries. The regulated community was unsatisfied with this seemingly subjective standard, which compelled the agencies to issue yet another draft guidance document in 2011. The 2011 guidance document was met with significant public comment and resistance and ultimately was withdrawn.
The Cost of Clarity? The Revised Definition of “Waters of the United States”
In developing the Clean Water Rule, U.S. EPA and the Corps attempted to provide additional clarity by minimizing the number of instances where a case-by-case evaluation is necessary. However, because the rule expands the scope of waters that are defined as “waters of the United States,” there may be fewer case-by-case determinations — giving greater certainty to the regulated community — but more waters will now fall within federal jurisdiction than would have on a case-by-case basis.
As expected, the final rule confirms the four categories of waters that have long been considered jurisdictional under the CWA:
(1) Waters currently, previously, or potentially used in interstate commerce;
(2) Interstate waters, including wetlands;
(3) Territorial seas; and
(4) Impoundments of waters otherwise defined as “waters of the United States.”
While these first four categories are relatively non-controversial, the following four categories are at the center of concerns that the rule represents a dramatic expansion of federal authority under the CWA. These include:
(5) “Tributaries” of waters in categories one through three (waters used in interstate commerce, interstate waters, and territorial seas);
(6) Waters that are “adjacent” to those listed in categories one through five (waters used in interstate commerce, interstate waters, and territorial seas, and their impoundments and tributaries);
(7) Certain defined categories of waters (e.g., prairie potholes, Carolina and Delmarva bays, and western vernal pools) that, when considered together, have a “significant nexus” to waters in categories one through three (waters used in interstate commerce, interstate waters, or territorial seas); and
(8) Waters that (a) are located either within the 100-year floodplain of a water in categories one through three (waters used in interstate commerce, interstate waters, or territorial seas), or within 4,000 feet of the high tide line or ordinary high water mark of a water listed in categories one through five (waters used in interstate commerce, interstate waters, and territorial seas, and their impoundments and tributaries); and (b) have a significant nexus to a water identified in categories one through three (waters used in interstate commerce, interstate waters, and territorial seas).
These categories expand the agencies’ CWA jurisdiction for several reasons. First, the rule establishes a new definition for the term “tributary” that will almost certainly capture waters that were not previously considered “tributaries” under the CWA. Under the new definition, a water is a “tributary” (and therefore automatically subject to CWA jurisdiction) if it both (i) contributes flow to a water used in interstate commerce, an interstate water, or a territorial sea, and (ii) possesses the physical characteristics of a “bed and banks” and an “ordinary high water mark.” Because the definition is now tied to a water’s physical characteristics, waters that possess these characteristics will be covered regardless of whether they have a “significant nexus” to another jurisdictional water, a requisite element under previous regulations and agency guidance.
Perhaps the most significant outcome of this change is that intermittent or “ephemeral” streams (such as streams that run only after precipitation events and are not permanent or continuous) possessing a bed and banks and an ordinary high water mark are now automatically subject to CWA jurisdiction, as opposed to undergoing the case-by-case “significant nexus” analysis that was previously required. This change has created significant concern for industry over the number and types of waters that may now be covered, although U.S. EPA has attempted to ease that concern in public comments made since the rule’s issuance, emphasizing that the presence of a “bed and banks” and an “ordinary high water mark” is a critical element, and that not all areas where water occasionally flows will be subject to CWA jurisdiction.
Second, the final rule expands the number of waters that will automatically qualify as “adjacent” under the regulations, and again eliminates the “significant nexus” requirement. This expansion occurs primarily through the rule’s new definition of “neighboring,” which automatically captures as “adjacent” all waters where any portion is located within 100 feet of the ordinary high water mark of an otherwise covered water, as well as waters where any portion is located both within the 100-year floodplain and within 1,500 feet of the ordinary high water mark of an otherwise covered water. Absent from the final rule is any requirement that “adjacent” waters satisfy the “significant nexus” requirement.
Third, categories seven and eight (the only remaining categories where the “significant nexus” requirement applies) represent a change in approach to classifying “other waters.” The “other waters” category previously applied only to waters if their use, degradation, or destruction “could affect interstate or foreign commerce,” and their regulation was therefore tied to federal authority under the Commerce Clause of the United States Constitution. Under the new rule, this tie to the Commerce Clause no longer exists, and in its stead is the “significant nexus” requirement.
Of the eight categories now subject to federal jurisdiction, the first six are jurisdictional by rule, meaning they require no individual, case-by-case “significant nexus” analysis. The remaining two categories require such an analysis, both for the water in question and any “similarly situated” waters. Thus, any other waters that “function alike and are sufficiently close to function together in affecting downstream waters” must be considered in conjunction with the water in question when determining whether a “significant nexus” exists. Note, however, that the waters listed in category seven automatically fall into this “similarly situated” category.
Whether a “significant nexus” exists is also defined in the new rule, and depends in large part on whether the “function” of the water in question (in combination with “similarly situated” waters) “contributes significantly to the chemical, physical, or biological integrity” of the relevant downstream water. While the agencies claim that the new rule will “clarify and simplify” this issue, through increased bright-line boundaries and more concise definitions, this new definition undoubtedly expands the number of waters subject to CWA jurisdiction, while retaining (if not expanding) the agencies’ discretion to determine whether a “significant nexus” exists.
In addition to changing the categories of waters covered, U.S. EPA and the Corps also clarified which waters are excluded from the definition. Those waters include:
(1) Waste treatment systems, including treatment ponds or lagoons
(2) Prior converted cropland
(3) Certain ditches that have ephemeral or intermittent flow, or that do not flow, either directly or through certain other waters
(4) Certain specific artificial or temporary features that revert to dry, including: artificially irrigated areas, artificial, constructed lakes and ponds, artificial reflecting or swimming pools, water filled depressions incidental to mining or construction activity, erosional features, including gullies and rills, and puddles
(5) Groundwater
(6) Stormwater control features created in dry land
(7) Wastewater recycling structures constructed in dry land
Timelines for Implementation and Judicial Review
The final rule will become effective 60 days after its publication in the Federal Register. Jurisdictional determinations issued prior to the effective date of the rule are to be made consistent with the existing definition of “waters of the United States” and guidance documents, and not the new definition. The same is true for jurisdictional determinations associated with applications deemed by the Corps to be complete prior to the date the final rule is published in the Federal Register. The agencies caution, however, that those seeking jurisdictional determinations after the rule is published should expect that the determination will be made in accordance with the new rule, as 60 days will not be sufficient time between publication and the effective date to make a determination on such applications.
Given the controversial nature of this new rule, it is no surprise that federal legislation has been proposed that would require the agencies to withdraw the rule and reconsider various elements (bill tracking available here). Lawsuits challenging the validity of the rule are also anticipated. The forum for judicial review, however, was not affirmatively resolved in the prepublication version of the rule, as indicated in the concluding paragraph of the rule’s preamble. Judicial review will either be in a U.S. Court of Appeals or a U.S. District Court. If judicial review is in a U.S. Court of Appeals, the action must be filed within 120 days after the date the rule is considered issued for purposes of judicial review, which the agencies have specified will occur two weeks after the day the rule appears in the Federal Register. If review is instead in the U.S. District Court, there is no strict filing deadline; however excessive delay may negatively impact or eliminate the ability to bring a challenge.
In the interim, parties looking to conduct activities that may impact covered waters should consider the impact of the new, expanded definition of “waters of the United States.”
This Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues. If you have any questions about this alert or would like to discuss the topic further, please contact your Foley attorney or the following:
Sarah A. Slack
Madison, Wisconsin
608.258.4239
[email protected]
Louis J. Thorson
Milwaukee, Wisconsin
414.297.5776
[email protected]
Abigail Barnes
Madison, Wisconsin
608.258.4461
[email protected]
