• EPA/Corps of Engineers Release Final Rule Defining “Waters of the United States”
  • July 2, 2015 | Author: M. Benjamin Machlis
  • Law Firm: Holland & Hart LLP - Salt Lake City Office
  • On May 27, 2015, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) released a pre-publication version of the much anticipated and controversial final rule revising the definition of “waters of the United States” for purposes of the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387. The final rule will be effective 60 days after its publication in the Federal Register and will be considered “issued” for purposes of judicial review, in accordance with 40 C.F.R. Part 23, at 1 p.m. Eastern time, two weeks after publication in the Federal Register.

    Both the final rule and associated rulemaking have generated a great deal of attention and controversy. Under the CWA, the definition of “waters of the United States” establishes the scope of the Corps’ and EPA’s regulatory jurisdiction. See e.g. 33 U.S.C. § 1362(7) and (12). According to the agencies, the rule is designed to clarify “waters of the United States” in light of the United States Supreme Court’s decision that attempts to regulate waters under the existing regulatory definition and exceeded the bounds of the agencies’ jurisdiction. See Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006). The general fact sheet issued in connection with publication of the final rule states that the new rule ensures, “that waters protected under the Clean Water Act are more precisely defined, more predictable, easier for businesses and industry to understand, and consistent with the law and the latest science.”

    The agencies made key changes from the proposed rule designed to clarify which waters, beyond those traditionally considered “navigable,” are jurisdictional. However, these changes are unlikely to be sufficient to allay concerns in the regulated community that the final rule amounts to an expansion of CWA jurisdiction.

    The final rule does not alter the regulatory definition of waters of the United States as it pertains to navigable waters, interstate waters, the territorial seas, or impoundments of those waters. These waters continue to be jurisdictional waters. However, the final rule includes definitions for two additional categories of waters - tributaries and adjacent waters - that are deemed jurisdictional without the need for a case-specific determination, and a third category - other waters - that will be considered jurisdictional based on case-specific determination that the water has a “significant nexus” to a traditional navigable water, interstate water, or territorial sea.

    The final rule departs significantly from the proposed rule in defining these categories of waters:

    Tributaries - The final rule defines “tributary” as “a water that contributes flow, either directly or through another water” to a navigable water, interstate water, or territorial sea (the traditionally jurisdictional waters) and is “characterized by the presence of the physical indicators of a bed, bank and ordinary high water mark.” In the final rule the agencies deleted the reference to wetlands, lakes, and ponds as being “tributaries,” but retained language from the proposed rule that troubled many industry groups, stating that evidence of a bed, bank, and ordinary high water mark does not have to run continuously to the downstream traditionally jurisdictional water for a water to be considered a tributary. In addition, the agencies added new language to the definition of tributary providing that a water does not lose its status as a tributary just because it contributes flow through a non-jurisdictional water.

    Adjacent Water - The final rule defines “adjacent” as “bordering, contiguous, or neighboring” a navigable water, interstate water, territorial sea, impoundment thereof, or a tributary thereto. In a departure from the proposed rule, which defined “neighboring” to include waters “located within the riparian area or floodplain of a [jurisdictional water] or waters with a shallow subsurface hydrologic connection or confined surface hydrologic connection to such a jurisdictional water,” the final rule limits the definition of “neighboring” to waters which are within 100 feet of the ordinary high water mark or are both: (1) within the 100-year floodplain and (2) within 1,500 feet of the ordinary high water mark of the jurisdictional water. A water can also meet the definition of “neighboring” if it is within 1,500 feet of the high tide mark of a traditional navigable water or territorial sea.

    Other Water - The final rule also significantly departs from the proposed rule in defining the category of waters that can be deemed jurisdictional on a case-specific basis. In the proposed rule, any water that was determined to “alone, or in combination with other similarly situated waters, located in the same region have a significant nexus to a [traditionally jurisdictional water]” would have been a jurisdictional water. However, in the final rule, the agencies provide that five specific types of waters and all waters within the 100-year floodplain of a [traditionally jurisdictional water] or within 4,000 feet of the ordinary high water mark or high tide line of a traditionally jurisdictional water or impoundment thereof are jurisdictional, if a case-specific analysis demonstrates the water has a significant nexus to a traditionally jurisdictional water. The final rule also clarifies that, in conducting the significant nexus analysis, “adjacent waters” should not be included as similarly situated waters to the water(s) being analyzed.

    In addition, the final rule clarifies and expands the list of waters that are excluded from the definition of waters of the United States compared to the list of waters in the proposed rule. The final rule specifically includes: (1) waste water recycling structures, detention and retention basins and groundwater recharge basins, and (2) erosional features such as “gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways.” The rule also clarifies that ditches which are:

    (1) not a relocated tributary or excavated in a tributary and have ephemeral flow;
    (2) not a relocated tributary, excavated in a tributary, or drain a wetland and have intermittent flow; or
    (3) which do not flow, either directly or through another water, into a navigable water, interstate water or territorial sea are not waters of the United States.

    While the changes to the regulatory definitions between the proposed rule and the final rule should assuage some of the concerns raised during the public comment period, the final rule retains much of the flexible language that caused many in the regulated community to have concerns with the proposed rule. For example, although the final rule includes a specific list of functions performed by the water that should be evaluated in assessing whether the water has a significant nexus to a [traditionally navigable water], a list which was absent from the proposed rule, it retains the language stating that the effect of these functions is significant if it is “more than speculative or insubstantial.”