• USEPA and Army Corps of Engineers Release Final Clean Water Rule
  • June 1, 2015 | Authors: Mark D. Clark; M. Katherine Crockett; David L. Yaussy
  • Law Firm: Spilman Thomas & Battle, PLLC - Charleston Office
  • On May 27, 2015, the United States Environmental Protection Agency (“USEPA”) and the United States Army Corps of Engineers (“USACE”) released their long-awaited final rule defining the scope of “waters of the United States” subject to federal jurisdiction and oversight under the federal Clean Water Act (“CWA”). Formerly known as the “waters of the United States” (or “WOTUS”) rule, the final rule has been “rebranded” as the Clean Water Rule as part of USEPA’s marketing campaign. Although characterized by USEPA and USACE as an effort to clarify the existing scope of the CWA and simplify jurisdictional determinations in the wake of confusing United States Supreme Court precedent, an initial review reveals that the Rule constitutes a significant expansion of regulatory authority and asserts jurisdiction over streams that, according to the agencies’ press release, “lacked clear protection before the Clean Water Rule”—namely, various ephemeral and headwater streams. By the agencies’ own estimation, the Clean Water Rule will result in an increase in positive jurisdictional determinations of between 2.84 and 4.65 percent annually.
    The Clean Water Rule essentially disregards the United States Supreme Court decisions intended to establish limits on the extent of federal jurisdiction over streams and wetlands. See Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (“SWANCC”), 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006). For example, the Rule makes a blanket regulatory determination that all tributaries (as defined) of traditional navigable waters, interstate waters (including interstate wetlands), the territorial seas, and impoundments of these waters possess the requisite “significant nexus” and therefore would be categorically jurisdictional waters. This one-size-fits-all approach, purported to be “based on existing science and the law,” wholly disregards the plurality opinion in Rapanos (which would exclude from jurisdiction, at a minimum, “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall”), but it also does away with the nuanced, case-by-case analysis urged by Justice Kennedy in his concurrence. Furthermore, the Rule ignores the “significance” requirement in the “significant nexus” standard. Just because a connection is not speculative or wholly inconsequential does not automatically render it “significant” in nature, and this fundamental qualitative threshold must be retained if the agencies in good faith seek to incorporate Justice Kennedy’s standard. This blanket classification of tributaries as jurisdictional also ignores the limitations imposed in SWANCC.
    The Clean Water Rule is expansive in both length (297 pages with an executive summary section over 20 pages) and scope. The Rule further restricts uses of land by private owners without the permission from federal regulatory authorities. For example, farmers may be prohibited from cultivating certain areas of a farm without regulatory authorization. Similarly, oil and gas operators may be subjected to additional regulatory costs and delays because even ephemeral streams that flow only a few weeks a year may be jurisdictional “waters of the United States” now.
    It is likely various agriculture and industry trade organizations will file appeals of the Rule as a legally flawed overreach of regulatory authority by the USEPA and USACE. The following sets forth some of the more important definitions and exemptions contained in the Rule.
    “Waters of the United States”
    Specifically, “waters of the United States” is defined under the Clean Water Rule as
    1. all waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
    2. all interstate waters, including interstate wetlands;
    3. the territorial seas;
    4. all impoundments of waters otherwise identified as waters of the United States;
    5. all tributaries of waters identified in paragraphs (1) - (3), above;
    6. all waters adjacent to a water identified in paragraphs (1) - (5), above;
    7. the following waters, where they are determined, on a case-specific basis, to have a significant nexus to a water identified in paragraphs (1) - (3), above:
    A. Prairie potholes
    B. Carolina bays and Delmarva bays
    C. Pocosins
    D. Western vernal pools
    E. Texas coastal prairie wetlands
    8. all waters located within the 100-year floodplain of a water identified in paragraphs (1) - (3), above, and all waters located within 4000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (1) - (5), above, where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (1) - (3), above. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in paragraphs (1) - (3), above, or within 4000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (6) when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (6), they are an adjacent water and no case-specific significant nexus analysis is required.
    See 40 C.F.R. § 230.3(s)(1). Thus, all waters in paragraphs (1) - (6) above are per se jurisdictional waters under the Clean Water Rule, while those waters in paragraphs (7) and (8) must be evaluated for a significant nexus on a case-by-case basis.
    Notably, the Clean Water Rule provides that certain specified waters are not “waters of the United States,” even where they may otherwise meet the terms of paragraphs (6) - (8), above:
    • Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA
    • Prior converted cropland
    • The following ditches: 
      • Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary.
      • Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands.
      • Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (1) - (3), above.
    • The following features:]
      • Artificially irrigated areas that would revert to dry land should application of water to that area cease;
      • Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds or cooling ponds;
      • Artificial reflecting pools or swimming pools created in dry land;
      • Small ornamental waters created in dry land;
      • Water-filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water;
      • Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways; and
      • Puddles.
    • Groundwater, including groundwater drained through subsurface drainage systems
    • Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land
    • Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling
    See id. § 230.3(s)(2).
    Other Key Definitions
    For purposes of the Clean Water Rule, “tributary” is defined as a water that contributes flow, either directly or through another water (including a jurisdictional impoundment), to a water identified in paragraphs (1) - (3), above, that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. A tributary can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, canals, and ditches not expressly excluded from jurisdiction (see above). A water that qualifies as a tributary does not lose its tributary status if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands, debris piles, boulder fields, or a stream that flows underground), so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. Further, a water does not lose its tributary status if it contributes flow to a water identified in paragraphs (1) - (3), above, through a water of the United States that does not meet the definition of a tributary or through a non-jurisdictional water. Id. § 230.3(s)(3)(iii). Similarly lengthy and interconnected definitions of “adjacent” and “neighboring” have also been adopted. See id. § 230.3(s)(3)(i) and (ii).

    Finally, “significant nexus” is defined to mean that “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 water identified in paragraphs [(1) - (3), above].” Id. § 230.3(s)(3)(v). The definition goes on to state that “[f]or an effect to be significant, it must be more than speculative or insubstantial.” Waters are similarly situated when they function alike and are sufficiently close to function together in affecting downstream waters. For purposes of making a significant nexus analysis, the following aquatic functions must be evaluated to assess whether any single function or combination of functions, either alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical or biological integrity of the nearest water identified in paragraphs (1) - (3), above: (A) sediment trapping; (B) nutrient recycling; (C) pollutant trapping, transformation, filtering and transport; (D) retention and attenuation of flood waters; (E) runoff storage; (F) contribution of flow; (G) export of organic matter; (H) export of flood resources; and (I) provision of life cycle dependent aquatic habitat.
    More Information
    A pre-publication copy of the final Clean Water Rule can be accessed from USEPA’s website. A copy of USEPA’s Fact Sheet Summary for the rulemaking, as well as more specific industry-focused Fact Sheets.
    The Clean Water Rule will become effective 60 days after its publication in the Federal Register. Obviously, the rulemaking is lengthy and quite complex, notwithstanding the agencies’ intent to “simplify” and “clarify” jurisdictional determinations, so we encourage you to review the rule at your leisure to determine its impact on your operations.