After years of starts and stops, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers have drafted a proposed regulation that will significantly affect which waters are subject to regulation under the Clean Water Act.
Following 2001 and 2006 U.S. Supreme Court rulings addressing which “waters of the United States” are subject to Clean Water Act jurisdiction, EPA, the Corps, federal courts across the country, and the regulated community have all struggled to interpret the Supreme Court’s rulings. Those rulings, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006), offered no clear guidance. Indeed, Justice Kennedy’s lone concurrence in the Rapanos plurality opinion stands as the guiding principle in determining what defines a “water of the United States.”
Justice Kennedy’s view that waters with a “significant nexus” to more traditionally jurisdictional waters may be regulated provides the basis of EPA’s and the Corps’ proposed regulation. Among other things, the regulation would, for the first time, define “significant nexus.” That term would be defined as “a more than speculative or insubstantial effect that a water, including wetlands, either alone or in combination with other similarly situated waters in the region . . . has on the chemical, physical or biological integrity” of more traditionally jurisdictional waters as defined in the regulation. The proposal would also define “tributary” such that any defined tributary would have the significant nexus necessary to bring it within the scope of the Clean Water Act.
The agencies have submitted a draft of the proposed regulation to the Office of Management Budget. When published in the Federal Register, it will undoubtedly generate thousands of comments. It is far too early to speculate as to whether the final regulation will look like the proposed regulation, when a final regulation may be issued, and, in the face of almost certain litigation once the rule is final, when the regulations may actually be implemented.