Clean Water Act Update: EPA and Army Corps Propose Significant Changes to the Definition of "Waters of the United States"

by Jeffer Mangels Butler & Mitchell LLP
Contact

On March 25, 2014, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers announced the release of their proposed rule clarifying which waters will be governed by the federal water pollution laws. The draft rule - literally years in the making following several notable U.S. Supreme Court decisions - proposes significant changes to the definition of "waters of the United States," which determines which activities are subject to federal jurisdiction under the Clean Water Act. One key element of the proposed rule would automatically subject nearly every natural and artificial stream and wetland that is adjacent to or near a traditional navigable water, interstate water, or territorial sea to federal jurisdiction.

The agencies, led by the EPA, contend that the rulemaking is needed to clarify ambiguities left in the wake of the U.S. Supreme Court's rulings in U.S. v. Riverside Bayview, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. U.S. While clarification may be needed, the proposed rule would effectively broaden, as a matter of law, federal jurisdiction over many types of streams and wetlands that are currently subject to a case-by-case assessment. Indeed, heavy criticism has been lodged at the automatic expansion of federal jurisdiction, including the potential for jurisdiction to be asserted over water bodies where a "nexus" to navigable waterways or other traditionally regulated bodies of water no longer exists.

Essentially, the proposed rule includes three main revisions to the current regulations:

First and most importantly, the rule seeks to clarify the status of waterways that are intermittent as well as riparian wetlands. Under the proposed rule, all tributaries of traditional navigable waters, interstate waters, or the territorial seas would be defined as "waters of the United States" and thus would be subject to federal jurisdiction as a matter of law. (Notably, the term "tributary" would be defined for the first time under the proposed rule) Also, all waters - including wetlands - adjacent to traditional navigable waters, interstate waters, or the territorial seas would similarly be automatically subject to federal jurisdiction. Thus, most intermittent and seasonal streams, as well as wetlands near rivers and streams, would be covered under the Clean Water Act as a matter of law (i.e., no further analysis would be required). Inclusion of these waters under the proposed rule was based upon agency studies of stream and wetland connectivity which the agencies concluded provide evidence of the importance of such waterways to downstream perennial waters.

Second, for water bodies more distant from perennial waterways (i.e., "other waters), the proposed rule would allow such water bodies to be examined on a case-by-case basis, either alone or in conjunction with similarly-situated waters in the area. In such case-by-case analyses, the agencies would consider whether these other waters had a "significant nexus" to navigable water, interstate water, or territorial seas. It should be noted that the agencies seek input during the public comment on the proposed rule on how to best address jurisdiction over these "other waters."

Third, the rule seeks to clarify that certain man-made ponds and various types of ditches would be exempt from regulation.

The proposed rule is being downplayed by the agencies as a simple effort to clarify and clean-up regulatory uncertainty. The regulated community, however, should fully understand that the broad definition of "waters of the United States" that is being proposed will subject many streams and wetlands - and even man-made waters - to automatic federal jurisdiction under the Clean Water Act.

The proposed rule is currently open for a three-month public comment period. As noted above, the agencies have invited input on how to identify whether "other waters" have a "significant nexus" to navigable and other waters. Many other aspects of the rule are also open for comment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jeffer Mangels Butler & Mitchell LLP | Attorney Advertising

Written by:

Jeffer Mangels Butler & Mitchell LLP
Contact
more
less

Jeffer Mangels Butler & Mitchell LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!