On April 21, 2014, the Environmental Protection Agency and the Army Corps of Engineers jointly published a proposed rule to define those waters that fall under the jurisdiction of the Clean Water Act as “waters of the United States.” While the agencies claim that the proposed rule is intended to clarify the CWA’s reach, in order to increase the efficiency of the permitting process, the sweeping coverage afforded by the proposed rule, if finalized, would represent a significant expansion of federal jurisdiction. By expanding CWA authority, the proposed rule would require permits for a wide array of development projects in extensive areas not previously subject to regulation. The expanded jurisdiction will affect virtually every category of resource utilization and development interests, including real estate development, including master planned communities, water resource development and use, forest products, mining, oil and gas, energy project siting and operation, marina and port development, transportation infrastructure, and others.
The proposed rule would place waters into three categories:
Jurisdictional waters by rule: Traditional navigable waters, interstate waters, territorial seas, impoundments and defined “tributaries” and “adjacent” waters would be per se jurisdictional “waters of the United States.” No additional site-specific analyses would be required.
Waters excluded by rule: Certain waters are categorically excluded from the definition of “waters of the United States,” including waste treatment systems, upland ditches, noncontributing ditches and groundwater.
Other waters: Remaining waters can be determined to be jurisdictional waters on a case-by-case basis, provided those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a “significant nexus” to a traditional navigable water, interstate water or the territorial sea.
The proposed rule also defines “significant nexus” to mean that a water body, “either alone or in combination with other similarly situated waters in the region ..., significantly affects the chemical, physical or biological integrity of [a jurisdictional water body].” For an effect to be “significant,” it “must be more than speculative or insubstantial.” The technical basis for the rule, the so-called Connectivity Report, remains subject to review, even though the proposed regulatory change has been announced. The Connectivity Report characterized nearly all waters as being connected and subject to regulation without determining whether the nexus was “significant.”
The proposed rule’s greatest impact would likely be in Western states, where many streams do not permanently flow but are nonetheless categorized by the proposed rule as jurisdictional. The agencies will accept public comments on the proposed rule for 90 days through July 21, 2014.