The EPA And The Corps Of Engineers Release Proposed Rule On The Scope Of Waters Covered Under The Clean Water Act

by Perkins Coie
Contact

On March 25, 2014, the Environmental Protection Agency and the Army Corps of Engineers jointly released 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 after years of confusion and uncertainty, 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.  While publicly released, the proposed rule has not yet been published in the Federal Register.  Following Federal Register publication, the agencies will accept public comments on the proposed rule for 90 days.  For more information, see our prior updates on the development of the proposed rule: “EPA Moves to Expand Federal Clean Water Act Jurisdiction” and “Draft Regulations Would Dramatically Expand Clean Water Act Jurisdiction.”

The proposed rule would assert CWA jurisdiction over most seasonal and rain-dependent streams and wetlands near rivers and streams.  Other types of waters with a more uncertain connection with downstream waters would be evaluated through a case-specific analysis of whether the connection is significant or not.  The agencies are seeking comment on options to protect similarly situated waters in certain geographic areas and on adding to the categories of waters that would be protected without the need for a case-specific analysis.  The proposed rule would preserve the existing exemptions and exclusions under the CWA for agricultural activities. 

The agencies claim that the proposed rule does not cover new types of waters that have not historically been covered under the CWA.  But it is clear that the proposed rule would broadly interpret the “significant nexus” test used by Justice Kennedy in his concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006).  Under that test, CWA jurisdiction extends to streams and wetlands only when there is a “significant nexus” to a navigable water, interstate water or the territorial seas.

The agencies claim that the proposed rule’s broad application of the significant nexus test is supported by the latest peer-reviewed science, including EPA’s draft report entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.  That draft report, which was published in September 2013, is intended to provide the scientific basis for the proposed rule.  Although the proposed rule states that it will not be finalized until the final version of the report is complete, many have advocated that no proposed rulemaking should go forward until the public comments on the draft report have been analyzed and the EPA Science Advisory Board has completed its review of the draft report. 

The proposed rule’s greatest impact would likely be in Western States, where many streams do not permanently flow.  Expansion of the significant nexus test will include more mining and forestry activities within the scope of the CWA, subject water management operations to greater regulation, and increase the federal permitting requirements for development projects.

As stated above, the agencies have not yet published the proposed rule in the Federal Register but have indicated they will provide 90 days for public comment once publication occurs.

Read about this and other legal developments in Perkins Coie's California Land Use & Development Law Report.

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.

© Perkins Coie | Attorney Advertising

Written by:

Perkins Coie
Contact
more
less

Perkins Coie 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!