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.