Expansive New Definition of “Waters of the United States” -

On March 25, 2014, the United States Army Corps of Engineers and the United States Environmental Protection Agency, which share jurisdiction under the Clean Water Act, released for comment a proposed rule that would significantly expand the definition of “waters of the United States.” Under the proposed rule, all tributaries (including intermittent and ephemeral streams and even manmade ditches), all adjacent waters, and all adjacent wetlands would be subject to federal jurisdiction. The rule also includes an expansive new definition of “adjacency” that will sweep in many additional waterbodies.

The definition of “waters of the United States” has been in a state of flux in recent years. In 2006, the United States Supreme Court considered the scope of the current definition of “waters of the United States” in the seminal case Rapanos v. United States. In a concurring opinion, Justice Kennedy found that “waters of the United States” includes wetlands with a “significant nexus” to traditional navigable waters. Following the case, the agencies used the “significant nexus” test to determine Clean Water Act jurisdiction on a case-by-case basis for certain tributaries and adjacent waters. Instead of initiating rulemaking, the agencies released guidance documents for implementing the Rapanos decision.