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EPA and Army Corps Attempt to Clarify Clean Water Act Jurisdiction

March 26, 2014

Yesterday, March 25, 2014, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers jointly released a proposed rule to clarify what constitutes “waters of the United States” for purposes of Clean Water Act jurisdiction. Due to a series of lawsuits and Supreme Court decisions, determining which upstream waters fell under Clean Water Act protections became so confusing and uncertain that stakeholders and the public requested a rulemaking to clarify the issue.

The EPA’s press release states that the definition in the proposed rule is consistent with the Supreme Court’s narrow reading of the Clean Water Act jurisdiction. Generally, apart from the more obvious protected waterways (e.g. navigable rivers and streams, interstate waters, territorial seas), the protections extend to:

  • Impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary;
  • Tributaries of traditional navigable water, interstate water, the territorial seas or impoundment (including perennial, intermittent, or ephemeral waterways and waterways that at some point flow through a culvert, pipe, etc.);
  • All waters, including wetlands, adjacent to (i.e. integrally linked to chemical, physical or biological functions of) a traditional navigable water, interstate water, the territorial seas, impoundments or tributary; and
  • Other waters, including wetlands, that when evaluated on a case-specific basis, have a “significant nexus” to a traditional navigable water, interstate water or the territorial seas either alone, or in combination with other similarly situated waters, including wetlands.

“Significant nexus,” as it relates to this last category, means that a water, alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of the traditional navigable water, interstate water, or the territorial seas. The EPA and Army Corps are specifically requesting comments that might help streamline this analysis to avoid or limit case-specific assessments.

Existing exemptions and exclusions for agriculture remain in place in the proposed rule. An interpretive rule, prepared in coordination with U.S. Department of Agriculture, ensures conservation practices that protect or improve water quality will not be subject to Section 404 dredge-and-fill permits.

Early responses to the proposed rule appear to be varied. Some, including the American Farm Bureau Federation, believe it has expanded federal jurisdiction over the nation’s water. Others think it will provide positive economic impact by better protecting headwaters and providing clarity. Given the mixed response, it is likely the proposed rule will undergo additional edits before it is finalized.

For additional details regarding what the proposed rule does and does not do, see the EPA website on “Waters of the United States.” Also available for review on that website is a pre-publication copy of the 371-page proposed rule.

If you have any questions, please contact the author of this article, Kate Moore at KMoore@dunncarney.com.

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