Big Changes To Federal Jurisdiction Over Waters Of The U.S. Through The Clean Water Act

On March 25, 2014, the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("USACE") announced the release of their proposed rule redefining what waters fall under federal jurisdiction under the Clean Water Act ("CWA"). The agencies say the change will clarify protection under the CWA for streams and wetlands. Industry groups oppose the change as a significant overreaching of federal regulatory power.

The proposed rule redefines federal water pollution regulation and will impact states, municipalities, and industries, including mining, construction, real estate development, pipelines, and several others. The proposal purports to "clarify" the CWA's regulatory jurisdiction and enhances protections for certain heretofore unregulated bodies of water, particularly those that are seasonal or dependent on heavy rainfall. The proposal changes the definition of "waters of the United States" in two significant ways: (1) it states that all waters adjacent to jurisdictional waters will themselves be jurisdictional (Under the current rule, only adjacent wetlands are jurisdictional.); and (2) it purports to implement the "significant nexus" test, as introduced in 2006 by the Supreme Court, which states that a particular water or wetland can have a significant nexus (either individually or in combination with other waters or wetlands in the same region) to a U.S. water and therefore be jurisdictional even it is not significant in and of itself. In short, the proposal deems that, under the CWA, (1) most seasonal and rain dependant streams are protected, (2) wetlands near rivers and streams are protected, and (3) other types of waters that have more uncertain connections with downstream water will be evaluated through a case-specific analysis of whether the connection is significant.

EPA released a draft report from its scientific advisory board in September 2013 that provided the foundation for the new proposed rule, finding that wetlands and transition areas between terrestrial and aquatic ecosystems are integrated with streams and rivers. The report also found that streams and other tributary systems are connected to downstream waters, no matter what their size or how frequently they flow. At the time of this rule proposal, however, that draft report had not been finalized.

In 2001 and 2006, the U.S. Supreme Court addressed the question of whether certain waters were federally regulated. These decisions, however, did not settle the issue, and determining whether the CWA covered streams and wetlands became even more confusing and complex. In the 2006 decision, the Supreme Court found that there must be a "significant nexus" between a water area and a covered body of water in order for the government to have regulatory authority over it. Rapanos v. United States, 547 U.S. 715 (2006). In its new proposal, the agencies apply Justice Kennedy's term "significant nexus" from Rapanos. In doing so, the agencies have added a number of waters to the coverage of the CWA with no additional analysis needed and conclude that most tributaries, ephemeral streams, and other bodies have a significant connection to downstream waters.

The result is that the proposal will bring nearly all rivers, creeks, and streams under the protection of the CWA, leading to a major expansion of federal water authority.

Details can be seen here

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