Final “Waters of the United States” Rule Released

June 3, 2015   |   Environmental Law, Water Law

On May 27, the EPA and the US Army Corps of Engineers (“Corps”) released the final “waters of the United States” rule, which defines the scope of waters protected by the Clean Water Act. The Clean Water Act itself provides that it covers “navigable waters,” which are defined in the statute as “waters of the United States, including territorial seas.” According to EPA and the Corps, the new rule, which replaces the current rule that was codified in 1986, aims to make the process of identifying waters protected by the Clean Water Act easier to understand and more predictable. Recent US Supreme Court decisions in United States v. Riverside Bayview Homes, SWANCC v. US Army Corps of Engineers, and Rapanos v. United States has made the determination of what is a “water of the United States” increasingly complicated and difficult in certain situations.

In the final rule, the EPA and Corps provide for three basic categories of waters: waters that are jurisdictional in all instances, waters that are excluded from jurisdiction, and a narrow category of waters subject to case-specific analysis to determine whether they are jurisdictional.

Waters that are jurisdictional at all times are traditional navigable waters, interstate waters, territorial seas, impoundments of jurisdictional waters, “tributaries,” and “adjacent” waters.
“Tributaries” means waters that are characterized by the presence of physical indicators of flow—bed and banks and ordinary high water mark—and that contribute flow directly or indirectly to a traditional navigable waters, interstate waters, or territorial seas. “Adjacent” means bordering, contiguous, or neighboring, including waters separated from other “waters of the United States” by constructed dikes or barriers, natural river berms, beach dunes and the like.

In addition to the waters that are jurisdictional by rule, particular waters are subject to case-specific analysis to determine if a “significant nexus” exists. If a “significant nexus” exists, the water is within the scope of the Clean Water Act. A water has a “significant nexus” if it significantly affects the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas.

Finally, the rule maintains existing exclusions for certain categories of waters, and adds additional categorical exclusions that are regularly applied in practice such as ditches with intermittent flows that are not a relocated tributary, excavated in a tributary, or drain wetlands.

The rule will take effect 60 days after publication in the Federal Register, and is likely to come under attack by opponents. Legislative efforts are already underway in Congress by some to block the rule. Additionally, opponents are preparing lawsuits to challenge the rule on various grounds.