By Scott Castro
On March 25, 2014, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers announced the release of their proposed rule clarifying which waters will be governed by the federal water pollution laws. The draft rule - literally years in the making following several notable U.S. Supreme Court decisions - proposes significant changes to the definition of "waters of the United States," which determines which activities are subject to federal jurisdiction under the Clean Water Act. One key element of the proposed rule would automatically subject nearly every natural and artificial stream and wetland that is adjacent to or near a traditional navigable water, interstate water, or territorial sea to federal jurisdiction.
The agencies, led by the EPA, contend that the rulemaking is needed to clarify ambiguities left in the wake of the U.S. Supreme Court's rulings in U.S. v. Riverside Bayview, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. U.S. While clarification may be needed, the proposed rule would effectively broaden, as a matter of law, federal jurisdiction over many types of streams and wetlands that are currently subject to a case-by-case assessment. Indeed, heavy criticism has been lodged at the automatic expansion of federal jurisdiction, including the potential for jurisdiction to be asserted over water bodies where a "nexus" to navigable waterways or other traditionally regulated bodies of water no longer exists.
Essentially, the proposed rule includes three main revisions to the current regulations:
First and most importantly, the rule seeks to clarify the status of waterways that are intermittent as well as riparian wetlands. Under the proposed rule, all tributaries of traditional navigable waters, interstate waters, or the territorial seas would be defined as "waters of the United States" and thus would be subject to federal jurisdiction as a matter of law. (Notably, the term "tributary" would be defined for the first time under the proposed rule) Also, all waters - including wetlands - adjacent to traditional navigable waters, interstate waters, or the territorial seas would similarly be automatically subject to federal jurisdiction. Thus, most intermittent and seasonal streams, as well as wetlands near rivers and streams, would be covered under the Clean Water Act as a matter of law (i.e., no further analysis would be required). Inclusion of these waters under the proposed rule was based upon agency studies of stream and wetland connectivity which the agencies concluded provide evidence of the importance of such waterways to downstream perennial waters.
Second, for water bodies more distant from perennial waterways (i.e., "other waters), the proposed rule would allow such water bodies to be examined on a case-by-case basis, either alone or in conjunction with similarly-situated waters in the area. In such case-by-case analyses, the agencies would consider whether these other waters had a "significant nexus" to navigable water, interstate water, or territorial seas. It should be noted that the agencies seek input during the public comment on the proposed rule on how to best address jurisdiction over these "other waters."
Third, the rule seeks to clarify that certain man-made ponds and various types of ditches would be exempt from regulation.
The proposed rule is being downplayed by the agencies as a simple effort to clarify and clean-up regulatory uncertainty. The regulated community, however, should fully understand that the broad definition of "waters of the United States" that is being proposed will subject many streams and wetlands - and even man-made waters - to automatic federal jurisdiction under the Clean Water Act.
The proposed rule is currently open for a three-month public comment period. As noted above, the agencies have invited input on how to identify whether "other waters" have a "significant nexus" to navigable and other waters. Many other aspects of the rule are also open for comment. If you would like more information about the proposed rule or opportunities for comment, please contact Scott Castro at SCastro@jmbm.com or 415.984.9618.
Scott Castro is a partner at Jeffer Mangels Butler & Mitchell LLP who specializes in natural resources, land use and environmental law, and has extensive experience with NEPA, CEQA, federal and state Endangered Species Act, the Clean Water Act, Clean Air Act, FLPMA, and various federal and state mining laws. His clients include renewable and traditional energy companies, mining companies, developers and other interests. He also represents investors and banks conducting due diligence efforts on mining and energy projects. Contact Scott at SCastro@jmbm.com or 415.984.9618.